                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 14 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-50395

              Plaintiff-Appellee,                D.C. No. 3:15-cr-00134-JAH

 v.
                                                 MEMORANDUM*
JOSE MANUEL AYALA-VENTURA,
a.k.a. Jose Ayala-Ventura,

              Defendant-Appellant.


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

                      Argued and Submitted August 29, 2016
                              Pasadena, California

Before:       TASHIMA, SILVERMAN, and WATFORD, Circuit Judges.

      Jose Manuel Ayala-Ventura appeals from the district court’s judgment and

challenges his conviction and the 100-month sentence imposed for importation of

methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. 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 Ninth Circuit Rule 36-3.
      Ayala-Ventura contends that the district court abused its discretion by

precluding him from introducing a computer screen shot of a photograph from

Facebook for lack of authentication. We review for abuse of discretion, see United

States v. Tank, 200 F.3d 627, 630 (9th Cir. 2000), but we need not decide whether

the district court properly excluded the evidence. Even if the foundation for the

photo should have been deemed sufficient, any error in sustaining the objection to

it was harmless. The jury received various other pieces of evidence that someone

named Jesus Noveron once lived at, or was associated with, the address in

question. See United States v. Pineda-Doval, 614 F.3d 1019, 1034 (9th Cir. 2010).



      Ayala-Ventura next contends that the district court abused its discretion by

precluding him from eliciting testimony about an out-of-court statement.

Specifically, he argues that the district court should have permitted him to elicit

testimony from his investigator that, upon the investigator’s visit to the residence at

715 South Olive Street, a woman answered the door and stated that Jesus Noveron

no longer lived there. We review for abuse of discretion, United States v. Torres,

794 F.3d 1053, 1059 (9th Cir. 2015), cert. denied, 136 S. Ct. 2005 (2016), and find

none. Even crediting Ayala-Ventura’s argument that this statement was offered

solely to show a “link” between Noveron and the residence, the record reflects that


                                           2
the statement was offered to prove the truth of the matter asserted. Accordingly,

the district court did not abuse its discretion by excluding it as hearsay. See Fed.

R. Evid. 801(c), 802.

      Ayala-Ventura finally contends that the district court procedurally erred by

failing to explain adequately its reasons for denying his request for a minor role

adjustment pursuant to U.S.S.G. § 3B1.2. We review for plain error, see United

States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none.

As Ayala-Ventura conceded in the district court, the record is devoid of

information regarding his role in the offense. It is, therefore, apparent from the

record why the district court determined that Ayala-Ventura had failed to meet his

burden. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc)

(adequate explanation may be inferred from the record as a whole); United States

v. Cantrell, 433 F.3d 1269, 1282 (9th Cir. 2006) (defendant bears the burden of

proving that he is entitled to a minor role adjustment).

      AFFIRMED.




                                           3                                    15-50395
