United States v. Elizabeth Soto , 671 F. App'x 595 ( 2016 )

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NOT FOR PUBLICATION DEC 19 2016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