     Case: 13-11007     Document: 00512950861      Page: 1   Date Filed: 02/26/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 13-11007                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                         February 26, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

ARMELINDA CASTILLO, also known as Irma Castillo,

             Defendant - Appellant




                      Appeal from the United States District Court
                           for the Northern District of Texas


Before BENAVIDES, PRADO, and GRAVES, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
      This is a direct criminal appeal in which Appellant Armelinda
Castillo (“Castillo”) challenges only her sentence. Castillo contends that
the district court erred in failing to reduce her offense level for acceptance
of responsibility pursuant to U.S.S.G. § 3E1.1(b). We vacate her sentence
and remand the case to allow the district court to determine in the first
instance whether her challenge to the amount of funds stolen was made
in good faith.
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                                 No. 13-11007
     I.      BACKGROUND
     Castillo was employed by Westex Federal Credit Union (“WFCU”)
in Lubbock, Texas. Beginning in April of 2009 and continuing until April
2012, she embezzled cash from WFCU’s vault. Castillo pleaded guilty to
misapplication of bank funds in excess of $1,000 by a bank employee in
violation of 18 U.S.C. § 656.
     Pursuant to U.S.S.G. § 2B1.1(a)(1)(A) & (B), the base offense level
was 7. The Presentence Report (“PSR”) provided that Castillo had stolen
$690,000, and thus added 14 levels because the amount of funds stolen
exceeded     $400,000,   but    was   less   than   $1,000,000.        U.S.S.G.
§ 2B1.1(b)(1)(H). Pursuant to U.S.S.G. § 3E1.1(a), the PSR recommended
a two-level reduction for acceptance of responsibility based on Castillo’s
timely guilty plea that permitted the government to avoid preparing for
trial. PSR ¶ 28. The PSR further provided that at sentencing, the
“government will formally move the Court to grant the additional 1-level
reduction” for acceptance of responsibility pursuant to § 3E1.1(b). Id.
The government had no objections to the PSR. Castillo, however, filed
written objections, denying that she had confessed to taking $690,000.
Instead, she claimed that the “evidence only establishes by a
preponderance that the amount was greater than $70,000 but less than
$120,000.”    Thus, she argued that the offense level should only be
increased by 8 levels pursuant to § 2B1.1(b)(1)(E).
     On August 30, 2013, at the sentencing hearing, Castillo disputed
the government’s allegation that she had stolen $690,000, and called
witnesses to support her contention that she had stolen less than


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                                    No. 13-11007
$120,000. 1 Castillo testified that although she was not sure exactly how
much money she had stolen, it was “nowhere near” $690,000. After the
district court found by preponderance of the evidence that the amount of
loss was $690,000, the government declined to move for the additional
one-level reduction in the offense level under § 3E1.1(b), stating that “it’s
the United States’ opinion that we have, in essence, been taken to the
task of trial. We have saved no effort, no judicial resources. We have
spent a day in court discussing the loss amount.” Castillo objected,
stating that she had accepted responsibility by pleading guilty and
willingly talking to the bank investigator and the police. Castillo claimed
that she took “responsibility for [the amount of money] she believe[d] she
actually took.” The district court expressly agreed with the government
and denied the additional, one-level reduction for acceptance of
responsibility under § 3E1.1(b).
      At the time of Castillo’s sentencing, this Court had held that the
government’s decision to refuse to move for the additional reduction
under § 3E1.1(b) was reviewable on appeal only to determine whether
the refusal to so move was based on an unconstitutional motive or was
not reasonably related to a legitimate government end. United States v.
Newson, 515 F.3d 374, 378 (5th Cir. 2008), abrogated by United States v.
Palacios, 756 F.3d 325 (5th Cir. 2014) (per curiam). Additionally, this
Court had concluded that the defendant’s refusal to waive his appellate
rights was a proper basis for the government to refuse to move for an



