                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         JUL 3 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 16-50026

                Plaintiff-Appellee,             D.C. No. 2:15-cr-00521-PA

 v.
                                                MEMORANDUM*
RAUL EDUARDO GARCIA-PINA,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                             Submitted June 26, 2017**

Before:      PAEZ, BEA, and MURGUIA, Circuit Judges.

      Raul Eduardo Garcia-Pina appeals from the district court’s judgment and

challenges the 46-month sentence imposed following his guilty-plea conviction for

possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(C). We have jurisdiction under 28 U.S.C. § 1291, and we 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.

      Garcia-Pina 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). He argues that he is

entitled to an adjustment under Amendment 794 (“the Amendment”), which added

a non-exhaustive list of five factors that a court “should consider” in determining

whether to grant a minor role reduction. See U.S.S.G. § 3B1.2 cmt. n.3(C). He

asks this court to remand for the district court to grant the reduction or to conduct a

resentencing under the Amendment. We agree that Garcia-Pina should be

resentenced under the Amendment.

      The Amendment became effective less than three months before Garcia-Pina

was sentenced. Neither party explicitly discussed the Amendment at the

sentencing hearing. Moreover, the district court did not acknowledge the

Amendment or apply any of the five factors, nor did it conduct any comparative

analysis between Garcia-Pina and his co-participants in the offense. On this

record, we cannot determine whether the district court properly applied the

amended minor role Guideline. Accordingly, we vacate Garcia-Pina’s sentence

and remand for resentencing under the Amendment. See United States v.

Quintero-Leyva, 823 F.3d 519, 523-24 (9th Cir. 2016).

      VACATED and REMANDED for resentencing.




                                          2                                     16-50026
