                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 26 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10215

               Plaintiff - Appellee,             D.C. No. 2:12-cr-00304-LDG

  v.
                                                 MEMORANDUM*
OSCAR ALEJANDRO GARCIA-
LUQUIN,

               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:        ALARCÓN, 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