      1 The factual resume signed by both parties provides that Castillo misapplied and
embezzled bank funds in excess of $1,000.
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                               No. 13-11007
additional reduction in offense level because it was rationally related to
the purpose of § 3E1.1 and is not an unconstitutional motive. Id.
      After Castillo had filed a notice of appeal, Amendment 775 to the
sentencing guidelines became effective on November 1, 2013.                U.S.
Sentencing Guidelines Manual app. C, Amendment 775 (Nov. 1, 2013).
Amendment 775 resolved a circuit split regarding whether a defendant’s
refusal to waive his right to appeal was an interest identified in § 3E1.1
such that the government could rely on it to decline to move for the
offense-level reduction under § 3E1.1(b). Amendment 775 provides that
the “government should not withhold [a § 3E1.1(b)] motion based on
interests not identified in § 3E1.1, such as whether the defendant agrees
to waive his or her right to appeal.”        In a footnote in its brief, the
government recognized the amendment, but asserted that it was
inapplicable because it became effective months after Castillo’s
sentencing.   The government further argued that, even if it was a
clarifying (as opposed to substantive) amendment, it would not preclude
the government’s refusal to move for a reduction because the commentary
expressly discusses efficient allocation of resources by the government
and the court.
     Subsequently, however, on February 27, 2014, the government filed
a Federal Rule of Appellate Procedure Rule 28(j) letter in this Court
noting that the Solicitor General had taken a contrary position before the
Supreme Court, conceding that Amendment 775 is a clarifying
amendment. Thus, Castillo is entitled to the benefit of the amendment
even though it was not in effect at the time of her sentencing. In the Rule
28(j) letter, the government nonetheless stated that Castillo’s sentence
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                                      No. 13-11007
should be affirmed regardless of whether Amendment 775 is clarifying or
substantive. As the government points out, Castillo was not denied the
reduction because she refused to waive her appellate rights. Instead, the
government refused to move for the one-level reduction because her
objection to the amount of loss “required the government to prove the full
scope of her offense in a day-long hearing and evidenced a lack of
complete acceptance of responsibility for her offense.”                        Thus, the
government argues that the reason for the refusal was based on interests
identified in § 3E1.1, which is what is required by Amendment 775.
       On May 21, 2014, this Court, relying on Amendment 775, issued an
opinion holding that the government cannot withhold a sentence
reduction for acceptance of responsibility based on the defendant’s
refusal to waive his right to appeal. Palacios, 756 F.3d at 326. In a
footnote, this Court explained that all active judges had assented to the
opinion and that the en banc Court therefore concluded that “Newson—
to the extent it may constrain us from applying Amendment 775 to cases
pending on direct appeal under our rule of orderliness—is abrogated in
light of Amendment 775.” Id. at 326 n.1. 2 We now turn to Castillo’s
challenge to the district court’s denial of a one-level reduction for
acceptance of responsibility pursuant to § 3E1.1(b).




       2 On September 4, 2014, this Court directed counsel for both parties to file
supplemental letter briefs addressing the impact or effect of Palacios on the issue raised in
this appeal. The attorneys have filed their supplemental letter briefs, which are discussed
below.
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                                 No. 13-11007


     II.   Denial of Additional Offense Level Reduction
           for Acceptance of Responsibility, U.S.S.G. § 3E1.1(b)

     Castillo contends that the district court erred in failing to reduce
her offense level under § 3E1.1(b). We review the district court’s legal
interpretation of the Sentencing Guidelines de novo and factual findings
for clear error. United States v. Murray, 648 F.3d 251, 254 (5th Cir.
2011). A factual finding is clearly erroneous only if, based on the entirety
of the evidence, the reviewing court is left with the definite and firm
conviction that a mistake has been made. United States v. Valdez, 453
F.3d 252, 262 (5th Cir. 2006).
     Section 3E1.1(a) provides that if a “defendant clearly demonstrates
acceptance of responsibility for his offense, decrease the offense level by
2 levels.” Castillo received that two-level reduction and that reduction is
not before us on appeal. Section 3E1.1(b) provides that the offense level
may be reduced an additional level if the government moves for such a
reduction and represents that 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 efficiently.”
     As previously set forth, the PSR recommended that Castillo’s
offense level be reduced pursuant to both subsections 3E.1.1(a) and (b).
The PSR also provided that the prosecutor had represented that “[a]t the
time of sentencing, the government will formally move the Court to grant
the additional 1-level reduction.” PSR ¶ 28. The government filed a
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                                        No. 13-11007
statement with the court that it had no objections to the PSR and that it
“hereby adopt[ed] it.” 3 However, Castillo filed objections to the PSR
(including the instant objection to the amount of funds stolen) and
requested the court to permit introduction of evidence on the objections.
At the sentencing hearing, the government refused to move for the
additional, one-level reduction under § 3E1.1(b) because Castillo had
contested the amount of funds listed in the PSR.4 Castillo objected,
stating that she took responsibility for the amount of funds she believed
that she had actually stolen.                 The district court agreed with the
government and denied the additional, one-level reduction for acceptance
of responsibility under § 3E1.1(b).
       Castillo contends that it was error to deny her the one-level
reduction based on her challenging the amount of funds attributed to her
offense conduct at the sentencing hearing. Both parties recognize that
Amendment 775 applies to the instant appeal. See Palacios, 756 F.3d at
326. In part, Amendment 775 provides: “The government should not
withhold such a motion based on interests not identified in § 3E1.1, such
as whether the defendant agrees to waive his or her right to appeal.”
Accord U.S.S.G. § 3E1.1 cmt. n.6.                  Both parties also agree that the
determinative question is whether Castillo’s contesting the amount of
stolen funds implicated an interest identified in § 3E1.1. However, the
government and Castillo disagree with respect to whether the interest


