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UNPUBLISHED OPINION ORDER FILED on Remand from the Supreme Court of the United States (ISSUED AS AND FOR THE MANDATE).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]
Date Filed: 07/15/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
July 15, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA,
JOSE LUIS RUEDA-CASTANEDA, also known as Jose Luis Rueda
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
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 07/15/2014
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.
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