IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10258

Summary Calendar

UNITED STATES OF AMERICA, 

 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.

United States Court of Appeals

Fifth Circuit

FILED

March 25, 2015

Lyle W. Cayce

Clerk

 

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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 AguilarMunoz 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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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 onelevel 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 AguilarMunoz’s refusal to adequately waive appellate rights. Either way, the 

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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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