                                                                            FILED
                           NOT FOR PUBLICATION                               FEB 21 2017

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-50319

              Plaintiff-Appellee,                D.C. No. 3:14-cr-03430-BEN

 v.
                                                 MEMORANDUM*
IDALEL MILLAN-ORTEGA,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                          Submitted February 14, 2017**

Before:      GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.

      Idalel Millan-Ortega appeals from the district court’s judgment and

challenges the 60-month sentence imposed following her guilty plea conviction for

importation of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. We

have jurisdiction under 28 U.S.C. § 1291. We affirm in part and vacate and

      *
             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).
remand for resentencing in part.

      Millan-Ortega argues that the district court erred in denying a minor role

reduction to her base level offense under U.S.S.G. § 3B1.2(b). After Millan-

Ortega 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).

      The Amendment clarified that, in assessing whether a defendant should

receive a minor role adjustment, the court should compare her to the other

participants in the crime, rather than to a hypothetical average participant. See

U.S.S.G. App. C Amend. 794; Quintero-Leyva, 823 F.3d at 523. In addition, the

Amendment clarified that “[t]he fact that a defendant performs an essential or

indispensable role in the criminal activity is not determinative.” U.S.S.G. § 3B1.2

cmt. n.3(C) (2015). Finally, the Amendment added a non-exhaustive list of factors

that a court “should consider” in determining whether to apply a minor role

reduction. See id. Because the record reflects that the court may have improperly

compared Millan-Ortega to the average drug courier, and may not have considered

all of the now-relevant factors, we vacate Millan-Ortega’s sentence and remand for

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


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        In light of this disposition, we do not reach Millan-Ortega’s contention that

the district court procedurally erred by considering sentencing disparities created

by the fast-track program.

        Millan-Ortega next contends that the district court erred by imposing a $250

fine without considering the factors set forth in 18 U.S.C. § 3572 and U.S.S.G. §

5E1.2(d). Contrary to Millan-Ortega’s assertions, the district court was not

required to list all of the factors it considered, and the record establishes that the

district court considered Millan-Ortega’s ability to pay the fine. See United States

v. Hurtado, 760 F.3d 1065, 1069 (9th Cir. 2014).

        AFFIRMED in part, VACATED and REMANDED for resentencing, in

part.




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