     Case: 13-40863      Document: 00512611657         Page: 1    Date Filed: 04/29/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                    No. 13-40863                           April 29, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff – Appellee
v.

GUILLERMO JIMENEZ VASQUEZ,

                                                 Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-930-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Guillermo Jimenez Vasquez (“Vasquez”) appeals his sentence of forty-six
months following a conviction on a guilty plea to illegal reentry under 8 U.S.C.
§ 1326. 1




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1 Vasquez contends that his conviction should have been listed as a violation of 8
U.S.C. §1326(b)(1), not (b)(2). We agree and reform the judgment accordingly. United States
v. Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009).
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                                      No. 13-40863
       Vasquez primarily argues that he was entitled to an additional one-level
reduction under U.S.S.G. § 3.E.1.(b), but the Government refused to move for
it because he did not agree to waive his right to appeal. Cf. United States v.
Newson, 515 F.3d 374, 378 (5th Cir. 2008)(holding that the Government has
discretion to refuse to move for the reduction on the basis that the defendant
refused to waive his appeal rights). He argues that recent amendments to the
applicable comments make such conduct by the Government inappropriate
and, therefore, he should have received the additional one-level reduction. 2
Although the sentence he received would be within the adjusted range, he
contends that the alleged error in calculation was not harmless error.
       The Government, citing United States v. Mora-Fernandez, 2013 U.S.
App. LEXIS 24154 (5th Cir. 2013)(unpublished), petition for cert. filed, No. 13-
8627 (U.S. Feb. 5, 2014), originally argued that the district court did not err,
but if it did err, it was harmless error because the judge expressly stated “even
without the guideline system, which are advisory, it would be the same
sentence.”      United States v. Valdez, 726 F.3d 684, 697 (5th Cir.
2013)(evaluating harmlessness by looking at whether the district court would
have imposed the same sentence for the same reasons); United States v.
Richardson, 676 F.3d 491, 511-12 (5th Cir. 2012). Thereafter, the Government
conceded error but did not amend its position that the error was harmless.
       We conclude that it is unnecessary to decide whether the refusal to grant
the additional one-level reduction was error because any such error was
harmless. Where the court makes an unequivocal statement such as the one
here and the sentence given would be within the adjusted range, the error is




       2  His guidelines range as calculated was 46-57 months; with the one-level reduction,
it would have been 41-51 months.
                                             2
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                               No. 13-40863
harmless. Valdez, 726 F.3d at 698. Thus, we conclude that any error in
denying the one-level decrease was harmless.
     We REFORM the judgment to reflect that the statute of conviction is 8
U.S.C. § 1326(b)(1); as reformed, the judgment of conviction and sentence is
AFFIRMED.




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