     Case: 14-10709      Document: 00513081158         Page: 1    Date Filed: 06/16/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-10709                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                   June 16, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

ALBERT GUZMAN,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 11-CR-13-1


Before REAVLEY, OWEN, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       After a stipulated bench trial, the district court found Albert Guzman
guilty of being a felon in possession of a firearm. The district court adopted
the Presentence Investigation Report, which gave Guzman a two-level
reduction for his acceptance of responsibility, pursuant to United States
Sentencing Guidelines (“U.S.S.G.”) § 3E1.1(a), and sentenced him to 200
months in prison.        At sentencing, the government did not move for an


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10709
additional one-level reduction. See U.S.S.G. § 3E1.1(b) (providing that, upon
motion of the government, the court can decrease the offense level by an
additional point, if the defendant assisted authorities by timely notifying them
of his intention to plead guilty). There is no evidence in the record indicating
why the government withheld the § 3E1.1(b) motion at the original sentencing.
      Guzman subsequently appealed the district court’s ruling on his motion
to suppress, and this court vacated his conviction and sentence and remanded
to the district court for additional factual findings related to the motion to
suppress. See United States v. Guzman (“Guzman I”), 739 F.3d 241, 249 (5th
Cir. 2014). The panel instructed: “If after [making additional findings], the
court again denies Guzman’s motion to suppress, it shall reinstate the
conviction and sentence, and Guzman could then appeal.” Id. at 248-49 (citing
United States v. Chavis, 48 F.3d 871, 873 (5th Cir. 1995)). On remand, the
district court dutifully followed the Guzman I mandate. The district court held
a hearing, received briefing, made findings, and again denied Guzman’s motion
to suppress.   Over Guzman’s objection, the district court then reinstated
Guzman’s conviction and sentence. Guzman’s only issue on appeal is that the
district court erred when it adhered to the mandate rule and, following this
court’s explicit mandate, reinstated his conviction and sentence without
holding a new trial or sentencing hearing. We disagree.
      The “mandate rule” provides that “a lower court on remand must
implement both the letter and the spirit of the appellate court’s mandate and
may not disregard the explicit directives of that court.”      United States v.
Matthews, 312 F.3d 652, 657 (5th Cir. 2002) (internal quotation marks
omitted). While there are several exceptions to the mandate rule, none was
present here. See id. (“The doctrine has three exceptions: (1) The evidence at
a subsequent trial is substantially different; (2) there has been an intervening
change of law by a controlling authority; and (3) the earlier decision is clearly
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                                       No. 14-10709
erroneous and would work a manifest injustice.”). The Guzman I mandate was
not clearly erroneous and did not result in manifest injustice but, instead,
simply reopened the case for a limited purpose consistent with longstanding
practice. See, e.g., Coleman v. Alabama, 399 U.S. 1, 11 (1970); United States
v. Wade, 388 U.S. 218, 242 (1967); United States v. Chavis, 48 F.3d 871, 873
(5th Cir. 1995); United States v. Robinson, 625 F.2d 1211, 1221 (5th Cir. 1980);
United States v. Bowie, 892 F.2d 1494, 1502 (10th Cir. 1990); United States v.
Mitchell, 602 F.2d 636, 637 (4th Cir. 1979). Further, even if Guzman is correct
in asserting that United States v. Palacios, 756 F.3d 325 (5th Cir. 2014),
constituted an intervening change of law, that change had no effect on the
present case. On this factual record, where there is no record evidence showing
that the government originally withheld the § 3E1.1(b) motion for an
impermissible reason, and, more significantly, there is determinative support
in the record justifying the continued withholding of the additional reduction, 1
consideration of Palacios would have made no difference. Accordingly, even if
the district court erred by adhering to our mandate and declining to consider



       1  Guzman contends that the government withheld the § 3E1.1(b) motion because
Guzman would not waive his right to appeal, a reason that has since been disallowed. See
U.S.S.G. § 3E1.1 cmt. n.6 (2013) (“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.”); Palacios, 756 F.3d at 326. There is no evidence in the record
establishing the motivational reason for the government’s decision. See United States v.
Henneberger, 592 F. App’x 233, 237 (5th Cir. 2014) (reviewing for plain error and explaining
that “we cannot conclude that the government withheld its motion for reasons not identified
in Section 3E1.1” where “[t]he record [was] silent as to the reason” for the government’s
decision). Significantly, Guzman was indicted on January 26, 2011, but he did not announce
his intention to enter a guilty plea until around September 4, 2012. This announcement came
almost one year after the parties litigated, and the district court first denied, the motion to
suppress and several months after the government filed numerous documents in preparation
for a full jury trial. See § 3E1.1 cmt. n.6 (“In general, the conduct qualifying for a decrease
in offense level under subsection (b) will occur particularly early in the case. For example, to
qualify under subsection (b), the defendant must have notified authorities of his intention to
enter a plea of guilty at a sufficiently early point in the process so that the government may
avoid preparing for trial and the court may schedule its calendar efficiently.”)
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Palacios, any error was harmless. See Fed. R. Crim. P. 52; see also United
States v. Paz, No. 14-10243, 2015 WL 993391, at *3 (5th Cir. Mar. 6, 2015)
(unpublished) (emphasizing that “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”).
     The district court’s judgment is AFFIRMED.




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