United States of America v. Jorge Montes-Loya

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JORGE MONTES-LOYA,
Defendant - Appellant.
No. 13-10203
D.C. No. 2:12-cr-00297-GMN
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
Jorge Montes-Loya appeals from the district court’s judgment and
challenges the 51-month sentence imposed following his guilty-plea conviction for
being a deported alien found unlawfully in the United States, in violation of 8
U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and
FILED
FEB 27 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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remand for resentencing.
Montes-Loya contends that the district court erred by failing to appreciate
and explain why it declined to exercise its discretion to vary downward from the
Guidelines range to account for the government’s failure to move for a third point
for acceptance of responsibility under U.S.S.G. § 3E1.1(b). Effective November 1,
2013, section 3E.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 Montes-Loya is entitled to a new sentencing hearing at which
the government will move for the third point. Accordingly, we vacate and remand
for resentencing.
In light of this disposition, we decline to reach Montes-Loya’s claim that his
sentence is substantively unreasonable.
VACATED and REMANDED for resentencing.
13-10203 2

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