USA V. FERNANDO ZATARAIN-PENA, No. 14-50163 (9th Cir. 2016)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on June 30, 2015.
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FILED AUG 25 2016 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 14-50163 D.C. No. 3:14-cr-00007-WQH v. MEMORANDUM* FERNANDO ZATARAIN-PENA, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding Submitted June 22, 2015** Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges. Fernando Zatarain-Pena appeals from the district court’s judgment and challenges the 44-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. Zatarain-Pena 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 Zatarain-Pena 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). Among other things, 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 those factors in determining whether Zatarain-Pena was entitled to a minor role adjustment, we vacate Zatarain-Pena’s sentence and remand for resentencing under the Amendment. See Quintero-Leyva, 823 F.3d at 523-24. VACATED and REMANDED for resentencing. 2 14-50163
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