United States v. Luis Sanchez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 12 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-50376
Plaintiff - Appellee, D.C. No. 3:12-cr-00552-WQH-1
v.
MEMORANDUM*
LUIS SANCHEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted December 12, 2014
Pasadena, California
Before: GRABER, GOULD, and CALLAHAN, Circuit Judges.
Luis Sanchez appeals his jury conviction and sentence for one count of
importing methamphetamine in violation of 21 U.S.C. §§ 952 and 960. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm. See United States v. Sadler,
480 F.3d 932, 940 (9th Cir. 2007) (holding that Rule 4(b) of the Federal Rules of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appellate Procedure, unlike Rule 4(a), is a non-jurisdictional claim-processing rule
subject to forfeiture).
First, the district court did not plainly err when it allowed the border officer
to explain why he directed Sanchez’s car to a secondary inspection lot. Evidence
is relevant if “(a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of consequence in determining
the action.” Fed. R. Evid. 401; see United States v. Wycoff, 545 F.2d 679, 681 (9th
Cir. 1977) (concluding that evidence showing a criminal defendant was advised of
his rights was relevant “to lay a proper foundation for the admission of any
statements given” later by the defendant). Here, the border officer’s reasons for
referring Sanchez’s car to the secondary inspection lot explain how the car, which
moved across the border from Mexico into the United States, was searched and the
methamphetamine was found. The border officer’s reasons for referring Sanchez’s
car to another lot for further inspection laid a proper foundation to prove (1)
importation of (2) methamphetamine, elements of the offense of conviction. See
United States v. Munoz, 412 F.3d 1043, 1050 (9th Cir. 2005) (finding evidence of
an inspector’s observations relevant as both circumstantial evidence of the
defendant’s state of mind and evidence tending to provide the jury “context in
which to assess” the defendant’s state of mind).
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Second, the district court did not plainly err by admitting Richard
Thompson’s testimony about his prior drug-smuggling activities with Sanchez.
See Fed. R. Evid. 404(b). There is a logical connection between Sanchez’s prior
drug-smuggling activities with Thompson and Sanchez’s act of driving
methamphetamine across the United States-Mexico border, particularly because
those prior drug-smuggling activities tend to show knowledge, training, and
eagerness on the part of Sanchez to learn more about drug smuggling. See United
States v. Mayans, 17 F.3d 1174, 1181–82 (9th Cir. 1994) (requiring the
government to prove a “logical connection between the knowledge gained as a
result of the commission of the prior act and the knowledge at issue in the charged
act”). The evidence of prior drug smuggling tends to show that Sanchez knew that
he was importing methamphetamine rather than unwittingly driving it across the
border.
Finally, the district court’s decision not to apply a “minor role” downward
adjustment to Sanchez’s base offense level at sentencing pursuant to U.S.S.G.
§ 3B1.2(b) was not clearly erroneous. Sanchez challenges no specific factual
findings related to this decision, despite the provision’s Application Note that
states, in relevant part, “[t]he determination whether to apply . . . subsection (b) . . .
is based on the totality of the circumstances and involves a determination that is
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heavily dependent upon the facts of the particular case.” Id. cmt. n.3(C). It was
his burden to show that he was substantially less culpable than a typical participant
in such a drug-smuggling offense, but he submitted no evidence that his role was
less than that of a typical drug smuggler. In denying a minor role adjustment, the
court expressly noted the absence of evidence to meet Sanchez’s burden; found
that Sanchez was smuggling a large quantity of methamphetamine, more than five
kilograms; and found evidence of Sanchez’s active efforts to become involved in
the smuggling operation.
AFFIRMED.
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