### 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 U S D C 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. § 1 326. 1

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . 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 Case: 13-40863 Document: 00512611657 Page: 1 Date Filed: 04/29/2014No. 13

- 40863 Vasquez primarily argues that he wa s 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 LEXIS 24154 (5th Cir. 2013)(unpublished) , petition for cert.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 harmle ss 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. 201 3 ) (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 un necessary 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 rang e, the error is

2 His guidelines ra nge as calculated was 46

- 57 months; with the one - level reduction, it would have been 41

- 51 months. 2 Case: 13-40863 Document: 00512611657 Page: 2 Date Filed: 04/29/2014No. 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 co nviction and sentence is AFFIRMED.

3 Case: 13-40863 Document: 00512611657 Page: 3 Date Filed: 04/29/2014