United States v. Raul Jimenez ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 25 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-50014
Plaintiff - Appellee, D.C. No. 3:11-cr-00468-JAH-1
v.
MEMORANDUM*
RAUL JIMENEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted December 6, 2012
Pasadena, California
Before: PREGERSON, NOONAN, and PAEZ, Circuit Judges.
Appellant, Raul Jimenez, appeals his conviction for importation of
marijuana in violation of 21 U.S.C. §§ 952 and 960. He also appeals the sentence
imposed by the district court, which did not grant him a minor role reduction under
U.S.S.G. § 3B1.2. We affirm both the conviction and the sentence.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The parties are familiar with the facts. Appellant was convicted in federal
court of smuggling marijuana across the border from Mexico in a spare tire under
his rental car. His sentence did not include any adjustment for minor role status.
The Government introduced evidence of other recent border crossings, called
“T.E.C.S.” evidence.
Appellant argued that the T.E.C.S. evidence constituted evidence of “other
acts” under Federal Rule of Evidence 404(b). Appellant argued that it was
inadmissible because the prosecution could not establish a relevant permissible use
of the evidence, but rather it only served to prove propensity, and impermissible
use under Rule 404(b). He also argued that the probative value of this evidence
was substantially outweighed by the danger of unfair prejudice, and that its
admission would waste time and cause confusion under Rule 403. With regard to
sentencing, Appellant argued that the district court improperly denied him an
adjustment for minor role status.
A district court’s construction of a Federal Rule of Evidence is a question of
law subject to de novo review. United States v. Sanchez-Robles, 927 F.2d 1070,
1077 (9th Cir. 1991). This court reviews questions of the admissibility of
evidence involving factual determinations for an abuse of discretion. Id. at 1077-
78. This court reviews a district court’s determination that the defendant was not a
minor participant in the offense for clear error. United States v. Pena-Gutierrez,
222 F.3d 1080, 1091 (9th Cir. 2000).
We affirm the conviction. Although the T.E.C.S. evidence qualified as
404(b) evidence, see United States v. Vega, 188 F.3d 1150, 1154 (9th Cir. 1999),
the district court judge did not abuse his discretion in admitting it to establish
dominion and control over the vehicle. The defense’s theory of the case relied on
the idea that someone else had access to and knowledge of the rental car for a
significant length of time prior to the arrest. Appellant’s offer to stipulate to his
dominion over the car on those dates did not eliminate the Government’s right to
choose what evidence to produce at trial. See United States v. Allen, 341 F.3d 870,
888 (9th Cir. 2003). The T.E.C.S. evidence also had relevance under Rule 401
because it was relevant to establish Appellant’s dominion and control of the
vehicle. We also find it was not unduly prejudicial under 403.
We affirm the sentence. The district court did not err in rejecting defendant’s
request for a downward adjustment for a minor role. The district court explicitly
stated that it was mindful of the nature and extent of Appellant’s involvement in
the crime and reasoned that the defendant had provided nothing to show that he
was a minor participant.
Conclusion. The district court did not abuse its discretion in admitting the
T.E.C.S. evidence to establish dominion and control over the vehicle, nor did the
district court err in denying defendant’s request for a downward adjustment.
AFFIRMED.