FILED
NOT FOR PUBLICATION OCT 06 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10053
Plaintiff-Appellee, D.C. No. 4:05-cr-00588-RM-CRP
v.
MEMORANDUM*
FRANCISCO JAVIER GONZALEZ,
a.k.a. Francisco Gonzalez,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Rosemary Marquez, District Judge, Presiding
Submitted September 27, 2016**
Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.
Francisco Javier Gonzalez appeals from the district court’s judgment and
challenges the 70-month sentence imposed following his guilty-plea conviction for
importation of cocaine, in violation of 21 U.S.C. §§ 952 and 960; and possession
*
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).
with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)91)(A)(ii)(II). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and
remand for resentencing.
Gonzalez 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). He incorrectly
frames this claim as a substantive reasonableness argument; in fact, it is a
challenge to the court’s calculation of the Guidelines range. See U.S.S.G.
§ 1B1.1(a)(3); United States v. Hurtado, 760 F.3d 1065, 1068 (9th Cir. 2014).
After Gonzalez 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 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 the record reflects that the court may have improperly compared Gonzalez
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to the average drug courier, and we cannot determine whether the district court
considered all of the now-relevant factors, we vacate Gonzalez’s sentence and
remand for resentencing. See Quintero-Leyva, 823 F.3d at 523-24.
In light of this disposition, we do not reach Gonzalez’s claim that his
sentence is substantively unreasonable.
VACATED and REMANDED for resentencing.
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