FILED
NOT FOR PUBLICATION AUG 01 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50148
Plaintiff-Appellee, D.C. No. 3:14-cr-02812-AJB
v.
MEMORANDUM*
JOSE HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Jose Hernandez appeals from the district court’s judgment and challenges
the 46-month sentence imposed following his guilty-plea conviction for
importation of methamphetamine, 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 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).
Hernandez contends that the district court procedurally erred by relying on
clearly erroneous facts in sentencing. See United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008) (en banc). Specifically, he argues that the government
misrepresented his actions leading up to the offense and that the misrepresentation
may have caused the district court to deny his request for a minor-role adjustment
under U.S.S.G. § 3B1.2(b). The record does not support this contention. Although
the government erroneously stated that Hernandez had admitted to smuggling
suspicious packages into the United States on prior occasions, defense counsel
corrected the misrepresentation during the hearing. Moreover, the record reflects
that the district court’s minor-role decision was based on the steps Hernandez took
to prepare for the offense, rather than the government’s misrepresentation.
AFFIRMED.
2 15-50148