United States v. Federico Lopez-Torres

FILED
NOT FOR PUBLICATION NOV 20 2013

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

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-10676

Plaintiff - Appellee, D.C. No. 4:11-cr-01330-JGZ-
BPV-1
v.

FEDERICO LOPEZ-TORRES, MEMORANDUM*

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 12-10006

Plaintiff - Appellee, D.C. No. 4:08-cr-01454-JGZ-
BPV-1
v.

FEDERICO LOPEZ-TORRES,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding

Argued and Submitted August 16, 2013
San Francisco, California

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: REINHARDT, NOONAN, and HURWITZ, Circuit Judges.

Federico Lopez-Torres pleaded guilty to illegal re-entry in violation of 8

U.S.C. § 1326 and admitted violating terms of his supervised release. At

sentencing, the government declined to move for a third-level reduction for

acceptance of responsibility because Lopez-Torres did not waive his right to

appeal. The district court concluded that it could not grant the third-level reduction

absent a government motion.

Effective November 1, 2013, section 3E1.1 of the Sentencing Guidelines

was amended to clarify that “the 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, comment. (n.6). The amended Guidelines apply to this case.

See United States v. Catalan, 701 F.3d 331, 333 (9th Cir. 2012) (“When an

amendment to the Guidelines clarifies, rather than alters, existing law, we use the

amendment to interpret the Guidelines provision retroactively.”).

At oral argument, the government commendably conceded that if this

amendment to the Guidelines became effective, a remand to the district court for

resentencing was required. We therefore VACATE the sentence imposed by the

district court and REMAND for resentencing.

2
Each party shall bear its own costs on appeal.