United States of America v. Fernando Zatarain-Pena

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FERNANDO ZATARAIN-PENA,
Defendant-Appellant.
No. 14-50163
D.C. No. 3:14-cr-00007-WQH
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted June 22, 2015**
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
Fernando Zatarain-Pena appeals from the district court’s judgment and
challenges the 44-month sentence imposed following his guilty-plea conviction for
importation of methamphetamine and cocaine, in violation of 21 U.S.C. §§ 952 and
FILED
AUG 25 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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960. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand for
resentencing.
Zatarain-Pena 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 Zatarain-Pena
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 those factors
in determining whether Zatarain-Pena was entitled to a minor role adjustment, we
vacate Zatarain-Pena’s sentence and remand for resentencing under the
Amendment. See Quintero-Leyva, 823 F.3d at 523-24.
VACATED and REMANDED for resentencing.
14-50163 2

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