                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 19 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-50256

              Plaintiff-Appellee,                D.C. No. 3:14-cr-03281-LAB

 v.
                                                 MEMORANDUM*
ELIZABETH SOTO,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                          Submitted December 14, 2016**

Before:      WALLACE, LEAVY, and FISHER, Circuit Judges.

      Elizabeth Soto appeals from the district court’s judgment and challenges the

36-month sentence imposed following her guilty-plea conviction for importation of

cocaine, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28

U.S.C. § 1291. We vacate and remand for resentencing.

      *
             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).
      Soto argues that the district court erred in denying a minor role reduction to

her base offense level under U.S.S.G. § 3B1.2(b). After Soto 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 her 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 Soto to the average drug courier, and

may not have considered all of the now-relevant factors, we vacate Soto’s sentence

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

      VACATED and REMANDED for resentencing.




                                          2                                    15-50256
