United States v. Jose Alonzo , 671 F. App'x 683 ( 2016 )

FILED
NOT FOR PUBLICATION DEC 21 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50390
Plaintiff-Appellee, D.C. No. 3:14-cr-03254-BEN
v. MEMORANDUM*
JOSE MARCOS ALONZO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Jose Marcos Alonzo appeals from the district court’s judgment and
challenges the 60-month sentence imposed following his guilty-plea conviction for
importation of heroin and methamphetamine, in violation of 21 U.S.C. §§ 952 and
960. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.
*
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).
Alonzo 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 Alonzo 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 the now-
relevant factors, we vacate Alonzo’s sentence and remand for resentencing under
the Amendment. See Quintero-Leyva, 823 F.3d at 523-24.
In light of this disposition, we do not reach Alonzo’s argument that his
sentence is substantively unreasonable.
VACATED and REMANDED for resentencing.
2 15-50390