NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 20 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50218

Plaintiff-Appellee, D.C. No. 3:16-cr-02815-LAB

v.

MEMORANDUM*

CUAUHTEMOC JUAREZ-AQUINO,

Defendant-Appellant.

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

Submitted August 15, 2018**

Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

Cuauhtemoc Juarez-Aquino appeals from the district court’s judgment and

challenges the 80-month sentence and 3-year term of supervised release imposed

following his guilty-plea conviction for importation of methamphetamine, in

violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C.

* 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). § 1291, and we affirm in part and vacate and remand for resentencing in part.

Juarez-Aquino contends that the district court erred by denying his request

for a minor role adjustment under U.S.S.G. § 3B1.2. He argues that the district

court improperly compared him to a hypothetical “average participant,” rather than

his co-participants in the offense, and misapplied the factors contained in the

commentary to § 3B1.2. 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 shows that the district court properly compared Juarez-Aquino to

his co-participants in the offense, both named and unnamed, see United States v.

Diaz, 884 F.3d 911, 916-17 (9th Cir. 2018), and denied the minor role adjustment

after considering each of the factors listed in the commentary to the Guideline, see

U.S.S.G. § 3B1.2 cmt. n.3(C). The district court’s decision to deny the minor role

reduction in light of Juarez-Aquino’s preparatory conduct, prior successful drug

crossings, and the large amount of methamphetamine, and to accord little weight to

Juarez-Aquino’s lack of propriety interest in the drugs and limited knowledge

about the drug organization, was not an abuse of discretion. See United States v.

Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016).

Juarez-Aquino also contends, and the government concedes, that the district

2 17-50218 court erred in determining that Juarez-Aquino was subject to three-year mandatory

minimum term of supervised release. Because the district court concluded that

Juarez-Aquino was entitled to safety valve relief under 18 U.S.C. § 3553(f), the

three-year mandatory minimum term of supervised release under 21 U.S.C.

§ 960(b)(3) did not apply. See U.S.S.G. § 5C1.2 cmt. n.9. Accordingly, we vacate

the three-year term of supervised release and remand for the district court to

reconsider the length of the supervised release term.

AFFIRMED in part; VACATED and REMANDED in part.

3 17-50218