     Case: 14-10243      Document: 00512960818         Page: 1    Date Filed: 03/06/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-10243                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                   March 6, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

ALBERTO PAZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                           U.S.D.C. No. 3:12-CR-277-1


Before PRADO, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant Alberto Paz challenges his sentence, contending that the
government impermissibly withheld a one-level reduction for acceptance of
responsibility pursuant to United States Sentencing Guidelines (“U.S.S.G.” or
the “Guidelines”) § 3E1.1(b) because Paz refused to waive his right to appeal.
Because we hold that drug use while on pretrial supervision is a legitimate
reason for withholding a § 3E1.1(b) motion, we AFFIRM Paz’s sentence.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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However, we REMAND for the limited purpose of correcting a clerical error in
the judgment.
                                 Background
      Alberto Paz was charged with two counts of intent to distribute cocaine
and four gun-related infractions.     Although initially released on pretrial
supervision, Paz’s release was revoked upon twice testing positive for cocaine
and failing to submit a urine sample for testing.
      Paz subsequently signed a document memorializing his intent to plead
guilty to four counts of the indictment. By its terms it was not a formal plea
agreement and did not obligate the government to move for a one-level
reduction for acceptance of responsibility pursuant to § 3E1.1(b). According to
the document, the “primary reason” the government would not move for the
one-level reduction was Paz’s refusal to waive his right to appeal.
      The PSR likewise did not award Paz any offense-level reductions for
acceptance of responsibility. It found that Paz’s drug use while on pretrial
supervision did not indicate he had accepted responsibility in accordance with
§ 3E1.1. Paz objected to the PSR’s conclusions. He asserted that his guilty
plea and admission of unlawful conduct both outweighed his pretrial
violations, and he requested that the court grant him the two-level reduction
for acceptance of responsibility pursuant to § 3E1.1(a).      The government
responded to Paz’s objection by noting that “positive drug tests while on
supervised release can be a reason to deny the defendant acceptance of
responsibility.”
      Paz reiterated his opposition to the PSR’s conclusions at sentencing and
requested the two-level reduction, “and—if the government does not move for
the third point—to reduce [the] offense level by one additional level pursuant
to 18 U.S.C. § 3553(a)(6).”    The government objected, again noting Paz’s

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continuing criminality. 1 The district court agreed with Paz and granted the
two-level reduction for acceptance of responsibility, stating that the court’s
policy was not to withdraw acceptance of responsibility when the defendant’s
pretrial drug use, like Paz’s, stemmed from addiction. However, the district
court refused to grant the additional one-level reduction under § 3E1.1(b)
because the government did not move for it.               Paz never argued that the
government’s motivation for withholding the motion was impermissible. The
court calculated Paz’s total offense level as 28 and his Criminal History
Category as III, warranting a sentence of 97 to 121 months. It sentenced Paz
to 120 months, and Paz timely appealed.
                                       Discussion
       We review a district court’s interpretation of the Guidelines de novo.
United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
However, if the appellant fails to preserve a claim for appeal, we review the
sentence for plain error. United States v. Mondragon–Santiago, 564 F.3d 357,
361 (5th Cir. 2009); see also United States v. Torres–Perez, No. 14-10154, ___
F.3d ___, 2015 WL 394105, at *2 (5th Cir. Jan. 29, 2015) (error was preserved
where the district court was aware of the defendants’ argument that the
government impermissibly withheld a § 3E1.1(b) motion and the court declined
to grant the one-level reduction). We need not decide this issue because even
assuming arguendo that error was preserved, the government did not
impermissibly withhold a one-level reduction under § 3E1.1(b), and the district
court did not err by failing to award such a reduction.




       1 The government argued: “Mr. Paz hasn’t stopped his criminal conduct. . . . We would
argue that he hasn’t withdrawn from criminal conduct and, therefore, is not entitled to the
two-level reduction.”
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      Section 3E1.1(a) empowers the district court to decrease a defendant’s
offense level by 2 levels if a “defendant clearly demonstrates acceptance of
responsibility for his offense.”    An additional one-level reduction may be
granted pursuant to § 3E1.1(b) on the government’s motion if the defendant
“has assisted authorities in the investigation or prosecution of his own
misconduct by timely notifying authorities of his intention to enter a plea of
guilty, thereby permitting the government to avoid preparing for trial and
permitting the government and the court to allocate their resources efficiency.”
Only the one-level reduction under § 3E1.1(b) is before us on appeal.
      Paz argues that the government impermissibly withheld a § 3E1.1(b)
motion because he refused to waive his right to appeal.              This court, in
accordance with Amendment 775 to the Sentencing Guidelines, has held that
the government may not withhold a motion for acceptance of responsibility on
this basis. See United States v. Palacios, 756 F.3d 325, 326 (5th Cir. 2014) (per
curiam) (relying on U.S.S.G. supp. to app. C, amend. 775, at p. 43 (Nov. 1,
2013)); see also U.S.S.G. § 3E1.1 cmt. n.6 (2014) (codifying Amendment 775 in
the Commentary to the Sentencing Guidelines).               While the government
concedes that it mistakenly relied, in part, on Paz’s refusal to waive his
appellate rights, it argues that it also withheld the motion because Paz did not
withdraw from criminal conduct while released on pretrial supervision.
      The first question, then, is whether the government may refuse to move
for a one-level reduction for acceptance of responsibility under § 3E1.1(b) on
the ground that a defendant engaged in continuing criminal activity. Paz
argues that the government may only rely on interests identified in subsection
(b) when deciding whether to withhold an additional one-level decrease for
acceptance of responsibility, while the government contends that it may rely
on interests identified in subsections (a) and (b). That issue has been resolved

