United States v. Erick Herrera
United States v. Erick Herrera
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 was, therefore, incorrect. See id. However, the district court’s error was harmless because the record reflects that the court was aware of the other *622 participants in the offense and agreed with the government that Herrera was not “substantially less culpable than the average participant” in the offense given his quasi-supervisory role over L.G. See U.S.S.G. § 3B1.2 cmt. n. 3(A). The district court also properly cited the quantity of drugs transported and Herrera’s payment as a basis for denying the minor role adjustment. See United States v. Hurtado, 760 F.3d 1065, 1069 (9th Cir. 2014), cert. denied, — U.S. ——, 135 S.Ct. 1467, 191 L.Ed.2d 412 (2015) (quantity of drugs and the amount paid to the defendant are facts that “alone may justify denial of a minor role”).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.