UNITED STATES OF AMERICA v. FERNANDO ZATARAIN PENA

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United States Court of Appeals, Ninth Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FERNANDO ZATARAIN-PENA, Defendant-Appellant.

No. 14-50163

Decided: August 25, 2016

Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.

MEMORANDUM*

Fernando Zatarain-Pena appeals from the district court's judgment and challenges the 44-month sentence imposed following his guilty-plea conviction for importation of methamphetamine and cocaine, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.

Zatarain-Pena argues that the district court erred in denying a minor role reduction to his base offense level under U.S.S.G. § 3B1.2(b). After Zatarain-Pena was sentenced, the United States Sentencing Commission issued Amendment 794 (“the Amendment”), which amended the commentary to the minor role Guideline. The Amendment is retroactive to cases pending on direct appeal. See United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016).

Among other things, the Amendment added a non-exhaustive list of factors that a court “should consider” in determining whether to apply a minor role reduction. See U.S.S.G. § 3B1.2 cmt. n.3(C) (2015). Because we cannot determine from the record whether the district court considered all of those factors in determining whether Zatarain-Pena was entitled to a minor role adjustment, we vacate Zatarain-Pena's sentence and remand for resentencing under the Amendment. See Quintero-Leyva, 823 F.3d at 523-24.

VACATED and REMANDED for resentencing.