                                                                          FILED
                    UNITED STATES COURT OF APPEALS                         DEC 23 2013

                                                                       MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                        U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                        No. 11-50469

              Plaintiff - Appellee,              D.C. No. 3:11-cr-01757-JAH
                                                 Southern District of California,
  v.                                             San Diego

SAUL RIVAS-MENESES,
                                                 ORDER
              Defendant - Appellant.


Before:      SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       The parties’ joint motion to remand for resentencing is granted. The

memorandum disposition filed on June 29, 2012, is withdrawn. A replacement

memorandum disposition is filed concurrently with this order.

       The petition for rehearing en banc is denied as moot.
                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 23 2013

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 11-50469

               Plaintiff - Appellee,              D.C. No. 3:11-cr-01757-JAH

  v.
                                                  MEMORANDUM*
SAUL RIVAS-MENESES,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                              Submitted June 26, 2012**

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       Saul Rivas-Meneses appeals from the 40-month sentence imposed following

his guilty-plea conviction for attempted entry after deportation, in violation of 8

U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and

remand for resentencing.

          *
             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).
      Rivas-Meneses contends that the district court erred by failing to grant his

request for a third-level reduction for acceptance of responsibility under U.S.S.G.

§ 3E1.1(b) because his refusal to waive his right to appeal was an improper basis

for the government to refuse to move for the reduction. The parties have filed a

joint motion requesting that this court vacate Rivas-Meneses’s sentence and

remand for resentencing.

      Effective November 1, 2013, U.S.S.G § 3E1.1 was amended to clarify that

“[t]he government should not withhold [a motion for a third-level 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. We agree that resentencing is warranted in this case to allow the district

court to determine whether Rivas-Meneses should receive a third point for

acceptance of responsibility.

      VACATED and REMANDED for resentencing.




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