     Case: 13-40910      Document: 00512786014         Page: 1    Date Filed: 09/29/2014




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

                                    No. 13-40910
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                     September 29, 2014
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff-Appellee

v.

RAMIRO HERNANDEZ-ACOSTA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-1128


Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM: *
       Ramiro Hernandez-Acosta appeals the sentence imposed following his
guilty plea conviction for being found unlawfully in the United States following
deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). He contends that the
district court erred in failing to award him an additional one-level reduction
for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b) because the
government is not permitted to withhold a motion for such reduction based on


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40910     Document: 00512786014      Page: 2   Date Filed: 09/29/2014


                                 No. 13-40910

a defendant’s refusal to waive his appellate rights. The Government concedes
error.
         Amendment 775 to the Commentary to United States Sentencing
Guidelines, which became effective November 1, 2013, 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.        United States Sentencing
Commission, Guidelines Manual, Supp. to Appendix C, Amendment 775, at 43-
46 (Nov. 1, 2013). In United States v. Villegas Palacios, 756 F.3d 325, 326 (5th
Cir. 2014), we applied Amendment 775 to a case on direct appeal in which the
error was preserved and the Government conceded error.
         In light of the amendment to § 3E1.1’s Commentary, the holding in
Villegas Palacios, and the Government’s concession of error in the instant case,
the district court’s refusal to award Hernandez-Acosta the additional one-level
for acceptance of responsibility was error. See id. Additionally, a review of the
record shows that the error was not harmless. See United States v. Delgado-
Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009).
         Accordingly, Hernandez-Acosta’s sentence is VACATED and the case is
REMANDED to the district court for resentencing consistent with this opinion.




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