Summary
holding that the government's refusal to file a motion for the one-level reduction based on interests not identified with § 3E1.1(b) was error that required resentencing
Summary of this case from United States v. CastilloOpinion
No. 13–40153.
2014-05-21
UNITED STATES of America, Plaintiff–Appellee v. Martin Villegas PALACIOS, also known as Martin Villegas, Defendant–Appellant.
Amy Howell Alaniz, Assistant U.S. Attorney, U.S. Attorney's Office, McAllen, TX, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee. Marjorie A. Meyers, Federal Public Defender, Laura Fletcher Leavitt, Assistant Federal Public Defender, Molly Estelle Odom, Esq., Assistant Federal Public Defender, H. Michael Sokolow, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant–Appellant.
Amy Howell Alaniz, Assistant U.S. Attorney, U.S. Attorney's Office, McAllen, TX, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee. Marjorie A. Meyers, Federal Public Defender, Laura Fletcher Leavitt, Assistant Federal Public Defender, Molly Estelle Odom, Esq., Assistant Federal Public Defender, H. Michael Sokolow, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant–Appellant.
Appeal from the United States District Court for the Southern District of Texas.
Before REAVLEY, PRADO, and OWEN, Circuit Judges.
PER CURIAM:
Defendant–Appellant Martin Villegas Palacios (Villegas Palacios) challenges the sentence he received after he pled guilty to reentry of a deported alien in violation of 8 U.S.C. § 1326. At sentencing, the government withheld an additional one-level reduction under U.S. Sentencing Guidelines Manual (U.S.S.G.) § 3E1.1(b) for pretrial acceptance of responsibility solely because Villegas Palacios refused to waive his right to appeal. Villegas Palacios objected to his sentence, preserving error for appeal; however, the district court rejected his argument and sentenced him without the one-level reduction. He timely appealed.
Amendment 775 to the U.S.S.G. became effective November 1, 2013, after Villegas Palacios was sentenced but while this appeal was pending. Amendment 775 provides: The government should not withhold [a § 3E1.1(b) ] motion based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal. U.S.S.G. supp. to app. C, amend. 775, at p. 43 (2013); accordU.S.S.G. § 3E1.1 cmt. n.6. After Amendment 775 became effective, the United States in this case conceded error.
The amended Guidelines apply to this case. See United States v. Anderson, 5 F.3d 795, 802 (5th Cir.1993) (Amendments to the guidelines and their commentary intended only to clarify, rather than effect substantive changes, may be considered even if not effective at the time of the commission of the offense or at the time of sentencing. (emphasis omitted)). Therefore, we VACATE the sentence and REMAND for resentencing.