                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      NOV 21 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No. 16-10091

                  Plaintiff-Appellee,            D.C. No. 4:04-cr-00677-FRZ

   v.
                                                 MEMORANDUM*
 ROGELIO UMBERTO COTA-
 VALENZUELA, a.k.a. Rogelio Cota-
 Valenzuela,

                  Defendant-Appellant.

                    Appeal from the United States District Court
                             for the District of Arizona
                     Frank R. Zapata, District Judge, Presiding

                          Submitted November 16, 2016**

Before:       LEAVY, BERZON, and MURGUIA, Circuit Judges.

        Rogelio Umberto Cota-Valenzuela appeals pro se from the district court’s

order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).

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).
      Cota-Valenzuela contends that he is entitled to a sentence reduction under

Amendment 782 to the Sentencing Guidelines. The district court determined that

Cota-Valenzuela was not entitled to a sentence reduction because his sentence was

based on the parties’ Federal Rule of Criminal Procedure 11(c)(1)(C) plea

agreement, rather than the Guidelines range. In so doing, the district court applied

the test set forth in United States v. Austin, 676 F.3d 924 (9th Cir. 2012), and did

not have the benefit of our recent decision in United States v. Davis, 825 F.3d 1014

(9th Cir. 2016) (en banc) (overruling Austin and adopting the plurality opinion’s

approach in Freeman v. United States, 564 U.S. 522 (2011)). Accordingly, we

remand for the district court to determine in the first instance whether Cota-

Valenzuela is entitled to relief in light of Davis. We express no opinion as to the

merits of Cota-Valenzuela’s motion.

      VACATED and REMANDED.




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