United States v. Antoinette Valenzuela

FILED
NOT FOR PUBLICATION
APR 20 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50035
Plaintiff-Appellee, D.C. No. 3:15-cr-01958-LAB
v.
MEMORANDUM*
ANTOINETTE VALENZUELA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Antoinette Valenzuela appeals from the district court’s judgment and
challenges the 78-month concurrent sentences imposed following her guilty-plea
convictions for importation of methamphetamine and importation of cocaine, in
*
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).
violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C.
§ 1291, and we vacate and remand for resentencing.
Valenzuela contends that the district court erred in denying a minor role
reduction to her base offense level under U.S.S.G. § 3B1.2(b) because, among
other things, the court failed to apply 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) (2015). The Amendment became effective less than two months before
Valenzuela was sentenced. Valenzuela did not discuss the five factors in her
sentencing memorandum, and made only indirect reference to some of the factors
at sentencing. Moreover, the court did not explicitly discuss the five factors. On
this record, we cannot determine whether the district court considered all of the
now-relevant factors in determining whether Valenzuela was entitled to a minor
role reduction. Accordingly, we vacate Valenzuela’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 16-50035