United States v. Miguel Garcia-Aguilar , 671 F. App'x 596 ( 2016 )

FILED
NOT FOR PUBLICATION DEC 19 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50336
Plaintiff-Appellee, D.C. No. 3:15-cr-01034-WQH
v.
MEMORANDUM*
MIGUEL ANGEL GARCIA-AGUILAR,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Miguel Angel Garcia-Aguilar 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 and 960. We
have jurisdiction under 28 U.S.C. § 1291. 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).
Garcia-Aguilar 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 Garcia-
Aguilar 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 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
Garcia-Aguilar’s sentence and remand for resentencing. See Quintero-Leyva, 823
F.3d at 523-24.
VACATED and REMANDED for resentencing.
2 15-50336