USA v. Sergio Torres-Torres, No. 13-40174 (5th Cir. 2014)

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This opinion or order relates to an opinion or order originally issued on August 20, 2013.

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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 Conference Calendar FILED 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 onelevel 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 2