Opinion
No. 16-10091
11-21-2016
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROGELIO UMBERTO COTA-VALENZUELA, a.k.a. Rogelio Cota-Valenzuela, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 4:04-cr-00677-FRZ MEMORANDUM Appeal from the United States District Court for the District of Arizona
Frank R. Zapata, District Judge, Presiding Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Rogelio Umberto Cota-Valenzuela appeals pro se from the district court's order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.
Cota-Valenzuela contends that he is entitled to a sentence reduction under Amendment 782 to the Sentencing Guidelines. The district court determined that Cota-Valenzuela was not entitled to a sentence reduction because his sentence was based on the parties' Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement, rather than the Guidelines range. In so doing, the district court applied the test set forth in United States v. Austin, 676 F.3d 924 (9th Cir. 2012), and did not have the benefit of our recent decision in United States v. Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc) (overruling Austin and adopting the plurality opinion's approach in Freeman v. United States, 564 U.S. 522 (2011)). Accordingly, we remand for the district court to determine in the first instance whether Cota-Valenzuela is entitled to relief in light of Davis. We express no opinion as to the merits of Cota-Valenzuela's motion.
VACATED and REMANDED.