FILED
NOT FOR PUBLICATION NOV 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50427
Plaintiff - Appellee, D.C. No. 3:13-cr-00983-LAB
v.
MEMORANDUM*
GABRIEL RUIZ-GERARDO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
Gabriel Ruiz-Gerardo appeals from the district court’s judgment and
challenges the 70-month sentence imposed following his guilty-plea conviction for
possession of methamphetamine with intent to distribute, in violation of 21
U.S.C. § 841(a)(1). 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).
Ruiz-Gerardo contends that the district court legally erred in denying his
request for a minor role adjustment under U.S.S.G. § 3B1.2(b). Specifically, he
argues that the district court improperly excluded him from consideration for the
role adjustment based on his courier status. In the alternative, he argues that the
court did consider his eligibility for an adjustment, but failed to assess his
culpability to that of all of the other participants in the offense. We review the
district court’s interpretation of the Guidelines de novo and its factual
determination that a defendant is not a minor participant for clear error. See United
States v. Rodriguez-Castro, 641 F.3d 1189, 1192 (9th Cir. 2011). The record
reflects that the court did not deny the adjustment on the ground that Ruiz-Gerardo
was a courier. Rather, the court applied the correct legal standard, assessing Ruiz-
Gerardo’s culpability relative to that of the average participant in the criminal
scheme based on the totality of the circumstances. See U.S.S.G. § 3B1.2 cmt.
n.3(A), (C); United States v. Hurtado, 760 F.3d 1065, 1068-69 (9th Cir. 2014).
Moreover, the record supports the district court’s conclusion that Ruiz-Gerardo
failed to carry his burden of establishing that he was entitled to the adjustment. See
Rodriguez-Castro, 641 F.3d at 1193.
AFFIRMED.
2 13-50427