       3Section 3E1.1 was not mentioned in the plea agreement.
       4 Indeed, the government argued that “perhaps even acceptance of responsibility of
the other 2 points . . . should not be given at this time.” See § 3E1.1(a). However, the district
court accepted the PSR’s recommendation to grant the two-level reduction, and the
government has not appealed that ruling.
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                               No. 13-11007
must be identified only in subsection (b) of § 3E1.1. More specifically, the
government contends that it may rely on interests identified in either
subsections (a) and (b) of § 3E1.1 to withhold a motion for a reduction
under § 3E1.1(b). In contrast, Castillo argues that the government may
only rely upon interests identified in subsection (b) of § 3E1.1. Therefore,
we first address the threshold question whether the government may
consider factors in § 3E1.1(a) in withholding a motion under § 3E1.1(b).
     Castillo argues that “[n]o legitimate argument can be made for why
contesting the loss amount at a sentencing hearing is distinguishable
from a failure to waive the right to appeal, which Amendment 775
exemplifies as an interest that is not within those interest[s] identified
in § 3E1.1(b).” Supp. Letter Br. 2. Castillo relies on this Court’s opinion
in United States v. Tello, 9 F.3d 1119 (5th Cir. 1993). In that case, the
district court refused the additional one-level reduction because Tello had
committed obstruction of justice by lying to the probation officer about
his criminal history. Id. at 1121. Construing a prior version of the
Application Note, this Court held that the sentencing court was limited
to the considerations set forth in § 3E1.1(b) in determining whether to
grant the additional, one-level reduction for acceptance of responsibility.
Id. at 1128–29.      More specifically, the considerations were whether
Tello’s lying to the probation officer (1) caused the government to prepare
for trial, or (2) interfered with the court’s efficient management of its own
schedule. Id. at 1123–24, 1125–26. This Court determined that Tello’s
lying implicated neither of those two concerns, and thus, even though
Tello’s lying caused the probation officer to spend more time on the
investigation for the PSR, we rejected that as a proper basis for denying
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                                        No. 13-11007
the additional one-level reduction under § 3E1.1(b). Accordingly, in Tello,
we held that the “sentencing court is limited to the considerations in
§ 3E1.1(b) to determine whether to grant the reduction.” United States
v. Williamson, 598 F.3d 227, 230 n.3 (5th Cir. 2010).
       However, as previously set forth, in 2013, twenty years after Tello,
the Sentencing Commission issued Amendment 775, which is “codified”
in the commentary to § 3E1.1. See § 3E1.1 cmt. n.6. The government
argues that this guideline commentary allows it to consider interests
identified in § 3E1.1 generally and does not restrict the government to
identifying interests only in § 3E1.1(b). 5                 We agree.         The amended
commentary instructs that the “government should not withhold such a
motion based on interests not identified in § 3E1.1, such as whether the
defendant agrees to waive his or her right to appeal.” § 3E1.1 cmt. n.6.
The plain language of the commentary thus allows the government to
refuse to file a § 3E1.1(b) motion based on an interest that is identified
in § 3E1.1, without regard to which subsection contains the interest. The
commentary does not prohibit the government from identifying an
interest in § 3E1.1(a) and relying on that interest as a basis to refuse to


       5 The government also contends that Castillo’s heavy reliance on Tello is misplaced
because it involved a former version of § 3E1.1(b), and, unlike the version in Tello, the current
version requires a government motion as a prerequisite to the court’s granting the additional
reduction. Although the current version does require a motion to be made by the government,
that requirement is of no moment here because the issue is whether the government refused
to make such a motion on an impermissible basis. See Palacios, 756 F.3d at 326 (holding that
the government’s refusal to file a motion for the one-level reduction based on interests not
identified with § 3E1.1(b) was error that required resentencing). The key difference between
the provision Tello construed and the amended guidelines is the instruction that the
government may not withhold a motion based on “interests not identified in § 3E1.1.” § 3E1.1
cmt. n.6. This is the provision we construe here today—a provision absent from the prior
version of the commentary.

