United States of America v. Federico Lopez-Torres

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FEDERICO LOPEZ-TORRES,
Defendant - Appellant.
No. 11-10676
D.C. No. 4:11-cr-01330-JGZ-
BPV-1
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FEDERICO LOPEZ-TORRES,
Defendant - Appellant.
No. 12-10006
D.C. No. 4:08-cr-01454-JGZ-
BPV-1
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
FILED
NOV 20 2013
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.

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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.
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Each party shall bear its own costs on appeal.
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