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United States v. Jose Alonzo

Court of Appeals for the Ninth Circuit · 15-50390 · 2016-12-21 · Unpublished

UNITED STATES of America, Plaintiff-Appellee, v. Jose Marcos ALONZO, Defendant-Appellant

Proceeding
appeal
Trial court
United States District Court for the Southern District of California
Trial judge
Roger T. Benitez (district judge)
Outcome
vacated — VACATED and REMANDED for resentencing.
Area
criminal
Panel
William T. Wallace (author), Raymond C. Fisher, Edward Leavy

Analysis

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Opinion

FILED NOT FOR PUBLICATION DEC 21 2016

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

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50390 Plaintiff-Appellee, D.C. No. 3:14-cr-03254-BEN v. MEMORANDUM*

JOSE MARCOS ALONZO,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Submitted December 14, 2016** Before: WALLACE, LEAVY, and FISHER, Circuit Judges.

Jose Marcos Alonzo appeals from the district court’s judgment and challenges the 60-month sentence imposed following his guilty-plea conviction for importation of heroin and methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. 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). Alonzo contends that the district court erred in denying a minor role reduction to his base offense level under U.S.S.C. § 3B1.2(b). After Alonzo 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 the now- relevant factors, we vacate Alonzo’s sentence and remand for resentencing under the Amendment. See Quintero-Leyva, 823 F.3d at 523-24.

In light of this disposition, we do not reach Alonzo’s argument that his sentence is substantively unreasonable.

VACATED and REMANDED for resentencing.

2 15-50390

Cites, in this corpus