United States v. Jose Miranda-Garcia

                                                                           FILED
                            NOT FOR PUBLICATION                            MAR 13 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 13-30079

               Plaintiff - Appellee,              D.C. No. 2:12-cr-06003-FVS

  v.
                                                  MEMORANDUM*
JOSE MARCOS MIRANDA-GARCIA,

               Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Eastern District of Washington
                    Fred L. Van Sickle, District Judge, Presiding

                             Submitted March 10, 2014**

Before:        PREGERSON, LEAVY, and MURGUIA, Circuit Judges.

       Jose Marcos Miranda-Garcia appeals from the district court’s judgment and

challenges the 120-month sentence imposed following his guilty-plea conviction

for conspiracy to distribute and to possess with intent to distribute

methamphetamine, and aiding and abetting, in violation of 21 U.S.C. § 846 and 18

          *
             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).
U.S.C. § 2. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and

remand for resentencing.

      Miranda-Garcia contends that the district court erred by failing to grant a

third-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b).

Effective November 1, 2013, section 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 Miranda-Garcia is entitled to a new

sentencing hearing. Accordingly, we vacate Miranda-Garcia’s sentence and

remand for resentencing.

      VACATED and REMANDED for resentencing.




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