                                                                            FILED
                           NOT FOR PUBLICATION                               JAN 25 2017

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-50447

              Plaintiff-Appellee,                D.C. No. 3:15-cr-00737-LAB

 v.
                                                 MEMORANDUM*
LORENZO VALDEZ-GARATE,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                           Submitted January 18, 2017**

Before:      TROTT, TASHIMA, and CALLAHAN, Circuit Judges.

      Lorenzo Valdez-Garate appeals from the district court’s judgment and

challenges the 72-month sentence 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, and we vacate and remand.

      *
             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).
      Valdez-Garate contends that the district court erred in denying a minor role

reduction to his base offense level under U.S.S.C. § 3B1.2(b). After Valdez-Garate

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 Valdez-Garate’s sentence and

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

523-24.


                                          2                                    15-50447
      Valdez-Garate’s request for remand to a different district judge is denied.

Contrary to his contention, the record does not reflect that the judge has a “deep-

seated antipathy” to properly applying the minor role Guideline, nor are there other

“unusual circumstances” warranting reassignment in this case. See United States v.

Waknine, 543 F.3d 546, 559-60 (9th Cir. 2008).

      VACATED and REMANDED for resentencing.




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