                                                                            FILED
                     UNITED STATES COURT OF APPEALS                          DEC 19 2013

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




UNITED STATES OF AMERICA,                         No. 11-10622

              Plaintiff - Appellee,               D.C. No. 4:11-cr-02002-JGZ-
                                                  BPV-1
  v.                                              District of Arizona,
                                                  Tucson
ERWIN ALVARADO,

              Defendant - Appellant.              ORDER


Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       The parties’ joint motion to affirm the district court without prejudice to

resentencing is granted. The memorandum disposition filed on September 14,

2012, is withdrawn.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                            NOT FOR PUBLICATION                               DEC 19 2013

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 11-10622

               Plaintiff - Appellee,              D.C. No. 4:11-cr-02002-JGZ-
                                                  BPV-1
  v.

ERWIN ALVARADO,                                   MEMORANDUM*

               Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Cindy K. Jorgenson, District Judge, Presiding

                           Submitted September 10, 2012**


Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       Erwin Alvarado appeals from the 24–month sentence imposed following his

guilty-plea conviction for illegal re-entry after deportation, in violation of 8 U.S.C.

§ 1326.


          *
             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).
      Alvarado asserted that the district court erred by not sua sponte granting him

a third-level reduction for acceptance of responsibility. He argued that the reason

cited by the government for refusing to make the motion for the reduction, that he

reserved his right to appeal, was an impermissible reason under U.S.S.G.

§ 3E1.1(b).

      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. The parties have filed a joint motion indicating that resentencing

is warranted in light of this amendment, but requesting nevertheless that the

sentence be affirmed without prejudice because Alvarado has been released and

removed from the United States. Accordingly, because Alvarado has been

removed from the United States, we affirm the sentence imposed by the district

court, but do so without prejudice to a later request by Alvarado for a resentencing

if he returns to the United States. See United States v. Aguilar-Reyes, 723 F.3d

1014, 1017-18 (9th Cir. 2013).

      AFFIRMED without prejudice and with instructions.




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