USA V. OSCAR GARCIA-LUQUIN, No. 13-10215 (9th Cir. 2014)

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FILED FEB 26 2014 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 13-10215 D.C. No. 2:12-cr-00304-LDG v. MEMORANDUM* OSCAR ALEJANDRO GARCIALUQUIN, Defendant - Appellant. Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding Submitted February 18, 2014** Before: ALARCÃ N, O SCANNLAIN, and FERNANDEZ, Circuit Judges. Oscar Alejandro Garcia-Luquin appeals from the district court s judgment and challenges the 40-month sentence imposed following his guilty-plea conviction for being a deported alien found unlawfully in the United States, in * 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). violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing. Garcia-Luquin contends that the district court erred by failing to recognize its discretion to vary downward from the Guidelines range to account for the government s failure to move for a third-level reduction for acceptance of responsibility. Effective November 1, 2013, U.S.S.G. § 3E1.1 was amended to clarify that [t]he government should not withhold [a motion for 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. The government concedes, and we agree, that Garcia-Luquin is entitled to a new sentencing hearing at which the government will move for the third level. In light of our decision, we do not reach Garcia-Luquin s contention that the 40-month sentence is substantively unreasonable. VACATED and REMANDED for resentencing. 2 13-10215

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