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Case: 13-40910 Document: 00512786014 Page: 1 Date Filed: 09/29/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 13-40910 Fifth Circuit FILED Summary Calendar September 29, 2014 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff-Appellee v. RAMIRO HERNANDEZ-ACOSTA, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:12-CR-1128 Before DAVIS, JONES, and DeMOSS, Circuit Judges. PER CURIAM: * Ramiro Hernandez-Acosta appeals the sentence imposed following his guilty plea conviction for being found unlawfully in the United States following deportation in violation of
8 U.S.C. § 1326(a) and (b)(2). He contends that the district court erred in failing to award him an additional one-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b) because the government is not permitted to withhold a motion for such reduction based on * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-40910 Document: 00512786014 Page: 2 Date Filed: 09/29/2014 No. 13-40910 a defendant’s refusal to waive his appellate rights. The Government concedes error. Amendment 775 to the Commentary to 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. United States Sentencing Commission, Guidelines Manual, Supp. to Appendix C, Amendment 775, at 43- 46 (Nov. 1, 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’s Commentary, the holding in Villegas Palacios, and the Government’s concession of error in the instant case, the district court’s refusal to award Hernandez-Acosta the additional one-level for acceptance of responsibility was error. See id. Additionally, a review of the record shows that the error was not harmless. See United States v. Delgado- Martinez,
564 F.3d 750, 752-53 (5th Cir. 2009). Accordingly, Hernandez-Acosta’s sentence is VACATED and the case is REMANDED to the district court for resentencing consistent with this opinion. 2
Document Info
Docket Number: 13-40910
Citation Numbers: 582 F. App'x 487
Filed Date: 9/29/2014
Precedential Status: Non-Precedential
Modified Date: 1/13/2023