United States v. Barrios

MEMORANDUM ** David Barrios appeals from the 57-month sentence imposed following his guilty-plea conviction for importation of cocaine, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we vacate and remand. Appellant’s April 23, 2007, unopposed motion to modify the record on appeal is granted. The Clerk shall file appellant’s supplemental excerpt of record received on April 23, 2007. Appellant contends that the district court erred by denying a minor role adjustment under U.S.S.G. § 3B1.2(b) because it failed to consider all the participants in the criminal scheme when it evaluated his relative culpability. We agree. See United States v. Rojas-Millan, 234 F.3d 464, 472-74 (9th Cir.2000). The record indicates that appellant provided evidence of at least one participant, the man who was to receive the drugs from appellant in the United States, that the district court did not consider in its analysis. Accordingly, we vacate the sentence and remand. See id. Because we vacate the sentence, we need not address Barrios’ remaining contentions which also challenge the district court’s denial of the minor role adjustment. VACATED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.