     Case: 14-10227       Document: 00513008637         Page: 1     Date Filed: 04/16/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                       No. 14-10227                       United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                    April 16, 2015
                                                                            Lyle W. Cayce
               Plaintiff - Appellee                                              Clerk

v.

RAUL MIRABAL, JR.,

               Defendant - Appellant




                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:13-CR-43-1


Before JOLLY and DENNIS, Circuit Judges, and RAMOS,* District Judge.
PER CURIAM:**
       Raul Mirabal, Jr., refused to waive his right to appeal his sentence. For
this reason, he was denied a one-level reduction for acceptance of responsibility
under U.S.S.G. § 3E1.1(b). Now exercising his right to appeal, he argues that
his failure to waive appellate rights is an impermissible reason to deny the
§3E1.1(b) reduction. Because he did not raise this objection in the district



       * District
                Judge of the Southern District of Texas, sitting by designation.
       ** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-10227
court, our review is for plain error only. Reviewing for plain error, we AFFIRM
Mirabal’s sentence, because Mirabal has not satisfied the criteria for plain-
error review.
                                              I.
       Mirabal was detained by Grapevine, Texas police in connection with a
domestic disturbance involving his estranged wife, J.M., and their three-year-
old son, M.M. At the time of the disturbance, a restraining order prohibited
Mirabal from being near J.M. or M.M. The order also prohibited him from
communicating with J.M. or M.M. in a threatening or harassing manner.
       According to the presentence report (PSR), during the nine-hour
disturbance, Mirabal threatened to kill J.M. and M.M., used a gun to
intimidate J.M., and coerced J.M. into performing a sex act by threatening to
shoot her and M.M. The PSR further indicates that Mirabal assaulted J.M.,
causing two black eyes, fracturing her left eye’s orbital bone, and causing
abrasions to her neck and upper arm. At the time law-enforcement officials
arrived and interrupted the disturbance, Mirabal was having J.M. pack her
things in preparation for a “trip to the desert.”               J.M. led the officials to
Mirabal’s backpack, which contained a loaded handgun.
          Mirabal was charged with possession of a firearm while subject to a
qualifying protective order, in violation of 18 U.S.C. § 922(g)(8). 1 He pled
guilty.


       1 Section 922(g)(8) prohibits the possession of a firearm by a person “who is subject to
a court order that—
               (A) was issued after a hearing of which such person received actual
       notice, and at which such person had an opportunity to participate;
               (B) restrains such person from harassing, stalking, or threatening an
       intimate partner of such person or child of such intimate partner or person, or
       engaging in other conduct that would place an intimate partner in reasonable
       fear of bodily injury to the partner or child; and
               (C) (i) includes a finding that such person represents a credible threat
       to the physical safety of such intimate partner or child; or
                                              2
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                                        No. 14-10227
       Before sentencing, the probation office prepared an addendum to the
PSR. 2 In the addendum, the probation office calculated a total offense level of
25, which, coupled with a criminal-history category of I, produced a Guidelines
range of 57–71 months. The total offense level included a two-level reduction
for acceptance of responsibility under U.S.S.G. § 3E1.1(a). 3 It did not, however,
include an additional one-level acceptance-of-responsibility reduction under
§ 3E1.1(b). That reduction is available only after motion by the government.
U.S.S.G. § 3E1.1 cmt. n.6. The PSR stated that, because Mirabal “failed to
waive certain appellate rights,” the government would not move for the
reduction. Finally, the probation office suggested that an upward departure
may be appropriate, given that Mirabal had sexually assaulted J.M.,
threatened to kill his three-year-old son, and subjected J.M. and M.M. to
approximately nine hours of psychological trauma and risk of injury or death.
       At sentencing, the district court adopted the PSR and addendum, except
that it sustained Mirabal’s objection to a two-level increase applied by the PSR.
Thus, the district court determined that the offense level was 23 and the
criminal-history category was I. The district court decided to vary upward by
three offense levels, however, “for the reasons stated by the government and
also as stated in the PSR and the addendum.” This variance raised the offense
level to 26, yielding a Guidelines range of 63–78 months.
       The district court sentenced Mirabal to 72 months, and Mirabal
appealed.



