     Case: 12-11161    Document: 00512596524     Page: 1   Date Filed: 04/15/2014




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

                                                                           FILED
                                  No. 12-11161                         April 15, 2014
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk

                                            Plaintiff–Appellee,
v.

VICTOR GARCIA-CARRILLO,

                                            Defendant–Appellant.




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


Before REAVLEY, PRADO, and OWEN, Circuit Judges.
PER CURIAM:
      Victor Garcia-Carrillo pled guilty to re-entering the United States
illegally and was sentenced to 89 months of imprisonment. The Government
declined to move in the district court for a one-level reduction for acceptance of
responsibility under United States Sentencing Guidelines Manual (U.S.S.G.)
§ 3E1.1(b) because Garcia-Carrillo refused to waive his right to appeal. After
sentencing, and while his appeal was pending, the Sentencing Commission
amended the commentary to § 3E1.1(b), which now instructs prosecutors not
to withhold such motions on the basis of a defendant’s failure to waive his
appellate rights. We affirm the sentence of the district court because even
assuming that Amendment 775 should be considered in this appeal, Garcia-
Carrillo’s substantial rights have not been affected.
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                                     No. 12-11161
                                            I
      Garcia-Carrillo was indicted under 8 U.S.C. § 1326 for illegally re-
entering the United States after having been deported. He pled guilty without
a plea agreement. The presentence report (PSR) assigned an offense level of
22. His base offense level of 8 was increased 16 levels due to a conviction for a
prior crime of violence but reduced 2 levels for his acceptance of responsibility
for a total offense level of 22. The prosecutor elected not to move for an
additional one-level reduction under U.S.S.G. § 3E1.1(b) because Garcia-
Carrillo refused to waive his right of appeal. The record reflects that “[t]he
defendant failed to waive certain [appellate] rights; therefore [the prosecutor]
indicated she will not move the Court for an additional 1-level reduction under
USSG § 3E1.1(b).” Garcia-Carrillo did not object in the district court to the
conclusions in the PSR or the PSR’s calculation of the advisory guidelines
range. His total offense level of 22, combined with his criminal history category
of VI, resulted in a guidelines range of 84-105 months of imprisonment. The
district court adopted the PSR’s recommendations and sentenced Garcia-
Carrillo to a within-guidelines prison sentence of 89 months.
      After Garcia-Carrillo was sentenced, the United States Sentencing
Commission proposed to amend the official commentary of § 3E1.1 by adding
the following sentence: “[t]he government should not withhold [a motion for
the 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.” 1 The
amendment went into effect as note six of § 3E1.1 on November 1, 2013. 2 In
this direct appeal, Garcia-Carrillo appeals his sentence contending that we



      1  Notice of Submission to Congress of Amendments to the Sentencing Guidelines
Effective November 1, 2013, 78 Fed. Reg. 26,425-02, 26,431 (May 6, 2013).
      2   U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) app. C. amend. 775 at 43 (2013).
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                                        No. 12-11161
should vacate and remand to allow the district court to resentence him in light
of this amendment.
                                               II
       Prior to the November 1, 2013 amendment, this court had held that it
was permissible for a prosecutor to decline to move for a one-level reduction
under § 3E1.1(b) on the basis that a defendant failed to waive his appellate
rights. 3 This precedent was in accord with decisions of the Seventh and Ninth
Circuits but in conflict with decisions from the Fourth Circuit. 4                        The
Government’s decision not to file a motion for a one-level reduction in the
present case was consistent with the law in this Circuit as it existed at the time
of Garcia-Carrillo’s sentencing. However, after Garcia-Carrillo’s sentencing,
as noted above, the United States Sentencing Commission proposed and then
issued an amendment to application note six of § 3E1.1 that contravened this
precedent. 5 The central issue in this appeal is whether Garcia-Carrillo is
entitled to be resentenced in light of this amendment.
       Our review is for plain error. Garcia-Carrillo failed to apprise the district
court of his contention that it was improper for the Government to condition
the filing of a motion for a one-level reduction for acceptance of responsibility
on an appeal waiver by Garcia-Carrillo. Although an objection would have
been futile in our Circuit at the time of sentencing, the failure to object
nonetheless results in a plain error standard of review on appeal. 6 Garcia-




       3   United States v. Newson, 515 F.3d 374, 378-79 (5th Cir. 2008).
       4 Compare United States v. Johnson, 581 F.3d 994, 1002 (9th Cir. 2009), and United
States v. Deberry, 576 F.3d 708, 711 (7th Cir. 2009), with United States v. Divens, 650 F.3d
343, 349 (4th Cir. 2011).
       5   U.S.S.G. app. C. amend. 775 at 43 (2013).
       6See Johnson v. United States, 520 U.S. 461, 464-65 (1997) (holding that standard of
review on appeal was plain error when defendant failed to object in the district court in light
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                                       No. 12-11161
Carrillo’s reliance on Federal Rule of Criminal Procedure 51(a), which provides
that “[i]f a party does not have an opportunity to object to a ruling or order, the
absence of an objection does not later prejudice that party,” 7 and our
unpublished decision in United States v. Rodriguez, 8 is misplaced. We do not
accept Garcia-Carrillo’s argument that he had no opportunity to object in the
district court because the amendment at issue had not been proposed at the
time of his sentencing. The existence of settled law at the time of sentencing
does not obviate the need for an objection. 9 Plain error exists if “(1) there is an
error, (2) the error is plain, . . . (3) the error affect[s] substantial rights” and (4)
“the error seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” 10 An error is plain if the error is apparent at the time of
appeal. 11
       We need not determine in this case whether the district court committed
error when it permitted the prosecution to withhold the motion for an
additional one-level reduction. The record reflects that Garcia-Carrillo cannot
satisfy another of the prongs that must exist before a court will exercise its
discretion to correct plain error. “A sentencing error affects a defendant’s
substantial rights if he can show a reasonable probability that, but for the