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                                       No. 13-11007
file a § 3E1.1(b) motion. Sentencing guideline commentary is binding and
is “equivalent in force to the guideline language itself, as long as the
language and the commentary are not inconsistent.” United States v.
Rayo-Valdez, 302 F.3d 314, 318 n.5 (5th Cir. 2002). Thus, we conclude
that the government may withhold a § 3E1.1(b) motion based on an
interest identified in either subsection (a) or (b) of § 3E1.1. 6




       6 We note that the partial dissent states that “we are constrained by Tello’s explicit
holding that a post-plea, sentencing objection is simply not a valid basis to deny a § 3E1.1(b)
reduction.” Dissenting Op. at 4. As previously set forth, in Tello, this Court held that the
sentencing court was limited to the considerations set forth in § 3E1.1(b) in determining
whether to grant the additional, one-level reduction for acceptance of responsibility.”
Majority Op., supra, at 8. However, Tello is not controlling on this point because the
Sentencing Commission subsequently amended the guideline commentary to allow the
government to refuse to file a § 3E1.1(b) motion based on interests identified under either
subsections (a) or (b) of 3E1.1. Id. at 9–10.
        The partial dissent argues that because a reduction under § 3E1.1(a) is a prerequisite
for the government’s motion under § 3E1.1(b), the defendant’s acceptance of responsibility
under (a) is a settled matter by the time the government is debating whether to move for an
additional reduction under (b). Therefore, the argument goes, the factors indicating
acceptance of responsibility under (a)—such as those articulated in Application Note 1 to the
guideline—are only for the court, and not for the government, to consider. However, this
argument runs against the plain text of Application Note 6, which only restricts the
government from relying on “interests not identified in § 3E1.1” without mentioning a
subsection. Had the Sentencing Commission intended to restrict the government’s discretion
to factors identified in subsection (b), it could have spoken with greater specificity—as it did
in Application Notes 1, 3 and even parts of 6, as well as in the commentary to other guidelines.
        Moreover, the PROTECT Act, which amended § 3E1.1, was designed to safeguard the
government’s discretion whether to move for the reduction, and the court’s discretion whether
to grant it. See U.S.S.G. supp. to app. C, amend. 775, at p. 46 (2013) (citing U.S.S.G. § 3E1.1
cmt. n. 6 (the third level of reduction “may only be granted” upon a formal motion by the
government); H.R. Rep. No. 106–66, at 59 (2003) (Conf. Rep.) (stating that the PROTECT Act
amendment would “only allow courts to grant an additional third point reduction for
‘acceptance of responsibility’ upon motion of the government”)). The PROTECT Act went so
far as to expressly invalidate any future Sentencing Commission commentary that might
curtail the government’s discretion. See Pub. L. No. 108-21, §§ 401(g) (amending § 3E1.1(b)
and Note 6), 401(j) (“At no time may the Commission promulgate any amendment that would
alter or repeal the amendments made by subsection (g) of this section.”). A broad reading of
Amendment 775 bolsters both actors’ discretion. By contrast, a narrow reading risks making
the motion virtually compulsory when the defendant timely pleads guilty, contrary to one of
the expressed purposes of the PROTECT Act.
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                               No. 13-11007
     We turn next to whether Castillo’s objection to the PSR’s drug-
quantity determination implicated an “interest identified in § 3E1.1.”
With respect to § 3E1.1(b), the government argues that one of the
identified interests is the preservation of governmental and judicial
resources when a defendant foregoes litigation and thus, Castillo’s
challenge to the relevant conduct at the sentencing hearing was a
permissible reason to refuse to file a § 3E1.1(b) motion. The current
version of § 3E1.1(b) added the following italicized language: “thereby
permitting the government to avoid preparing for trial and permitting
the government and the court to allocate their resources efficiently.”
Accordingly, although the current version of the guideline refers to
efficient allocation of governmental resources, it does so only in the
context of preparing for trial. Moreover, the commentary to § 3E1.1
refers only to the government’s being able to “avoid preparing for trial.”
§ 3E1.1 cmt. n.6. The commentary makes no reference to the government
preparing for a sentencing hearing. Therefore, we disagree that the
government may withhold a § 3E1.1(b) motion simply because it has had
to use its resources to litigate a sentencing issue.
     Additionally, there are two out-of-circuit opinions that reject the
government’s argument in the context of determining that a defendant’s
refusal to waive his appeal was not a proper basis to deny a § 3E1.1(b)
reduction. As previously set forth, we have held that the government
may not withhold a § 3E1.1(b) motion based on a defendant’s refusal to
waive his appeal. Palacios, 756 F.3d at 326. Nonetheless, we look to
these two opinions because we find their analyses applicable to the
instant issue. In Amendment 775, the Sentencing Commission referred
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                               No. 13-11007
to these two opinions, stating the opinions were consistent with its
conclusion that the refusal to waive an appeal is an interest not identified
in § 3E1.1. In the first opinion, the Fourth Circuit recognized that the
guideline identified resource allocation and trial avoidance as interests
and explained that the syntax of § 3E1.1(b) demonstrates that those
interests must only be furthered by timely notifying the authorities that
he intends to plead guilty. United States v. Divens, 650 F.3d 343, 348
(4th Cir. 2011). More specifically, the Court explained that the phrase
that mentioned resource allocation and trial avoidance referred back to
the requirement that the defendant timely notify authorities of his intent
to plead guilty. Id. The second opinion was a concurring opinion written
by Judge Rovner of the Seventh Circuit. United States v. Davis, 714 F.3d
474, 476 (7th Cir. 2013) (Rovner, J., concurring).        In his concurring
opinion, Judge Rovner stated that § 3E1.1 and its “commentary focus
explicitly and exclusively on avoiding the need to prepare for trial (and
clearing the district court’s trial calendar). No proceeding or event that
might occur later is mentioned or even hinted at.” Id. at 479. Thus, like
the Fourth Circuit, Judge Rovner concluded that a defendant waiving his
right to appeal was not identified as an interest implicating the
preservation of governmental or judicial resources as set forth in
§ 3E1.1(b).
     Moreover, the Second Circuit rejected the government’s argument
in the context of a defendant’s challenging factual findings in the PSR,
which is indistinguishable from the instant case. Relying on the Fourth
Circuit’s opinion in Divens, the Second Circuit opined that it was equally
impermissible for the government to refuse to move for the § 3E1.1(b)
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reduction based on either (1) a defendant’s challenge to a factual finding
in the PSR or (2) a defendant’s refusal to waive his right to appeal.
United States v. Lee, 653 F.3d 170, 173–75 (2d Cir. 2011).               More
specifically, in Lee, the government refused to move for the reduction
because it had to prepare for a hearing to respond to a defendant’s
challenge to a factual finding in the PSR that the defendant had
threatened to kill certain drug couriers. Id. at 173. The Second Circuit
reasoned that the “plain language of § 3E1.1(b) refers only to the
prosecution resources saved when the defendant’s timely guilty plea
‘permit[s] the government to avoid preparing for trial.’”         Id. at 174
(alteration and emphasis in original). The court stated that while the
defendant challenged certain findings in the PSR and requested a
hearing, it was undisputed that his plea of guilty was timely and that the
government did not have to prepare for trial. Id. Thus, the language in
§ 3E1.1(b) did not justify the government’s refusal to move for the
reduction. Id. Likewise, the commentary to § 3E1.1 “refer[s] only to the
government’s ability ‘to determine whether the defendant has assisted
authorities in a manner that avoids preparing for trial.’” Id. (quoting
§ 3E1.1 cmt. n. 6) (emphasis in original). The Second Circuit further
opined that a defendant has a due process right to challenge errors in the
PSR that affect his sentence. Id. Thus, according to the Second Circuit,
if the defendant has a good faith dispute as to the accuracy of the factual
findings in the PSR, it is impermissible for the government to refuse to
move for a reduction simply because the defendant requests a hearing to
litigate the objection. Id.


