                                                                            FILED
                           NOT FOR PUBLICATION                              NOV 01 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        Nos. 15-50161

              Plaintiff-Appellee,                D.C. No. 3:14-cr-02748-WQH

 v.
                                                 MEMORANDUM*
GUADALUPE ROBERT HERNANDEZ,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                           Submitted October 25, 2016**

Before:      LEAVY, GRABER, and CHRISTEN, Circuit Judges.

      Guadalupe Robert Hernandez appeals from the district court’s judgment and

challenges the 36-month sentence imposed following his guilty-plea conviction for

importation of methamphetamine and cocaine, in violation of 21 U.S.C. §§ 952 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).
960. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for

resentencing.

      Hernandez 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 Hernandez

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 Hernandez’s sentence and


                                          2                                  15-50161
remand for resentencing under the Amendment. See Quintero-Leyva, 823 F.3d at

523-24.

      VACATED and REMANDED for resentencing.




                                      3                               15-50161
