                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 21 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50095

                Plaintiff-Appellee,             D.C. No. 3:17-cr-02657-LAB

 v.

ALFREDO MENDEZ,                                 MEMORANDUM*

                Defendant-Appellant.

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

                          Submitted December 17, 2018**

Before:      WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

      Alfredo Mendez appeals from the district court’s judgment and challenges

the 78-month sentence and 5-year term of supervised release imposed following

his guilty-plea conviction for importation of methamphetamine and cocaine, 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 in part.

      Mendez contends the district court misinterpreted and misapplied the minor

role Guideline, U.S.S.G. § 3B1.2, and its commentary in denying his request for a

minor role reduction. 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 reveals that the district court identified the correct legal standard

and considered the five factors listed in the commentary before determining that

Mendez was not “substantially less culpable than the average participant.” See

U.S.S.G. § 3B1.2 cmt. n.3(A), (C). The record does not support Mendez’s

contention that the district court failed to apply some of the factors because of a

policy disagreement with the Sentencing Commission; rather, the court declined to

give those factors the weight urged by Mendez. The district court did not abuse its

discretion by denying the minor role adjustment in light of the totality of the

circumstances, including Mendez’s prior successful drug crossing and the large

amount of drugs Mendez smuggled. See U.S.S.G. § 3B1.2 cmt. n.3(C); United

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

      Mendez also contends that the district court plainly erred by imposing a five-

year term of supervised release. Whether the district court was referring to the


                                          2                                       18-50095
statutory term or the advisory Guideline range for supervised release when it stated

“[i]t’s three years to life,” the district court erred. See U.S.S.G. § 5C1.2 cmt. n.9

(if defendant is safety valve eligible, he is exempt from the statutory minimum

term of supervised release); id. § 5D1.2(a)(1) (applicable Guidelines range for

supervised release is 2-5 years). Accordingly, we vacate the district court’s

judgment and remand for resentencing as to the supervised release term only. See

Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016).

      AFFIRMED in part; VACATED and REMANDED in part.




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