FILED
NOT FOR PUBLICATION DEC 30 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10355
Plaintiff - Appellee, D.C. No. 2:11-cr-00057-LDG
v.
MEMORANDUM*
RUBEN VELAZQUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Submitted December 17, 2013**
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
Ruben Velazquez appeals from the district court’s judgment and challenges
the 41-month sentence imposed following his guilty-plea conviction for conspiracy
to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii),
*
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).
and 846. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and
vacate and remand in part.
Velazquez contends that the district court erred in denying his request for a
role adjustment under U.S.S.G. § 3B1.2. We review for clear error. See United
States v. Cantrell, 433 F.3d 1269, 1282 (9th Cir. 2006). Because Velazquez failed
to demonstrate that he was “substantially less culpable than the average
participant” in the conspiracy, the court did not clearly err in denying the
adjustment on this record. See U.S.S.G. § 3B1.2 cmt. n.3(A); United States v.
Rodriguez-Castro, 641 F.3d 1189, 1193 (9th Cir. 2011).
Velazquez also contends that it was error to deny him the third-level
reduction for acceptance of responsibility. Effective November 1, 2013, U.S.S.G.
§ 3E1.1 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 Velaquez is entitled to a new sentencing hearing at which the government will
move for the third level.
The record suggests that Velazquez has served his custodial sentence and
may have been deported. Accordingly, we vacate and remand to the district court
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for proceedings consistent with this disposition and a determination whether
Velazquez is available for resentencing or would waive his right to be present for
resentencing. See United States v. Aguilar-Reyes, 723 F.3d 1014, 1018 (9th Cir.
2013).
AFFIRMED in part; VACATED and REMANDED for consideration of
resentencing.
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