                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 17 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50050

              Plaintiff - Appellee,              D.C. No. 3:13-CR-02734-LAB-1

 v.
                                                 MEMORANDUM*
JOSE ISRAEL LOPEZ-DIAZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                      Argued and Submitted February 1, 2016
                               Pasadena, California

Before: D.W. NELSON, CALLAHAN, and N.R. SMITH, Circuit Judges.

      After pleading guilty to importation of methamphetamine in violation of 21

U.S.C. §§ 952 and 960, Jose Israel Lopez-Diaz appeals the district court’s denial of

a minor role reduction at sentencing. We have jurisdiction pursuant to 28 U.S.C.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 1291, and we reverse and remand for re-sentencing in light of newly amended

U.S.S.G. § 3B1.2.1

      We review the district court’s interpretation of the Sentencing Guidelines de

novo and the district court’s factual findings for clear error. United States v.

Hornbuckle, 784 F.3d 549, 553 (9th Cir. 2015). We have previously noted an

intracircuit conflict as to whether the standard of review for application of the

Guidelines to the facts is de novo or abuse of discretion. Id. We need not resolve

that conflict here because “the choice of standard . . . does not affect the outcome

of this case.” Id. (internal quotation marks omitted).

      In November 2015, approximately two years after Lopez-Diaz was

sentenced, the United States Sentencing Commission published Amendment 794

(the Amendment) after finding that the minor role reduction was being “applied

inconsistently and more sparingly than the Commission intended.” U.S.S.G. App.

C. Amend. 794. Among other changes, the Amendment added a non-exhaustive

list of factors a court “should consider” in determining whether to apply a minor

role reduction. See U.S.S.G. § 3B1.2, comment., n.1(c).




      1
        Lopez-Diaz also appeals the district court’s imposition of a 57-month
sentence as substantively unreasonable. Because we remand for re-sentencing, we
do not reach this issue.
                                           2
      The Amendment applies retroactively in direct appeals. See United States v.

Quintero-Leyva, – F.3d – (9th Cir. 2016). Because we cannot determine from the

record whether the district court considered all the factors now listed in § 3B1.2

when sentencing Lopez-Diaz, we vacate the sentence and reverse and remand for

re-sentencing in light of newly amended § 3B1.2. On remand, the district court

“should consider” the factors identified in Amendment 794: (i) the degree to which

the defendant understood the scope and structure of the criminal activity; (ii) the

degree to which the defendant participated in planning or organizing the criminal

activity; (iii) the degree to which the defendant exercised decision-making

authority or influenced the exercise of decision-making authority; (iv) the nature

and extent of the defendant's participation in the commission of the criminal

activity, including the acts the defendant performed and the responsibility and

discretion the defendant had in performing those acts; and (v) the degree to which

the defendant stood to benefit from the criminal activity.

      REVERSED and REMANDED.




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