FILED
NOT FOR PUBLICATION NOV 01 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 15-50161
Plaintiff-Appellee, D.C. No. 3:14-cr-02748-WQH
v.
MEMORANDUM*
GUADALUPE ROBERT HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
Guadalupe Robert Hernandez appeals from the district court’s judgment and
challenges the 36-month sentence imposed following his guilty-plea conviction for
importation of methamphetamine and cocaine, in violation of 21 U.S.C. §§ 952 and
*
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).
960. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for
resentencing.
Hernandez 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 Hernandez
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 Hernandez’s sentence and
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remand for resentencing under the Amendment. See Quintero-Leyva, 823 F.3d at
523-24.
VACATED and REMANDED for resentencing.
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