                (ii) by its terms explicitly prohibits the use, attempted use, or
        threatened use of physical force against such intimate partner or child that
        would reasonably be expected to cause bodily injury.”
18 U.S.C. § 922(g)(8).
        2 The addendum changed the original PSR’s recommendations in the light of

objections made by both Mirabal and the government.
        3 Specifically, the § 3E1.1(a) reduction applies “[i]f the defendant clearly demonstrates

acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a).
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                                            II.
       Mirabal argues that the government erred in withholding the third-level
reduction under U.S.S.G. § 3E1.1(b) on grounds that he did not waive his
appellate rights. He did not raise this argument before the district court.
Accordingly, the parties agree that our review is for plain error only.
       To establish plain error, Mirabal “must show that (1) there is an error,
(2) the error is clear or obvious, and (3) the error affects his substantial rights.”
United States v. Salinas, 480 F.3d 750, 756 (5th Cir. 2007) (internal quotation
marks omitted) (citing Fed. R. Crim. P. 52(b)). If he does so, we may grant
relief, “but only if (4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631
(2002) (internal quotation marks omitted).
                                            A.
       The government concedes that the first two prongs of plain-error review
are satisfied. 4 Section 3E1.1(b) provides that under certain circumstances, a
defendant who “timely notif[ies] authorities of his intention to enter a plea of
guilty” may earn a one-level reduction in his offense level, but only upon a
motion by the government. U.S.S.G. § 3E1.1(b). According to the PSR, the
government withheld the motion, not because Mirabal did not timely plead
guilty, but because he “failed to waive certain appellate rights.” Formerly, we
had considered this a permissible basis to withhold a § 3E1.1(b) motion. See
United States v. Newsom, 515 F.3d 374, 378 (5th Cir. 2008).                   But as we
recognized in United States v. Palacios, 756 F.3d 325, 326 (5th Cir. 2014), that
position no longer comports with the Guidelines; the commentary now provides




      4 More precisely, the government concedes that, if Mirabal were denied the § 3E1.1(b)
reduction because he refused to waive his appellate rights, that would be plain error. As
discussed in Part I and again below, the PSR indicates that Mirabal’s refusal to waive his
appellate rights indeed was the reason the government did not move for the reduction.
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                                   No. 14-10227
that “the government should not withhold . . . a [§ 3E1.1(b)] motion based on .
. . whether the defendant agrees to waive his or her right to appeal.” U.S.S.G.
§ 3E1.1 comment. n.6; see also Palacios, 756 F.3d at 326 n.1 (recognizing that
Application Note 6 abrogated Newsom).
      Given the specific text of Application Note 6, as well as this court’s
decision in Palacios, the district court erred when it allowed the government
to withhold its motion on the ground that Mirabal refused to waive his
appellate rights. See United States v. Torres-Perez, 777 F.3d 764, 768 (2015)
(holding that “it is now unquestionably clear under our precedent that” the
government may not withhold a § 3E1.1(b) motion due to the defendant’s
failure to waive his appellate rights). Moreover, given the clarity of the law,
that error was plain. See id.; see also United States v. Valles, 484 F.3d 745, 759
(5th Cir. 2007) (“An error is ‘plain’ if it is clear under current law.”).
                                         B.
      We proceed, then, to the third prong of plain-error review. This prong
requires Mirabal to show that “the error affects his substantial rights.”
Salinas, 480 F.3d at 756. “A sentencing error affects a defendant’s substantial
rights if he can show a reasonable probability that, but for the district court’s
misapplication of the Guidelines, he would have received a lesser sentence.”
United States v. John, 597 F.3d 263, 285 (5th Cir. 2010). The defendant bears
the burden of proving an effect on substantial rights. See, e.g., United States
v. Mares, 402 F.3d 511, 521 (5th Cir. 2005). This burden, according to the
Supreme Court, is “not . . . too easy” to carry. United States v. Dominguez
Benitez, 542 U.S. 74, 82 (2004).
      Mirabal argues that the error affected his substantial rights because,
although the district court varied upward three levels from the Guidelines
range, it began its upward variance from the wrong “reference point.”              If
application of the § 3E1.1 reduction had properly been granted, the correct
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                                 No. 14-10227
“reference point” would have been an offense level of 22. The district court
would then have varied upward by the same three levels from 22 instead of 23,
Mirabal says, and the final offense level would have been 25, yielding a
Guidelines range of 57–71 months—not 26 and 63–78 months.
      Mirabal’s argument does not demonstrate that his substantial rights
were affected by the district court’s error for the reason that we cannot assume
the district court would have applied only the same three-level variance to the
correct offense level. To be sure, in similar but limited circumstances we have
presumed that the defendant would have received a lesser sentence. For
instance, in United States v. Mudekunye, we noted that such a presumption
may be appropriate when “the incorrect range is significantly higher than the
true Guidelines range.” 646 F.3d 281, 289 (5th Cir. 2011). Similarly, in United
States v. Hernandez, we explained that, even absent additional evidence, a
defendant has shown an effect on his substantial rights when (1) there is a
“substantial . . . disparity between the top-end of the correct Guidelines range
and the sentence imposed”; and (2) there is no “indication in the record that
the district court would have imposed an above-Guidelines sentence if it had
considered the correct range.” 690 F.3d 613, 621 (5th Cir. 2012).
      But as the government points out, those exceptional circumstances are
absent here. The incorrect range of 63–78 months is not “significantly higher”
than the correct range of 57–71 months; instead, the ranges overlap by nine
months. Moreover, given that all federal sentences are designated in months,
the one-month disparity between the top end of the correct Guidelines range—
71 months—and the sentence imposed—72 months—cannot constitute a
“substantial . . . disparity” for the purposes of our presumption. Thus, Mirabal
cannot rely on a presumption to show that failure to apply the § 3E1.1
reduction affected his sentence; instead he must carry the ordinary burden to


