                                                                           FILED
                           NOT FOR PUBLICATION                             APR 01 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50463

              Plaintiff - Appellee,              D.C. No. 3:12-cr-00250-LAB-1

  v.
                                                 MEMORANDUM*
JOSE ENRIQUE HERNANDEZ,

              Defendant - Appellant.


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

                     Argued and Submitted December 6, 2013
                              Pasadena, California

Before: WARDLAW and RAWLINSON, Circuit Judges, and GLEASON, District
Judge.**

       Jose Enrique Hernandez (Hernandez) appeals his conviction and sentence for

importation of cocaine in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction

under 28 U.S.C. § 1291 and affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
      1.     Hernandez argues that due process required the Government to conduct

tests to determine the percentage of pure cocaine included in the seized cocaine

mixture. We disagree. “[T]he government need only show that the defendant knew

that he imported . . . some controlled substance.” United States v. Carranza, 289 F.3d

634, 644 (9th Cir. 2002) (citation omitted) (emphasis in the original). Because “a

finding of drug quantity is not necessary to convict [the defendant] of violating . . .

[section] 960(a),” United States v. Minore, 292 F.3d 1109, 1117 (9th Cir. 2002), the

Government’s failure to collect such information cannot give rise to a due process

violation.

      2.     We also reject Hernandez’s arguments based on destruction of evidence.

In order for destruction of evidence to rise to the level of a constitutional violation,

Hernandez must show that the Government acted in bad faith and that any “missing

evidence is of such a nature that the defendant would be unable to obtain comparable

evidence by other reasonably available means. . . .” United States v. Sivilla, 714 F.3d

1168, 1172 (9th Cir. 2013) (citations and internal quotation marks omitted). The

failure to preserve material that if collected “could have been subjected to tests, the

results of which might have exonerated the defendant,” does not, without more,

constitute bad faith. Tennison v. City & Cnty of S.F., 570 F.3d 1078, 1087 (9th Cir.

2009), as amended (citations omitted).


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      3.     Hernandez’s claim under Brady v. Maryland, 373 U.S. 83 (1963) fails.

The Government did not improperly withhold the seized substance because Hernandez

had the opportunity to test it before trial. See United States v. Bond, 552 F.3d 1092,

1096 n.4 (9th Cir. 2009) (holding that exculpatory evidence was disclosed where the

Government provided “the means of obtaining” it).            Even if the Government

suppressed the laboratory chemist’s report by belatedly disclosing it, Hernandez has

not shown that the report was favorable to the defense or that any failure to disclose

it was prejudicial. See Benn v. Lambert, 283 F.3d 1040, 1052-53 (9th Cir. 2002).

      4.     The district court did not abuse its discretion in admitting evidence of

Hernandez’s 1996 and 2000 drug importation attempts or felony conviction. Prior bad

acts evidence may be admissible to show “motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident. . . . ” Fed. R. Evid.

404(b)(2). Though this prior conduct was relatively old, there is no bright-line rule

to determine when past conduct is too remote, and the evidence remained probative

of Hernandez’s knowledge despite the passage of time. See United States v. Johnson,

132 F.3d 1279, 1283 (9th Cir. 1997). Rule 609(a) provides that evidence of a felony

conviction may be admitted in a criminal case to attack the defendant-witness’s

credibility, if the probative value of the evidence outweighs its prejudice. See Fed. R.

Evid. 609(a)(1)(B). Despite the similarity between the crime of conviction and the


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charged crime, the district court weighed all of the appropriate factors and acted

within its discretion in admitting the evidence. See Untied States v. Alexander, 48

F.3d 1477, 1488 (9th Cir. 1995).

      5.     The district court properly instructed the jury that Hernandez’s prior

conviction was to be considered only for the purpose of assessing Hernandez’s

credibility. The court did not imply that the mere existence of a conviction deprived

Hernandez of credibility, or instruct the jury that it could use a prior felony conviction

as evidence of guilt. Therefore, no abuse of discretion occurred. See United States

v. Portac, Inc., 869 F.2d 1288, 1297 (9th Cir. 1989).

      We also reject Hernandez’s assertion that the district court’s instruction

governing the determination of the amount of controlled substance effectively

dispensed with the marketability/usability analysis articulated in United States v.

Robins, 967 F.2d 1387 (9th Cir. 1992). In Robins, we held that the cornmeal

component of a cocaine mixture comprised of cocaine and cornmeal should not be

considered in determining the weight of the cocaine mixture, because the cornmeal

“had to be separated from the cocaine before the cocaine could be effectively used[;]

[t]he cornmeal was thus the functional equivalent of packaging material, which . . .

was not to be included in the weight calculation. . . .” Id. at 1389 (citations omitted).




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Here, as in Robins, the district court instructed the jury not to include the weight of

packaging material.

      6.      Section 960(b)(1)(B) provides that a defendant who has been convicted

of importing 5 kg or more of a mixture or substance containing a detectable amount,

“shall be sentenced to a term of imprisonment of not less than 20 years,” if he has

been previously convicted “for a felony drug offense . . .” § 960(b)(1)(B). The jury

found that Hernandez imported 5 kg of cocaine and the Government established that

Hernandez had been previously convicted of a felony drug offense. Based on the

jury’s finding and the evidence of Hernandez’s prior conviction, the district court

properly determined that section 960 required the court to impose a statutory

minimum sentence of 240 months. Because no exception to the statutory minimum

applied, see U.S.S.G. § 5G1.1(c)(2), “the court lack[ed] the authority to refuse to

impose the . . . mandatory minimum.” United States v. Sykes, 658 F.3d 1140, 1146

(9th Cir. 2011) (citations omitted).

      AFFIRMED.




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