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against Paz in our recent decision in United States v. Castillo, No. 13-11007,
___ F.3d ___, 2015 WL 818566, at *4 (5th Cir. Feb. 26, 2015). In Castillo, we
held that the open-ended language of Commentary Application Note 6, which
does not limit the government to considering only factors enumerated in
subsection (b), supports the government’s argument. See id. Accordingly, we
evaluate whether the government’s concern about continuing criminal conduct
is an interest identified in either subsections (a) or (b). Id. at *5.
      The Commentary to § 3E1.1 identifies interests that may be considered
when evaluating whether a defendant is entitled to an offense-level reduction
for acceptance of responsibility. See U.S.S.G. § 3E1.1 cmt. n. 1. One such
interest is whether the defendant voluntarily terminated or withdrew from
criminal conduct. Id. at cmt. n. 1(B). The government argues that Paz’s drug
use while on pretrial release constitutes continuing criminal activity and is a
legitimate basis for withholding its § 3E1.1(b) motion. We agree. Case law is
clear that drug use by a defendant while released on pretrial supervision is
continuing criminal conduct and a legitimate basis for withholding an offense-
level reduction for acceptance of responsibility.      See e.g., United States v.
Flucas, 99 F.3d 177, 180 (5th Cir. 1996); United States v. Rickett, 89 F.3d 224,
227 (5th Cir. 1996). Thus, the government was within its right to withhold a
§ 3E1.1(b) motion in these circumstances.
      That the government did in fact rely on Paz’s pretrial drug use as a basis
for withholding the § 3E1.1(b) motion is supported by the record. Although the
government did not state its reason for withholding the § 3E1.1(b) motion at
sentencing, it repeatedly objected to reducing Paz’s offense level under § 3E1.1
on the ground that that Paz’s drug use demonstrated that he did not accept
responsibility. It concurred with the PSR, which declined to grant credit for
acceptance of responsibility, and urged both in its response to Paz’s objections

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to the PSR and at sentencing that Paz’s continuing criminal conduct was a
basis for withholding any credit for acceptance of responsibility. While Paz is
correct that the government stated that its “primary” reason for withholding
the § 3E1.1(b) motion was Paz’s refusal to waive his right to appeal, that
statement implicitly supports the government’s argument that it also relied on
a secondary reason, such as Paz’s pretrial drug use. Moreover, because the
government has a valid basis to refuse to move for the additional point and we
have no basis to force the government to so move, vacating the sentence and
remanding would be futile. See United States v. Alvarez, 210 F.3d 309, 310
(5th Cir. 2000); cf. United States v. Anguilo–Gonzalez, 210 F.3d 367, 2000 WL
293469, at *1 (5th Cir. 2000) (unpublished) (declining to vacate and remand
for resentencing when it would be “an exercise in futility”); United States v.
Forney, 9 F.3d 1492, 1503 (11th Cir. 1993) (“Since Forney’s only possibility of
a downward departure is through the government’s 5K1.1 motion, which the
government has verified that it will not make, remand for resentencing in this
case would serve no purpose and would thwart judicial efficiency because
Forney’s sentence would be unchanged.”).         Accordingly, we affirm Paz’s
sentence.
      We must also briefly address the clerical error in the judgment. Paz was
charged with and pleaded guilty to Count One of the indictment for being a
felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). The record reflects, and the parties agree, that the judgment lists
the correct statutes of conviction but incorrectly describes the offense of
conviction as one for being a felon in possession of a firearm. A district court
“may at any time correct a clerical error in a judgment, order, or other part of
the record, or correct an error in the record arising from oversight or omission.”
FED. R. CRIM. P. 36. In light of the government’s acknowledgment that the

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written judgment contains a clerical error in that it does not reflect the actual
offense of conviction, we remand the matter to the district court for the limited
purpose of correcting the judgment to identify correctly the Count One offense
of conviction. See United States v. Johnson, 588 F.2d 961, 964 (5th Cir. 1979).
      Accordingly, the judgment of the district court is AFFIRMED in part and
REMANDED for the limited purpose of correcting the written judgment to
correctly identify the offense of conviction on Count One.




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