NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 6 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50437
Plaintiff-Appellee, D.C. No.
2:15-cr-00633-SJO-3
v.
YESENIA HERRERA, AKA Jessie, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-50007
Plaintiff-Appellant, D.C. No.
2:15-cr-00633-SJO-3
v.
YESENIA HERRERA, AKA Jessie,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted March 3, 2020**
Pasadena, California
*
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).
Before: CALLAHAN and NGUYEN, Circuit Judges, and CHRISTENSEN,***
District Judge.
Yesenia Herrera appeals from the district court’s judgment, challenging her
guilty-plea convictions and sentence for conspiracy to distribute at least 50 grams
of methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A)(viii), 846, and
distribution of at least 50 grams of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A)(viii). The United States cross-appeals, challenging the
court’s award of custody credits for time served against Herrera’s sentence. We
have jurisdiction over Herrera’s appeal under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742, and over the United States’ cross-appeal under 18 U.S.C. § 3742. We
affirm Herrera’s convictions. We also affirm her sentences, as amended.
1. Reviewing de novo, United States v. Peters, 470 F.3d 907, 908–09 (9th
Cir. 2006), we conclude that the district court erred by ordering that Herrera
receive credit for time served in federal and state custody. Because “the
prerogative to grant credits in the first instance rests with the . . . Bureau of
Prisons,” district courts exceed their authority at sentencing by awarding time-
***
The Honorable Dana L. Christensen, United States Chief District
Judge for the District of Montana, sitting by designation.
2
served credits under 18 U.S.C. § 3585(b).1 Id. at 909. We therefore strike from the
judgment the phrase: “The Court Orders that the defendant shall receive credit for
all time served while in federal custody and also the defendant shall receive an
additional 309 days credit that she’s served on related conduct in state custody.”
See id. (“strik[ing] from the judgment the phrase ‘with credit for time served from
the defendant’s arrest on August 9, 2006’” because the district court lacked
authority to award such a credit).
2. Pursuant to Anders v. California, 386 U.S. 738 (1967), Herrera’s counsel
has filed a brief stating that there are no grounds for relief, along with a motion to
withdraw as counsel of record. We have provided Herrera the opportunity to file a
pro se supplemental brief, and none has been filed. Our independent review of the
record pursuant to Penson v. Ohio, 488 U.S. 75, 80 (1988), discloses no arguable
grounds for relief on direct appeal.
Counsel’s motion to withdraw is therefore GRANTED, and Herrera’s
convictions are AFFIRMED. As amended, the judgment and sentences are
AFFIRMED.
1
Because the district court awarded time-served credits under § 3585(b), we do not
reach the United States’ alternative arguments regarding the availability of an
adjustment or departure under the Sentencing Guidelines.
3