United States v. Sergio Altamirano ( 2016 )

FILED
NOT FOR PUBLICATION
MAY 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10090
Plaintiff - Appellee, D.C. No. 4:13-cr-02086-DCB-
BPV-2
v.
SERGIO GUALBERTO ALTAMIRANO, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, Senior District Judge, Presiding
Submitted May 12, 2016**
San Francisco, California
Before: FARRIS, O’SCANNLAIN, and CHRISTEN, Circuit Judges.
Sergio Gualberto Altamirano seeks a new trial or a remand for resentencing,
following his conviction for one count of Conspiracy to Transport and Harbor
Illegal Aliens for Profit, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v)(I),
*
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).
1324(a)(1)(A)(ii), 1342(a)(1)(A)(iii), and 1324(a)(1)(B)(i); and two counts of
Harboring Illegal Aliens for Profit, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iii)
and 1324(a)(1)(B)(i). The facts of this case are known to the parties, and we do not
repeat them here. We have jurisdiction under 28 U.S.C. § 1291.
I
Altamirano first argues that the district court erred by allowing the
government to introduce evidence of Altamirano’s prior arrests for smuggling
aliens. But Federal Rule of Evidence 404(b) allows evidence of prior bad acts to
be admitted to prove knowledge. See Fed R. Evid. 404(b). Moreover, contrary to
Altamirano’s assertions, similarity between the prior bad acts and the charged
crime is not required “as long as the prior act [is] one which would tend to make
the existence of the defendant’s knowledge more probable than it would be without
the evidence.” United States v. Ramirez-Jiminez, 967 F.2d 1321, 1326 (9th Cir.
1992). Here, evidence related to Altamirano’s prior arrests for alien smuggling
made it more probable that Altamirano knew that the individuals he harbored were
illegal aliens. The evidence was not unduly prejudicial and was therefore properly
admitted. See Fed. R. Evid. 403. Moreover, even assuming the prosecutor’s
reference to the prior acts during closing argument invited an improper inference,
2
Altamirano did not object and we find no plain error. See United States v. Brown,
327 F.3d 867, 871 (9th Cir. 2003).
II
Altamirano next argues that the district court erred in applying a sentencing
enhancement for brandishing a dangerous weapon. See U.S.S.G. § 2L1.1(b)(5)(B).
We disagree. Two individuals harbored by Altamirano testified unequivocally that
he threatened and hit one of them with a “knife” or “sword.” Although this
testimony differed slightly in its particulars, it was certainly sufficient to support
the district court’s conclusion that Altamirano used “some type of . . . a sharp
instrument” capable of causing serious bodily injury to intimidate one of the aliens.
The fact that law enforcement never found a knife is insignificant, since
Altamirano had ample time to dispose of the weapon before the search of his
trailer.
AFFIRMED.
3