MEMORANDUM **
Luke Warner 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, and we vacate and remand for the district court to reconsider Warners motion.
As a preliminary matter, we exercise our discretion under Federal Rule of Appellate Procedure 4(c)(1)(B) and accept Warners declaration, accompanied by outgoing mail receipts, that he deposited his notice of appeal with the prison authorities 12 days after entry of the district courts order. We accordingly reject the governments argument that Warners notice of appeal was untimely. See Fed. R. App. P. 4(b)(1)(A), (c)(1).
Turning to the merits, the district court concluded that Warner had not shown “extraordinary and compelling” reasons warranting his release. 18 U.S.C. § 3582(c)(1)(A)(i). It appears that in doing so, the district court may have treated U.S.S.G. § 1B1.13 as binding. 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 § 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 Warners motion for compassionate release under the standard set forth there. We offer no views as to the merits of Warners § 3582(c)(1)(A)(i) motion, and we leave it to the district court to consider his new allegation that he has since contracted COVID-19.
In light of this disposition, we do not reach Warners remaining contentions.
Warners motions to file an untimely, oversized reply brief and exhibits under seal are granted. The Clerk will file under seal the reply brief and exhibits at Docket Entry No. 33.
Warners motion for service of filings is granted. The Clerk will serve on appellant a copy of appellants filings at Docket Entry Nos. 31 and 33.
Warners motions to submit supplemental information, and all other pending motions, are denied. The motions and attachments at Docket Entry Nos. 12 and 39 will remain under seal.
VACATED AND REMANDED.