UNITED STATES of America, Plaintiff-Appellee, v. Saul RIVAS-MENESES, Defendant-Appellant, 557 F. App'x 651

ORDER 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 The memorandum disposition filed on June 29, 2012, is withdrawn.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. MEMORANDUM 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.

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. § 3El.l(

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