     Case: 13-11088      Document: 00512740313         Page: 1    Date Filed: 08/20/2014




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

                                                                                   FILED
                                                                               August 20, 2014
                                    No. 13-11088                                Lyle W. Cayce
                                  Summary Calendar                                   Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GABRIEL GUEL-ESCOBEDO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:13-CR-4-1


Before STEWART, Chief Judge, and CLEMENT and PRADO, Circuit Judges.
PER CURIAM: *
       Gabriel Guel-Escobedo appeals from the sentence imposed following his
guilty plea conviction for illegal reentry after removal from the United States,
being a felon in possession of a firearm, and being an illegal alien in possession
of a firearm. The district court imposed a total, within-guidelines sentence of
57 months of imprisonment and three years of supervised release.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-11088    Document: 00512740313    Page: 2   Date Filed: 08/20/2014


                                No. 13-11088

      On appeal, Guel-Escobedo argues that the district court reversibly erred
by failing to award him an additional one-level reduction for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1(b). Contrary to the Government’s
assertions, Guel-Escobedo’s explicit request at sentencing for the additional
one-level reduction under § 3E1.1(b) based upon the upcoming amendment to
§ 3E1.1 was sufficient to preserve this challenge for appeal. See United States
v. Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir. 2007). As we held
recently in United States v. Palacios, __ F.3d __, No. 13-40153, 2014 WL
2119096, at *1 (5th Cir. May 21, 2014), the amended version of § 3E1.1 is
applicable in a case such as this one where the amendment was proposed at
the time of sentencing and went into effect while the appeal was pending.
Pursuant to the amended § 3E1.1, the Government may not withhold a
§ 3E1.1(b) motion because the defendant refuses to waive his right to appeal,
as it did in this case. The Government has not shown that this error was
harmless as to the imposed sentence. See United States v. Delgado-Martinez,
564 F.3d 750, 752-53 (5th Cir. 2009).
      Accordingly, Guel-Escobedo’s sentence is VACATED and the case is
REMANDED to the district court for resentencing consistent with this opinion.




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