NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 15 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50231
Plaintiff - Appellee, D.C. No. 3:13-cr-02818-BEN
v.
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