NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 1 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 20-10259 Plaintiff-Appellee, D.C. No. 1:18-cr-00065-HG-1 v. KYLE CROSS, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Helen W. Gillmor, District Judge, Presiding Submitted May 18, 2021** Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.

Kyle Cross appeals from the district court’s 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.

Cross primarily contends that the district court applied the wrong legal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). standard by deferring to U.S.S.G. § 1B1.13 as an applicable policy statement.

After the district court’s decision denying relief and the parties’ briefing on appeal, this court held that the current version of U.S.S.G. § 1B1.13 is not binding as applied to § 3582(c)(1)(A) motions brought by prisoners. See United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021) (“The Sentencing Commission’s statements in U.S.S.G. § 1B1.13 may inform a district court’s discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding.”). Because it is unclear whether the district court treated U.S.S.G. § 1B1.13 as binding in this case, we vacate and remand so that the district court can reassess Cross’s motion for compassionate release under the standard set forth in Aruda. See id. We offer no views as to the merits of Cross’s § 3582(c)(1)(A)(i) motion, and we need not reach his remaining arguments on appeal.

VACATED and REMANDED.

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