United States v. Federico Lopez-Torres

545 F. App'x 658

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 20, 2013
• Docket: 16-16081
• Status: Unpublished

Opinion

MEMORANDUM *

Federico Lopez-Torres pleaded guilty to illegal re-entry in violation of 8 U.S.C. § 1326 and admitted violating terms of his supervised release. At sentencing, the government declined to move for a third-level reduction for acceptance of responsibility because Lopez-Torres did not waive his right to appeal. The district court concluded that it could not grant the third-level reduction absent a government motion.

Effective November 1, 2013, section 3E1.1 of the Sentencing Guidelines was amended to clarify that “the 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, comment, (n.6). The amended Guidelines apply to this case. See United States v. Catalan, 701 F.3d 331, 333 (9th Cir.2012) (“When an amendment to the Guidelines clarifies, rather than alters, existing law, we use the amendment to interpret the Guidelines provision retroactively.”).

At oral argument, the government commendably conceded that if this amendment to the Guidelines became effective, a remand to the district court for resentencing was required. We therefore VACATE the sentence imposed by the district court and REMAND for resentencing.

Each party shall bear its own costs on appeal.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.