                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               No. 14-50509
          Plaintiff-Appellee,
                                       D.C. No.
             v.                  3:14-CR-01821-LAB-1

NORBERTO QUINTERO-LEYVA,
       Defendant-Appellant.              OPINION


      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

                   Filed May 17, 2016

  Before: Dorothy W. Nelson, Consuelo M. Callahan,
         and N. Randy Smith, Circuit Judges.

            Opinion by Judge D.W. Nelson
2            UNITED STATES V. QUINTERO-LEYVA

                           SUMMARY*


                          Criminal Law

    Reversing the district court and remanding for
resentencing in a case in which the defendant pleaded guilty
to importation of methamphetamine, the panel held that a
November 2015 amendment to the commentary to U.S.S.G.
§ 3B1.2 (minor role) applies retroactively in direct appeals.

    The panel observed that Amendment 794 resolves a
circuit split and was intended as a clarifying amendment.
Because the record is unclear as to whether the district court
considered all the factors now listed in § 3B1.2, which the
Amendment makes clear should all be considered, the panel
remanded for resentencing with the benefit of the newly
amended guideline.


                            COUNSEL

Devin Burstein (argued) and Jeremy Warren, Warren &
Burstein, San Diego, California, for Defendant-Appellant.

Daniel Zipp (argued) and Christopher M. Alexander,
Assistant United States Attorneys, Laura E. Duffy, United
States Attorney, Peter Ko, Assistant United States Attorney
Chief, Appellate Section Criminal Division, United States
Department of Justice, San Diego, California, for Plaintiff-
Appellee.

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             UNITED STATES V. QUINTERO-LEYVA                        3

                            OPINION

D.W. NELSON, Senior Circuit Judge:

    Norberto Quintero-Leyva appeals the district court’s
denial of a minor role reduction at sentencing pursuant to
U.S.S.G. § 3B1.2(b) after pleading guilty to importation of
methamphetamine, in violation of 21 U.S.C. §§ 952 and 960.
On November 1, 2015, approximately one year after
Quintero-Leyva was sentenced, the United States Sentencing
Commission issued Amendment 794 (the Amendment),
which amended the commentary to U.S.S.G. § 3B1.2. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we hold
that the Amendment applies retroactively in direct appeals.1
We reverse and remand with directions that the district court
re-sentence Quintero-Leyva under the newly amended
§ 3B1.2.

I. Background

    On May 31, 2014, eighteen-year-old Quintero-Leyva
attempted to enter the United States from Mexico at the port
of entry at Tecate, California as the sole occupant and driver
of a Ford Focus. When border patrol officers noticed
Quintero-Leyva’s nervous appearance, they referred him to
secondary screening for further investigation. A canine
alerted to the vehicle, and officers subsequently found 13.26
kilograms of methamphetamine worth approximately



    1
       This appeal did not present the issue of whether, under the
Amendment, a defendant who has exhausted his direct appeal can move
to reopen sentencing proceedings. We, therefore, decline to reach this
issue.
4          UNITED STATES V. QUINTERO-LEYVA

$265,200 hidden in the gas tank.        Quintero-Leyva was
arrested.

    When interviewed by authorities, Quintero-Leyva stated
that prior to his arrest, he had been approached by an
individual who offered him work transporting narcotics.
Later that same day, the individual contacted Quintero-Leyva
and told him to wait for a phone call for further instructions.
After waiting a few days without receiving any contact,
Quintero-Leyva re-contacted the individual. Quintero-Leyva
was then given instructions and a promise that he would be
paid $100,000. Quintero-Leyva also told authorities that he
did not purchase or register the vehicle, was not present when
the narcotics were loaded into the vehicle, and did not know
where the narcotics were concealed in his vehicle. He said he
believed the narcotic he was transporting was marijuana, not
methamphetamine. He further told authorities that he did not
know where he was supposed to drop off the vehicle after
crossing into the United States, and was only told that
someone would contact him later with instructions. This was
Quintero-Leyva’s first attempt at transporting narcotics and
he has no prior convictions.

    Quintero-Leyva entered a fast-track plea agreement with
the Government. The Government recommended a
108-month sentence based on an adjusted offense level of 31
under the Sentencing Guidelines.            The Presentence
Investigation Report (PSR) calculated an adjusted offense
level of 35. After applying the fast-track departure, the PSR
calculated the final offense level at 31. The PSR then
recommended a downward variance to 60 months. Neither
the Government nor the PSR recommended a minor role
reduction, which grants a two point reduction to defendants
who are found to be “substantially less culpable than the
              UNITED STATES V. QUINTERO-LEYVA                            5

average participant in the criminal activity.” U.S.S.G.
§ 3B1.2, comment. n.3 (A). In Quintero-Leyva’s case, a
minor role reduction would have triggered further reductions.

    At sentencing, Quintero-Leyva argued that he should be
granted a minor role reduction, highlighting to the district
court his youth and naïveté, his limited role in the scheme,
and his lack of prior criminal history. The court noted these
factors, but nonetheless denied a minor role reduction. In so
doing, the court emphasized the amount of drugs Quintero-
Leyva carried, the monetary incentive Quintero-Leyva had,
and the fact that Quintero-Leyva re-initiated contact with the
individual who set up the criminal scheme. The court
calculated Quintero-Leyva’s adjusted offense level at 31 with
a range of 108–135 months incarceration. The court then
granted a 36-month downward variance, sentencing Quintero-
Leyva to 72 months’ incarceration and five years’ supervised
release.

