United States v. Martin Arriola-Oregel , 693 F. App'x 681 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50424
Plaintiff-Appellee, D.C. No. 3:15-cr-00590-BTM
v.
MEMORANDUM*
MARTIN ARRIOLA-OREGEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, Chief Judge, Presiding
Submitted July 11, 2017**
Before: CANBY, KOZINSKI, and HAWKINS, Circuit Judges.
Martin Arriola-Oregel appeals from the district court’s judgment and
challenges the 48-month sentence imposed following his guilty-plea conviction for
importation of methamphetamine, in violation of 21 U.S.C. §§ 952, 960. We have
jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.
*
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).
Arriola-Oregel argues that the district court erred in denying a minor role
reduction to his base level offense under U.S.S.G. § 3B1.2(b). After Arriola-
Oregel 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 id. Because the Amendment was not yet in effect, the district court did not
consider those factors. Accordingly, we vacate Arriola-Oregel’s sentence and
remand for resentencing under the Amendment. See Quintero-Leyva, 823 F.3d at
523-24.
VACATED and REMANDED for resentencing.
2 15-50424