United States v. Tapia-Fierro

63 F. App'x 390

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 19, 2003
• Docket: No. 02-10454; D.C. No. CR-01-01115-FJM
• Status: Published

Opinion

MEMORANDUM

**

Jose Luis Tapia-Fierro appeals the 104-month sentence imposed after a jury convicted him of attempted illegal re-entry following deportation in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291. We review de novo whether a district court misapprehended the law, and review for clear error its factual determinations with respect to the aeceptance-of-responsibility reduction. United States v. Cortes, 299 F.3d 1030, 1037 (9th Cir.2002). We vacate and remand for resentencing.

Tapia-Fierro contends that the district court erred in denying his request for a three-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The district court did not make any specific findings regarding Tapia-Fierro’s remorse or contrition, his actual acceptance of responsibility, or the applicable guide-fine factors. See U.S.S.G. § 3E1.1 (Application Note 1). Because it is unclear if the district court denied an acceptance-of-re-sponsibifity reduction based on Tapia-Fi-erro’s exercise of his constitutional right to a trial by jury, we vacate Tapia-Fierro’s sentence and remand so the district court can consider the appropriate factors related to the acceptance of responsibility reduction. See Cortes, 299 F.3d at 1038-39.

VACATED and REMANDED.

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.