     Case: 13-11303      Document: 00512755512         Page: 1    Date Filed: 09/03/2014




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

                                    No. 13-11303                                FILED
                                  Summary Calendar                      September 3, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BERNARDO RODRIGUEZ-GALLEGOS, also known as Gumaro Vigil-
Rodriguez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:13-CR-162-1


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Bernardo Rodriguez-Gallegos appeals the 60-month sentence imposed
following his guilty plea conviction for illegally reentering the United States
following deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2).                          The
sentence represents an upward variance from the guidelines range of 33 to 41
months of imprisonment.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 13-11303

      On appeal, Rodriguez-Gallegos argues that he should have received an
additional one-level reduction in his offense level based on his acceptance of
responsibility and that it was error for the Government to have declined to
move for the third acceptance-of-responsibility level based on his refusal to
agree to waive his right to appeal. See U.S.S.G. § 3E1.1(b).
      The Government concedes that it was error to withhold the additional
level and that the properly-calculated guidelines sentencing range is 30 to 37
months of imprisonment. However, the Government argues that Rodriguez-
Gallegos failed to preserve the issue for appeal and cannot demonstrate
reversible plain error because he cannot show that the error affects his
substantial rights. The Government alternatively asserts that the error was
harmless because the district court would have imposed the same sentence
without the error.
      The challenge raised by Rodriguez-Gallegos in the district court was
sufficient “to alert the district court to the nature of the alleged error and to
provide an opportunity for correction.” United States v. Neal, 578 F.3d 270,
272 (5th Cir. 2009).    Thus, remand is appropriate unless the error was
harmless. United States v. Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir.
2009).
      In United States v. Newson, 515 F.3d 374, 376-79 (5th Cir. 2008),
abrogated by United States v. Palacios, ___ F.3d ___, No. 13-40153, 2014 WL
2119096, 1 & n.1 (5th Cir. May 21, 2014), this court held that a district court
may not award a reduction pursuant to § 3E1.1(b) absent a motion from the
Government and that a “defendant’s refusal to waive his right to appeal is a
proper basis for the Government to decline to make such a motion.” However,
recognizing a circuit split on this issue, the Sentencing Commission amended
§ 3E1.1’s commentary, effective November 1, 2013.         See U.S. Sentencing



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                                  No. 13-11303

Guidelines Manual, supp. to app. C, Amendment 775, at 43-46 (2013). The
amendment modified the commentary to § 3E1.1 to provide that the
Government should not withhold a motion for the additional one-level
reduction “based on interests not identified in § 3E1.1, such as whether the
defendant agrees to waive his or her right to appeal.” See United States v.
Garcia-Carillo, 749 F.3d 376, 377 (5th Cir. 2014) (internal quotation marks
and citation omitted).
      The amendment to § 3E1.1 therefore unequivocally shows that it was
error for the Government to decline to award Rodriguez-Gallegos the
additional reduction for acceptance of responsibility based on Rodriguez-
Gallegos’s refusal to waive his right to appeal. This error “may not be excused
unless two requirements are met.” United States v. Ibarra-Luna, 628 F.3d 712,
718 (5th Cir. 2010). First, the Government “must convincingly demonstrate
that the district court would have imposed a sentence outside the correct
Guidelines range for the same reasons it gave for imposing a sentence outside
the miscalculated Guidelines range.” Id. Next, the Government “must show
that the [] sentence the district court imposed was not influenced in any way
by the erroneous Guidelines calculation.” Id.
      In the instant case, the Government has satisfied its first hurdle. As the
Government points out, the transcript of the sentencing hearing evinces that
the district court would have imposed a sentence outside a reduced Guideline
range for the same reasons it imposed a sentence above the miscalculated
Guideline range. Indeed, the district court stated: “There is nothing that
would, I think, undermine respect for the law more than for the Court to give
you anything less than the 57-month sentence [which had been imposed in a
prior case].” The district court’s remarks “convincingly demonstrate” that the




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                                   No. 13-11303

district court would have imposed an upward variance even if the sentencing
reduction had been applied pursuant to § 3E1.1(b).
      However, we “cannot state with the requisite certainty” that the
sentence ultimately imposed was “not influenced in any way by the erroneous
Guidelines calculation.” Ibarra-Luna, 628 F.3d at 719. Although the imposed
sentence was clearly calibrated against the backdrop of the prior 57-month
sentence, the district court’s remarks with regard to the confusion over the
applicability of § 3E1.1(b) raises a sufficient possibility that the district court’s
sentence was influenced—at least in part—by the erroneous Guidelines
calculation. Id. Specifically, the court stated: “So far as the point, the extra
point regarding the government, I have considered all of that, and I wish we
did have some clarification on whether or not Congress, when they enacted
that under the Protect Act to give the government the extra point, how that
reconciles with the Sentencing Commission. I think it would help the courts
to know, but we don’t know. But considering all those circumstances, I don’t
think the Court has any leeway here under that particular proviso; the sentence
stands.” (emphasis added). We believe the district court’s statement evinces
a sufficient likelihood that the sentence ultimately imposed was influenced in
some way by the erroneous Guidelines calculation.
      For these reasons, we therefore VACATE Rodriguez-Gallegos’s sentence
and REMAND for resentencing consistent with this opinion.




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