FILED
NOT FOR PUBLICATION JAN 23 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 15-50348
15-50373
Plaintiff-Appellee,
D.C. Nos. 3:04-cr-03184-BEN
v. 3:14-cr-01972-BEN
STEVEN AYALA ORTIZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
In these consolidated appeals, Steven Ayala Ortiz appeals the 156-month
sentence imposed following his guilty-plea conviction for importation of
methamphetamine, in violation of 21 U.S.C. §§ 952 and 960, and 30-month
sentence imposed upon revocation of supervised release, 24 months of which was
*
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).
order to run consecutively. We have jurisdiction under 28 U.S.C. § 1291, and we
vacate and remand for resentencing.
Ayala Ortiz argues that the district court erred in denying a minor role
reduction to his base level offense under U.S.S.G. § 3B1.2(b). After Ayala-Ortiz
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 Ayala Ortiz’s sentence and
2 15-50348 & 15-50373
remand for resentencing under the Amendment. See Quintero-Leyva, 823 F.3d at
523-24.
In light of this disposition, we do not reach Ayala Ortiz’s contention that his
aggregate sentence of 180 months is substantively unreasonable. However, we
vacate both sentences challenged on appeal so that, on remand, the court may
impose the total sentence it concludes is warranted.
Appeal Nos. 15-50348 & 15-50373: VACATED and REMANDED for
resentencing.
3 15-50348 & 15-50373