                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       FEB 21 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

 UNITED STATES OF AMERICA,                        No. 15-50195

                  Plaintiff-Appellee,             D.C. No. 3:14-cr-02948-LAB

   v.
                                                  MEMORANDUM*
 ROBERTO VILLARRUEL-
 QUINTANILLA,

                  Defendant-Appellant.

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

                           Submitted February 14, 2017**

Before:       GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.

        Roberto Villarruel-Quintanilla appeals from the district court’s judgment

and challenges the 72-month sentence imposed following his guilty-plea

conviction for conspiracy to import heroin, cocaine, and methamphetamine, in

violation of 21 U.S.C. §§ 952, 960, and 963, and 18 U.S.C. § 2. We have


        *
             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).
jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Villarruel-Quintanilla argues that the district court erred in denying a minor

role reduction to his base offense level under U.S.S.G. § 3B1.2(b). We decline to

reach this claim because any error was harmless. Although the court rejected the

parties’ joint request for a minor role reduction, it explained that, even if it had

granted a minor role reduction and started its sentencing analysis with the lower

Guidelines range, it would have varied upwards and imposed a sentence of 72

months in light of the circumstances of the offense, particularly the large amount

of drugs that Villarruel-Quintanilla conspired to import. See 18 U.S.C. § 3553(a).

Under these circumstances, we conclude that any error in failing to grant the minor

role reduction requested by Villarruel-Quintanilla was harmless. See United States

v. Munoz-Camarena, 631 F.3d 1028, 1030 n.5 (9th Cir. 2011) (harmless error may

result where the district judge “acknowledges that the correct Guidelines range is

in dispute and performs his analysis twice, beginning with both the correct and

incorrect range”).1




      1
        Villarruel-Quintanilla contends that the government waived the argument
that any error in denying minor role was harmless by not addressing it in its
answering brief. We exercise our discretion to determine harmlessness sua sponte.
See United States v. Gonzales-Flores, 418 F.3d 1093, 1100-01 (9th Cir. 2005).

                                        2                                        15-50195
      In light of this conclusion, we do not reach Villarruel-Quintanilla’s

contention that his case should be assigned to a different judge on remand.

      AFFIRMED.




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