                                                                                      FILED
                               NOT FOR PUBLICATION                                     JUL 31 2014

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



                                FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                              No. 12-10152

                Plaintiff-Appellee,                     D.C. No. 4:11-cr-3765-TUC-CKJ

   v.
                                                        MEMORANDUM*
 LUIS SIERRA-MARTINEZ,

                Defendant-Appellant.


                      Appeal from the United States District Court
                               for the District of Arizona
                     David S. Doty, Senior District Judge, Presiding

                           Argued and Submitted July 11, 2014
                                San Francisco, California

Before: N.R. SMITH and CHRISTEN, Circuit Judges, and PIERSOL, Senior
District Judge.**

        Luis Sierra-Martinez appeals from the 46-month sentence imposed following

his guilty-plea conviction for illegal reentry after deportation in violation of 8 U.S.C.



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


         **
               The Honorable Lawrence L. Piersol, Senior District Judge for the U.S. District
Court for the District of South Dakota, sitting by designation.
§ 1326(a). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand

in part and affirm in part.

      Before Sierra-Martinez was sentenced the government declined to move for the

third point for acceptance of responsibility under U.S.S.G. § 3E1.1, based in part on

Sierra-Martinez’s refusal to waive his right of appeal. After Sierra-Martinez was

sentenced, the Sentencing Commission in Amendment 775 amended Application Note

6 to U.S.S.G. § 3E1.1 to provide: “The government should not withhold such a motion

based on interests not identified in § 3E1.1, such as whether the defendant agrees to

waive his or her right of appeal.” Sierra-Martinez contends and the government

concedes that Amendment 775 is an authoritative and clarifying change in the

interpretation of U.S.S.G. § 3E1.1 that applies retroactively to cases that are not final

on direct appeal. See United States v. Felix, 87 F.3d 1057, 1060 (9th Cir. 1996). We

agree and remand the case for re-sentencing so that the district court can determine

whether Sierra-Martinez should receive a third point for acceptance of responsibility.

      Sierra-Martinez also argues that his 1997 California conviction for attempted

second-degree murder does not support the 16-level upward adjustment he received

under U.S.S.G. § 2L1.2(b)(1)(A), because unlike the generic definition of attempt,

California’s definition of attempt does not include a defense of voluntary renunciation.

We reject this argument in light of our decision in United States v. Albino-Loe, 747


                                           2
F.3d 1206 (9th Cir. 2014). Pursuant to FED. R. APP. P. 39(a)(4), the Court orders that

the parties bear their own costs.

      VACATED AND REMANDED IN PART, AFFIRMED IN PART.




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