United States v. Erick Herrera

Good Law
610 F. App'x 621
United States Court of Appeals for the Ninth CircuitJuly 21, 201514-50231California327 words

Opinion

Opinion

ORDER

Erik Herrera’s petition for panel rehearing is granted. A revised memorandum disposition is filed concurrently with this order. As so revised, the sentence imposed is AFFIRMED.

No further petitions for rehearing will be entertained.

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…

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