IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-11161

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

VICTOR GARCIA-CARRILLO,

Defendant–Appellant.

Appeal from the United States District Court 

for the Northern District of Texas

Before REAVLEY, PRADO, and OWEN, Circuit Judges.

PER CURIAM:

Victor Garcia-Carrillo pled guilty to re-entering the United States 

illegally and was sentenced to 89 months of imprisonment. The Government 

declined to move in the district court for a one-level reduction for acceptance of 

responsibility under United States Sentencing Guidelines Manual (U.S.S.G.) 

§ 3E1.1(b) because Garcia-Carrillo refused to waive his right to appeal. After 

sentencing, and while his appeal was pending, the Sentencing Commission 

amended the commentary to § 3E1.1(b), which now instructs prosecutors not

to withhold such motions on the basis of a defendant’s failure to waive his 

appellate rights. We affirm the sentence of the district court because even 

assuming that Amendment 775 should be considered in this appeal, GarciaCarrillo’s substantial rights have not been affected. 

United States Court of Appeals

Fifth Circuit

FILED

April 15, 2014

Lyle W. Cayce

Clerk

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No. 12-11161

I

Garcia-Carrillo was indicted under 8 U.S.C. § 1326 for illegally reentering the United States after having been deported. He pled guilty without 

a plea agreement. The presentence report (PSR) assigned an offense level of 

22. His base offense level of 8 was increased 16 levels due to a conviction for a 

prior crime of violence but reduced 2 levels for his acceptance of responsibility 

for a total offense level of 22. The prosecutor elected not to move for an 

additional one-level reduction under U.S.S.G. § 3E1.1(b) because GarciaCarrillo refused to waive his right of appeal. The record reflects that “[t]he 

defendant failed to waive certain [appellate] rights; therefore [the prosecutor] 

indicated she will not move the Court for an additional 1-level reduction under 

USSG § 3E1.1(b).” Garcia-Carrillo did not object in the district court to the 

conclusions in the PSR or the PSR’s calculation of the advisory guidelines 

range. His total offense level of 22, combined with his criminal history category 

of VI, resulted in a guidelines range of 84-105 months of imprisonment. The 

district court adopted the PSR’s recommendations and sentenced GarciaCarrillo to a within-guidelines prison sentence of 89 months.

After Garcia-Carrillo was sentenced, the United States Sentencing 

Commission proposed to amend the official commentary of § 3E1.1 by adding 

the following sentence: “[t]he government should not withhold [a motion for 

the one-level reduction] based on interests not identified in § 3E1.1, such as 

whether the defendant agrees to waive his or her right to appeal.”1 The

amendment went into effect as note six of § 3E1.1 on November 1, 2013.2 In 

this direct appeal, Garcia-Carrillo appeals his sentence contending that we 

1 Notice of Submission to Congress of Amendments to the Sentencing Guidelines 

Effective November 1, 2013, 78 Fed. Reg. 26,425-02, 26,431 (May 6, 2013). 

2 U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) app. C. amend. 775 at 43 (2013). 

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should vacate and remand to allow the district court to resentence him in light 

of this amendment.

II

Prior to the November 1, 2013 amendment, this court had held that it 

was permissible for a prosecutor to decline to move for a one-level reduction 

under § 3E1.1(b) on the basis that a defendant failed to waive his appellate 

rights.3 This precedent was in accord with decisions of the Seventh and Ninth 

Circuits but in conflict with decisions from the Fourth Circuit.4 The 

Government’s decision not to file a motion for a one-level reduction in the 

present case was consistent with the law in this Circuit as it existed at the time 

of Garcia-Carrillo’s sentencing. However, after Garcia-Carrillo’s sentencing, 

as noted above, the United States Sentencing Commission proposed and then 

issued an amendment to application note six of § 3E1.1 that contravened this 

precedent.5 The central issue in this appeal is whether Garcia-Carrillo is 

entitled to be resentenced in light of this amendment. 

Our review is for plain error. Garcia-Carrillo failed to apprise the district 

court of his contention that it was improper for the Government to condition 

the filing of a motion for a one-level reduction for acceptance of responsibility 

on an appeal waiver by Garcia-Carrillo. Although an objection would have 

been futile in our Circuit at the time of sentencing, the failure to object 

nonetheless results in a plain error standard of review on appeal.6 Garcia3 United States v. Newson, 515 F.3d 374, 378-79 (5th Cir. 2008). 

4 Compare United States v. Johnson, 581 F.3d 994, 1002 (9th Cir. 2009), and United 

States v. Deberry, 576 F.3d 708, 711 (7th Cir. 2009), with United States v. Divens, 650 F.3d 

343, 349 (4th Cir. 2011).

