     Case: 13-40280      Document: 00512749246         Page: 1    Date Filed: 08/28/2014




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

                                    No. 13-40280
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                          August 28, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

JUNIOR LOZZ, True Name Junior Israel Hernandez Torres,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:12-CR-878




Before DAVIS, SMITH, and ELROD, Circuit Judges.
PER CURIAM: *
       Junior Lozz appeals the sentence imposed after his guilty-plea conviction



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-40280

of being found unlawfully in the United States after deportation in violation of
8 U.S.C. § 1326(a) and (b)(1). For the first time on appeal, he claims that the
district court reversibly erred by applying the sixteen-level crime of violence
(“COV”) enhancement because, he contends, his Louisiana aggravated-battery
offense is not the equivalent of one of the offenses enumerated in the commen-
tary to U.S.S.G. § 2L1.2 and does not have, as an element, the use, attempted
use, or threatened use of physical force against the person of another. Because
he did not raise the issue at sentencing, Lozz must show a forfeited error that
is clear or obvious, rather than subject to reasonable dispute, and the clear or
obvious error must have affected his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009); United States v. Escalante-Reyes, 689 F.3d
415, 419−23 (5th Cir. 2012) (en banc). We apply the law at the time of appeal
to determine whether the error was clear or obvious. Escalante-Reyes, 689 F.3d
at 423.
      During the pendency of this appeal, we rejected identical arguments and
held that Louisiana aggravated battery committed by any instrumentality
other than poison qualifies as a COV under § 2L1.2’s use-of-force prong. See
United States v. Herrera-Alvarez, 753 F.3d 132 (5th Cir. 2014). The criminal
information excluded the possibility that Lozz committed the aggravated
battery with poison or other noxious substance. In light of Herrera-Alvarez,
Lozz has not shown that the district court erred in applying the enhancement
based on his Louisiana aggravated-battery conviction. See Escalante-Reyes,
689 F.3d at 423. Accordingly, that portion of the sentence is affirmed.
      Lozz maintains that the district court erred in failing to award him an
additional one-level reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1(b) because the additional reduction cannot be withheld based on a
defendant’s refusal to waive his appellate rights. When Lozz filed his brief,



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                                No. 13-40280

that argument was foreclosed by United States v. Newson, 515 F.3d 374 (5th
Cir. 2008), which was recently abrogated by United States v. Palacios, 756 F.3d
325 (5th Cir. 2014) (per curiam), in which we held that Amendment 775 to
§ 3E1.1, which became effective November 1, 2013, and provides that the gov-
ernment should not withhold the additional one-level reduction under
§ 3E1.1(b) based on interests not identified in the guidelines (such as whether
the defendant agrees to waive appeal), was applicable to cases pending on
direct appeal.
      Like the defendant in Palacios, Lozz preserved his claim of error for
appeal, and Amendment 775 took effect after he was sentenced but during the
pendency of his appeal. The record reflects that Lozz did not receive the
additional one-level reduction because he refused to waive his right to appeal.
In light of the amendment to § 3E1.1, Palacios, and the facts of this case, the
district court procedurally erred by refusing to award Lozz an additional one-
level reduction. Additionally, a review of the record shows that the error was
not harmless. See United States v. Ibarra-Luna, 628 F.3d 712, 713-14, 718 (5th
Cir. 2010).   Accordingly, the sentence is VACATED and REMANDED for
resentencing.




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