                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 27 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10203

               Plaintiff - Appellee,             D.C. No. 2:12-cr-00297-GMN

  v.                                             MEMORANDUM*

JORGE MONTES-LOYA,

               Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Gloria M. Navarro, District Judge, Presiding

                           Submitted February 18, 2014**

Before:        ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.

       Jorge Montes-Loya appeals from the district court’s judgment and

challenges the 51-month sentence imposed following his guilty-plea conviction for

being a deported alien found unlawfully in the United States, in violation of 8

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

          *
             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).
remand for resentencing.

      Montes-Loya contends that the district court erred by failing to appreciate

and explain why it declined to exercise its discretion to vary downward from the

Guidelines range to account for the government’s failure to move for a third point

for acceptance of responsibility under U.S.S.G. § 3E1.1(b). Effective November 1,

2013, section 3E.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 Montes-Loya is entitled to a new sentencing hearing at which

the government will move for the third point. Accordingly, we vacate and remand

for resentencing.

      In light of this disposition, we decline to reach Montes-Loya’s claim that his

sentence is substantively unreasonable.

      VACATED and REMANDED for resentencing.




                                          2                                   13-10203
