48 F3d 1233 United States v. Marquez-Solis

UNITED STATES of America, Plaintiff-Appellee,
Hector Manuel MARQUEZ-SOLIS, Defendant-Appellant.

No. 94-2162.
(D.C. No. 92-00252)

United States Court of Appeals, Tenth Circuit.

Feb. 27, 1995.

48 F.3d 1233
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before TACHA, LOGAN and KELLY, Circuit Judges.2


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Mr. Marquez appeals from the district court's dismissal of his 28 U.S.C. 2255 habeas petition. Our jurisdiction arises out of 28 U.S.C. 2253 and we remand this case to the district court.


Mr. Marquez contends that the district court incorrectly denied his motion to reduce his offense level by an additional one level under 3E1.1(b) of the United States Sentencing Guidelines. On November 1, 1992, the United States Sentencing Commission amended 3E1.1 to allow defendants in Marquez's position to qualify for an additional one-level reduction. When the district court sentenced Mr. Marquez on December 21, 1992, it refused to consider reducing his sentence in accordance with the November amendment to 3E1.1. The court denied Mr. Marquez's motion for the additional reduction because it looked to the Guideline in effect on the date the offense was committed.


Section 1B1.11(a) of the Guidelines indicates that the trial court should look to the relevant guidelines in effect on the date of sentencing. U.S.S.G. 1B1.11(a). The government has conceded that this case should be remanded to the district court for resentencing and for the court's determination of whether Mr. Marquez qualifies for an additional one-level reduction pursuant to U.S.S.G. 3E1.1, as amended in November 1992.




After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause therefore is ordered submitted without oral argument


This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order. 151 F.R.D. 470 (10th Cir.1993)