                                                                          FILED
                           NOT FOR PUBLICATION
                                                                           FEB 11 2016
                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 14-10489

              Plaintiff - Appellee,             D.C. No. 2:13-CR-00085-JAD-
                                                PAL-2
 v.

MARCO ANTONIO CABALLERO-                        MEMORANDUM*
PEREZ, AKA Antonio Caballero-Perez,

              Defendant - Appellant.


                   Appeal from the United States District Court
                             for the District of Nevada
                   Jennifer A. Dorsey, District Judge, Presiding

                           Submitted February 9, 2016**
                             San Francisco, California

Before: HAWKINS, W. FLETCHER, and MURGUIA, Circuit Judges.

      Appellant Marco Caballero-Perez (“Caballero”) appeals his jury trial conviction

for distribution of methamphetamine. We affirm.



       *
             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).
      Caballero did not object at trial to the jury instructions for the count of

conviction1 and thus the instruction is reviewed for plain error. United States v. Doe,

705 F.3d 1134, 1143 (9th Cir. 2013). Caballero bears the burden of establishing that

an obvious or plain error affected his substantial rights and seriously affects the

fairness, integrity or public reputation of the judicial proceedings. United States v.

Olano, 507 U.S. 725, 732-35 (1993).

      The district court gave the Ninth Circuit Model Jury Instructions for distribution

of methamphetamine and knowledge, and these instructions correctly stated the law.

See United States v. Houston, 406 F.3d 1121, 1122 (9th Cir. 2005). Caballero cites

no authority to support his contention that either of these instructions were erroneous

or that they somehow permitted the jury to convict based on “mere presence” and

without intent. Indeed, the jury was specifically instructed that presence at the scene

of a crime was insufficient. The jury was not required to find “intent to distribute,”

as it was in the other charged counts, because the count of which Caballero was

convicted alleged an actual distribution occurred. There was no plain error.




      1
        Indeed, Caballero’s counsel orally ratified the proposed “joint instructions,”
and thus may have waived the issue entirely. United States v. Cain, 130 F.3d 381,
383-84 (9th Cir. 1997). We need not decide this issue because we conclude that, even
assuming the objection was not waived, there was no plain error.
                                          2
       Nor did the district court abuse its discretion by admitting evidence of

Caballero’s prior conviction. The prior conviction was very similar to two charged

counts because methamphetamine was found in a hidden compartment of a vehicle.

This was relevant to rebut Caballero’s defense that he had no knowledge of the

concealed narcotics and was merely present in the vehicle. See United States v.

Banks, 514 F.3d 959, 976 (9th Cir. 2008) (prior bad act evidence admissible if not

overly remote, tends to prove a material point, shares similarities to the charged

offense, and is based on sufficient evidence). The district court provided a proper

limiting instruction to that end. In any event, even if the court erred, any error in

admitting the evidence was harmless because the jury did not convict Caballero of one

of the counts involving the concealed methamphetamine, and thus admission of the

evidence did not prejudicially impact the outcome. See United States v. Ramirez-

Robles, 386 F.3d 1234, 1244 (9th Cir. 2004).

      AFFIRMED.




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