United States v. Sergio Torres-Torres , 571 F. App'x 315 ( 2014 )

Case: 13-40174 Document: 00512658856 Page: 1 Date Filed: 06/10/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-40174 FILED
Conference Calendar June 10, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SERGIO TORRES-TORRES, also known as Sergio Torres,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:12-CR-602-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
We granted appellant Sergio Torres-Torres’s motion for summary
disposition and affirmed, United States v. Torres-Torres, 539 F. App’x 376 (5th
Cir. 2013), because Torres-Torres’s challenge to the denial of an additional one-
level reduction under U.S.S.G. § 3E1.1(b) was foreclosed by United States v.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40174 Document: 00512658856 Page: 2 Date Filed: 06/10/2014
No. 13-40174
Newson, 515 F.3d 374, 377-78 (5th Cir. 2008). The Supreme Court vacated and
remanded “for further consideration in light of the position asserted by the
Solicitor General.” Garcia v. United States, 134 S. Ct. 1539 (2014).
Amendment 775 to the United States Sentencing Guidelines, which
became effective November 1, 2013, after the decision by this court, 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, No. 13-40153, 2014 WL 2119096, at *1 (5th Cir. May 21, 2014), we
applied Amendment 775 to a case on direct appeal in which the error was
preserved and the government conceded error. The panel announced that
the other judges on the Court have reviewed this opinion, and all
active judges have assented. The Court en banc therefore
concludes Newson—to the extent it may constrain us from
applying Amendment 775 to cases pending on direct appeal under
our rule of orderliness—is abrogated in light of Amendment 775.
Id. n.1.
In light of the Supreme Court’s order and Villegas Palacios, the
judgment is VACATED and REMANDED for resentencing.
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