    On November 1, 2015, approximately one year after
Quintero-Leyva was sentenced, the United States Sentencing
Commission passed Amendment 794. The Commission did
so because, after conducting an independent review, it found
that minor role reductions were being “applied inconsistently
and more sparingly than the Commission intended.”
U.S.S.G. App. C. Amend. 794. Specifically, “[i]n drug cases,
the Commission’s study confirmed that mitigating role is
applied inconsistently to drug defendants who performed
similar low-level functions.” Id.2


   2
     The Commission noted that within the “southwest border” of the
nation, some district courts grant reductions only in “a low of . . . 14.3
percent of [cases with] couriers and mules . . . compared to a high of 97.2
percent in another.” U.S.S.G. App. C. Amend. 794.
6          UNITED STATES V. QUINTERO-LEYVA

II. Standard of Review

    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).

III.   Analysis

    We first address whether the Amendment applies
retroactively to direct appeals. We consider three factors
when assessing whether an amendment to the Guidelines
applies retroactively: (1) whether the amendment is listed as
a retroactive amendment in U.S.S.G. § 1B1.10(c);
(2) whether the amendment is characterized as a clarification;
and (3) whether the amendment resolves a circuit split.
United States v. Christensen, 598 F.3d 1201, 1205 (9th. Cir.
2010) (citing United States v. Morgan, 376 F.3d 1002, 1011
(9th Cir. 2004)). The Government concedes that the
Amendment applies retroactively, and we agree.

    First, the Amendment resolves a circuit split. The
Commission specified that the Amendment “addresses a
circuit conflict and other case law that may be discouraging
courts from applying the adjustment in otherwise appropriate
circumstances.” U.S.S.G. App. C. Amend. 794. Before the
Commission passed the Amendment, different circuits had
different methods of assessing whether a defendant was
“substantially less culpable than the average participant.”
           UNITED STATES V. QUINTERO-LEYVA                    7

Some courts assessed a defendant against a hypothetical
average participant. See, e.g., United States v. Teeter,
257 F.3d 14, 30–31 (1st Cir. 2001) (writing that a defendant
must demonstrate that he is both less culpable than most other
participants in his crime and “also less culpable than the
majority of those within the universe of persons participating
in similar crimes”). In this circuit and in the Seventh Circuit,
however, the relevant comparison was between the Defendant
and other actual participants in the crime. See U.S.S.G. App.
C. Amend. 794; United States v. Rojas-Millan, 234 F.3d 464,
473 (9th Cir. 2000); United States v. Davis, 938 F.2d 744,
747 (7th Cir. 1991). The Amendment generally adopted the
approach of this Court and the Seventh Circuit, stating that
when a district court conducts an assessment of whether a
defendant should receive a role reduction, “the defendant is
to be compared with the other participants” in the crime, not
with a hypothetical average participant. U.S.S.G. App. C.
Amend. 794. The Commission explained that “[f]ocusing the
court’s attention on the individual defendant and the other
participants is more consistent with the other provisions of
Chapter Three, Part B.” Id.

    Second, the language of the Amendment indicates that the
Commission intended it to be a clarifying amendment. The
Amendment changed language that “may have had the
unintended effect of discouraging courts from applying the
mitigating role adjustment in otherwise appropriate
circumstances.” Id. Newly amended § 3B1.2 now states that
“a defendant who does not have a proprietary interest in the
criminal activity and who is simply being paid to perform
certain tasks should be considered” for the reduction, and
“[t]he fact that a defendant performs an essential or
indispensable role in the criminal activity is not
determinative.” Id. The Amendment also included a non-
8          UNITED STATES V. QUINTERO-LEYVA

exhaustive list of factors a court “should consider” in
determining whether to apply a minor role reduction. Id. The
factors are:

       (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; (v) the degree to which
       the defendant stood to benefit from the
       criminal activity.

U.S.S.G. § 3B1.2, comment., n.1(c).

   We conclude that the Amendment resolved a circuit split,
and was intended as a clarifying amendment. We therefore
hold that it applies retroactively to direct appeals.

    We now turn to the Amendment’s application in the
instant case. While the district court considered many factors
when determining whether Quintero-Leyva should be granted
a minor role reduction, we cannot determine from the record
whether or not the court considered all the factors now listed
in § 3B1.2. The Amendment makes clear that a district court
should consider all of the factors set forth in the Amendment.
           UNITED STATES V. QUINTERO-LEYVA                    9

Once the court has considered all the factors, however, it may
grant or deny a reduction even if some of the factors weigh
toward the opposite result. A district court, therefore, may
grant a minor role reduction even if some of the factors weigh
against doing so, and it may deny a minor role reduction even
if some of the factors weigh in favor of granting a reduction.
And because the factors set forth in the Amendment are
non-exhaustive, a district court may also consider other
reasons for granting or denying a minor role reduction.
Because the record is unclear as to whether the court
considered all the factors, we reverse and remand for the
district court to sentence Quintero-Leyva with the benefit of
newly amended § 3B1.2.

IV.     Conclusion

    Amendment 794 applies retroactively in direct appeals.
We reverse and remand for re-sentencing so the district court
can consider the factors now listed in 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.
