     Case: 13-40597      Document: 00512749405         Page: 1    Date Filed: 08/28/2014




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

                                    No. 13-40597
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                           August 28, 2014
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

MIGUEL ORTIZ HINOJO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:12-CR-1133-1


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Miguel Ortiz Hinojo appeals the 30-month within-guidelines sentence
imposed following his guilty plea conviction for illegal reentry after
deportation. On appeal, Ortiz Hinojo argues that the district court erred by
failing to award him an additional one-level reduction for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1(b), because the additional
reduction cannot be withheld based on a defendant’s refusal to waive his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40597    Document: 00512749405     Page: 2   Date Filed: 08/28/2014


                                 No. 13-40597

appellate rights. The Government concedes error in the district court’s failure
to award the additional one-level reduction but argues that the error was
harmless.
      Amendment 775 to the 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. U.S.S.G. Manual, Supp. to App. C, Amendment 775, at 43-
46 (2013). In United States v. Villegas Palacios, __ F.3d __, 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.
      In light of the amendment to § 3E1.1, the holding in Villegas Palacios,
and the Government’s concession of error in the instant case, the district
court’s refusal to award Ortiz Hinojo the additional one-level for acceptance of
responsibility was procedural error. See Villegas Palacios, 2014 WL 2119096,
1. The Government has not shown that this error was harmless. See United
States v. Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009).
      Accordingly, Ortiz Hinojo’s sentence is VACATED and the case is
REMANDED to the district court for resentencing consistent with this opinion.




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