                                                                            FILED
                           NOT FOR PUBLICATION                               JAN 23 2017

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        Nos. 15-50348
                                                      15-50373
              Plaintiff-Appellee,
                                                 D.C. Nos. 3:04-cr-03184-BEN
 v.                                                        3:14-cr-01972-BEN

STEVEN AYALA ORTIZ,                              MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                           Submitted January 18, 2017**

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

      In these consolidated appeals, Steven Ayala Ortiz appeals the 156-month

sentence imposed following his guilty-plea conviction for importation of

methamphetamine, in violation of 21 U.S.C. §§ 952 and 960, and 30-month

sentence imposed upon revocation of supervised release, 24 months of which was

      *
             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).
order to run consecutively. We have jurisdiction under 28 U.S.C. § 1291, and we

vacate and remand for resentencing.

      Ayala Ortiz argues that the district court erred in denying a minor role

reduction to his base level offense under U.S.S.G. § 3B1.2(b). After Ayala-Ortiz

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 Ayala Ortiz’s sentence and


                                          2                       15-50348 & 15-50373
remand for resentencing under the Amendment. See Quintero-Leyva, 823 F.3d at

523-24.

      In light of this disposition, we do not reach Ayala Ortiz’s contention that his

aggregate sentence of 180 months is substantively unreasonable. However, we

vacate both sentences challenged on appeal so that, on remand, the court may

impose the total sentence it concludes is warranted.

      Appeal Nos. 15-50348 & 15-50373: VACATED and REMANDED for

resentencing.




                                          3                       15-50348 & 15-50373
