United States v. Saul Rivas-Meneses , 557 F. App'x 651 ( 2013 )

FILED
UNITED STATES COURT OF APPEALS DEC 23 2013
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 11-50469
Plaintiff - Appellee, D.C. No. 3:11-cr-01757-JAH
Southern District of California,
v. 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memorandum disposition filed on June 29, 2012, is withdrawn.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
NOT FOR PUBLICATION DEC 23 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50469
Plaintiff - Appellee, 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