United States v. Guadalupe Hernandez

Opinion

FILED NOT FOR PUBLICATION NOV 01 2016

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

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 15-50161 Plaintiff-Appellee, D.C. No. 3:14-cr-02748-WQH v. MEMORANDUM* GUADALUPE ROBERT HERNANDEZ, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding Submitted October 25, 2016** Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.

Guadalupe Robert Hernandez appeals from the district court’s judgment and challenges the 36-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.

Hernandez 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 Hernandez 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 Hernandez’s sentence and 2 15-50161 remand for resentencing under the Amendment. See Quintero-Leyva, 823 F.3d at 523-24.

VACATED and REMANDED for resentencing.

3 15-50161