United States of America v. Oscar Alejandro Garcia- Luquin

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OSCAR ALEJANDRO GARCIA-
LUQUIN,
Defendant - Appellant.
No. 13-10215
D.C. No. 2:12-cr-00304-LDG
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
Oscar Alejandro Garcia-Luquin appeals from the district court’s judgment
and challenges the 40-month sentence imposed following his guilty-plea
conviction for being a deported alien found unlawfully in the United States, in
FILED
FEB 26 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and
we vacate and remand for resentencing.
Garcia-Luquin contends that the district court erred by failing to recognize
its discretion to vary downward from the Guidelines range to account for the
government’s failure to move for a 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 Garcia-Luquin is
entitled to a new sentencing hearing at which the government will move for the
third level.
In light of our decision, we do not reach Garcia-Luquin’s contention that the
40-month sentence is substantively unreasonable.
VACATED and REMANDED for resentencing.
13-10215 2

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