United States v. Rogelio Cota-Valenzuela ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10091
Plaintiff-Appellee, D.C. No. 4:04-cr-00677-FRZ
v.
MEMORANDUM*
ROGELIO UMBERTO COTA-
VALENZUELA, a.k.a. Rogelio Cota-
Valenzuela,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
Rogelio Umberto Cota-Valenzuela appeals pro se from the district court’s
order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).
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).
Cota-Valenzuela contends that he is entitled to a sentence reduction under
Amendment 782 to the Sentencing Guidelines. The district court determined that
Cota-Valenzuela was not entitled to a sentence reduction because his sentence was
based on the parties’ Federal Rule of Criminal Procedure 11(c)(1)(C) plea
agreement, rather than the Guidelines range. In so doing, the district court applied
the test set forth in United States v. Austin, 676 F.3d 924 (9th Cir. 2012), and did
not have the benefit of our recent decision in United States v. Davis, 825 F.3d 1014(9th Cir. 2016) (en banc) (overruling Austin and adopting the plurality opinion’s
approach in Freeman v. United States, 564 U.S. 522 (2011)). Accordingly, we
remand for the district court to determine in the first instance whether Cota-
Valenzuela is entitled to relief in light of Davis. We express no opinion as to the
merits of Cota-Valenzuela’s motion.
VACATED and REMANDED.
2 16-10091