FILED
NOT FOR PUBLICATION
MAY 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50182
Plaintiff - Appellee, D.C. No. 3:11-CR-03261-BEN-1
v.
MEMORANDUM*
LUIS ALBERTO ENRIQUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted February 1, 2016
Pasadena, California
Before: D.W. NELSON, CALLAHAN, and N.R. SMITH, Circuit Judges.
Luis Alberto Enriquez appeals the district court’s denial of a minor role
reduction at sentencing. Enriquez also argues that on remand, the case should be
reassigned to a different district court judge. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 1291, and we reverse and remand to the same district court judge for re-
sentencing in light of newly amended U.S.S.G. § 3B1.2.1
1. We review the district court’s interpretation of the Sentencing Guidelines de
novo and the district court’s factual findings for clear error. United States v.
Hornbuckle, 784 F.3d 549, 553 (9th Cir. 2015). We have previously noted an
intracircuit conflict as to whether the standard of review for application of the
Guidelines to the facts is de novo or abuse of discretion. Id. We need not resolve
that conflict here because “the choice of standard . . . does not affect the outcome
of this case.” Id. (internal quotation marks omitted).
In November 2015, approximately eight months after Enriquez was re-
sentenced, the United States Sentencing Commission published Amendment 794
(the Amendment) after finding that the minor role reduction was being “applied
inconsistently and more sparingly than the Commission intended.” U.S.S.G. App.
C. Amend. 794. Among other changes, the Amendment added a non-exhaustive
list of factors a court “should consider” in determining whether to apply a minor
role reduction. See U.S.S.G. § 3B1.2, comment., n.1(c).
1
Enriquez also argues that the Government and the district court acted
vindictively. Because we remand for re-sentencing, we do not reach these issues.
2
The Amendment applies retroactively in direct appeals. See United States v.
Quintero-Leyva, – F.3d – (9th Cir. 2016). Because we cannot determine from the
record whether the district court considered all the factors now listed in § 3B1.2
when sentencing Enriquez, we vacate the sentence and reverse and remand for re-
sentencing in light of newly amended § 3B1.2. On remand, the district court
“should consider” the factors identified in Amendment 794: (i) the degree to which
the defendant understood the scope and structure of the criminal activity; (ii) the
degree to which the defendant participated in planning or organizing the criminal
activity; (iii) the degree to which the defendant exercised decision-making
authority or influenced the exercise of decision-making authority; (iv) the nature
and extent of the defendant's participation in the commission of the criminal
activity, including the acts the defendant performed and the responsibility and
discretion the defendant had in performing those acts; and (v) the degree to which
the defendant stood to benefit from the criminal activity.
2. Our review of the record does not demonstrate that “‘personal biases or
unusual circumstances’” exist such that this case should be reassigned to a different
district court judge. United States v. Kyle, 734 F.3d 956, 966–67 (9th Cir. 2015)
(quoting United States v. Lyons, 472 F.3d 1055, 1071 (9th Cir. 2006)).
REVERSED and REMANDED.
3