                                                                            FILED
                           NOT FOR PUBLICATION                               JAN 30 2013

                                                                         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. 11-10397

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00322-JAT-2

  v.
                                                 MEMORANDUM *
JORGE DE JESUS-CASTENEDA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                    James A. Teilborg, District Judge, Presiding

                      Argued and Submitted October 18, 2012
                            San Francisco, California

Before: WALLACE and BEA, Circuit Judges, and RESTANI, Judge.**

       Jorge de Jesus-Casteneda appeals from his judgment of conviction for

possession with intent to distribute methamphetamine under 21 U.S.C. § 841(a)(1)

and (b)(1)(B)(viii). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
       The district court did not err when overruling Appellant’s objection that the

government exercised a race-based strike of a prospective juror under Batson v.

Kentucky, 476 U.S. 79 (1986). The government offered a race neutral reason (Juror

23’s occupation), and Appellant fails to prove that race was a substantial

motivating factor underlying the strike. Crittenden v. Ayers, 624 F.3d 943, 958 (9th

Cir. 2010).

      The district court did not abuse its discretion by giving the jury a “deliberate

ignorance” instruction. United States v. Heredia, 483 F.3d 913 (9th Cir. 2007) (en

banc). First, the jury could have rationally concluded Appellant was aware of the

“high probability” he was transporting methamphetamine, id. at 919 n.6, given that

he agreed with almost a complete stranger, according to his version of the story, to

drive a car that was not his own for a fee to an undisclosed location. This offer

should have placed him on notice of suspicious activity, given that he was also

asked to retrieve an item from the car at the warehouse and carried that item (the

bag containing ten pounds of methamphetamine) into the warehouse. Second, the

jury could have concluded Appellant “deliberately avoided learning the truth.” Id. at

924. There is no evidence he asked the stranger why he needed a ride back to the

auto-shop, that he checked the car for contraband, or that he asked what the item

that he was retrieving from the car was. A failure to inquire may constitute

deliberate ignorance. See United States v. Nicholson, 677 F.2d 706, 710-11 (9th Cir.
1982). Appellant even admitted “I did not try to avoid it, nor did I want to find out

or anything.”

      The district court did not abuse its discretion by not giving the jury a specific

definition of “intent.” Possession of methamphetamine with intent to distribute is a

general intent crime, and this circuit discourages the use of specific intent instructions

for general intent crimes. United States v. Bell, 303 F.3d 1187, 1191 (9th Cir. 2002).

      The district court did not err by finding sufficient evidence to support the

conviction. United States v. Johnson, 357 F.3d 980 (9th Cir. 2004). Appellant was

paid to drive the car that contained the drugs, and the evidence shows he saw the

small packages inside the large bag. He also went straight to the car, without asking

questions, to grab the bag when told to bring an item from the car. Furthermore, he

stayed while the bag was opened in the warehouse and listened to the conversation

about the drug-weapons deal, though he admitted he could have left.

      The district court erred when not giving specific reasons for refusing to apply

safety valve relief under 18 U.S.C. § 3553(f)(1)-(5) and U.S.S.G. § 5C1.2 at

sentencing. See United States v. Real-Hernandez, 90 F.3d 356, 360 (9th Cir. 1996).

However, this error was harmless, as the record “supports a finding that the safety

valve provision does not apply” anyway. United States v. Diaz-Cardenas, 351 F.3d

404, 409 n.5 (9th Cir. 2003). Appellant did not “truthfully provid[e] to the

Government all information and evidence [he] ha[d] concerning the offense.”
U.S.S.G. § 5C1.2(a)(5); 18 U.S.C. § 3553(f)(5). His “bare assertion” that he

truthfully provided all information is insufficient. United States v. Ajugwo, 82 F.3d

925, 929 (9th Cir. 1996). In light of the jury’s guilty verdict, the court did not

clearly err by denying safety valve relief. See Diaz-Cardenas, 351 F.3d at 404.1

      AFFIRMED.




       1
        Appellant’s claim that the confidential informant’s testimony in disguise
violated the Confrontation Clause and his due process rights is addressed in an
opinion filed concurrently with this memorandum disposition.
