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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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