USA V. SAUL RIVAS-MENESES, No. 11-50469 (9th Cir. 2013)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on June 29, 2012.
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FILED DEC 23 2013 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS No. 11-50469 D.C. No. 3:11-cr-01757-JAH Southern District of California, San Diego SAUL RIVAS-MENESES, ORDER Defendant - Appellant. Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges. The parties joint motion to remand for resentencing is granted. The memorandum disposition filed on June 29, 2012, is withdrawn. A replacement memorandum disposition is filed concurrently with this order. The petition for rehearing en banc is denied as moot. FILED DEC 23 2013 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 11-50469 D.C. No. 3:11-cr-01757-JAH v. MEMORANDUM* SAUL RIVAS-MENESES, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding Submitted June 26, 2012** Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges. Saul Rivas-Meneses appeals from the 40-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Rivas-Meneses contends that the district court erred by failing to grant his request for a third-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b) because his refusal to waive his right to appeal was an improper basis for the government to refuse to move for the reduction. The parties have filed a joint motion requesting that this court vacate Rivas-Meneses s sentence and remand for resentencing. Effective November 1, 2013, U.S.S.G § 3E1.1 was amended to clarify that [t]he government should not withhold [a motion for a third-level reduction for acceptance of responsibility] based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal. U.S.S.G § 3E1.1 cmt. n.6. We agree that resentencing is warranted in this case to allow the district court to determine whether Rivas-Meneses should receive a third point for acceptance of responsibility. VACATED and REMANDED for resentencing. 2 11-50469
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