Case: 12-41202 Document: 00512646833 Page: 1 Date Filed: 05/30/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 12-41202
Fifth Circuit
FILED
Conference Calendar May 30, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
JOSE ROBERTO RAMIREZ-MATA,
Defendant−Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:12-CR-246-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 12-41202 Document: 00512646833 Page: 2 Date Filed: 05/30/2014
No. 12-41202
We granted appellant Jose Ramirez-Mata’s motion for summary dispo-
sition and affirmed, United States v. Ramirez-Mata, 539 F. App’x 348 (5th Cir.
2013) (per curiam), because Ramirez-Mata’s challenge to the denial of an addi-
tional one-level reduction under U.S.S.G. § 3E1.1(b) was foreclosed by United
States v. 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 U.S. Sentencing Guidelines, which became effec-
tive November 1, 2013, after the decision by this court, provides that the gov-
ernment 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 agreed 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 Pala-
cios, No. 13-40153, 2014 U.S. App. LEXIS 9493, at *2 (5th Cir. May 21, 2014)
(per curiam), 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 abro-
gated in light of Amendment 775.
Id. n.1.
In light of the Supreme Court’s order and Villegas Palacios, the judg-
ment is VACATED and REMANDED for resentencing.
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