                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 3 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 16-50212

                Plaintiff-Appellee,             D.C. No. 3:15-cr-02939-LAB

 v.
                                                MEMORANDUM*
DAVID EDUARDO BERNAL-RIVAS,

                Defendant-Appellant.

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

                             Submitted June 26, 2017**

Before:      PAEZ, BEA, and MURGUIA, Circuit Judges.

      David Eduardo Bernal-Rivas appeals from the district court’s judgment and

challenges the 65-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).
      Bernal-Rivas 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 court

(1) assumed that couriers are average participants, which improperly required him

to demonstrate that he was less culpable than the average courier; (2) did not

consider all of the likely participants in the offense when conducting its

comparative analysis; (3) misinterpreted the five factors relevant to the minor role

determination; and (4) relied on case law that was superseded by the 2015

amendment to the minor role Guideline. We review de novo the district court’s

interpretation of the Guidelines. See United States v. Quintero-Leyva, 823 F.3d

519, 522 (9th Cir. 2016).

      The record reflects that the court properly compared Bernal-Rivas to his co-

participants in the offense. See id. at 523. The court not only compared Bernal-

Rivas to the two co-participants he identified, but also considered his role in the

overall smuggling hierarchy. The court’s observation that Bernal-Rivas’s lack of

knowledge of the details of the smuggling scheme and lack of an ownership

interest in the drugs rendered him an “average” participant does not reflect that the

court was comparing him to the typical courier. The record also reflects that the

court properly applied the five newly enumerated factors, as well as other

considerations, to determine whether Bernal-Rivas played a minor role in the

offense. See U.S.S.G. § 3B1.2 cmt. n.3(c); Quintero-Leyva, 823 F.3d at 523


                                          2                                      16-50212
(because the five factors are non-exhaustive, “a district court may also consider

other reasons for granting or denying a minor role reduction”). Contrary to Bernal-

Rivas’s claim, the district court did not apply this court’s precedent in any way that

conflicts with the 2015 amendment to the minor role Guideline.

      AFFIRMED.




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