United States v. Vera-Figueroa ( 2003 )

MEMORANDUM ^**

Jose Vera-Figueroa appeals his 42-month sentence following his guilty plea to reentry after deportation in violation of 8 U.S.C. § 1326. He contends that the district court erred by failing to depart downward for over-representation of Vera-Figueroa’s criminal history. Because the record conclusively shows that the district court was aware of its authority to depart from the sentencing guidelines on this ground, we have no jurisdiction to review the court’s discretionary refusal to do so. United States v. GutierrezCer-vantes, 132 F.3d 460, 462-63 (9th Cir. 1997).

Vera-Figueroa also contends that the district court erred under U.S.S.G. § 3El.l(b)(l) by departing downward only two levels for Vera-Figueroa’s acceptance of responsibility, denying him the third level solely because he did not plead guilty until the day before trial. The government concedes remand is required on this issue under United States v. Blanco-Galle-gos, 188 F.3d 1072, 1077 (9th Cir.1999). Accordingly, we vacate the sentence and remand for resentencing to enable the district court to comply with Guideline § 3El.l(b)(l).

DISMISSED, in part; VACATED and REMANDED in part.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.