United States of America v. Erik Altamirano

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERIK ALTAMIRANO,
Defendant-Appellant.
No. 15-50090
D.C. No. 3:14-cr-03059-BEN
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
Erik Altamirano appeals from the district court’s judgment and challenges
the 18-month sentence imposed following his guilty-plea conviction for
importation of heroin, in violation of 21 U.S.C. §§ 952 and 960. We have
jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for resentencing.
FILED
SEP 06 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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Altamirano argues that the district court erred in denying a minor role
reduction to his base offense level under U.S.S.G. § 3B1.2(b). After Altamirano
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
definitively determine from the record whether the district court considered all of
those factors in determining whether Altamirano was entitled to a minor role
adjustment, we vacate Altamirano’s sentence and remand for resentencing under
the Amendment. See Quintero-Leyva, 823 F.3d at 523-24.
VACATED and REMANDED for resentencing.
15-50090 2

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