                                                                           FILED
                           NOT FOR PUBLICATION                              APR 17 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50249

              Plaintiff - Appellee,              D.C. No. 3:96-cr-02085-LAB-1

  v.
                                                 MEMORANDUM *
JESSE BENUTO,

              Defendant - Appellant.




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

                            Submitted April 13, 2012 **
                               Pasadena, California

Before: SILVERMAN and RAWLINSON, Circuit Judges, and TUNHEIM,
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
      Jesse Benuto appeals his jury conviction and sentencing for importation of

marijuana, in violation of 21 U.S.C. §§ 952 and 960, and possession of marijuana

with intent to distribute, in violation of 21 U.S.C. § 841(a).

                                           I.

      Benuto contends that the prosecutor’s structural comments during closing

argument warrant reversal. When reviewing for prosecutorial misconduct, an

appellate court considers in the context of the entire trial “whether it is more

probable than not that the prosecutor’s conduct materially affected the fairness of

the trial.” United States v. McKoy, 771 F.2d 1207, 1212 (9th Cir. 1985).

      Although generally testimony and argument regarding the structure and

operation of a drug trafficking organization is inadmissible where the defendant is

not charged with a conspiracy to import drugs, United States v. Vallejo, 237 F.3d

1008, 1012 (9th Cir.), amended 246 F.3d 1150 (9th Cir. 2001), it may be

admissible if the defendant introduces evidence that the prosecution did not

attempt to find the defendant’s fingerprints on the drugs, United States v. Pineda

Torres, 287 F.3d 860, 865 (9th Cir. 2002). Because Benuto’s counsel introduced

evidence about the absence of fingerprint analysis, Vallejo’s prohibition on

structure testimony and argument is inapplicable.




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      Benuto contends that the remarks about the chain of distribution were also

improper because they “did not constitute evidence and prosecutors may not

supply facts not in evidence as they may be given undue weight.” United States v.

Wilkes, 662 F.3d 524, 538 (9th Cir. 2011). We conclude that the prosecutor’s

arguments were based on common knowledge or were reasonable inferences from

facts and testimony in evidence. See United States v. Bracy, 67 F.3d 1421, 1431

(9th Cir. 1995). Moreover, the prosecutor did not suggest that the testimony of

government witnesses was supported by outside information. See United States v.

Wright, 625 F.3d 583, 610 (9th Cir. 2010) (describing improper vouching).

                                          II.

      Benuto argues that the prosecutor’s comments regarding his silence or

inability to answer questions was improper and that the district court erred in

admitting the comments because they were more prejudicial than probative. We

disagree. See Berghuis v. Thompkins, 130 S.Ct. 2250, 2259-60 (2010) (holding

that police may continue questioning a suspect until he unambiguously invokes his

right to remain silent).

      We review the district court’s evidentiary ruling that the probative value of

the evidence exceeds its potential for unfair prejudice for abuse of discretion.

United States v. Curtin, 489 F.3d 935, 943 (9th Cir. 2007). We conclude that the


                                           3
district court did not abuse its discretion in allowing the prosecutor to comment on

Benuto’s failure to answer some of the custom agent’s questions. See United

States v. Caruto, 532 F.3d 822, 829 (9th Cir. 2008) (citing United States v.

Lorenzo, 570 F.2d 294 (9th Cir. 1978)).
                                          III.

      Benuto contends that the district court procedurally erred by misapplying

U.S.S.G. § 2L1.2 and by failing to consider the 18 U.S.C. § 3553(a) sentencing

factors. First, because Benuto is a United States citizen, U.S.S.G. § 2L1.2 is

inapplicable; the section applies if the “defendant was deported or unlawfully

remained in the United States” after a conviction. Second, the record reflects that

the district court properly considered the sentencing factors and explained its

rationale for selecting the sentence. United States v. Valencia-Barragan, 608 F.3d

1103, 1108 (9th Cir. 2010).

      Benuto also contends that the twelve-month sentence is substantively

unreasonable. In light of the totality of the circumstances and the § 3553(a)

sentencing factors, we hold that a sentence more than twenty-five months below

the bottom of the Guideline range was not substantively unreasonable. See Gall v.

United States, 552 U.S. 38, 51 (2007).

   AFFIRMED.



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