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                               No. 13-11007
     The Sentencing Commission expressly recognized the Second
Circuit’s reasoning in Lee. As previously set forth, Amendment 775
followed the Fourth Circuit’s holding in Divens, that a defendant’s refusal
to waive his right to appeal is not a reason identified in § 3E1.1. 650 F.3d
at 348. Amendment 775 also stated that the Second Circuit had opined
that the “Fourth Circuit’s reasoning in Divens applies ‘with equal force’
to the defendant’s request for an evidentiary hearing on sentencing
issues.” Amendment 775 at 45 (quoting Lee, 653 F.3d at 175). We
interpret Amendment 775’s citing of the holding in Lee as implicitly
endorsing it. Because the Second Circuit relies on the plain language of
the guideline and its commentary, and the Sentencing Commission
favorably cited that holding, we are persuaded to follow its analysis.
More specifically, we hold that if the defendant has a good faith dispute
as to the accuracy of the factual findings in the PSR, it is impermissible
for the government to refuse to move for a reduction under § 3E1.1(b)
simply because the defendant requests a hearing to litigate the dispute.
Both this conclusion and its converse find additional support in the text
of § 3E1.1.   Specifically, the guideline commentary provides that “a
defendant who falsely denies, or frivolously contests, relevant conduct
that the court determines to be true has acted in a manner inconsistent
with acceptance of responsibility. § 3E1.1 cmt. n.1(A).
     It is not clear that Castillo has shown that the government’s refusal
to file a § 3E1.1(b) motion is impermissible under the circumstances of
this case. As set forth above, we hold that it is impermissible for the
government to refuse to move for a reduction if the defendant has a good
faith dispute. Here, the government argues that Castillo’s challenge to
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                                      No. 13-11007
the amount of loss was apparently “insincere and certainly unnecessary,
as the evidence readily supported the PSR’s figure and Castillo had
admitted that loss amount no less than three times to a detective and
additionally to at least one other person.” Supp. Letter Br. 5 (emphasis
in original). In other words, the government is arguing that Castillo’s
challenge to the amount of money stolen was not made in good faith.
Thus, the government contends that Castillo has failed to fully accept
responsibility for her offense, which is an interest identified in § 3E1.1(a)
and its commentary.
       As the government points out, the record demonstrates that
Castillo had admitted several times that she had stolen $690,000.7 This
Court, however, is not a fact-finder. Accordingly, we vacate the sentence
and remand to allow the district court to determine in the first instance
whether Castillo’s challenge to the amount of funds stolen was made in
good faith. If the district court determines that her challenge to the
amount of funds was not made in good faith, then it was not error for the
government to refuse to move for the additional one-level reduction under
§ 3E1.1(b). On the other hand, if the court determines that Castillo’s
challenge to the amount of stolen funds was made in good faith, then her
challenge does not constitute a permissible basis for refusing to move for
the reduction.
       Alternatively, the government argues that even if it erred in
refusing to move for the reduction, the district court expressly agreed


