United States v. Luis Sierra-Martinez

MEMORANDUM

Luis Sierra-Martinez appeals from the 46-month sentence imposed following his guilty-plea conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1326 (a). We have jurisdiction under 28 U.S.C. § 1291 , and we vacate and remand in part and affirm in part.

Before Sierra-Martinez was sentenced the government declined to move for the third point for acceptance of responsibility under U.S.S.G. § 3E1.1, based in part on Sierra-Martinez’s refusal to waive his right of appeal. After Sierra-Martinez was sentenced, the Sentencing Commission in Amendment 775 amended Application Note 6 to U.S.S.G. § 3E1.1 to provide: “The government should not withhold such a motion based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right of appeal.” Sierra-Martinez contends and the government concedes that Amendment 775 is an authoritative and clarifying change in the interpretation of U.S.S.G. § 3E1.1 that applies retroactively to cases that are not final on direct appeal. See United States v. Felix, 87 F.3d 1057, 1060 (9th Cir.1996). We agree and remand the case for re-sentencing so that the district court can determine…