United States v. Jorge Ausencio Gil-Velasquez

FILED
NOT FOR PUBLICATION OCT 03 2016

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50071

Plaintiff-Appellee, D.C. No. 3:14-cr-03261-LAB

v.
MEMORANDUM*
JORGE LUIS AUSENCIO GIL-
VELASQUEZ, a.k.a. Jorge Luis
Ausencion Gil-Velasquez,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding

Submitted September 27, 2016**

Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.

Jorge Luis Ausencio Gil-Velasquez appeals from the district court’s

judgment and challenges the 96-month sentence imposed following his guilty-plea

conviction for importation of methamphetamine, in violation of 21 U.S.C. §§ 952

*
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).
and 960. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand

for resentencing.

Gil-Velasquez 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 Gil-Velasquez

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).

The Amendment clarified that, in assessing whether a defendant should

receive a minor role adjustment, the court should compare him to the other

participants in the crime, rather than to a hypothetical average participant. See

U.S.S.G. App. C. Amend. 794; Quintero-Leyva, 823 F.3d at 523. In addition, the

Amendment clarified that “[t]he fact that a defendant performs an essential or

indispensable role in the criminal activity is not determinative.” U.S.S.G. § 3B1.2

cmt. n.3(C) (2015). Finally, the Amendment added a non-exhaustive list of factors

that a court “should consider” in determining whether to apply a minor role

reduction. See id. Because we cannot determine from the record whether the

district court followed the guidance of the Amendment’s clarifying language and

considered all of the now-relevant factors, we vacate Gil-Velasquez’s sentence and

2 15-50071
remand for resentencing under the Amendment. See Quintero-Leyva, 823 F.3d at

523-24.

In light of this disposition, we do not reach Gil-Velasquez’s other sentencing

arguments.

VACATED and REMANDED for resentencing.

3 15-50071