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2012, is withdrawn.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NOT FOR PUBLICATION DEC 19 2013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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