USA v. Jose Rueda-Castaneda


UNPUBLISHED OPINION ORDER FILED on Remand from the Supreme Court of the United States (ISSUED AS AND FOR THE MANDATE). [13-40279 Vacated and Remanded] Judge: TMR , Judge: EHJ , Judge: ECP [13-40279]

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Case: 13-40279 Document: 00512698275 Page: 1 Date Filed: 07/15/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 13-40279 Summary Calendar United States Court of Appeals Fifth Circuit FILED July 15, 2014 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE LUIS RUEDA-CASTANEDA, also known as Jose Luis Rueda Castaneda, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:12-CR-689-1 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before REAVLEY, JONES, and PRADO, Circuit Judges. PER CURIAM: * Jose Luis Rueda-Castaneda (Rueda) received a within-Guidelines 46month sentence following his guilty plea conviction for attempted illegal reentry. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-40279 Document: 00512698275 Page: 2 Date Filed: 07/15/2014 No. 13-40279 This Court previously affirmed the sentence of Rueda because United States v. Newson, 515 F.3d 374, 376-79 (5th Cir. 2008), held that a district court may not award a reduction pursuant to U.S.S.G. § 3E1.1(b) absent a motion from the Government and that “[a] defendant’s refusal to waive his right to appeal is a proper basis for the Government to decline to make such a motion.” However, Amendment 775 to the U.S.S.G., made effective November 1, 2013, provides that “[t]he government should not withhold . . . a motion [under Section 3E1.1(b)] based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal.” In United States v. Palacios, ____ F.3d ____, 2014 WL 2119096 n. 1 (5th Cir. May 21, 2014), the Court en banc concluded that 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. The Supreme Court granted certiorari, vacated, and remanded the instant case for further consideration in light of the position asserted by the Solicitor General in his brief for the United States filed on April 8, 2014. We, therefore, VACATE the judgment of sentence and remand for further proceedings in accord herewith. 2

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