                                                                           FILED
                            NOT FOR PUBLICATION                            NOV 24 2014

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



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50427

               Plaintiff - Appellee,             D.C. No. 3:13-cr-00983-LAB

  v.
                                                 MEMORANDUM*
GABRIEL RUIZ-GERARDO,

               Defendant - Appellant.


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

                           Submitted November 18, 2014**

Before:        LEAVY, FISHER, and N.R. SMITH, Circuit Judges.

       Gabriel Ruiz-Gerardo appeals from the district court’s judgment and

challenges the 70-month sentence imposed following his guilty-plea conviction for

possession of methamphetamine with intent to distribute, in violation of 21

U.S.C. § 841(a)(1). 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).
      Ruiz-Gerardo contends that the district court legally erred in denying his

request for a minor role adjustment under U.S.S.G. § 3B1.2(b). Specifically, he

argues that the district court improperly excluded him from consideration for the

role adjustment based on his courier status. In the alternative, he argues that the

court did consider his eligibility for an adjustment, but failed to assess his

culpability to that of all of the other participants in the offense. We review the

district court’s interpretation of the Guidelines de novo and its factual

determination that a defendant is not a minor participant for clear error. See United

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

reflects that the court did not deny the adjustment on the ground that Ruiz-Gerardo

was a courier. Rather, the court applied the correct legal standard, assessing Ruiz-

Gerardo’s culpability relative to that of the average participant in the criminal

scheme based on the totality of the circumstances. See U.S.S.G. § 3B1.2 cmt.

n.3(A), (C); United States v. Hurtado, 760 F.3d 1065, 1068-69 (9th Cir. 2014).

Moreover, the record supports the district court’s conclusion that Ruiz-Gerardo

failed to carry his burden of establishing that he was entitled to the adjustment. See

Rodriguez-Castro, 641 F.3d at 1193.

      AFFIRMED.




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