                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 22 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-50560

              Plaintiff-Appellee,                D.C. No.
                                                 3:15-cr-01081-BEN-1
 v.

KRISTHEL SARAH BELTRAN-                          MEMORANDUM*
FLORES,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                          Submitted December 8, 2017**
                              Pasadena, California

Before: WARDLAW and GOULD, Circuit Judges, and GONZALEZ ROGERS,***
District Judge.




      *
             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).
      ***
             The Honorable Yvonne Gonzalez Rogers, United States District Judge
for the Northern District of California, sitting by designation.
      Kristhel Sarah Beltran-Flores (Beltran) appeals her conviction and sentence

for one count of knowingly or intentionally importing a controlled substance,

methamphetamine, in violation of 21 U.S.C. §§ 952 & 960. We affirm.

      1.     Even assuming that the jury should have been instructed that it was

sufficient for Beltran to know that the substance was “a controlled substance”

instead of “some kind of a prohibited drug,” any error was harmless. Beltran

claimed not to know that the methamphetamine was in the spare tire, not that she

believed that the substance was not methamphetamine, or that it was not a

controlled substance. Indeed, she stipulated that the substance was

methamphetamine. There is no reason to believe, based on the circumstantial

evidence, that the jury’s deliberations and guilty verdict arose from anything other

than its determination that Beltran knew that methamphetamine, a controlled

substance, was in the spare tire.

      2.     The jury instruction that “The government is not required to prove

that the defendant knew that her acts or omissions were unlawful,” did not

contravene McFadden v. United States, 135 S. Ct. 2298 (2015). Contrary to

Beltran’s argument, McFadden’s requirement that the government prove a

defendant’s knowledge that the substance was a controlled substance does not

imply that the government must prove that a defendant knew that their conduct was


                                          2
illegal. See McFadden, 135 S. Ct. at 2304 (stating expressly that ignorance of the

law continues to be no excuse). And in any event, McFadden is not clearly

irreconcilable with binding Ninth Circuit authority approving such an instruction.

See United States v. Cain, 130 F.3d 381, 384 (9th Cir. 1997).

        3.     The jury instruction that “It does not matter whether the defendant

knew that the substance was methamphetamine,” did not constructively amend the

indictment. Even though Beltran was indicted for knowingly and intentionally

importing a substance containing a detectable amount of methamphetamine, no

evidence was admitted nor was any argument made that Beltran knew that there

was a non-methamphetamine controlled substance in the spare tire. See United

States v. Ward, 747 F.3d 1184, 1191 (9th Cir. 2014) (“[D]etermination of whether

a constructive amendment has been effected requires sensitivity to both the jury

instructions as a reflection of the indictment, and to the nature of the proof offered

at trial.”).

        4.     Beltran’s argument that the panel should read a recklessness mens rea

requirement into 21 U.S.C. § 960(b) is squarely foreclosed by United States v.

Jefferson, 791 F.3d 1013, 1015–16 (9th Cir. 2015). The panel declines her

invitation to sua sponte call this case en banc to reconsider Jefferson, and her




                                           3
attempt to distinguish Jefferson ignores its clear holding—there is no mens rea

requirement for section 960(b). Id.

      5.     In response to the presentence investigation report (“PSR”) that

recommended no adjustment for Beltran’s role in the offense, Beltran’s counsel

filed a sentencing memorandum urging the court to apply a minor role adjustment.

The district court did not mention Beltran’s argument at sentencing. However, the

district court’s silence did not violate Federal Rule of Criminal Procedure

32(i)(3)(B). Beltran’s counsel’s first substantive statement at sentencing was that

he had reviewed the PSR, had no objections to it, and had not filed a sentencing

summary chart because he agreed with the chart prepared by the government and

probation, which did not include a minor role adjustment. Beltran’s counsel

thereby waived any dispute raised by his sentencing memorandum and relieved the

district court of its duty to explicitly resolve such disputes. See United States v.

Petri, 731 F.3d 833, 841 (9th Cir. 2013) (“Rule 32(i)(3)(B) pertains only to

unresolved objections to the presentence report.” (emphasis added)); cf. United

States v. Job, 871 F.3d 852, 870 (9th Cir. 2017). Notwithstanding the waiver,

ideally, the district court would have verified that the written objections were

withdrawn.

      AFFIRMED.


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