United States v. Jesus Mora-Fernandez , 582 F. App'x 337 ( 2014 )

Case: 13-40221 Document: 00512769974 Page: 1 Date Filed: 09/16/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40221
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 16, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JESUS MORA-FERNANDEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:12-CR-892-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
We previously affirmed Jesus Mora-Fernandez’s sentence because his
challenge to the denial of an additional one-level reduction under U.S.S.G.
§ 3E1.1(b) was foreclosed by our decision in United States v. Newson, 515 F.3d
374, 377-78 (5th Cir. 2008). United States v. Mora-Fernandez, 548 F. App’x
165, 166-67 (5th Cir. 2013). The Supreme Court granted certiorari, vacated
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40221 Document: 00512769974 Page: 2 Date Filed: 09/16/2014
No. 13-40221
the judgment, and remanded “for further consideration in light of the position
asserted by the Solicitor General in his brief for the United States filed on April
8, 2014.” Tax-Garcia v. United States, 134 S. Ct. 2291, 2292 (2014).
Amendment 775 to the United States Sentencing Guidelines, which
became effective on November 1, 2013, provides that the Government should
not withhold the additional one-level reduction under Section 3E1.1(b) based
on interests not identified in that 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 (2013). We applied Amendment 775 to a case on direct
appeal where the error was preserved and the Government conceded error.
United States v. Palacios, 756 F.3d 325 (5th Cir. 2014). We also noted that
before that opinion was released, all judges on the court were consulted and
agreed that if Newson could be interpreted as preventing us from applying
Amendment 775 to cases pending on direct appeal, Amendment 775 had
abrogated that conclusion. Id. at 326 n.1. We apply that same reasoning here.
We VACATE the judgment of the district court and REMAND for
resentencing.
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