Opinion
No. 14-50050
05-17-2016
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE ISRAEL LOPEZ-DIAZ, Defendant - Appellant.
NOT FOR PUBLICATION
D.C. No. 3:13-CR-02734-LAB-1 MEMORANDUM Appeal from the United States District Court for the Southern District of California
Larry A. Burns, District Judge, Presiding Argued and Submitted February 1, 2016 Pasadena, California Before: D.W. NELSON, CALLAHAN, and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
After pleading guilty to importation of methamphetamine in violation of 21 U.S.C. §§ 952 and 960, Jose Israel Lopez-Diaz appeals the district court's denial of a minor role reduction at sentencing. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand for re-sentencing in light of newly amended U.S.S.G. § 3B1.2.
Lopez-Diaz also appeals the district court's imposition of a 57-month sentence as substantively unreasonable. Because we remand for re-sentencing, we do not reach this issue. --------
We review the district court's interpretation of the Sentencing Guidelines de novo and the district court's factual findings for clear error. United States v. Hornbuckle, 784 F.3d 549, 553 (9th Cir. 2015). We have previously noted an intracircuit conflict as to whether the standard of review for application of the Guidelines to the facts is de novo or abuse of discretion. Id. We need not resolve that conflict here because "the choice of standard . . . does not affect the outcome of this case." Id. (internal quotation marks omitted).
In November 2015, approximately two years after Lopez-Diaz was sentenced, the United States Sentencing Commission published Amendment 794 (the Amendment) after finding that the minor role reduction was being "applied inconsistently and more sparingly than the Commission intended." U.S.S.G. App. C. Amend. 794. Among other changes, the Amendment added a non-exhaustive list of factors a court "should consider" in determining whether to apply a minor role reduction. See U.S.S.G. § 3B1.2, comment., n.1(c).
The Amendment applies retroactively in direct appeals. See United States v. Quintero-Leyva, - F.3d - (9th Cir. 2016). Because we cannot determine from the record whether the district court considered all the factors now listed in § 3B1.2 when sentencing Lopez-Diaz, we vacate the sentence and reverse and remand for re-sentencing in light of newly amended § 3B1.2. On remand, the district court "should consider" the factors identified in Amendment 794: (i) the degree to which the defendant understood the scope and structure of the criminal activity; (ii) the degree to which the defendant participated in planning or organizing the criminal activity; (iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority; (iv) the nature and extent of the defendant's participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts; and (v) the degree to which the defendant stood to benefit from the criminal activity.
REVERSED and REMANDED.