5 U.S.S.G. app. C. amend. 775 at 43 (2013).

6 See Johnson v. United States, 520 U.S. 461, 464-65 (1997) (holding that standard of 

review on appeal was plain error when defendant failed to object in the district court in light 

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Carrillo’s reliance on Federal Rule of Criminal Procedure 51(a), which provides 

that “[i]f a party does not have an opportunity to object to a ruling or order, the 

absence of an objection does not later prejudice that party,”7 and our 

unpublished decision in United States v. Rodriguez,8 is misplaced. We do not 

accept Garcia-Carrillo’s argument that he had no opportunity to object in the 

district court because the amendment at issue had not been proposed at the 

time of his sentencing. The existence of settled law at the time of sentencing 

does not obviate the need for an objection.9 Plain error exists if “(1) there is an 

error, (2) the error is plain, . . . (3) the error affect[s] substantial rights” and (4) 

“the error seriously affect[s] the fairness, integrity or public reputation of 

judicial proceedings.”10 An error is plain if the error is apparent at the time of 

appeal.11

We need not determine in this case whether the district court committed 

error when it permitted the prosecution to withhold the motion for an 

additional one-level reduction. The record reflects that Garcia-Carrillo cannot 

satisfy another of the prongs that must exist before a court will exercise its 

discretion to correct plain error. “A sentencing error affects a defendant’s 

substantial rights if he can show a reasonable probability that, but for the 

of existing Eleventh Circuit precedent, but the Supreme Court had overruled that precedent 

by the time of appeal).

7 FED. R. CRIM. P. 51(b).

8 305 F. App’x 206, 207-08 (5th Cir. 2008) (unpublished); see also United States v. 

LeBlanc, 428 F. App’x 289, 290 (5th Cir. 2011) (unpublished) (“Because appellants raise 

issues based upon legislation enacted post-sentencing, our review is de novo.”).

9 See Johnson, 520 U.S. at 464-65; see also United States v. Escalante-Reyes, 689 F.3d 

415, 418 (5th Cir. 2012) (en banc) (applying plain error standard of review when law at the 

time of trial or plea is unsettled but becomes clear by the time of appeal).

10 Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013) (alterations in original)

(internal quotation marks omitted). 

11 Id. at 1129. 

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district court’s misapplication of the Guidelines, he would have received a 

lesser sentence.”12 In order for a sentencing error to affect a defendant’s 

substantial rights the incorrectly calculated sentencing range must be 

materially higher than the correctly calculated guidelines range.13 If the 

correct and incorrect sentencing ranges overlap and the defendant has been 

sentenced within this overlap, “we do not assume, in the absence of additional 

evidence, that the sentence affects a defendant’s substantial rights.”14 GarciaCarrillo was sentenced to 89 months from a guidelines range of 84-105. If 

Garcia-Carrillo had received the additional one-point reduction, he would have 

had a guidelines range of 77-96 months.15 Therefore, he was sentenced within 

the overlap between the two sentences. This is not a case where the two 

guidelines ranges barely overlap.16 Rather, the ranges substantially overlap. 

In such cases, “we have shown considerable reluctance in finding a reasonable 

probability that the district court would have settled on a lower sentence.”17

Because of this overlap and because of Garcia-Carrillo’s failure to otherwise 

show a reasonable probability of a different result, any error that may have 

occurred regarding § 3E1.1(b) did not affect his substantial rights. 

III

Garcia-Carrillo alternatively contends that even if the amendment is 

inapplicable on direct appeal, his case should be remanded so that the district 

12 United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011). 

13 Id. (citing United States v. John, 597 F.3d 263, 284-85 (5th Cir. 2010)). 

14 United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010). 

15 U.S.S.G. ch. 5, pt. A (Sentencing Table).

16 See Mudekunye, 646 F.3d at 290-91 (holding that it was plain error when correct 

and incorrect sentencing guidelines ranges only overlapped by one month and defendant was 

sentenced outside of the one-month overlap). 

17 Blocker, 612 F.3d at 416.

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court can resentence him with the knowledge that the amendment exists. The 

intervening amendment could plausibly influence the district court’s decision 

on whether to exercise discretion and deviate from the applicable advisory 

guidelines range. Garcia-Carrillo argues that the existence of the amended 

guideline, even if not directly applicable in his case, “might alter the district 

court’s ultimate choice of a discretionary sentence in the post-Booker era.”18

Garcia-Carrillo relies on a decision from the First Circuit, United States

v. Godin,19 in which the court remanded an appeal for resentencing in light of 

a post-sentencing amendment despite the fact that the amendment was 

substantive and not clarifying. The non-retroactive amendment in Godin

changed the previous treatment of convictions for criminal history purposes.20 

The First Circuit rationalized its decision to remand on the basis that the 

existence of the amendment could plausibly affect the district court’s choice of 

sentence even though it was not directly applicable to the defendant’s case.21

We decline to follow the First Circuit’s approach. To do so would not 

comport with our plain error standard of review. Additionally, as the Seventh 

Circuit has recognized, “Godin is an outlier” among the circuits.22 Though we 

are sympathetic to Garcia-Carrillo’s circumstances in that his failure to waive 

his appellate rights may have affected the sentence that was imposed by the 

district court, we cannot say that any error that may have been committed was 

plain error. 

* * *

18 See United States v. Godin, 522 F.3d 133, 136 (1st Cir. 2008). 

19 522 F.3d 133 (1st Cir. 2008). 

20 Godin, 522 F.3d at 134.

21 Id. at 136. 

22 United States v. Alexander, 553 F.3d 591, 593 (7th Cir. 2009); see also United States 

v. Urena, 659 F.3d 903, 909-10 (9th Cir. 2011) (declining to follow Godin). 

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The judgment of the district court is AFFIRMED.

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