#### UNITED STATES of America, Plaintiff-Appellee, v. Fermin NUNEZ, Defendant-Appellant.

No. 05-10443.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 17, *2006.****

Filed Oct. 19, 2006.

*167Elizabeth R. Berenguer, Esq., Office of the U.S. Attorney, Tucson, AZ, for Plaintiff-Appellee.

John H. Messing, Esq., Messing Law Offices, PLC, Tucson, AZ, for Defendant-Appellant.

Before: GRABER, McKEOWN, and TALLMAN, Circuit Judges.

*

 This panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a)(2).

MEMORANDUM **

Defendant Fermín Nunez pleaded guilty to illegally reentering the United States after deportation in violation of 8 U.S.C. § 1326 but refused to enter a plea agreement with the government, thus retaining his right to appeal. Despite Defendant’s plea, the government refused to move for a decrease in Defendant’s sentence under U.S.S.G. § 3El.l(b). The district court sentenced Defendant to 51 months in prison, in part based on a finding that Defendant had a prior conviction for a crime of violence.

1. Defendant argues that the government’s decision not to file a § 3El.l(b) motion despite Defendant’s guilty plea was an abuse of prosecutorial discretion. “The government may not refuse to file a [§ 3El.l(b) ] motion on the basis of an unconstitutional motive or for reasons not rationally related to a legitimate government interest.” *United States v. Espinoza-Cano,*456 F.3d 1126, 1128 (9th Cir. 2006). Here, the government cited Defendant’s refusal to enter a plea agreement as its reason for deciding not to file a § 3El.l(b) motion. By not entering a plea agreement, Defendant retained his right to appeal and forced the government to allocate related resources. The right to appeal is statutory, not constitutional. *United States v. Gordon,*393 F.3d 1044, 1050 (9th Cir.2004), *cert. denied,*- U.S. -, 126 S.Ct. 472, 163 L.Ed.2d 359 (2005). The government’s rational reliance on costs is a legitimate basis for deciding not to file a § 3El.l(b) motion. *See Espinozar-Cano,*456 F.3d at 1138 (noting that “ ‘[t]he Government’s decision not to move may [be] based ... simply on its rational assessment of the cost and benefit that would flow from moving’ ” (alterations in original) (quoting *Wade v. United States,*504 U.S. 181, 187, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992))). Accordingly, the government’s decision was not an abuse of prosecutorial discretion.

*1682. Defendant argues that his counsel provided ineffective assistance by failing to object to the government’s refusal to file a § SEl.l(b) motion. As a general rule, this court does not review claims of ineffective assistance of counsel on direct appeal. *United States v. Jeronimo,*398 F.3d 1149, 1155 (9th Cir.), *cert. denied,*- U.S. -, 126 S.Ct. 198, 163 L.Ed.2d 188 (2005). The circumstances of this case do not qualify for an exception. *See id.*at 1156.

3. Defendant also challenges the district court’s decision to apply a 16-level enhancement to his sentence based on a finding that he previously was convicted of a crime of violence. On plain error review, *United States v. Jimenez,*258 F.3d 1120, 1123-24 (9th Cir.2001), we affirm. At sentencing, Defendant admitted to the prior conviction and to its categorization as an aggravated felony and a crime of violence. Additionally, he directly conceded that the 16-level enhancement applied by the district court was warranted. Defendant is bound by the factual admissions made by his counsel in a court hearing in his presence. *United States v. Hernandez-Hernandez,*431 F.3d 1212, 1219 (9th Cir.2005).

AFFIRMED.

**

 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.