                                                                             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                           NOT FOR PUBLICATION                               DEC 19 2016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. 15-30054

              Plaintiff-Appellee,                D.C. No. 2:12-cr-06053-EFS

 v.
                                                 MEMORANDUM*
FIDEL RIOS, Jr.,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Edward F. Shea, District Judge, Presiding

                          Submitted December 14, 2016**

Before:      WALLACE, LEAVY, and FISHER, Circuit Judges.

      Fidel Rios, Jr., appeals pro se from the district court’s order denying his

motion to appoint counsel to pursue 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).
      Rios contends that he is entitled to a sentence reduction under Amendment

782. The district court determined that Rios was not eligible for a sentence

reduction, and denied his motion to appoint counsel, because his sentence was

based on the parties’ Federal Rule of Criminal Procedure 11(c)(1)(C) plea

agreement, rather than a Guidelines range that has been lowered by Amendment

782. The district court did not have the benefit of our decision in United States v.

Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc), which was decided while Rios’s

appeal was pending. Applying Davis, we conclude that Rios is eligible for a

sentence reduction.

      Rios’s Rule 11(c)(1)(C) plea agreement required the district court to

determine Rios’s applicable Guidelines range at the time of sentencing, stipulated

to a drug quantity and corresponding base offense level, and provided that Rios

was eligible for a three-level reduction for acceptance of responsibility.

Furthermore, the sentencing court’s statement of reasons shows that the court

calculated a Guidelines range of 78-97 months, noted that Rios’s 75-month

sentence was below-Guidelines, and found that sentence appropriate in light of the

18 U.S.C. § 3553(a) sentencing factors. Thus, as in Davis, we conclude that Rios’s

sentence was based on the Guidelines and that he is eligible for a sentence

reduction. See id. at 1027-28. Accordingly, we vacate and remand for the district


                                           2                                    15-30054
court to appoint counsel and “consider whether the authorized reduction is

warranted, either in whole or in part, according to the factors set forth in

§ 3553(a).” Dillon v. United States, 560 U.S. 817, 826 (2010).

       In light of this disposition, we decline to consider Rios’s remaining claims

of error.

       VACATED and REMANDED.




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