     Case: 13-40174      Document: 00512658856         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. 13-40174                                FILED
                                 Conference Calendar                        June 10, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SERGIO TORRES-TORRES, also known as Sergio Torres,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-602-1



 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       We granted appellant Sergio Torres-Torres’s motion for summary
disposition and affirmed, United States v. Torres-Torres, 539 F. App’x 376 (5th
Cir. 2013), because Torres-Torres’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.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40174    Document: 00512658856    Page: 2   Date Filed: 06/10/2014


                                No. 13-40174

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 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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