United States v. Amancio Aburto-Gamino

697 F. App'x 272

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 24, 2017
• Docket: 17-10222 Summary Calendar
• Status: Unpublished

Opinion

PER CURIAM: *

Amando 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.

Sentences are reviewed for reasonableness. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (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, 128 S.Ct. 586. Next, we determine whether the sentence was substantively reasonable. 552 U.S. at 51, 128 S.Ct. 586.

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.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH Cir. R. 47.5.4.