                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 9 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50216

                Plaintiff-Appellee,             D.C. No.
                                                3:15-cr-03121-LAB-1
 v.

JORGE MAYEN,                                    MEMORANDUM*

                Defendant-Appellant.

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

                           Submitted February 7, 2018**
                              Pasadena, California

Before: GRABER and HURWITZ, Circuit Judges, and KORMAN,*** District
Judge.

      Jorge Daniel Mayen appeals his conviction and sentence for importing

methamphetamine and marijuana into the United States, in violation of 21 U.S.C. §§


      *
             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 Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
952 and 960. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

1.    The district court did not err in allowing Officer Varhola’s testimony about

Mayen’s frequent border crossings. The parties had stipulated into evidence records

about those crossings, and Varhola’s testimony was fairly responsive to questioning

from Mayen’s attorney. See United States v. Sepulveda-Barraza, 645 F.3d 1066,

1073 (9th Cir. 2011) (finding no unfair prejudice when party “opened the door” to

testimony). Mayen’s hearsay and Confrontation Clause arguments fail, because the

testimony did not relay an out-of-court statement. See Fed. R. Evid. 801(c).

2.    The district court did not commit plain error in allowing Agent Zoni to

respond to a question about whether frequent border crossings would arouse

suspicion. Because the officer responded that “I couldn’t answer that yes or no,” he

did not give an opinion, nor did he testify to a prior bad act. See United States v.

Zalapa, 509 F.3d 1060, 1064 (9th Cir. 2007) (“Plain error is so clear-cut, so obvious,

a competent district judge should be able to avoid it without benefit of objection.”

(quoting United States v. Smith, 424 F.3d 992, 1002 (9th Cir. 2005))).

3.    The government did not mischaracterize the burden of proof in its closing

argument, but instead permissibly argued that there was no “doubt” based on “reason

and common sense” that Mayen knew that drugs were in the van. Nor did the

prosecutor’s statement that guilt could be inferred from deceptive behavior

improperly “vouch” for Mayen’s guilt, as it did not “plac[e] the prestige of the


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government behind a witness through personal assurances of the witness’s veracity,

or suggest[] that information not presented to the jury supports the witness’s

testimony.” United States v. Tavakkoly, 238 F.3d 1062, 1065 (9th Cir. 2001)

(quoting United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993)).1

4.     The district court did not err in declining to apply a minor role reduction

pursuant to U.S.S.G. § 3B1.2. The court correctly considered “the totality of the

circumstances,” id. at cmt. n.3(C), including relevant circumstantial evidence, and

concluded that Mayen had not carried his burden to demonstrate that it is “more

likely than not that he’s substantially less culpable than the average participant” in

the criminal activity. See United States v. Rojas-Millan, 234 F.3d 464, 473 (9th Cir.

2000).2

     AFFIRMED.




1
     Because Mayen’s individual claims fail, his cumulative error claim also fails.
See United States v. Gutierrez, 995 F.2d 169, 173 (9th Cir. 1993).
2
      Mayen’s argument that the government must prove knowledge of both the
type and quantity of the drugs also fails. See United States v. Soto–Zuniga, 837 F.3d
992, 1004–05 (9th Cir. 2016).

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