USA V. JESUS HERNANDEZ, No. 16-50088 (9th Cir. 2017)
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FILED NOT FOR PUBLICATION OCT 27 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, U.S. COURT OF APPEALS No. 16-50088 D.C. No. 5:14-cr-00002-JGB v. MEMORANDUM* JESUS VALLEJO HERNANDEZ, a.k.a. Chico, Defendant-Appellant. Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding Submitted October 23, 2017** Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges. Jesus Vallejo Hernandez appeals from the district court’s judgment and challenges the 120-month sentence imposed following his guilty-plea conviction for possession with intent to distribute methamphetamine and aiding and abetting, * 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). in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (viii) and 18 U.S.C. § 2(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Hernandez contends that the district court misapplied the minor role Guideline, U.S.S.G. § 3B1.2, by failing to compare him to all of his co-participants in the criminal scheme. We review the district court’s interpretation of the Guidelines de novo, and its application of the Guidelines to the facts for abuse of discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc). The record reflects that the court considered Hernandez’s argument that he was less culpable than his three co-defendants, the unidentified seller, and the buyer. The court nevertheless determined that Hernandez had failed to show that he was “substantially less culpable than the average participant.” U.S.S.G. § 3B1.2 cmt. n.3(A), (C). This was the proper legal analysis. Moreover, in light of the totality of the circumstances, including Hernandez’s central role in orchestrating the sale of a large quantity of methamphetamine, the district court did not abuse its discretion in concluding that Hernandez was not a minor participant. See U.S.S.G. § 3B1.2 cmt. n.3(C). AFFIRMED. 2 16-50088
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