United States v. Oscar MacIas-sandoval

FILED
NOT FOR PUBLICATION DEC 19 2016

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

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50053

Plaintiff-Appellee, D.C. No. 3:14-cr-02306-LAB

v.
MEMORANDUM*
OSCAR ANDRES MACIAS-
SANDOVAL,

Defendant-Appellant.

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

Submitted December 14, 2016**

Before: WALLACE, LEAVY, and FISHER, Circuit Judges.

Oscar Andres Macias-Sandoval appeals from the district court’s judgment

and challenges the 78-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. We vacate and remand for

resentencing.

Macias-Sandoval argues that the district court erred in denying a minor role

reduction to his base offense level under U.S.S.G. § 3B1.2. After Macias-Sandoval

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 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 we cannot determine from the record whether the district court considered

all of the now-relevant factors, we vacate Macias-Sandoval’s sentence and remand

for resentencing. See Quintero-Leyva, 823 F.3d at 523-24.

In light of this disposition, we do not reach Macias-Sandoval’s claim that his

sentence is substantively unreasonable.

VACATED and REMANDED for resentencing.

2 15-50053