     Case: 15-40919      Document: 00513522733         Page: 1    Date Filed: 05/26/2016




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

                                    No. 15-40919                                  FILED
                                  Summary Calendar                            May 26, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROY VILLARREAL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:15-CR-175-1


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Roy Villarreal pleaded guilty pursuant to a plea agreement to one count
of concealing, harboring, and shielding from detection illegal aliens. In the
plea agreement, Villarreal agreed to plead guilty in exchange for the
Government’s recommendation that he receive a two-level downward
departure under U.S.S.G. § 5K3.1 for early disposition and that all remaining
counts of the indictment be dismissed. The district court declined to apply the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40919     Document: 00513522733      Page: 2   Date Filed: 05/26/2016


                                  No. 15-40919

§ 5K3.1 downward departure, and denied Villarreal’s post-judgment Federal
Rule of Criminal Procedure 35 motion for correction of sentence. Villarreal
now appeals.
      Villarreal first contends that the district court abused its discretion by
rejecting the Government’s recommendation that he receive the § 5K3.1
downward departure. However, we have “jurisdiction to review a district
court’s decision not to depart downward from the guideline[s] range only if the
district court based its decision upon an erroneous belief that it lacked the
authority to depart.” United States v. Alaniz, 726 F.3d 586, 627 (5th Cir. 2013)
(internal quotation marks and citation omitted); see also United States v.
Tuma, 738 F.3d 681, 691 (5th Cir. 2013) (stating that this “rule applies to
departures found in both Chapter 5, Part K of the Guidelines and in the
commentary to the Guidelines”). Villarreal has not demonstrated that the
district court held such an erroneous belief. Nothing in the record indicates
that the district court did not believe it had the authority to depart; rather, the
record indicates that district court recognized that it could depart downward
pursuant to § 5K3.1 and listened to the Government’s reasons for
recommending the departure, but concluded that a downward departure was
not appropriate under the facts of the case. Because we lack jurisdiction to
review the district court’s denial of the § 5K3.1 downward departure, the
appeal is DISMISSED IN PART.
      Villarreal’s second argument is that the district court abused its
discretion when denying his Rule 35 motion. We will reverse a Rule 35 decision
“only for illegality or a gross abuse of discretion.” United States v. Nerren, 613
F.2d 572, 573 (5th Cir. 1980). According to Villarreal, the district court failed
to comply with the requirement in Federal Rule of Criminal Procedure 11(c)(5)
that it give him an opportunity to withdraw his guilty plea after the district



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                                       No. 15-40919

court denied the § 5K3.1 downward departure. However, the record does not
support this contention; rather, it is clear from the available portions of the
record 1 that the plea agreement, under which the Government agreed only to
recommend that the § 5K3.1 downward departure apply, is a Rule 11(c)(1)(B),
not a Rule 11(c)(1)(C), agreement. Unlike a Rule 11(c)(1)(C) agreement, a Rule
11(c)(1)(B) recommendation does not bind the district court and does not
require the district court to give the defendant an opportunity to withdraw his
guilty plea if the recommendation is rejected. See FED. R. CRIM. P. 11(c)(1)(B),
(C), (c)(5). Accordingly, the district court’s denial of Villarreal’s Rule 35 motion
was not a gross abuse of discretion. See Nerren, 613 F.2d at 573. The judgment
is AFFIRMED IN PART.




       1 The rearraignment transcript is not in the record. It was Villarreal’s responsibility
to order the rearraignment transcript if he sought to challenge findings or conclusions based
on proceedings at that hearing. FED. R. APP. P. 10(b); see also Richardson v. Henry, 902 F.2d
414, 415-16 (5th Cir. 1990); United States v. Wyss, 542 F. App’x 401, 408 (5th Cir. 2013).


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