United States v. Sacramento Diaz ( 2016 )

FILED
NOT FOR PUBLICATION AUG 25 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50338
Plaintiff-Appellee, D.C. No. 3:14-cr-00271-BEN
v.
MEMORANDUM*
SACRAMENTO DIAZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted June 22, 2015**
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
Sacramento Diaz appeals from the district court’s judgment and challenges
the 70-month sentence imposed following his guilty-plea conviction for
importation of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. We
*
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).
have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for
resentencing.
Diaz 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 Diaz 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 those factors
in determining whether Diaz was entitled to a minor role adjustment, we vacate
Diaz’s sentence and remand for resentencing under the Amendment. See
Quintero-Leyva, 823 F.3d at 523-24.
VACATED and REMANDED for resentencing.
2 14-50338