United States v. Barrientos, 2012 U.S. App. LEXIS 4817

Barrientos pled guilty to possession with intent to distribute 500 grams or more of methamphetamine under 21 U.S.C. § 841(a)(1), (b)(1)(A).
Defendant sought safety-valve relief under § 5C1.2 and 18 U.S.C. § 3553(f).
District court denied safety-valve relief relying on United States v. Webb (8th Cir. 2000).
Amendment 709 to USSG § 4A1.2(c) changed how unlisted offenses are compared to listed ones, adopting a multifactor approach.
Sentence imposed was 121 months; appeal waiver allowed challenge of the minimum, and the matter is remanded for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Amendment 709 governs the 'similar to' analysis for unlisted offenses.	Barrientos argues Amendment 709 requires the multifactor test.	United States contends Webb remains controlling.	Remand for proper 4A1.2 analysis under Amendment 709.
Whether the district court committed procedural error in applying 4A1.2 to Barrientos's criminal-history points.	Barrientos contends the court should use amended factors, not Webb.	Government relied on prior Webb ruling.	Procedural error; misapplication of amended § 4A1.2.
Whether the case should be remanded for resentencing in light of the procedural error.	Safety-valve eligibility may affect sentence upon correct calculation.	No final resolution without proper calculation.	Remanded for resentencing.

United States v. Webb, 218 F.3d 877 (8th Cir. 2000) (addressed 4A1.2 similarity but predated Amendment 709)
United States v. Leon-Alvarez, 532 F.3d 815 (8th Cir. 2008) (noting post-Amendment 709 considerations)
United States v. Borer, 412 F.3d 987 (8th Cir. 2005) (earlier elements approach to similarity under 4A1.2(c))
United States v. Pando, 545 F.3d 682 (8th Cir. 2008) (post-Amendment 709 context on similarity)
United States v. Mitchell, 941 F.2d 690 (8th Cir. 1991) (early approach to similarity under 4A1.2(c))