
    UNITED STATES of America, Plaintiff-Appellee, v. Daniel NUNEZ, Defendant-Appellant.
    No. 15-50294
    United States Court of Appeals, Ninth Circuit.
    Submitted December 14, 2016 
    
    Filed December 21, 2016
    Laura M. Grimes, Assistant U.S. Attorney, Helen H. Hong, Assistant U.S. Attorney, Mark R. Rehe, Assistant U.S. Attorney, Office of the US Attorney, San Diego, CA, for Plaintiff-Appellee
    James Fife, Attorney, Rebecca C. Fish, Trial Attorney, Vincent James Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant
    Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
    
   MEMORANDUM

Daniel Nunez appeals from the district court’s judgment and challenges the 81-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 for resentencing.

Nunez argues that the district court erred in denying a minor role reduction to his base level offense under U.S.S.G. § 3B1.2(b). After Nunez 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-éxhaustive 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 Nunez’s sentence and remand for resentencing under the Amendment. See Quintero-Leyva, 823 F.3d at 523-24.

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.
     