                                                                            FILED
                            NOT FOR PUBLICATION                             SEP 06 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   14-50466

               Plaintiff-Appellee,               D.C. No. 3:14-cr-00633-CAB

 v.
                                                 MEMORANDUM*
JAVIER TOSHIRO TOKUNAGA-
FUJIGAKI,

               Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                  Cathy Ann Bencivengo, District Judge, Presiding

                            Submitted August 25, 2015**

Before:        McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.

      Javier Toshiro Tokunaga-Fujigaki 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


          *
             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).
and 960. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand

for resentencing.

      Tokunaga-Fujigaki 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

Tokunaga-Fujigaki 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

definitively determine from the record whether the district court considered all of

those factors in determining whether Tokunaga-Fujigaki was entitled to a minor

role adjustment, we vacate Tokunaga-Fujigaki’s sentence and remand for

resentencing under the Amendment. See Quintero-Leyva, 823 F.3d at 523-24.

      In light of this disposition, we do not reach Tokunaga-Fujigaki’s claim that

his three-year supervised release term is substantively unreasonable.

      VACATED and REMANDED for resentencing.




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