United States v. Erick Herrera

MEMORANDUM

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.

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.…