
    UNITED STATES of America, Plaintiff-Appellee v. Miguel Ortiz HINOJO, Defendant-Appellant.
    No. 13-40597
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    Aug. 28, 2014.
    John Richard Berry, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, H. Michael Sokolow, Assistant Federal Public Defender, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
    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. § 3El.l(b), because the additional reduction cannot be withheld based on a defendant’s refusal to waive his 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 § 3El.l(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 Unit ed States v. Villegas Palacios, 756 F.3d 325, 326 (5th Cir.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, 756 F.3d at 326. 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. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under due limited circumstances set forth in 5th Cir. R. 47.5.4.
     