     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).


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