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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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