NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 20 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50123

Plaintiff-Appellee, D.C. No. 3:14-cr-03553-LAB

v.

MEMORANDUM*

YADIRA ELIZABETH RUIZ-BURANDT,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted March 13, 2018**

Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

Yadira Elizabeth Ruiz-Burandt appeals from the district court’s judgment

and challenges the 60-month sentence imposed upon remand following her guilty-

plea conviction for importation of cocaine and methamphetamine, in violation of

21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C. § 1291, and we

* 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). affirm.

Ruiz-Burandt contends that the district court misapplied the minor role

Guideline, U.S.S.G. § 3B1.2, by inventing a hypothetical “average participant” and

defining that participant in such a way as to categorically preclude a minor role

adjustment for all drug couriers. 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 district court acknowledged its obligation to

compare Ruiz-Burandt to known and likely co-participants in the offense and

conducted that comparison. See United States v. Quintero-Leyva, 823 F.3d 519,

523 (9th Cir. 2016). Having done so, the court concluded, based on the facts of

this particular case, that Ruiz-Burandt was not “substantially less culpable than the

average participant in the criminal activity.” U.S.S.G. § 3B1.2 cmt. n.3(A).

Contrary to Ruiz-Burandt’s argument, nothing in the record suggests that the

court’s approach to the minor role determination resulted in a categorical exclusion

of drug couriers from eligibility for an adjustment. The court applied the correct

legal standard and, in light of the totality of the circumstances, did not abuse its

discretion by denying the adjustment. See U.S.S.G. § 3B1.2 cmt. n.3(C).

AFFIRMED.

2 17-50123