     Case: 12-41271      Document: 00512647105         Page: 1    Date Filed: 05/30/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals

                                    No. 12-41271
                                                                                 Fifth Circuit

                                                                               FILED
                                 Conference Calendar                       May 30, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

BENITO HERNANDEZ LOPEZ,
Also Known as Benito Lopez-Hernandez, Also Known as Pastor Lopez,

                                                 Defendant−Appellant.




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 5:12-CR-433-1




 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 12-41271    Document: 00512647105     Page: 2   Date Filed: 05/30/2014


                                 No. 12-41271

      We granted appellant Benito Hernandez Lopez’s motion for summary
disposition and affirmed, United States v. Hernandez Lopez, 539 F. App’x 397
(5th Cir. 2013) (per curiam), because Hernandez Lopez’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
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 U.S. Sentencing Guidelines, which became effec-
tive November 1, 2013, after the decision by this court, provides that the gov-
ernment 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 agreed 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 Pala-
cios, No. 13-40153, 2014 U.S. App. LEXIS 9493, at *2 (5th Cir. May 21, 2014)
(per curiam), 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 abro-
    gated in light of Amendment 775.

Id. n.1.
      In light of the Supreme Court’s order and Villegas Palacios, the judg-
ment is VACATED and REMANDED for resentencing.




                                       2
