NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50088
Plaintiff-Appellee, D.C. No. 5:14-cr-00002-JGB
v.
MEMORANDUM*
JESUS VALLEJO HERNANDEZ, a.k.a.
Chico,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Submitted October 23, 2017**
Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.
Jesus Vallejo Hernandez appeals from the district court’s judgment and
challenges the 120-month sentence imposed following his guilty-plea conviction
for possession with intent to distribute methamphetamine and aiding and abetting,
*
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).
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (viii) and 18 U.S.C. § 2(a). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Hernandez contends that the district court misapplied the minor role
Guideline, U.S.S.G. § 3B1.2, by failing to compare him to all of his co-participants
in the criminal scheme. We review the district court’s interpretation of the
Guidelines de novo, and its application of the Guidelines to the facts for abuse of
discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017)
(en banc).
The record reflects that the court considered Hernandez’s argument that he
was less culpable than his three co-defendants, the unidentified seller, and the
buyer. The court nevertheless determined that Hernandez had failed to show that
he was “substantially less culpable than the average participant.” U.S.S.G. § 3B1.2
cmt. n.3(A), (C). This was the proper legal analysis. Moreover, in light of the
totality of the circumstances, including Hernandez’s central role in orchestrating
the sale of a large quantity of methamphetamine, the district court did not abuse its
discretion in concluding that Hernandez was not a minor participant. See U.S.S.G.
§ 3B1.2 cmt. n.3(C).
AFFIRMED.
2 16-50088