of existing Eleventh Circuit precedent, but the Supreme Court had overruled that precedent
by the time of appeal).
       7   FED. R. CRIM. P. 51(b).
       8 305 F. App’x 206, 207-08 (5th Cir. 2008) (unpublished); see also United States v.
LeBlanc, 428 F. App’x 289, 290 (5th Cir. 2011) (unpublished) (“Because appellants raise
issues based upon legislation enacted post-sentencing, our review is de novo.”).
       9 See Johnson, 520 U.S. at 464-65; see also United States v. Escalante-Reyes, 689 F.3d
415, 418 (5th Cir. 2012) (en banc) (applying plain error standard of review when law at the
time of trial or plea is unsettled but becomes clear by the time of appeal).
       10 Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013) (alterations in original)
(internal quotation marks omitted).
       11   Id. at 1129.
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                                         No. 12-11161
district court’s misapplication of the Guidelines, he would have received a
lesser sentence.” 12 In order for a sentencing error to affect a defendant’s
substantial rights the incorrectly calculated sentencing range must be
materially higher than the correctly calculated guidelines range. 13                   If the
correct and incorrect sentencing ranges overlap and the defendant has been
sentenced within this overlap, “we do not assume, in the absence of additional
evidence, that the sentence affects a defendant’s substantial rights.” 14 Garcia-
Carrillo was sentenced to 89 months from a guidelines range of 84-105. If
Garcia-Carrillo had received the additional one-point reduction, he would have
had a guidelines range of 77-96 months. 15 Therefore, he was sentenced within
the overlap between the two sentences. This is not a case where the two
guidelines ranges barely overlap. 16 Rather, the ranges substantially overlap.
In such cases, “we have shown considerable reluctance in finding a reasonable
probability that the district court would have settled on a lower sentence.” 17
Because of this overlap and because of Garcia-Carrillo’s failure to otherwise
show a reasonable probability of a different result, any error that may have
occurred regarding § 3E1.1(b) did not affect his substantial rights.
                                               III
      Garcia-Carrillo alternatively contends that even if the amendment is
inapplicable on direct appeal, his case should be remanded so that the district



      12   United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011).
      13   Id. (citing United States v. John, 597 F.3d 263, 284-85 (5th Cir. 2010)).
      14   United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010).
      15   U.S.S.G. ch. 5, pt. A (Sentencing Table).
      16 See Mudekunye, 646 F.3d at 290-91 (holding that it was plain error when correct
and incorrect sentencing guidelines ranges only overlapped by one month and defendant was
sentenced outside of the one-month overlap).
      17   Blocker, 612 F.3d at 416.
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                                            No. 12-11161
court can resentence him with the knowledge that the amendment exists. The
intervening amendment could plausibly influence the district court’s decision
on whether to exercise discretion and deviate from the applicable advisory
guidelines range. Garcia-Carrillo argues that the existence of the amended
guideline, even if not directly applicable in his case, “might alter the district
court’s ultimate choice of a discretionary sentence in the post-Booker era.” 18
       Garcia-Carrillo relies on a decision from the First Circuit, United States
v. Godin, 19 in which the court remanded an appeal for resentencing in light of
a post-sentencing amendment despite the fact that the amendment was
substantive and not clarifying.              The non-retroactive amendment in Godin
changed the previous treatment of convictions for criminal history purposes. 20
The First Circuit rationalized its decision to remand on the basis that the
existence of the amendment could plausibly affect the district court’s choice of
sentence even though it was not directly applicable to the defendant’s case. 21
       We decline to follow the First Circuit’s approach.               To do so would not
comport with our plain error standard of review. Additionally, as the Seventh
Circuit has recognized, “Godin is an outlier” among the circuits. 22 Though we
are sympathetic to Garcia-Carrillo’s circumstances in that his failure to waive
his appellate rights may have affected the sentence that was imposed by the
district court, we cannot say that any error that may have been committed was
plain error.
                                        *        *       *


       18   See United States v. Godin, 522 F.3d 133, 136 (1st Cir. 2008).
       19   522 F.3d 133 (1st Cir. 2008).
       20   Godin, 522 F.3d at 134.
       21   Id. at 136.
       22United States v. Alexander, 553 F.3d 591, 593 (7th Cir. 2009); see also United States
v. Urena, 659 F.3d 903, 909-10 (9th Cir. 2011) (declining to follow Godin).
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                          No. 12-11161
 The judgment of the district court is AFFIRMED.




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