Case: 13-40221      Document: 00512460466         Page: 1    Date Filed: 12/04/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                                 Fifth Circuit

                                                                                FILED
                                    No. 13-40221                           December 4, 2013
                                  Summary Calendar                           Lyle W. Cayce
                                                                                  Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee
v.

JESUS MORA-FERNANDEZ,

                                                 Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-892-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Jesus Mora-Fernandez appeals his 96-month sentence imposed following
his guilty plea conviction for illegal reentry of a deported alien, in violation of
8 U.S.C. § 1326. Mora contends that the district court erred by allowing the
Government to decline to move for the additional one-level reduction for
acceptance of responsibility under Section 3E1.1(b) of the Sentencing
Guidelines, based on his refusal to waive his right to appeal. He also alleges


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-40221
that the district court erred by refusing to award the additional acceptance
point in consideration of Mora’s acceptance of responsibility.
      Mora acknowledges that this court has held that a district court may not
award a reduction pursuant to Section 3E1.1(b) absent a motion from the
Government and that the “defendant’s refusal to waive his right to appeal is a
proper basis for the Government to decline to make such a motion.” United
States v. Newson, 

, 378 (5th Cir. 2008). Nevertheless, Mora
contends this court should overrule Newson because, at the time of the briefing,
the Sentencing Commission had submitted an amendment to Section 3E1.1(b)
which provided that the Government should not refuse to move for the
additional acceptance point on the ground that the defendant declined to waive
his right to appeal; the amendment became effective on November 1, 2013.
United States Sentencing Commission, Guidelines Manual, Supp. to Appendix
C, Amendment 775, p. 43-45 (Nov. 1, 2013) (amending U.S.S.G. § 3E1.1(b)).
The government contends that Mora’s arguments remain foreclosed by Newson
because this court will not consider on direct appeal sentencing guideline
amendments intended to change current law.
      We conclude that the district court committed no error in refusing to
award the additional acceptance point. We cannot overrule Newson, because
one panel of this court may not overrule the decision of another panel absent a
superseding Supreme Court decision. Burge v. Parish of St. Tammany, 

, 466 (5th Cir. 1999). Moreover, courts are to use the Guidelines
Manual in effect on the date of sentencing. U.S.S.G. § 1B1.11(a). We will,
however, consider on direct appeal an amendment to the Sentencing
Guidelines, “even though the amendment did not become effective until after
sentencing, if it is intended to clarify application of a guideline and was not
intended to make any substantive changes to it [the guideline] or its
commentary.” United States v. Huff, 

, 466 (5th Cir. 2004) (internal
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                                 No. 13-40221
quotation marks omitted).     As we explain, Amendment 775 is not simply
clarifying.
      When we have applied on direct appeal an amendment that took effect
after a defendant’s sentencing, “we have generally pointed to express language
on the part of the Commission that the amendment is a clarifying one”; the
Commission’s failure to state that an “amendment is intended to be clarifying
is evidence that it is substantive and hence inapplicable.” 

indicating an amendment is substantive include (1) that it is not listed in
U.S.S.G. § 1B1.10(c) as being retroactively applicable, and (2) a statement by
the Commission that the amendment addresses a circuit conflict.          United
States v. Solis, 

, 798 (5th Cir. 2012). We held it was significant
that the amendment there was directly inconsistent with the law clearly
established in the circuit — a factor other circuits had concluded made
amendments substantive in nature.       

.     “That an
amendment alters the language of commentary to a guideline rather than the
language of the guideline itself may be some indication that it is not
substantive.” 

      Here, while it was the commentary that was revised, the remaining
factors identified in Huff and Solis indicate Amendment 775 is substantive.
The Commission did not expressly describe the amendment as clarifying, and
it is directly inconsistent with the law clearly established in this circuit by
Newson. It is not listed in Section 1B1.10(c) as being retroactively applicable.
Finally, the Commission has expressly stated that the amendment addresses
a circuit conflict.   See United States Sentencing Commission, Guidelines
Manual, Supp. to Appendix C, Amendment 775, p. 43.
      At sentencing, Mora’s arguments were foreclosed by Newson. The later
amendment to Section 3E1.1(b) does not compel a different result.
      AFFIRMED.
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