                           NOT FOR PUBLICATION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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