United States v. Martin Palacios

Case: 13-40153 Document: 00512638264 Page: 1 Date Filed: 05/21/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-40153 FILED
May 21, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff–Appellee
v.
MARTIN VILLEGAS PALACIOS, also known as Martin Villegas,
Defendant–Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before REAVLEY, PRADO, and OWEN, Circuit Judges.
PER CURIAM:
Defendant–Appellant Martin Villegas Palacios (“Villegas Palacios”)
challenges the sentence he received after he pled guilty to reentry of a deported
alien in violation of 8 U.S.C. § 1326. At sentencing, the government withheld
an additional one-level reduction under U.S. Sentencing Guidelines Manual
(“U.S.S.G.”) § 3E1.1(b) for pretrial acceptance of responsibility solely because
Villegas Palacios refused to waive his right to appeal. Villegas Palacios
objected to his sentence, preserving error for appeal; however, the district court
rejected his argument and sentenced him without the one-level reduction. He
timely appealed.
Amendment 775 to the U.S.S.G. became effective November 1, 2013,
after Villegas Palacios was sentenced but while this appeal was pending.
Case: 13-40153 Document: 00512638264 Page: 2 Date Filed: 05/21/2014
No. 13-40153
Amendment 775 provides: “The government should not withhold [a § 3E1.1(b)]
motion based on interests not identified in § 3E1.1, such as whether the
defendant agrees to waive his or her right to appeal.” U.S.S.G. supp. to app.
C, amend. 775, at p. 43 (2013); accord U.S.S.G. § 3E1.1 cmt. n.6. After
Amendment 775 became effective, the United States in this case conceded
error.
The amended Guidelines apply to this case. See United States v.
Anderson, 5 F.3d 795, 802 (5th Cir. 1993) (“Amendments to the guidelines and
their commentary intended only to clarify, rather than effect substantive
changes, may be considered even if not effective at the time of the commission
of the offense or at the time of sentencing.” (emphasis omitted)). Therefore, we
VACATE the sentence and REMAND for resentencing. 1
In rejecting Villegas Palacios’s objection at sentencing, the district court relied on
1
our decision in United States v. Newson, 515 F.3d 374 (2008). 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. See Fed. R. App. P. 35(a)(1).
2