     Case: 12-41091      Document: 00512658014         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. 12-41091                                FILED
                                 Conference Calendar                        June 10, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANGEL MONDRAGON GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-370-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       We granted appellant Angel Mondragon Garcia’s motion for summary
disposition and affirmed, United States v. Mondragon Garcia, 539 F. App’x 345
(5th Cir. 2013), because Mondragon Garcia’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. Newson, 515 F.3d 374, 377-78 (5th Cir. 2008). The Supreme


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 12-41091   Document: 00512658014     Page: 2   Date Filed: 06/10/2014


                                No. 12-41091

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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