                                                                            FILED
                            NOT FOR PUBLICATION                             AUG 01 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.      15-50148

               Plaintiff-Appellee,               D.C. No. 3:14-cr-02812-AJB

 v.
                                                 MEMORANDUM*
JOSE HERNANDEZ,

               Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                    Anthony J. Battaglia, District Judge, Presiding

                              Submitted July 26, 2016**

Before:        SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.

      Jose Hernandez appeals from the district court’s judgment and challenges

the 46-month sentence 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. § 1291, and we affirm.

          *
             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).
      Hernandez contends that the district court procedurally erred by relying on

clearly erroneous facts in sentencing. See United States v. Carty, 520 F.3d 984,

993 (9th Cir. 2008) (en banc). Specifically, he argues that the government

misrepresented his actions leading up to the offense and that the misrepresentation

may have caused the district court to deny his request for a minor-role adjustment

under U.S.S.G. § 3B1.2(b). The record does not support this contention. Although

the government erroneously stated that Hernandez had admitted to smuggling

suspicious packages into the United States on prior occasions, defense counsel

corrected the misrepresentation during the hearing. Moreover, the record reflects

that the district court’s minor-role decision was based on the steps Hernandez took

to prepare for the offense, rather than the government’s misrepresentation.

      AFFIRMED.




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