     Case: 13-40654       Document: 00512742534         Page: 1     Date Filed: 08/22/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                     No. 13-40654                                 FILED
                                   Summary Calendar                         August 22, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RAYMUNDO LONGORIA-CHAPA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:12-CR-738


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Raymundo Longoria-Chapa appeals from the sentence imposed following
his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326.
The district court imposed a within-Guidelines sentence of, inter alia, 57
months’ imprisonment.
       Longoria contends the district court reversibly erred by failing to award
him an additional one-level reduction for acceptance of responsibility,


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 13-40654     Document: 00512742534     Page: 2   Date Filed: 08/22/2014


                                  No. 13-40654

pursuant to Sentencing Guideline § 3E1.1(b). As this court held recently in
United States v. Palacios, __ F.3d __, No. 13-40153, 2014 WL 2119096, at *1
(5th Cir. 21 May 2014), the amended version of § 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 the amended
§ 3E1.1, the Government may not withhold, as it did in this case, a § 3E1.1(b)
motion because the defendant refuses to waive his right to appeal.            See
U.S.S.G. § 3E1.1, cmt. n.6 (“The [G]overnment should not withhold [a motion
for additional level decrease] based on . . . whether the defendant agrees to
waive his or her right to appeal”.).
      In addition, the Government has not shown this procedural error was
harmless as to the imposed sentence. See United States v. Delgado-Martinez,
564 F.3d 750, 752–53 (5th Cir. 2009) (requiring evidence “that the district court
had a particular sentence in mind and would have imposed it” in spite of the
error in calculating the Guidelines sentencing range).
      VACATED and REMANDED to district court for re-sentencing
consistent with this opinion.




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