USA v. Amancio Aburto-Gamino

Filing

UNPUBLISHED OPINION FILED. [17-10222 Affirmed] Judge: CDK, Judge: JWE, Judge: SAH. Mandate pull date is 09/14/2017 for Appellant Amancio Aburto-Gamino [17-10222]

Case: 17-10222

Document: 00514129777

Page: 1

Date Filed: 08/24/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-10222
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
August 24, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.

AMANCIO ABURTO-GAMINO, also known as Lucero Amburto,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-193-1
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Amancio Aburto-Gamino was convicted of one charge of illegal reentry
into the United States and was sentenced to serve 78 months in prison. Now,
he argues that the district court erred by denying him the third point for
acceptance of responsibility.

This denial was based on the Government’s

refusal to move for the third point because he would not waive his appellate
rights.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10222

Document: 00514129777

Page: 2

Date Filed: 08/24/2017

No. 17-10222
Sentences are reviewed for reasonableness. Gall v. United States, 552
U.S. 38, 51 (2007). In conducting this reasonableness review, we first examine
whether the district court committed any procedural errors, such as incorrectly
calculating the advisory guidelines range. 552 U.S. at 51. Next, we determine
whether the sentence was substantively reasonable. 552 U.S. at 51.
The district court erred by denying Aburto-Gamino the third point for
acceptance of responsibility. See United States v. Palacios, 756 F.3d 325 (5th
Cir. 2014). Nonetheless, the error is harmless, as the district court’s remarks
show that it would have imposed the same sentence absent the error. See
United States v. Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009);
United States v. Ibarra-Luna, 628 F.3d 712, 713-19 (5th Cir. 2010).
AFFIRMED.

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