United States of America v. Luis Sierra-Martinez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUIS SIERRA-MARTINEZ,
Defendant-Appellant.
No. 12-10152
D.C. No. 4:11-cr-3765-TUC-CKJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David S. Doty, Senior District Judge, Presiding
Argued and Submitted July 11, 2014
San Francisco, California
Before: N.R. SMITH and CHRISTEN, Circuit Judges, and PIERSOL, Senior
District Judge.**
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.
FILED
JUL 31 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 Honorable Lawrence L. Piersol, Senior District Judge for the U.S. District
Court for the District of South Dakota, sitting by designation.

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§ 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
whether Sierra-Martinez should receive a third point for acceptance of responsibility.
Sierra-Martinez also argues that his 1997 California conviction for attempted
second-degree murder does not support the 16-level upward adjustment he received
under U.S.S.G. § 2L1.2(b)(1)(A), because unlike the generic definition of attempt,
California’s definition of attempt does not include a defense of voluntary renunciation.
We reject this argument in light of our decision in United States v. Albino-Loe, 747
2

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F.3d 1206 (9th Cir. 2014). Pursuant to FED. R. APP. P. 39(a)(4), the Court orders that
the parties bear their own costs.
VACATED AND REMANDED IN PART, AFFIRMED IN PART.
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