     Case: 14-10154   Document: 00512920341        Page: 1   Date Filed: 01/29/2015




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                    No. 14-10154                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                          January 29, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

JOSE TORRES-PEREZ,

             Defendant - Appellant

------------------------
CONSOLIDATED WITH
CASE NO. 14-10202

UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

ALEJANDRO ALVAREZ-RINCON,

             Defendant - Appellant




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


Before STEWART, Chief Judge, and BARKSDALE and GRAVES, Circuit
Judges.
JAMES E. GRAVES, JR., Circuit Judge:
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                                       No. 14-10154
      This consolidated opinion addresses two appeals of sentences that were
entered following Jose Torres-Perez and Alejandro Alvarez-Rincon’s (“the
defendants-appellants”) guilty pleas to illegal reentry after removal from the
United States in violation of 8 U.S.C. §§ 1326(a) and (b)(2).                 Despite the
defendants-appellants’ entries of timely guilty pleas, which permitted the
government to avoid preparing for trial, the government did not move for a
third-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b).
Instead, the government chose not to move under § 3E1.1(b) for the
impermissible reason that neither defendant-appellant waived his right to
appeal. The government now concedes on appeal that it was error to withhold
the § 3E1.1(b) motion on this basis. However, the government contends that
the error was insufficiently preserved to merit correction and, in the
alternative, was harmless. For the reasons stated herein, we disagree and
reverse.
                            RELEVANT BACKGROUND
      Following the defendants-appellants’ guilty pleas to illegally reentering
the United States, the defendants-appellants’ presentence reports (“PSR”)
recommended a two-level adjustment for acceptance of responsibility pursuant
to § 3E1.1(a). The PSRs further stated that the government would not move
for the additional one-level reduction under § 3E1.1(b) due to the defendants-
appellants’ failure to waive their appellate rights. Torres-Perez did not file
written objections to the PSR. Alvarez-Rincon did not object to the lack of a
§ 3E1.1(b) motion in his written objections to the PSR.                 However, at the
sentencing hearings, the defendants-appellants requested that the district
court 1 either vary downward or refrain from varying upward to compensate for
the lack of the third-level reduction under § 3E1.1(b).                 The defendants-


      1   The defendants-appellants were sentenced before two, separate district judges.
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                                    No. 14-10154
appellants explained that it was improper for the government to withhold the
§ 3E1.1(b) motion on the basis of the defendants-appellants’ refusal to waive
the right to appeal.
      In addressing the issue with regard to Torres-Perez, the district judge
stated that it would not grant the one-level variance despite its normal policy
to do so because of Torres-Perez’s criminal history. With respect to Alvarez-
Rincon, the district judge declined to give credit for the § 3E1.1(b) point
because it did not believe the position of the Sentencing Commission was
controlling on the issue. 2 The district judge explained that in the absence of
any authority to the contrary, it would deny the additional reduction point.
      Defendants-appellants timely appealed this issue.
                            STANDARD OF REVIEW
      The government asserts that the defendants-appellants have not
preserved the § 3E1.1(b) issue for appeal because instead of objecting to the
government’s refusal to move, the defendants-appellants requested a
downward variance.        The defendants-appellants concede that plain error
review applies. Nevertheless, it is this court, and not the parties, that must
determine the appropriate standard of review. United States v. Vonsteen, 950
F.2d 1086, 1091 (5th Cir. 1992) (en banc) (“[N]o party has the power to control
our standard of review. . . . If neither party suggests the appropriate standard,
the reviewing court must determine the proper standard on its own[.]”); United
States v. Molina, 174 F. App’x 812, 815–16 (5th Cir. 2006) (finding an error
preserved for harmless-error review despite the defendant-appellant’s
concession that plain error review applied).