       7 At the sentencing hearing, Castillo admitted that she had told an investigator that
she believed she had embezzled about $690,000. A detective testified that Castillo told him
on at least three occasions that she stole $690,000.
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                               No. 13-11007
with the government, and thus, the court would not have granted Castillo
the reduction. Therefore, the government argues that any error was
harmless. This argument is without merit. If the government’s reason
for refusing to move for a reduction in Castillo’s offense level was
impermissible, the district court’s agreement with the government’s
position does not render the error harmless. This Court’s precedent
provides:
     [A] sentencing error may not be found harmless unless the
     proponent of the sentence proffer[s] sufficient evidence to
     convince the appellate court that the district court would have
     imposed the same sentence, absent the error. To satisfy that
     burden, the proponent must point to evidence in the record
     that will convince us that the district court had a particular
     sentence in mind and would have imposed it, notwithstanding
     the error.

United States v. Ibarra-Luna, 628 F.3d 712, 718 (5th Cir. 2010) (second
alteration in original) (internal quotation marks and footnotes omitted).
     Here, without the additional one-level reduction for acceptance of
responsibility under § 3E1.1(b), Castillo’s offense level was 19 with a
criminal history category of I, which provides a sentencing guideline
range of 30-37 months of imprisonment. With the reduction, the offense
level would have been 18, which provides a range of 27-33 months of
imprisonment. The district court sentenced Castillo to 37 months, the
top of the higher guideline range, and thus, but for the alleged error, the
sentence imposed by the court was not within the applicable guideline
range.      The government points to no evidence in the record that
demonstrates that the district court would have imposed the same


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                              No. 13-11007
sentence absent the error. Accordingly, the government has not shown
that the alleged error was harmless.
     III.   CONCLUSION
     For the above reasons, Castillo’s sentence is VACATED, and the
matter is REMANDED to the district court for proceedings not
inconsistent with this opinion.




