NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50257
Plaintiff-Appellee, D.C. No. 3:15-cr-02892-BEN
v.
MEMORANDUM*
IVAN EDUARDO HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted May 8, 2017**
Before: REINHARDT, LEAVY, and NGUYEN, Circuit Judges.
Ivan Eduardo Hernandez appeals from the district court’s judgment and
challenges the 71-month sentence imposed following his guilty-plea convictions
for importation of methamphetamine and heroin, in violation of 21 U.S.C. §§ 952,
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’s minor role analysis was flawed
because the court refused to compare him to unknown participants in the drug
trafficking organization. Assuming without deciding that the court was required to
compare Hernandez to unidentified co-participants, we find no reversible error.
The record reflects that, even if the court had considered a broader network of
participants, it would not have concluded that Hernandez was “substantially less
culpable” than the average participant in light of Hernandez’s repeated crossings
and the amount of drugs and money involved. See U.S.S.G. § 3B1.2 cmt. n.3(A),
(C).
The government correctly concedes that the written judgment erroneously
imposes a 72-month sentence, rather than the 71-month sentence that the district
court orally pronounced. Therefore, we vacate the judgment and remand so the
district court can make the written judgment consistent with the unambiguous oral
pronouncement of the sentence. See United States v. Hernandez, 795 F.3d 1159,
1169 (9th Cir. 2015).
AFFIRMED; REMANDED to correct the judgment.
2 16-50257