United States of America v. Daisy Guadalupe Figueroa

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAISY GUADALUPE FIGUEROA,
Defendant-Appellant.
No. 15-50432
D.C. No. 3:15-cr-00985-BEN
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted January 18, 2017 **
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Daisy Guadalupe Figueroa appeals from the district court’s judgment and
challenges the 30-month sentence imposed following her guilty-plea conviction for
importation of heroin, in violation of 21 U.S.C. §§ 952, 960. We have jurisdiction
under 28 U.S.C. § 1291, and we vacate and remand for resentencing.
FILED
JAN 24 2017
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 --

Figueroa argues that the district court erred in denying a minor role
reduction to her base level offense under U.S.S.G. § 3B1.2(b). After Figueroa 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-Levya, 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 her to the other
participants in the crime, rather than to a hypothetical average participant. See
U.S.S.G. App. C. Amend. 794; Quintero-Levya, 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 Figueroa’s sentence and
remand for resentencing. See Quintero-Levya, 823 F.3d at 523-24.
VACATED and REMANDED for resentencing.
15-50432 2

-- 2 of 2 --