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                                   No. 13-11007
      JAMES E. GRAVES, JR., Circuit Judge, concurring in part and
dissenting in part:

      I agree substantially with the factual summary and legal analysis in the
majority opinion. I, therefore, concur in part with the conclusion to vacate
Castillo’s sentence. However, I dissent in part from the conclusion to remand
for a determination of whether Castillo’s sentencing objection was made in
good faith. In my view, a post-plea, sentencing objection is simply not a valid
basis upon which the government may withhold a § 3E1.1(b) motion. Thus, I
conclude that Castillo is undeniably entitled to the § 3E1.1(b) reduction and
the remand should be for resentencing.
      Section 3E1.1(b) states the following:
      If the defendant qualifies for a decrease under subsection (a),
      the offense level determined prior to the operation of
      subsection (a) is level 16 or greater, and upon motion of the
      government stating that 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 efficiently, decrease the offense level by
      1 additional level.
U.S.S.G. § 3E1.1(b) (emphasis added). Therefore, the plain language of the
guideline indicates that if a defendant has a sufficiently high offense level and
has received a decrease under subsection (a), she should also receive a
reduction under subsection (b), if she has entered a timely guilty plea. Indeed
that was the conclusion of this court in United States v. Tello, 9 F.3d 119 (5th
Cir. 1993). In Tello, we held that a post-plea, post-conviction objection is not a
proper basis to deny a § 3E1.1(b) reduction because it in no way requires the
government to prepare for trial. Id. at 1125–27. We explained that “the core
purpose of subsection (b) . . . is not . . . concerned at all with when the defendant


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                                     No. 13-11007
begins to serve h[er] sentence; it is concerned with when there is certainty that–
sooner or later–the defendant will be punished.” Id. at 1126.
      Despite our precedent indicating that the focus of the § 3E1.1(b)
reduction is on the timely entry of a guilty plea, in United States v. Newson,
515 F.3d 374 (5th Cir. 2008), this court held that a defendant’s refusal to waive
her right to appeal was a permissible basis upon which the government could
refuse to move under § 3E1.1(b). The Fourth Circuit disagreed with us in
United States v. Divens, 650 F.3d 343 (4th Cir. 2011), and emphasized that the
government’s discretion in choosing whether to move under § 3E1.1(b) was
limited to a determination of whether the defendant entered a timely plea of
guilty. Id. at 346–48 (“Section 3E1.1(b) thus instructs the Government to
determine simply whether the defendant has ‘timely’ entered a ‘plea of guilty’
and thus furthered the guideline’s purposes in that manner. It does not permit
the Government to withhold a motion for a one-level reduction because the
defendant has declined to perform some other act to assist the Government.”).
The Second Circuit agreed with the Fourth Circuit in United States v. Lee, 653
F.3d 170 (2d Cir. 2011). The Second Circuit explained that the Fourth Circuit’s
observations that the government’s discretion was limited to considerations
surrounding guilty pleas “appl[ied] with equal force” to its holding that a post-
plea, sentencing objection was an invalid basis for the denial of a § 3E1.1(b)
reduction. Id. at 174–75.
      Following the filing of Castillo’s appeal, Amendment 775 to the
Sentencing Guidelines became effective. Amendment 775 noted approval of
Divens and implicitly indicated disapproval of Newson. See U.S.S.G., supp. to
app. C, amend. 775, at pp. 43–46 (2013); accord U.S.S.G. § 3E1.1 cmt. n.6. The
amendment clarified § 3E1.1(b) by adding an additional sentence stating,
“[t]he government should not withhold such a motion based on interests not
identified in § 3E1.1, such as whether the defendant agrees to waive his or her
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                                           No. 13-11007
right to appeal.” Id. Accordingly, in United States v. Palacios, 756 F.3d 325
(5th Cir. 2014), we recognized that the government could not withhold a
§ 3E1.1(b) motion due to the defendant’s failure to waive her appellate rights.
Id.
        Clearly, the focus of a § 3E1.1(b) reduction motion is the timely entry of
a guilty plea. Therefore, a sentencing objection is an impermissible basis for
denying the additional reduction. The analysis should end there. But the
majority adds the requirement that a defendant demonstrate that her post-
plea sentencing objection is made in “good faith” in order to receive the
reduction. Apparently, the majority reads the Second Circuit’s decision in Lee
to state that the plain language of § 3E1.1(b) disallows the denial of a
§ 3E1.1(b) reduction on the basis of a post-plea, sentencing objection, so long
as that objection is made in good faith.                The majority also “interpret[s]
Amendment 775’s citing of the holding in Lee as implicitly endorsing” a good
faith requirement. I disagree.
        To the extent that we are to consider the Second Circuit’s opinion in Lee,
I am not convinced that it institutes a good faith requirement. Notably, the
court in that case adopted the plain language ruling of the Fourth Circuit in
Divens. 8 See Lee, 653 F.3d at 175 (stating that the observations of the Fourth
Circuit, that § 3E1.1(b) instructs the government to determine simply whether


