IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10663

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

VICTOR LOPEZ, also known as Victor Bernavae Lopez,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 6:13-CR-11

Before KING, JOLLY, and PRADO, Circuit Judges.

PER CURIAM:*

Victor Lopez appeals the 210-month sentence and 20-year term of 

supervised release the district court imposed after his guilty plea conviction 

for receipt of a visual depiction of a minor engaging in sexually explicit conduct 

and aiding and abetting. Lopez argues that his sentence is substantively 

unreasonable. He further argues that (1) the district court erred by applying 

a “vulnerable victim” enhancement pursuant to U.S.S.G. § 3A1.1(b)(1), (2) the 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 25, 2014

Lyle W. Cayce

Clerk

 

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No. 13-10663

Government improperly declined to move for the third acceptance of 

responsibility level based on his refusal to waive his appellate rights, (3) the 

district court erred in requiring submission to plethysmograph testing as a 

special condition of supervision, and (4) the district court erred in requiring 

abstinence from alcohol and other intoxicants as a special condition of 

supervision. Because we VACATE Lopez’s sentence in part, based on the 

Government’s failure to move for the third acceptance of responsibility level, 

we do not reach the issue of the substantive reasonableness of his sentence.

Lopez’s argument regarding the “vulnerable victim” enhancement is 

foreclosed by circuit precedent. United States v. Jenkins, 712 F.3d 209, 212-14

(5th Cir. 2013). We lack jurisdiction over Lopez’s challenge to the condition of 

supervised release requiring submission to plethysmograph testing because 

the issue is not ripe for review. United States v. Ellis, 720 F.3d 220, 227 (5th 

Cir. 2013). Furthermore, Lopez has not shown that the district court 

committed a clear or obvious error by prohibiting the consumption of alcohol 

or other intoxicants during his term of supervised release and has, therefore, 

not demonstrated plain error. See United States v. Carrillo, 660 F.3d 914, 930 

(5th Cir. 2011).

As we held recently in United States v. Villegas Palacios, __ F.3d __, No. 

13-40153, 2014 WL 2119096, at *1 (5th Cir. May 21, 2014), the amended 

version of U.S.S.G. § 3E1.1 is applicable in a case such as this one where the 

amendment was proposed at the time of sentencing and went into effect while 

the appeal was pending. Pursuant to § 3E1.1, as amended, the Government 

may not withhold a § 3E1.1(b) motion because the defendant refuses to waive 

his right to appeal, as it did in this case. Therefore, as the Government 

concedes, procedural error occurred when Lopez was not given credit for the 

full three-point reduction for acceptance of responsibility. See Villegas 

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No. 13-10663

Palacios, 2014 WL 2119096, at *1. The Government has not shown that this 

error was harmless as to the imposed sentence. See United States v. DelgadoMartinez, 564 F.3d 750, 752-53 (5th Cir. 2009). Accordingly, Lopez’s sentence

is AFFIRMED in part and VACATED in part, and the case is REMANDED to 

the district court for resentencing consistent with this opinion.

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 Case: 13-10663 Document: 00512744211 Page: 3 Date Filed: 08/25/2014