                                                                            FILED
                            NOT FOR PUBLICATION                             AUG 25 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   14-50163

               Plaintiff-Appellee,               D.C. No. 3:14-cr-00007-WQH

 v.
                                                 MEMORANDUM*
FERNANDO ZATARAIN-PENA,

               Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                              Submitted June 22, 2015**

Before:        HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.

      Fernando Zatarain-Pena appeals from the district court’s judgment and

challenges the 44-month sentence imposed following his guilty-plea conviction for

importation of methamphetamine and cocaine, in violation of 21 U.S.C. §§ 952 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).
960. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for

resentencing.

      Zatarain-Pena 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). After Zatarain-Pena

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).

      Among other things, the Amendment added a non-exhaustive list of factors

that a court “should consider” in determining whether to apply a minor role

reduction. See U.S.S.G. § 3B1.2 cmt. n.3(C) (2015). Because we cannot

determine from the record whether the district court considered all of those factors

in determining whether Zatarain-Pena was entitled to a minor role adjustment, we

vacate Zatarain-Pena’s sentence and remand for resentencing under the

Amendment. See Quintero-Leyva, 823 F.3d at 523-24.

      VACATED and REMANDED for resentencing.




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