IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40919

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ROY VILLARREAL,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:15-CR-175-1

Before DAVIS, JONES, and GRAVES, Circuit Judges.

PER CURIAM:*

Roy Villarreal pleaded guilty pursuant to a plea agreement to one count 

of concealing, harboring, and shielding from detection illegal aliens. In the 

plea agreement, Villarreal agreed to plead guilty in exchange for the 

Government’s recommendation that he receive a two-level downward 

departure under U.S.S.G. § 5K3.1 for early disposition and that all remaining 

counts of the indictment be dismissed. The district court declined to apply the 

 

* 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

May 26, 2016

Lyle W. Cayce

Clerk

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No. 15-40919

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§ 5K3.1 downward departure, and denied Villarreal’s post-judgment Federal 

Rule of Criminal Procedure 35 motion for correction of sentence. Villarreal 

now appeals.

Villarreal first contends that the district court abused its discretion by 

rejecting the Government’s recommendation that he receive the § 5K3.1

downward departure. However, we have “jurisdiction to review a district 

court’s decision not to depart downward from the guideline[s] range only if the 

district court based its decision upon an erroneous belief that it lacked the 

authority to depart.” United States v. Alaniz, 726 F.3d 586, 627 (5th Cir. 2013) 

(internal quotation marks and citation omitted); see also United States v. 

Tuma, 738 F.3d 681, 691 (5th Cir. 2013) (stating that this “rule applies to 

departures found in both Chapter 5, Part K of the Guidelines and in the 

commentary to the Guidelines”). Villarreal has not demonstrated that the 

district court held such an erroneous belief. Nothing in the record indicates 

that the district court did not believe it had the authority to depart; rather, the 

record indicates that district court recognized that it could depart downward 

pursuant to § 5K3.1 and listened to the Government’s reasons for 

recommending the departure, but concluded that a downward departure was 

not appropriate under the facts of the case. Because we lack jurisdiction to 

review the district court’s denial of the § 5K3.1 downward departure, the 

appeal is DISMISSED IN PART.

Villarreal’s second argument is that the district court abused its 

discretion when denying his Rule 35 motion. We will reverse a Rule 35 decision 

“only for illegality or a gross abuse of discretion.” United States v. Nerren, 613 

F.2d 572, 573 (5th Cir. 1980). According to Villarreal, the district court failed 

to comply with the requirement in Federal Rule of Criminal Procedure 11(c)(5) 

that it give him an opportunity to withdraw his guilty plea after the district 

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court denied the § 5K3.1 downward departure. However, the record does not 

support this contention; rather, it is clear from the available portions of the 

record1 that the plea agreement, under which the Government agreed only to 

recommend that the § 5K3.1 downward departure apply, is a Rule 11(c)(1)(B), 

not a Rule 11(c)(1)(C), agreement. Unlike a Rule 11(c)(1)(C) agreement, a Rule 

11(c)(1)(B) recommendation does not bind the district court and does not 

require the district court to give the defendant an opportunity to withdraw his 

guilty plea if the recommendation is rejected. See FED. R. CRIM. P. 11(c)(1)(B), 

(C), (c)(5). Accordingly, the district court’s denial of Villarreal’s Rule 35 motion 

was not a gross abuse of discretion. See Nerren, 613 F.2d at 573. The judgment 

is AFFIRMED IN PART.

 

1 The rearraignment transcript is not in the record. It was Villarreal’s responsibility 

to order the rearraignment transcript if he sought to challenge findings or conclusions based 

on proceedings at that hearing. FED. R. APP. P. 10(b); see also Richardson v. Henry, 902 F.2d 

414, 415-16 (5th Cir. 1990); United States v. Wyss, 542 F. App’x 401, 408 (5th Cir. 2013).

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