                                                                            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                           NOT FOR PUBLICATION                               JAN 25 2017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. 15-50361

              Plaintiff-Appellee,                D.C. No. 3:15-cr-00098-BEN

 v.
                                                 MEMORANDUM*
JUAN MANUEL MORALES-
CONTRERAS,

              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.

      Juan Manuel Morales-Contreras appeals from the district court’s judgment

and challenges the 57-month sentence imposed following his guilty-plea

conviction for importation of methamphetamine, in violation of 21 U.S.C. §§ 952,


      *
             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.

      Morales-Contreras 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 Morales-

Contreras 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 Morales-Contreras’s sentence




                                          2                                    15-50361
and remand for resentencing under the Amendment. See Quintero-Leyva, 823 F.3d

at 523-24.

      VACATED and REMANDED for resentencing.




                                      3                                15-50361
