     Case: 13-40768      Document: 00512741452         Page: 1    Date Filed: 08/21/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-40768
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          August 21, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JOSE LUIS RODRIGUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:12-CR-152-2


Before STEWART, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM: *
       Jose Luis Rodriguez appeals from the sentence imposed following his
guilty plea conviction for conspiracy to possess with intent to manufacture and
distribute methamphetamine. The district court imposed a within-guidelines
sentence, sentencing Rodriguez to 136 months of imprisonment and five years
of supervised release.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40768    Document: 00512741452      Page: 2   Date Filed: 08/21/2014


                                 No. 13-40768

      At sentencing, the Government withheld an additional one-level
reduction under U.S.S.G. § 3E1.1(b) for pretrial acceptance of responsibility
solely because Rodriguez refused to waive his right to appeal. Rodriguez
objected, thus preserving the error for appeal; the district court denied the
objection and sentenced him without the one-level reduction. Now on appeal,
Rodriguez renews his claim that he should have been awarded the additional
one-level reduction for acceptance of responsibility pursuant to § 3E1.1(b).
      As we held recently in United States v. Palacios, __ F.3d __, No. 13-40153,
2014 WL 2119096, at *1 (5th Cir. May 21, 2014), the amended version of
§ 3E1.1 is applicable in a case such as this. Pursuant to the amended § 3E1.1,
the Government may not withhold a § 3E1.1(b) motion because the defendant
refuses to waive his right to appeal, as it did in this case. Thus, there was a
procedural error during Rodriguez’s sentencing. The Government has not
shown that 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).
Accordingly, Rodriguez’s sentence is VACATED, and the case is REMANDED
to the district court for resentencing consistent with this opinion.




                                        2