        8While the Lee court does mention a good faith requirement, it is most properly read
as involving only that court’s conclusion that the government’s refusal to move for an
additional level of reduction due to a post-plea, sentencing objection was an unconstitutional
violation of due process. See id. at 174 (“[A] defendant . . . has a due process right to
reasonably contest errors in the PSR that affect his sentence. . . . A defendant should not be
punished for doing so. If there is a good faith dispute as to the accuracy of factual assertions
in the PSR, the defendant’s request that the dispute be resolved is not a permissible reason
for the government to refuse to make the § 3E1.1(b) motion[.]”). Because the Lee court
provided three reasons for why the government’s refusal to move was unlawful, the first of
which being the plain language interpretation adopted from Divens, we have no reason to
reach the constitutional question in the case at hand and therefore, no reason to insert a good
faith requirement.
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                                     No. 13-11007
the defendant’s guilty plea was timely, applied with “equal force”).
Furthermore, in Lee, the Second Circuit did not remand for a determination of
good faith but instead remanded for resentencing. Id. This was in spite of
Lee’s challenge to the PSR’s findings, which the district court found to be
without merit. See id. at 172. And insofar as Amendment 775 endorses the
Second Circuit’s conclusions in Lee, it did not include a good faith requirement
in its characterization of Lee’s holding. U.S.S.G., supp. to app. C, amend. 775,
at pp. 43–46 (2013) (“The Second Circuit, stating that the Fourth Circuit’s
reasoning in Divens applies ‘with equal force’ to the defendant’s request for an
evidentiary hearing on sentencing issues, held that the government may not
withhold a § 3E1.1(b) motion based upon such a request.”). Moreover, we are
constrained by Tello’s explicit holding that a post-plea, sentencing objection is
simply not a valid basis to deny a § 3E1.1(b) reduction.
      It further appears that the majority justifies its insertion of a good faith
requirement on a notion that good faith is a consideration under subsection (a)
and the government may consider factors under subsection (a) in deciding
whether to move under subsection (b). The majority reaches this conclusion
due to language added to the § 3E1.1(b) commentary by Amendment 775 that
states, “The government should not withhold such a motion based on interests
not identified in § 3E1.1, such as whether the defendant agrees to waive his or
her right to appeal.” U.S.S.G. § 3E1.1 cmt. n.6. The majority agrees with the
government that because the Sentencing Commission did not specify that the
motion should be based on interests identified in § 3E1.1(b) but instead stated
it should be based on interests identified in § 3E1.1 (as a whole), the
government is allowed to revisit its considerations in subsection (a) when
deciding whether to move under subsection (b). This conclusion is contrary to
a common sense reading of the guideline.


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                                     No. 13-11007
      In order for the government to move under § 3E1.1(b), the court must
have first determined that a reduction is warranted under § 3E1.1(a). See
U.S.S.G. § 3E1.1(b) (“If the defendant qualifies for a decrease under subsection
(a), . . . decrease the offense level by 1 additional level.”) (emphasis added).
Therefore, even if it were proper for the government to consider all of the
considerations under § 3E1.1(a) before moving under § 3E1.1(b), by the time
the government is considering a motion under subsection (b), those factors
have already been considered in favor of the defendant. To read § 3E1.1(b) as
allowing the government to negate findings under § 3E1.1(a) would lead to
internally inconsistent results, i.e. a § 3E1.1(b) reduction being withheld
because the factors for § 3E1.1(a) were not met, although the defendant
received a § 3E1.1(a) reduction. Therefore, it is illogical, in my view, to derive
a good faith requirement under § 3E1.1(b) by revisiting the factors considered
under subsection (a).
      Furthermore, as Castillo points out, if the government is allowed to
revisit the factors under subsection (a) when deciding whether to move under
subsection (b) then there would be no legitimate reason for the Sentencing
Commission to declare that a failure to waive the right to appeal is an invalid
basis upon which to withhold the motion. Under the majority’s reasoning, one
could argue that a defendant would need to have a “good faith” basis for not
waiving her right to appeal in order to be entitled to the reduction. Yet, such
a requirement was not inserted by the Sentencing Commission.
      Thus, for the reasons outlined, I dissent from the reasoning in the
majority opinion that leads it to reach a conclusion to remand for a
determination of good faith. We should simply follow the clear language of the
guideline and hold that the government may only consider trial preparation in
deciding whether or not to move under subsection (b). In all other respects I
concur.
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