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                                       No. 14-10227
establish that there is a reasonable probability “that the error affected the
sentencing outcome.” United States v. Tang, 718 F.3d 476, 483 (5th Cir. 2013).
       He has not carried this evidentiary burden.                Mirabal points to “no
indication in the record from the sentencing judge’s remarks or otherwise that
gives any clue whether [the district court] would have” sentenced him
differently had the government moved for the § 3E1.1(b) reduction. Mares, 402
F.3d at 522. Indeed, Mirabal’s sole argument addressing the application of the
third prong of plain error relates to the presumption noted above, but, as we
have said, Mirabal cannot sustain his burden by relying on the presumption.
Given “that the defendant rather than the government bears the burden of
persuasion with respect to prejudice,” this lack of evidence supporting
Mirabal’s contention that the district court would have imposed a different
sentence is fatal to Mirabal’s appeal. Id. at 521; see also Jones v. United States,
527 U.S. 373, 394–95 (1999) (“Where the effect of an alleged error is so
uncertain, a defendant cannot meet his burden of showing that the error
actually affected his substantial rights.”). 5
                                             C.
       Given that Mirabal cannot satisfy the third prong of the plain-error test,
we need not go further on. We briefly note, however, that his argument also
fails on the fourth prong of plain-error review. Under that prong, we may
exercise our “discretion to correct plain error only if it seriously affect[s] the



       5 The government emphasizes that, if anything, the record indicates that the district
court would have imposed the same sentence even if it had applied the § 3E1.1(b) reduction.
For instance, the district court structured the sentence as a non-Guidelines variance, instead
of a Guidelines-based departure. Cf. United States v. Pizano-Murillo, 426 F. App’x 282, 283–
84 (5th Cir. 2011) (“[A]s the sentence was an upward departure based on the Guidelines as
opposed to an upward variance outside of the Guidelines, the sentence appears to have been
directly influenced by the incorrectly calculated guidelines sentence range.”). Moreover,
when the government asked at sentencing whether the sentence “truly [was] a variance that
is independent of the guidelines calculation,” the district court answered affirmatively.
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                                  No. 14-10227
fairness, integrity, or public reputation of judicial proceedings.” Jones, 527
U.S. at 389 (internal quotation marks omitted).
        In arguing that we should exercise our discretion to correct this error,
Mirabal only repeats his third-prong argument—that, but for the error, he
likely would have received a shorter sentence. We reiterate that the difference
between the sentence imposed and the top end of the correct Guidelines range
is the minimum possible—a single month. Compare United States v. Avalos-
Martinez, 700 F.3d 148, 154 (5th Cir. 2012) (declining to correct plain
sentencing error when the sentence exceeded the correct Guidelines range by
one month) with, e.g., Mudekunye, 646 F.3d at 291 (correcting plain sentencing
error when the sentence exceeded the correct Guidelines range by 19 months).
        Nor has Mirabal’s sentence “result[ed] in a manifest miscarriage of
justice” such that we may exercise our discretion to correct it. See Seale, 600
F.3d at 490. Mirabal did not just possess a firearm while subject to a qualifying
protective order, he brandished it in front of a protected party, J.M., while
threatening to use it to kill both her and their three-year-old son. Moreover,
he did this in the midst of a nine-hour disturbance during which he both beat
J.M. until he fractured a bone in her face and coerced her into performing a
sex act.    The error in Mirabal’s sentence casts no doubt on the fairness,
integrity, or public reputation of judicial proceedings. See Davis, 602 F.3d at
651.
                                       III.
        Although it was plain error to deny Mirabal a one-level sentence
reduction under U.S.S.G. § 3E1.1(b) because he failed to waive his appellate
rights, Mirabal has not proved a reasonable probability that this error affected
his sentence. Furthermore, even if he had advanced to the fourth prong of
plain-error review, we could not exercise our discretion to correct the error.
Mirabal’s sentence is in all respects, therefore,
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                          No. 14-10227
                                                            AFFIRMED.




