                             NOT FOR PUBLICATION                          FILED
                      UNITED STATES COURT OF APPEALS                      APR 15 2015
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 14-50231

              Plaintiff - Appellee,                D.C. No. 3:13-cr-02818-BEN

    v.
                                                   MEMORANDUM*
 ERICK HERRERA,

              Defendant - Appellant.

                     Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                               Submitted April 7, 2015**

Before:        FISHER, TALLMAN, and NGUYEN, Circuit Judges.

         Erick Herrera appeals from the district court’s judgment and challenges the

46-month sentence imposed following his guilty-plea conviction for importation of

heroin, 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 9th Cir. R. 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Herrera challenges the district court’s denial of a minor role reduction,

arguing that the court incorrectly compared him to a hypothetical average courier.

We review the district court’s interpretation of the Guidelines de novo. See

United States v. Rodriguez-Castro, 641 F.3d 1189, 1192 (9th Cir. 2011). In

evaluating whether a defendant is a minor participant, the district court must

compare “the defendant’s conduct and that of the other participants in the same

offense.” United States v. Rojas-Millan, 234 F.3d 464, 473 (9th Cir. 2000)

(internal quotations omitted). The district court’s suggestion that Herrera ought to

be compared to a hypothetical average courier was, therefore, incorrect. See id.

However, the district court’s error was harmless because the court ultimately

denied the adjustment based on a proper comparison between Herrera’s conduct

and that of a co-participant in his offense. Moreover, the court indicated that even

if Herrera’s base offense level were reduced by two levels, it would impose the

same sentence. See United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n.5

(9th Cir. 2011) (per curiam).

      AFFIRMED.




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