UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo VALDEZ-GARATE, Defendant-Appellant, 675 F. App'x 773

MEMORANDUM Lorenzo Valdez-Garate appeals from the district court’s judgment and challenges the 72-month sentence imposed following his guilty-plea conviction for importation of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand. Valdez-Garate contends that the district court erred in denying a minor role reduction to his base offense level under U.S.S.C. § 3B1.2(b). After Valdez-Garate 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). .The Amendment clarified that, in assessing whether a defendant should receive a minor role adjustment, the court should compare him to the other participants in the crime, rather than to a hypothetical average participant. See U.S.S.G. App. C Amend. 794; Quintero-Leyva, 823 F.3d at 523.

In addition, the Amendment clarified that “[t]he fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative.” U.S.S.G. § 3B1.2 cmt. n.3(C) (2015). Finally, the Amendment added a non-exhaustive list of factors that a court “should consider” in determining whether to apply a minor role reduction. See id. Because we cannot determine from the record whether the district court followed the guidance of the Amendment’s clarifying language and considered all of the now-relevant factors, we vacate Valdez-Garate’s sentence and remand for resentencing under the Amendment.

See Quintero-Leyva, 823 F.3d at 523-24. Valdez-Garate’s request for remand to a different district judge is denied. Contrary to his contention, the record does not re-fleet that the judge has a “deep-seated antipathy” to properly applying the minor role Guideline, nor are there other “unusual circumstances” warranting reassignment in this case. See United States v. Waknine, 543 F.3d 546, 559-60 (9th Cir. 2008). VACATED and REMANDED for re-sentencing. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.