ORDER
Judges Canby and Friedland vote to grant James Moons petition for panel rehearing (Docket Entry No. 20), and Judge VanDyke votes to deny the petition. The petition for rehearing is granted. The memorandum disposition filed on May 24, 2021, and appearing at United States v. Moon, 848 Fed. Appx. 347 (9th Cir. 2021), is withdrawn. A replacement memorandum disposition is being filed concurrently with this order.
Because the petition for rehearing is granted, the suggestion for rehearing en banc is moot.
Any further petition for rehearing is due 14 days from the date of this order.
MEMORANDUM **
James Moon appeals from the district courts order denying his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). We have jurisdiction under 28 U.S.C. § 1291. We vacate the district courts order and remand for the district court to reconsider Moons motion.
The district court held that Moon had not shown “extraordinary and compelling” reasons warranting his release. 18 U.S.C. § 3582(c)(1)(A)(i). In doing so, the district court relied on U.S.S.G. § 1B1.13. After the district courts decision, we held that “the current version of U.S.S.G. § 1B1.13 is not an applicable policy statement for 18 U.S.C. § 3582(c)(1)(A) motions filed by a defendant.” United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021) (internal quotation marks and alterations omitted). “The Sentencing Commissions statements in U.S.S.G. § 1B1.13 may inform a district courts discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding.” Id.
In light of our intervening decision in Aruda, we vacate and remand so that the district court can reassess Moons motion for compassionate release under the standard set forth there. We offer no views as to the merits of Moons § 3582(c)(1)(A)(i) motion.
VACATED and REMANDED.
I would affirm the denial for the reasons stated in the courts original memorandum disposition.
FOOTNOTES
FOOTNOTE
. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.