                                                                            FILED
                            NOT FOR PUBLICATION                             OCT 06 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10053

               Plaintiff-Appellee,               D.C. No. 4:05-cr-00588-RM-CRP

 v.
                                                 MEMORANDUM*
FRANCISCO JAVIER GONZALEZ,
a.k.a. Francisco Gonzalez,

               Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Rosemary Marquez, District Judge, Presiding

                          Submitted September 27, 2016**

Before:        TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.

      Francisco Javier Gonzalez appeals from the district court’s judgment and

challenges the 70-month sentence imposed following his guilty-plea conviction for

importation of cocaine, in violation of 21 U.S.C. §§ 952 and 960; and possession


          *
             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).
with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)91)(A)(ii)(II). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and

remand for resentencing.

      Gonzalez 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). He incorrectly

frames this claim as a substantive reasonableness argument; in fact, it is a

challenge to the court’s calculation of the Guidelines range. See U.S.S.G.

§ 1B1.1(a)(3); United States v. Hurtado, 760 F.3d 1065, 1068 (9th Cir. 2014).

      After Gonzalez 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 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 the record reflects that the court may have improperly compared Gonzalez


                                           2                                     15-10053
to the average drug courier, and we cannot determine whether the district court

considered all of the now-relevant factors, we vacate Gonzalez’s sentence and

remand for resentencing. See Quintero-Leyva, 823 F.3d at 523-24.

      In light of this disposition, we do not reach Gonzalez’s claim that his

sentence is substantively unreasonable.

      VACATED and REMANDED for resentencing.




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