United States v. Sacramento Diaz

FILED NOT FOR PUBLICATION AUG 25 2016 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 14-50338 Plaintiff-Appellee, D.C. No. 3:14-cr-00271-BEN v. MEMORANDUM* SACRAMENTO DIAZ, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Submitted June 22, 2015** Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges. Sacramento Diaz appeals from the district court’s judgment and challenges the 70-month sentence imposed following his guilty-plea conviction for importation of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. We * 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). have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing. Diaz 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 Diaz 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 Diaz was entitled to a minor role adjustment, we vacate Diaz’s sentence and remand for resentencing under the Amendment. See Quintero-Leyva, 823 F.3d at 523-24. VACATED and REMANDED for resentencing. 2 14-50338