United States v. Victor Lopez ( 2014 )

Case: 13-10663 Document: 00512744211 Page: 1 Date Filed: 08/25/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 13-10663
Fifth Circuit
FILED
Summary Calendar August 25, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
VICTOR LOPEZ, also known as Victor Bernavae Lopez,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:13-CR-11
Before KING, JOLLY, and PRADO, Circuit Judges.
PER CURIAM: *
Victor Lopez appeals the 210-month sentence and 20-year term of
supervised release the district court imposed after his guilty plea conviction
for receipt of a visual depiction of a minor engaging in sexually explicit conduct
and aiding and abetting. Lopez argues that his sentence is substantively
unreasonable. He further argues that (1) the district court erred by applying
a “vulnerable victim” enhancement pursuant to U.S.S.G. § 3A1.1(b)(1), (2) the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-10663
Government improperly declined to move for the third acceptance of
responsibility level based on his refusal to waive his appellate rights, (3) the
district court erred in requiring submission to plethysmograph testing as a
special condition of supervision, and (4) the district court erred in requiring
abstinence from alcohol and other intoxicants as a special condition of
supervision. Because we VACATE Lopez’s sentence in part, based on the
Government’s failure to move for the third acceptance of responsibility level,
we do not reach the issue of the substantive reasonableness of his sentence.
Lopez’s argument regarding the “vulnerable victim” enhancement is
foreclosed by circuit precedent. United States v. Jenkins, 712 F.3d 209, 212-14
(5th Cir. 2013). We lack jurisdiction over Lopez’s challenge to the condition of
supervised release requiring submission to plethysmograph testing because
the issue is not ripe for review. United States v. Ellis, 720 F.3d 220, 227 (5th
Cir. 2013). Furthermore, Lopez has not shown that the district court
committed a clear or obvious error by prohibiting the consumption of alcohol
or other intoxicants during his term of supervised release and has, therefore,
not demonstrated plain error. See United States v. Carrillo, 660 F.3d 914, 930
(5th Cir. 2011).
As we held recently in United States v. Villegas Palacios, __ F.3d __, No.
13-40153, 2014 WL 2119096, at *1 (5th Cir. May 21, 2014), the amended
version of U.S.S.G. § 3E1.1 is applicable in a case such as this one where the
amendment was proposed at the time of sentencing and went into effect while
the appeal was pending. Pursuant to § 3E1.1, as amended, the Government
may not withhold a § 3E1.1(b) motion because the defendant refuses to waive
his right to appeal, as it did in this case. Therefore, as the Government
concedes, procedural error occurred when Lopez was not given credit for the
full three-point reduction for acceptance of responsibility. See Villegas
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Case: 13-10663 Document: 00512744211 Page: 3 Date Filed: 08/25/2014
No. 13-10663
Palacios, 2014 WL 2119096, at *1. The Government has not shown that this
error was harmless as to the imposed sentence. See United States v. Delgado-
Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009). Accordingly, Lopez’s sentence
is AFFIRMED in part and VACATED in part, and the case is REMANDED to
the district court for resentencing consistent with this opinion.
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