                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 31 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-50140

                Plaintiff-Appellee,             D.C. No. 3:14-cr-01656-BEN

 v.
                                                MEMORANDUM*
ANGEL SALINAS-MANDUJANO,

                Defendant-Appellant.

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

                             Submitted May 24, 2017**

Before:      THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.

      Angel Salinas-Mandujano appeals from the district court’s judgment and

challenges the 96-month custodial sentence and $500 fine imposed following his

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


      *
             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).
in part and vacate and remand for resentencing in part.

      Salinas-Mandujano contends 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 Salinas-

Mandujano 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 him 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 we cannot determine from the record whether the district court followed

the guidance of the Amendment’s clarifying language and considered all of the

now-relevant factors, we vacate Salinas-Mandujano’s sentence and remand for

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

      Salinas-Mandujano also contends that the district court erred in concluding



                                          2                                     15-50140
that he was subject to the 20-year statutory maximum sentence when he never

admitted, and the government did not prove, that he knew the type and quantity of

the drugs he smuggled. As Salinas-Mandujano concedes, this argument is

foreclosed by United States v. Jefferson, 791 F.3d 1013, 1019 (9th Cir. 2015). We

decline to reach Salinas-Mandujano’s remaining challenges to his custodial

sentence.

        Salinas-Mandujano also contends that the district court erred by imposing a

$500 fine without considering the factors set forth in 18 U.S.C. § 3572(a) and

U.S.S.G. § 5E1.2(d). Contrary to Salinas-Mandujano’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 Salinas-Mandujano’s ability to pay the fine. See

United States v. Hurtado, 760 F.3d 1065, 1069 (9th Cir. 2014), overruled on other

grounds by United States v. Gasca-Ruiz, 852 F.3d 1167, 1173-74 (9th Cir. 2017)

(en banc). Moreover, the below-Guidelines fine is substantively reasonable in light

of the section 3572(a) factors and the totality of the circumstances. See Gall v.

United States, 552 U.S. 38, 51 (2007).

        AFFIRMED in part; VACATED and REMANDED for resentencing in

part.




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