      2  In Amendment 775 to the United States Sentencing Guidelines, which became
effective November 1, 2013, the Sentencing Commission took the position that the
government shall not withhold a third-level reduction motion based on the defendant’s
refusal to waive his right to appeal. U.S.S.G., supp. to app. C, amend. 775, at pp. 43–46
(2013); accord U.S.S.G. § 3E1.1 cmt. n.6.
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                                  No. 14-10154
      In both cases, the defendants-appellants raised the issue of the
government’s refusal to move for a third-level reduction at the sentencing
hearing, although not in objections to the PSR. Counsel for Torres-Perez stated
the following at his hearing:
      I have two preliminary matters before I get into the 3553(a)
      factors. The first is just to note that the offense level is reduced
      only by two for acceptance of responsibility, and the reason for
      that is that Mr. Torres has refused to waive his right to appeal.
      Despite the fact that the Guidelines have been changed and the
      Government has been advised that the Sentencing Commission
      requests that they not withhold that third level for acceptance
      of responsibility for that reason, the Government has still
      declined to move in this particular case. So for that reason,
      Your Honor, I would ask the Court to consider a downward
      variance of one offense level just to take into account the fact
      that Mr. Torres has fully accepted responsibility, he notified
      the Government in a timely manner, no one had to prepare for
      trial, no pretrial motions were filed in this case, and for that
      reason, Your Honor, we would ask for a downward variance of
      one just to take that into consideration.
Counsel for Alvarez-Rincon stated the following at his hearing:
      [M]ost defendants who plead guilty timely receive three levels
      for acceptance of responsibility; he received two. The Court has
      the authority to grant a one-level variance to eliminate that
      sentencing disparity. What the probation office did not
      mention as a factor for a possible variance is Application Note
      6 to 31.1 [sic] which states, and I quote: The government
      should not withhold such a motion based on interest [sic] not
      identified in 31.1 [sic] such as whether the defendant agrees to
      waive his right of appeal. So I’m asking the Court to consider
      that. The government is asking the Court to ignore that. Okay.
      Three levels is the usual increase. It’s what most defendants
      receive. It’s what defendants in Fort Worth receive even if they
      don’t waive their right to appeal. And a variance is solely
      within the Court’s discretion. So certainly an upward variance
      — this is not a case for an upward variance, Your Honor.



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                                     No. 14-10154
      “To preserve error, an objection must be sufficiently specific to alert the
district court to the nature of the alleged error and to provide an opportunity
for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). In
both cases, the district court was aware of the defendants-appellants’
argument that the government was in error to withhold a motion for a third-
level reduction. And in both cases, the district court specifically declined to
grant a one-level reduction.         Because the purposes of the preservation
requirement were met in these cases — namely, the defendants-appellants
“raise[d] a claim of error with the district court in such a manner so that the
district court may [have] correct[ed] itself and thus, obviate[d] the need for our
review[,]” we conclude that the issue of the § 3E1.1(b) reduction has been
sufficiently preserved. See United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir. 2009) (internal citations omitted).
      Preserved challenges to sentences, whether inside or outside the
guidelines range, are reviewed for abuse of discretion. Gall v. United States,
552 U.S. 38, 51 (2007).        This court examines whether the district court
committed any procedural errors, such as failing to calculate or incorrectly
calculating the advisory guidelines range or determining the sentence based
on “clearly erroneous facts.” 3          Id.     In making the procedural-error
determination, this court reviews the district court’s interpretation and
application of the Sentencing Guidelines de novo and its findings of fact for
clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008). If the district court committed a procedural error, we must remand
unless the proponent of the sentence establishes that the error was harmless.
United States v. Delgado-Martinez, 564 F.3d 750, 752–53 (5th Cir. 2009).


      3  Where a sentence is procedurally sound, this court then considers whether the
sentence is substantively reasonable under an abuse of discretion standard of review. Gall
v. United States, 552 U.S. 38, 51 (2007).
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                                 No. 14-10154
                                DISCUSSION
      As the government concedes, it was error to withhold the § 3E1.1(b)
motion on the basis of the defendants-appellants’ refusal to waive their right
to appeal. In United States v. Newson, we held that a defendant’s refusal to
waive his right to appeal was a proper basis upon which the government could
decline to move under § 3E1.1(b). 515 F.3d 374, 378 (5th Cir. 2008). However,
the Sentencing Commission issued a clarifying amendment that disagreed
with our position. That amendment, Amendment 775, became effective on
November 1, 2013, and stated that the government should not withhold a
motion for an additional one-level reduction based on an interest not identified
in § 3E1.1 such as a defendant’s waiver or non-waiver of his right to appeal.
U.S.S.G., supp. to app. C, amend. 775, at pp. 43–46 (2013); accord U.S.S.G.
§ 3E1.1 cmt. n.6. On May 21, 2014, after the sentencing hearings for the
defendants-appellants in this case, this court issued United States v. Palacios,
756 F.3d 325 (5th Cir. 2014), which abrogated Newson’s rule that the
government could withhold a § 3E1.1(b) motion due to the defendant’s failure
to waive his appellate rights. Therefore, it is now unquestionably clear under
our precedent that procedural error was committed in the instant cases.
      We further conclude that the error in these cases was not harmless. 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.” United States v. Ibarra-Luna, 628 F.3d 712, 719 (5th
Cir. 2010). There is insufficient evidence in the records for these cases to
establish that the district court would have imposed the same sentence in the
absence of its error. To the contrary, there are aspects of both records that
indicate the district court would have likely imposed a different sentence but
for the error.   The district court gave Torres-Perez a within-guidelines
sentence.   And the district court denied Alvarez-Rincon the additional
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                               No. 14-10154
reduction point because it did not yet have guidance from this court that the
rule announced in Newson was no longer correct. Thus, the government has
not convincingly demonstrated harmlessness.
                              CONCLUSION
     Because of the procedural error that occurred in these cases, we
REVERSE and REMAND for resentencing, consistent with this opinion.




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