IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40863

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff – Appellee

v.

GUILLERMO JIMENEZ VASQUEZ,

Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 5:12-CR-930-1

Before WIENER, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Guillermo Jimenez Vasquez (“Vasquez”) appeals his sentence of forty-six 

months following a conviction on a guilty plea to illegal reentry under 8 U.S.C. 

§ 1326.1

* 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.

1 Vasquez contends that his conviction should have been listed as a violation of 8 

U.S.C. §1326(b)(1), not (b)(2). We agree and reform the judgment accordingly. United States 

v. Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009).

United States Court of Appeals

Fifth Circuit

FILED

April 29, 2014

Lyle W. Cayce

Clerk

 

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No. 13-40863

Vasquez primarily argues that he was entitled to an additional one-level 

reduction under U.S.S.G. § 3.E.1.(b), but the Government refused to move for 

it because he did not agree to waive his right to appeal. Cf. United States v. 

Newson, 515 F.3d 374, 378 (5th Cir. 2008)(holding that the Government has 

discretion to refuse to move for the reduction on the basis that the defendant 

refused to waive his appeal rights). He argues that recent amendments to the 

applicable comments make such conduct by the Government inappropriate

and, therefore, he should have received the additional one-level reduction.2

Although the sentence he received would be within the adjusted range, he 

contends that the alleged error in calculation was not harmless error.

The Government, citing United States v. Mora-Fernandez, 2013 U.S. 

App. LEXIS 24154 (5th Cir. 2013)(unpublished), petition for cert. filed, No. 13-

8627 (U.S. Feb. 5, 2014), originally argued that the district court did not err, 

but if it did err, it was harmless error because the judge expressly stated “even 

without the guideline system, which are advisory, it would be the same 

sentence.” United States v. Valdez, 726 F.3d 684, 697 (5th Cir. 

2013)(evaluating harmlessness by looking at whether the district court would 

have imposed the same sentence for the same reasons); United States v. 

Richardson, 676 F.3d 491, 511-12 (5th Cir. 2012). Thereafter, the Government

conceded error but did not amend its position that the error was harmless.

We conclude that it is unnecessary to decide whether the refusal to grant 

the additional one-level reduction was error because any such error was 

harmless. Where the court makes an unequivocal statement such as the one 

here and the sentence given would be within the adjusted range, the error is 

2 His guidelines range as calculated was 46-57 months; with the one-level reduction, 

it would have been 41-51 months.

2

 

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No. 13-40863

harmless. Valdez, 726 F.3d at 698. Thus, we conclude that any error in 

denying the one-level decrease was harmless.

We REFORM the judgment to reflect that the statute of conviction is 8 

U.S.C. § 1326(b)(1); as reformed, the judgment of conviction and sentence is 

AFFIRMED.

3

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