USA V. ROGELIO COTA-VALENZUELA, No. 16-10091 (9th Cir. 2016)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED NOV 21 2016 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. U.S. COURT OF APPEALS No. 16-10091 D.C. No. 4:04-cr-00677-FRZ MEMORANDUM* ROGELIO UMBERTO COTAVALENZUELA, a.k.a. Rogelio CotaValenzuela, Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Frank R. Zapata, District Judge, Presiding Submitted November 16, 2016** Before: LEAVY, BERZON, and MURGUIA, Circuit Judges. Rogelio Umberto Cota-Valenzuela appeals pro se from the district court’s order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand. * 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). Cota-Valenzuela contends that he is entitled to a sentence reduction under Amendment 782 to the Sentencing Guidelines. The district court determined that Cota-Valenzuela was not entitled to a sentence reduction because his sentence was based on the parties’ Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement, rather than the Guidelines range. In so doing, the district court applied the test set forth in United States v. Austin, 676 F.3d 924 (9th Cir. 2012), and did not have the benefit of our recent decision in United States v. Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc) (overruling Austin and adopting the plurality opinion’s approach in Freeman v. United States, 564 U.S. 522 (2011)). Accordingly, we remand for the district court to determine in the first instance whether CotaValenzuela is entitled to relief in light of Davis. We express no opinion as to the merits of Cota-Valenzuela’s motion. VACATED and REMANDED. 2 16-10091

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