     Case: 13-10258      Document: 00512981964         Page: 1    Date Filed: 03/25/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-10258                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                          March 25, 2015
UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

ALBERT AGUILAR-MUNOZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CR-268-1


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Within six weeks of being indicted, Albert Aguilar-Munoz pleaded guilty,
without the benefit of a plea agreement, to illegal reentry. Based on this guilty
plea, the pre-sentencing report applied a two-level reduction for acceptance of
responsibility under the sentencing guidelines. See U.S.S.G. § 3E1.1(a). It
further noted an additional one-level reduction under section 3E1.1(b) would



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10258
be withheld by the government because Aguilar-Munoz “failed to waive certain
appellate rights.” Aguilar-Munoz filed a written objection to the withholding
of this additional one-level reduction. Subsequently, he offered to conditionally
and partially waive his right to appeal and provided the government with a
signed waiver.   The government agreed in principle but insisted Aguilar-
Munoz sign an alternative form agreement. Aguilar-Munoz never signed the
agreement, and the case proceeded to sentencing.
      At sentencing the parties discussed their inability to reach an agreement
with respect to Aguilar-Munoz’s offer to waive his appellate rights, and counsel
for the defendant again “object[ed] to the denial of the third point.” Consistent
with governing precedent at the time, the district court overruled the objection.
See United States v. Newson, 515 F.3d 374 (2008).
      Since Aguilar-Munoz’s sentencing, the guidelines have been amended to
provide: “The government should not withhold [a § 3E1.1(b)] motion based on
interests not identified in § 3E1.1, such as whether the defendant agrees to
waive his or her right to appeal.” We have held this amendment to be a
clarification, and thus retroactive. See United States v. Palacios, 756 F.3d 325,
326 (5th Cir. 2014). To the extent it interferes with application of Amendment
775, Newson is therefore no longer the law. Id. at 326 n.1.
      Based on the foregoing developments, if the government withheld the
one-level reduction based on Aguilar-Munoz’s refusal to waive his right to
appeal, there was undisputedly error. See United States v. Torres-Perez, No.
14-10154, 2015 WL 394105, at *2 (5th Cir. Jan. 29, 2015); see also Palacios,
756 F.3d at 326 (noting that the government “conceded error” after
Amendment 775 took effect).      However, because Aguilar-Munoz offered to
waive his appellate rights, the government argues that the plain error
standard of review applies and that Palacios does not govern this case’s
outcome. We disagree.
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                                  No. 13-10258
      The error that Aguilar-Torres complains of on appeal is the same error
he alerted the district court to. See United States v. Neal, 578 F.3d 270, 272
(5th Cir.2009). “[T]he district court was aware of the [defendant’s] argument
that the government was in error to withhold a motion for a third-level
reduction,” and “the district court specifically declined to grant a one-level
reduction.” See Torres-Perez, 2015 WL 394105, at *2. Moreover, it was only
after filing his written objection, and as a necessity given then-governing law,
that Aguilar-Munoz attempted to acquiesce to the government’s improper
demands. He never waived the original objection. Aguilar-Munoz frames his
argument differently on appeal than he did before the district court because
the law changed. The error remained the same and our ordinary standard of
review applied.
      Accordingly, we review Aguilar-Munoz’s sentence for abuse of discretion.
Id. at *3. In determining whether the court made any procedural errors we
review “the district court's interpretation and application of the Sentencing
Guidelines de novo and its findings of fact for clear error.” Id.
      We find that, under Palacios and Torres-Perez, it was error to withhold
the further one-level reduction pursuant to § 3E1.1(b). The government argues
Palacios is inapt because, ultimately, the government did not refuse the one-
level reduction based on Aguilar-Munoz’s refusal to waive appellate rights. It
points to a facially compelling bit of evidence: Aguilar-Munoz in fact offered to
waive his appellate rights. Q.E.D. The government’s argument loses steam as
quickly as it gathers it, however. The government insists it refused to grant
the one-level reduction based on “other consideration (i.e., his failure to adopt
other non-waiver provisions).”
      We need not embark at this stage on the task of determining whether
the government’s true reason in denying the one-level reduction was Aguilar-
Munoz’s refusal to adequately waive appellate rights.          Either way, the
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                                 No. 13-10258
government withheld the one-level reduction “based on interests not identified
in § 3E1.1.” See U.S.S.G., supp. to app. C, amend. 775, at pp. 43–46 (2013).
This was error. See Torres-Perez, 2015 WL 394105, at *3.
      Because the defendant preserved the claim of error and the “district
court committed a procedural error, we must remand unless the proponent of
the sentence establishes that the error was harmless.” Id. “To establish
harmlessness, the government must ‘convincingly demonstrate that the court
would have imposed the very same sentence if it had not made an erroneous
calculation.’” Id. (quoting United States v. Ibarra–Luna, 628 F.3d 712, 719 (5th
Cir. 2010)).
      While the government does not address the harmless error standard, it
does argue that “the available ‘additional evidence’ suggests that the district
court would have imposed the same 75-month sentence even if it had
considered the allegedly correct range.” What, in the government’s view, the
evidence “suggests” is not sufficient to convince us as required by the harmless
error standard.   Not only did Aguilar-Munoz receive a within-guidelines
sentence, the sentencing judge also “denied [him] the additional reduction
point because it did not yet have guidance from this court that the rule
announced in Newson was no longer correct.” See id. “The government has
not convincingly demonstrated harmlessness.” Id.
      The sentence is vacated and the case remanded for resentencing.




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