USA v. Gabriel Guel-Escobedo

Filing

UNPUBLISHED OPINION FILED. [13-11088 Vacated and Remanded] Judge: CES , Judge: EBC , Judge: ECP Mandate pull date is 09/10/2014 for Appellant Gabriel Guel-Escobedo [13-11088]

Case: 13-11088

Document: 00512740313

Page: 1

Date Filed: 08/20/2014

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 13-11088
Summary Calendar

August 20, 2014
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GABRIEL GUEL-ESCOBEDO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-4-1
Before STEWART, Chief Judge, and CLEMENT and PRADO, Circuit Judges.
PER CURIAM: *
Gabriel Guel-Escobedo appeals from the sentence imposed following his
guilty plea conviction for illegal reentry after removal from the United States,
being a felon in possession of a firearm, and being an illegal alien in possession
of a firearm. The district court imposed a total, within-guidelines sentence of
57 months of imprisonment and three years of supervised release.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 13-11088

Document: 00512740313

Page: 2

Date Filed: 08/20/2014

No. 13-11088
On appeal, Guel-Escobedo argues that the district court reversibly erred
by failing to award him an additional one-level reduction for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1(b). Contrary to the Government’s
assertions, Guel-Escobedo’s explicit request at sentencing for the additional
one-level reduction under § 3E1.1(b) based upon the upcoming amendment to
§ 3E1.1 was sufficient to preserve this challenge for appeal. See United States
v. Hernandez-Martinez, 485 F.3d 270, 272-73 (5th Cir. 2007). As we held
recently in United States v. Palacios, __ F.3d __, No. 13-40153, 2014 WL
2119096, at *1 (5th Cir. May 21, 2014), the amended version of § 3E1.1 is
applicable in a case such as this one where the amendment was proposed at
the time of sentencing and went into effect while the appeal was pending.
Pursuant to the amended § 3E1.1, the Government may not withhold a
§ 3E1.1(b) motion because the defendant refuses to waive his right to appeal,
as it did in this case. The Government has not shown that this error was
harmless as to the imposed sentence. See United States v. Delgado-Martinez,
564 F.3d 750, 752-53 (5th Cir. 2009).
Accordingly, Guel-Escobedo’s sentence is VACATED and the case is
REMANDED to the district court for resentencing consistent with this opinion.

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