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                                       No. 14-10227
JAMES L. DENNIS, concurring in the judgment:
       The sole issue on appeal is whether the district court committed
reversible error by permitting the Government to decline to move for a third
point reduction under U.S.S.G. § 3E1.1 based on Mirabal’s refusal to waive his
appellate rights. I agree with the majority that, because Mirabal failed to object
to the Government’s decision not to move for a third-point reduction under
§ 3E1.1(b), we review for plain error and apply the well-established four-
pronged inquiry to determine whether Mirabal is entitled to resentencing:
       (1) there must be an error or defect—some sort of [d]eviation from
       a legal rule—that has not been intentionally relinquished or
       abandoned; (2) the legal error must be clear or obvious, rather than
       subject to reasonable dispute; (3) the error must have affected the
       appellant’s substantial rights; and (4) if the above three prongs are
       satisfied, the court of appeals has the discretion to remedy the
       error—discretion which ought to be exercised only if the error
       seriously affect[s] the fairness, integrity or public reputation of
       judicial proceedings.
United States v. Garza, 706 F.3d 655, 662 (5th Cir. 2013). I likewise agree that
prongs one and two of the plain error test have been met here, as our case law
makes it abundantly clear that the Government may not decline to move for a
third point reduction pursuant to U.S.S.G. § 3E1.1(b) based upon a defendant’s
refusal to waive his appellate rights, 1 and the presentence report (PSR) in this
case indicates that the Government decided not to move for the one-point
reduction for this prohibited reason. Further, I agree that in light of “the
degree of the error and the particular facts of the case[,]” Mirabal has not


       1 See United States v. Palacios, 756 F.3d 325, 326 (5th Cir. 2014); United States v.
Torres-Perez, No. 14-10154, 2015 WL 394105, at *3, ---F.3d--- (5th Cir. Jan. 29, 2015); United
States v. Rodriguez-Gallegos, 581 F. App’x 378, 379 (5th Cir. 2014) (unpublished) (“The
amendment to § 3E1.1 . . . unequivocally shows that it was error for the Government to
decline to award [the defendant] the additional reduction for acceptance of responsibility
based on [his] refusal to waive his right to appeal.”).
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                                       No. 14-10227
established that this error warrants the exercise our discretion to correct the
district court’s mistake. United States v. John, 597 F.3d 263, 288 (5th Cir.
2010).
       I write separately to note that I would not reach the third prong of plain
error review. As I see it, whether there is a reasonable probability that, but
for the error, Mirabal’s sentence would have been lower presents a closer
question than the majority opinion acknowledges. 2 However, in light of our
unanimous conclusion that the error did not “seriously affect[] the fairness,
integrity or public reputation of judicial proceedings,” Garza, 706 F.3d at 662,
an inquiry into whether Mirabal’s substantial rights were affected is
unnecessary to resolve this appeal.




       2  I agree with the majority that the facts of this case do not permit the court to
presume that the clear error affected Mirabal’s substantial rights because the incorrect
Guidelines range is not “significantly higher” than the true Guidelines range. See United
States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011). In the absence of the presumption,
however, a defendant may nonetheless establish that his substantial rights were affected by
pointing to “additional evidence” in the record to demonstrate that the erroneously calculated
Guideline range was a “primary factor in the selection of” his sentence. See United States v.
Pratt, 728 F.3d 463, 482 (5th Cir. 2013) cert. denied, 134 S. Ct. 1328 (2014). Whether there
is such “additional evidence” here is a close question because the district court used an
erroneously calculated offense level as the starting point in structuring his sentence but,
thereafter, answered affirmatively when asked whether the sentence was a variance from
the Guidelines. As noted, we need not reach this question to resolve Mirabal’s appeal.
                                             11
