
    UNITED STATES of America, Plaintiff-Appellee, v. Oscar Alejandro GARCIA-LUQUIN, Defendant-Appellant.
    No. 13-10215.
    United States Court of Appeals, Ninth Circuit.
    Submitted Feb. 18, 2014.
    
    Filed Feb. 26, 2014.
    Robert A. Bork, Assistant U.S., Office of the U.S. Attorney, Las Vegas, NV, Elizabeth Olson White, Esquire, Assistant U.S., Office of the U.S. Attorney, Reno, NV, for Plaintiff-Appellee.
    Alina Maria Shell, Federal Public Defender’s Office, Las Vegas, NV, for Defen-danL-Appellant.
    Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

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