United States v. Miguel Nunez-Loredo , 581 F. App'x 376 ( 2014 )

Case: 13-40881 Document: 00512755722 Page: 1 Date Filed: 09/03/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40881
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 3, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
MIGUEL ANGEL NUNEZ-LOREDO, also known as Miguel Nunez-Flores,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:12-CR-1006-1
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM: *
Miguel Angel Nunez-Loredo pleaded guilty to illegal reentry and was
sentenced to serve 77 months in prison as well as a three-year term of
supervised release. In this appeal, he first contends that the district court
erred at sentencing by not affording him credit for the third point for
acceptance of responsibility. The Government concedes error. Our review of
the record and pertinent law confirms that there was error at sentencing.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40881 Document: 00512755722 Page: 2 Date Filed: 09/03/2014
No. 13-40881
Sentences are reviewed for reasonableness. Gall v. United States, 552
U.S. 38, 51 (2007). This court first examines whether the district court
committed any procedural errors, such as incorrectly calculating the advisory
guidelines range. Id. at 51. Next, the court determines whether the sentence
was substantively reasonable. Id.
Amendment 775 to the United States Sentencing Guidelines, which
became effective November 1, 2013, provides that the Government should not
withhold the additional one-level reduction under § 3E1.1(b) based on interests
not identified in the guideline, such as whether the defendant agrees to waive
the right to appeal. U.S.S.G. Manual, Supp. to App. C, Amendment 775, at 43-
46 (2013). In United States v. Villegas Palacios, 756 F.3d 325, 326 (5th Cir.
2014), we applied Amendment 775 to a case on direct appeal in which the error
was preserved and the Government conceded error.
In light of the amendment to § 3E1.1, the holding in Villegas Palacios,
and the Government’s concession of error in the instant case, we conclude that
procedural error occurred when Nunez-Loredo was not given credit for the full
three-point reduction for acceptance of responsibility. See Villegas Palacios,
756 F.3d at 326. Additionally, a review of the record shows that the error is
not harmless. See United States v. Delgado-Martinez, 564 F.3d 750, 752-53
(5th Cir. 2009); cf. United States v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008)
(concluding that guidelines calculation error did not require reversal when
district court said, “‘I believe that I have calculated the guidelines correctly,
but even if I am wrong about the guidelines, this is the sentence that I would
impose in any event.’”). Accordingly, Nunez-Loredo’s prison term is
VACATED, and this case is REMANDED to the district court for resentencing
consistent with this opinion.
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Case: 13-40881 Document: 00512755722 Page: 3 Date Filed: 09/03/2014
No. 13-40881
Nunez-Loredo, a deportable alien, also contends that the district
court reversibly erred by sentencing him to a term of supervised release
without giving adequate reasons for this decision. This error is reviewed for
plain error only due to his failure to raise it in the district court. See United
States v. Dominguez-Alvarado, 695 F.3d 324, 327-28 (5th Cir. 2012). Our
review of the record shows that the district court gave adequate reasons for its
choice of sentence and shows no error in connection with its decision to impose
a term of supervised release. Accordingly, Nunez-Loredo’s term of supervised
release is AFFIRMED.
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