United States v. Raul Garcia-Pina , 692 F. App'x 934 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50026
Plaintiff-Appellee, D.C. No. 2:15-cr-00521-PA
v.
MEMORANDUM*
RAUL EDUARDO GARCIA-PINA,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
Raul Eduardo Garcia-Pina appeals from the district court’s judgment and
challenges the 46-month sentence imposed following his guilty-plea conviction for
possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(C). We have jurisdiction under 28 U.S.C. § 1291, and we vacate 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).
remand for resentencing.
Garcia-Pina 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). He argues that he is
entitled to an adjustment under Amendment 794 (“the Amendment”), which added
a non-exhaustive list of five factors that a court “should consider” in determining
whether to grant a minor role reduction. See U.S.S.G. § 3B1.2 cmt. n.3(C). He
asks this court to remand for the district court to grant the reduction or to conduct a
resentencing under the Amendment. We agree that Garcia-Pina should be
resentenced under the Amendment.
The Amendment became effective less than three months before Garcia-Pina
was sentenced. Neither party explicitly discussed the Amendment at the
sentencing hearing. Moreover, the district court did not acknowledge the
Amendment or apply any of the five factors, nor did it conduct any comparative
analysis between Garcia-Pina and his co-participants in the offense. On this
record, we cannot determine whether the district court properly applied the
amended minor role Guideline. Accordingly, we vacate Garcia-Pina’s sentence
and remand for resentencing under the Amendment. See United States v.
Quintero-Leyva, 823 F.3d 519, 523-24 (9th Cir. 2016).
VACATED and REMANDED for resentencing.
2 16-50026