USA V. ERICK HERRERA, No. 14-50231 (9th Cir. 2015)

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The court issued a subsequent related opinion or order on July 21, 2015.

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED APR 15 2015 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, v. U.S. COURT OF APPEALS No. 14-50231 D.C. No. 3:13-cr-02818-BEN MEMORANDUM* ERICK HERRERA, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Submitted April 7, 2015** Before: FISHER, TALLMAN, and NGUYEN, Circuit Judges. Erick Herrera appeals from the district court’s judgment and challenges the 46-month sentence imposed following his guilty-plea conviction for importation of heroin, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Herrera challenges the district court’s denial of a minor role reduction, arguing that the court incorrectly compared him to a hypothetical average courier. We review the district court’s interpretation of the Guidelines de novo. See United States v. Rodriguez-Castro, 641 F.3d 1189, 1192 (9th Cir. 2011). In evaluating whether a defendant is a minor participant, the district court must compare “the defendant’s conduct and that of the other participants in the same offense.” United States v. Rojas-Millan, 234 F.3d 464, 473 (9th Cir. 2000) (internal quotations omitted). The district court’s suggestion that Herrera ought to be compared to a hypothetical average courier was, therefore, incorrect. See id. However, the district court’s error was harmless because the court ultimately denied the adjustment based on a proper comparison between Herrera’s conduct and that of a co-participant in his offense. Moreover, the court indicated that even if Herrera’s base offense level were reduced by two levels, it would impose the same sentence. See United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n.5 (9th Cir. 2011) (per curiam). AFFIRMED. 2 14-50231

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