FILED
NOT FOR PUBLICATION
APR 20 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50210
Plaintiff-Appellee, D.C. No. 3:14-cr-03692-BEN
v.
MEMORANDUM*
ARTURO CHAVEZ-MELGOZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Arturo Chavez-Melgoza appeals from the district court’s judgment and
challenges the 37-month sentence imposed following his guilty-plea conviction for
importation of cocaine, in violation of 21 U.S.C. §§ 952, 960. We have
jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.
*
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).
Chavez-Melgoza 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 Chavez-
Melgoza 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 Chavez-Melgoza’s sentence
and remand for resentencing under the Amendment. See Quintero-Leyva, 823 F.3d
at 523-24.
2 15-50210
For purposes of resentencing, we note that because Chavez-Melgoza is
safety valve eligible, he is exempt from the statutory minimum term of supervised
release. See U.S.S.G. § 5C1.2 cmt. n.9.
VACATED and REMANDED for resentencing.
3 15-50210