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

FILED No. 19-20201 May 5, 2020 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk

Plaintiff - Appellee v. MARTIN ROGELIO LONGORIA,

Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas

Before SOUTHWICK, COSTA, and DUNCAN, Circuit Judges. GREGG COSTA, Circuit Judge: Courts reduce the Sentencing Guidelines offense level by two points when defendants accept responsibility for their crimes. U.S.S.G. § 3E1.1(a). For offenses that score high enough (16 points or more), the government may ask the court to reduce the offense level by a third point if the defendant “timely” pled guilty so the government could “avoid preparing for trial.” Id. § 3E1.1(b). We have long allowed the government to do what it did here: withhold the third point when the defendant seeks to suppress evidence, even though the hearing on that request is not a trial. United States v. Gonzales, 19 F.3d 982, 984 (5th Cir. 1994) (per curiam). The principal question in this Case: 19-20201 Document: 00515405212 Page: 2 Date Filed: 05/05/2020

No 19-20201 sentencing appeal is whether we must still follow that law after an amendment to the relevant Guidelines commentary. I. A grand jury charged Martin Longoria with being a felon in possession of several firearms. Longoria moved to suppress the evidence, challenging the FBI’s warrantless search of his apartment where the guns were discovered. The district court denied the motion, concluding that Longoria’s wife consented to the search. Instead of pleading guilty, Longoria asked for a stipulated bench trial to preserve his suppression challenge. The district court found him guilty based on the stipulation. The presentence investigation report (PSR) calculated Longoria’s base offense level at 20 “because the offense involved several semiautomatic firearms with large capacity magazines.” U.S.S.G. § 2K2.1(a)(4)(B). The PSR also recommended three enhancements. The PSR did not recommend a reduction for acceptance of responsibility because, according to the report, Longoria offered only a “vague,” terse apology. At sentencing, the district court overruled Longoria’s objection to his base offense level, agreeing with the PSR that the offense involved large- capacity magazines. On other issues, however, the court ruled in Longoria’s favor. It sustained his objection to a proposed enhancement for using a firearm in connection with another felony. U.S.S.G. § 2K2.1(b)(6)(B). It also sustained, in part, Longoria’s objection to the withholding of the three-level reduction for acceptance of responsibility. Contrary to the PSR, the court “read [Longoria’s apology] as an acknowledgement of acceptance of responsibility” and granted the two-level downward adjustment. But the third point requires a motion from the prosecutor. U.S.S.G. § 3E1.1(b). The prosecutor explained she did

2 Case: 19-20201 Document: 00515405212 Page: 3 Date Filed: 05/05/2020

No 19-20201 not file that motion because Longoria forced the government to prepare for “a full-blown suppression hearing.” Those rulings resulted in a Guidelines range of 63 to 78 months’ imprisonment. The court sentenced Longoria to a prison term of 78 months. T