United States of America v. Idalel Millan-Ortega

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
IDALEL MILLAN-ORTEGA,
Defendant-Appellant.
No. 15-50319
D.C. No. 3:14-cr-03430-BEN
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Idalel Millan-Ortega appeals from the district court’s judgment and
challenges the 60-month sentence imposed following her 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. We affirm in part and vacate and
FILED
FEB 21 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).

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remand for resentencing in part.
Millan-Ortega 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 Millan-
Ortega 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 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-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 the record reflects that the court may have improperly
compared Millan-Ortega to the average drug courier, and may not have considered
all of the now-relevant factors, we vacate Millan-Ortega’s sentence and remand for
resentencing. See Quintero-Leyva, 823 F.3d at 523-24.
15-50319 2

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In light of this disposition, we do not reach Millan-Ortega’s contention that
the district court procedurally erred by considering sentencing disparities created
by the fast-track program.
Millan-Ortega next contends that the district court erred by imposing a $250
fine without considering the factors set forth in 18 U.S.C. § 3572 and U.S.S.G. §
5E1.2(d). Contrary to Millan-Ortega’s assertions, the district court was not
required to list all of the factors it considered, and the record establishes that the
district court considered Millan-Ortega’s ability to pay the fine. See United States
v. Hurtado, 760 F.3d 1065, 1069 (9th Cir. 2014).
AFFIRMED in part, VACATED and REMANDED for resentencing, in
part.
15-50319 3

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