
    UNITED STATES of America, Plaintiff-Appellee, v. Saul RIVAS-MENESES, Defendant-Appellant.
    No. 11-50469.
    United States Court of Appeals, Ninth Circuit.
    Submitted June 26, 2012.
    
    Filed Dec. 23, 2013.
    Bruce R. Castetter, Assistant U.S., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
    Devin Burstein, Assistant Federal Public Defender, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
    Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   ORDER

The parties’ joint motion to remand for resentencing is granted. The memorandum disposition filed on June 29, 2012, is withdrawn. A replacement memorandum disposition is filed concurrently with this order.

The petition for rehearing en banc is denied as moot.

MEMORANDUM

Saul Rivas-Meneses appeals from the 40-month sentence imposed following his guilty-plea conviction for attempted entry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.

Rivas-Meneses contends that the district court erred by failing to grant his request for a third-level reduction for acceptance of responsibility under U.S.S.G. § 3El.l(b) because his refusal to waive his right to appeal was an improper basis for the government to refuse to move for the reduction. The parties have filed a joint motion requesting that this court vacate Rivas-Meneses’s sentence and remand for resentencing.

Effective November 1, 2013, U.S.S.G § 3E1.1 was amended to clarify that “[t]he government should not withhold [a motion for a third-level 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. We agree that resentencing is warranted in this case to allow the district court to determine whether Rivas-Meneses should receive a third point for acceptance of responsibility.

VACATED and REMANDED for re-sentencing. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     