                                                                               FILED
                            NOT FOR PUBLICATION
                                                                                MAY 18 2016
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 15-10090

              Plaintiff - Appellee,               D.C. No. 4:13-cr-02086-DCB-
                                                  BPV-2
 v.

SERGIO GUALBERTO ALTAMIRANO,                      MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                  David C. Bury, Senior District Judge, Presiding

                             Submitted May 12, 2016**
                              San Francisco, California

Before: FARRIS, O’SCANNLAIN, and CHRISTEN, Circuit Judges.

      Sergio Gualberto Altamirano seeks a new trial or a remand for resentencing,

following his conviction for one count of Conspiracy to Transport and Harbor

Illegal Aliens for Profit, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v)(I),


        *
             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).
1324(a)(1)(A)(ii), 1342(a)(1)(A)(iii), and 1324(a)(1)(B)(i); and two counts of

Harboring Illegal Aliens for Profit, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iii)

and 1324(a)(1)(B)(i). The facts of this case are known to the parties, and we do not

repeat them here. We have jurisdiction under 28 U.S.C. § 1291.

                                          I

      Altamirano first argues that the district court erred by allowing the

government to introduce evidence of Altamirano’s prior arrests for smuggling

aliens. But Federal Rule of Evidence 404(b) allows evidence of prior bad acts to

be admitted to prove knowledge. See Fed R. Evid. 404(b). Moreover, contrary to

Altamirano’s assertions, similarity between the prior bad acts and the charged

crime is not required “as long as the prior act [is] one which would tend to make

the existence of the defendant’s knowledge more probable than it would be without

the evidence.” United States v. Ramirez-Jiminez, 967 F.2d 1321, 1326 (9th Cir.

1992). Here, evidence related to Altamirano’s prior arrests for alien smuggling

made it more probable that Altamirano knew that the individuals he harbored were

illegal aliens. The evidence was not unduly prejudicial and was therefore properly

admitted. See Fed. R. Evid. 403. Moreover, even assuming the prosecutor’s

reference to the prior acts during closing argument invited an improper inference,




                                          2
Altamirano did not object and we find no plain error. See United States v. Brown,

327 F.3d 867, 871 (9th Cir. 2003).

                                            II

       Altamirano next argues that the district court erred in applying a sentencing

enhancement for brandishing a dangerous weapon. See U.S.S.G. § 2L1.1(b)(5)(B).

We disagree. Two individuals harbored by Altamirano testified unequivocally that

he threatened and hit one of them with a “knife” or “sword.” Although this

testimony differed slightly in its particulars, it was certainly sufficient to support

the district court’s conclusion that Altamirano used “some type of . . . a sharp

instrument” capable of causing serious bodily injury to intimidate one of the aliens.

The fact that law enforcement never found a knife is insignificant, since

Altamirano had ample time to dispose of the weapon before the search of his

trailer.

       AFFIRMED.




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