                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 20 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50089

                Plaintiff-Appellee,             D.C. No. 3:14-cr-02306-LAB

 v.
                                                MEMORANDUM*
OSCAR ANDRES MACIAS-SANDOVAL,

                Defendant-Appellant.

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

                           Submitted August 15, 2018**

Before:      FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

      Oscar Andres Macias-Sandoval appeals from the district court’s judgment

and challenges the 72-month sentence imposed upon remand 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).
      Macias-Sandoval contends the district court misapplied the minor role

Guideline, U.S.S.G. § 3B1.2, by failing to compare his culpability to that of the

other participants in his criminal scheme. 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 does not support Macias-Sandoval’s

claim that the court improperly compared him to the hypothetical average courier.

Rather, the court acknowledged its obligation to compare Macias-Sandoval to

known and likely co-participants in the offense and conducted that comparison.

See United States v. Diaz, 884 F.3d 911, 916-17 (9th Cir. 2018). Having done so,

the court concluded, based on the facts of this particular case, that Macias-

Sandoval was not “substantially less culpable than the average participant in the

criminal activity.” U.S.S.G. § 3B1.2 cmt. n.3(A). The court applied the correct

legal standard and, in light of the totality of the circumstances, did not abuse its

discretion in denying the adjustment. See U.S.S.G. § 3B1.2 cmt. n.3(C).

      AFFIRMED.




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