United States of America v. Javier Toshiro Tokunaga- Fujigaki

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAVIER TOSHIRO TOKUNAGA-
FUJIGAKI,
Defendant-Appellant.
No. 14-50466
D.C. No. 3:14-cr-00633-CAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
Javier Toshiro Tokunaga-Fujigaki appeals from the district court’s judgment
and challenges the 48-month sentence imposed following his guilty-plea
conviction for importation of methamphetamine, in violation of 21 U.S.C. §§ 952
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).

-- 1 of 2 --

and 960. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand
for resentencing.
Tokunaga-Fujigaki 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
Tokunaga-Fujigaki 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 Tokunaga-Fujigaki was entitled to a minor
role adjustment, we vacate Tokunaga-Fujigaki’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 Tokunaga-Fujigaki’s claim that
his three-year supervised release term is substantively unreasonable.
VACATED and REMANDED for resentencing.
14-50466 2

-- 2 of 2 --