                                                                              FILED
                           NOT FOR PUBLICATION                                APR 10 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50537

              Plaintiff - Appellee,              D.C. No. 3:12-cr-04321-DMS-1

  v.
                                                 MEMORANDUM*
CIRILO FLORES-PEREZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                       Argued and Submitted March 5, 2015
                              Pasadena, California

Before: PREGERSON, PARKER**, and NGUYEN, Circuit Judges.

       Cirilo Flores-Perez appeals his conviction for attempting to transport or

move an alien within the United States, in violation of 8 U.S.C. §

1324(a)(1)(A)(ii). 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 Barrington D. Parker, Jr., Senior Circuit Judge for the
U.S. Court of Appeals for the Second Circuit, sitting by designation.
      1.     Reviewing for abuse of discretion, United States v. Hardrick, 766

F.3d 1051, 1055 (9th Cir. 2014), the district court did not err in admitting evidence

of Flores-Perez’s prior smuggling acts pursuant to Federal Rule of Evidence

404(b). The evidence was probative of Flores-Perez’s knowledge, intent, and plan.

See United States v. Flores-Blanco, 623 F.3d 912, 919–20 & n.4 (9th Cir. 2010).

We recognize that Flores-Perez did not directly contest his involvement in the

charged offense, and instead argued that his conduct did not amount to a

“substantial step.” Nonetheless, knowledge, intent, and plan were still material

issues in the case because they bore on defendant’s guilt of the charged offense,

which the government had to prove beyond a reasonable doubt. See id. at n.4;

United States v. Plancarte-Alvarez, 366 F.3d 1058, 1062–63 (9th Cir. 2004);

United States v. Ramirez-Jiminez, 967 F.2d 1321, 1325–27 (9th Cir. 1992).

      Additionally, the prior smuggling acts were sufficiently similar to the

charged offense, see Flores-Blanco, 623 F.3d at 919–20, and were not unfairly

prejudicial under Rule 403, see, e.g., United States v. Pedregon, 520 F. App’x 605,

607–08 (9th Cir. 2013). Finally, in the district court, the government adequately

articulated the “evidential hypothesis by which a fact of consequence may be

inferred from the [404(b)] evidence.” United States v. Mayans, 17 F.3d 1174,

1181 (9th Cir. 1994).


                                          2
      2.     Next, reviewing for abuse of discretion, United States v. Mejia-Luna,

562 F.3d 1215, 1218–19 (9th Cir. 2009), the district court did not err in admitting

expert testimony regarding the methods and tactics of alien smugglers in the

Calexico area. This evidence was relevant for the purpose of “assist[ing] the jury

in understanding alien smuggling schemes,” see id. at 1219, and explaining Flores-

Perez’s modus operandi, see United States v. Johnson, 735 F.2d 1200, 1202 (9th

Cir. 1984). This evidence was not unfairly prejudicial because it did not implicitly

tie Flores-Perez to a larger alien smuggling operation, cf. United States v. Perez,

272 F. App’x 609, 611 (9th Cir. 2008), or otherwise imply that his criminal

conduct was more serious than indicated by the evidence at trial.

      AFFIRMED.




                                          3
                                                                               FILED
United States v. Flores-Perez, No. 13-50537                                     APR 10 2015
PREGERSON, Circuit Judge, dissenting:                                       MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

      I dissent. Flores-Perez was charged and convicted of attempted

transportation of an illegal alien in violation of 28 U.S.C. § 1324(a)(1)(A)(ii).

Evidence of Flores-Perez’s prior alien smuggling acts should have been excluded

under Federal Rule of Evidence 403. As the majority recognizes, Flores-Perez did

not contest that he was involved in the charged offense; instead, his sole defense

was that his conduct did not amount to a substantial step towards commission of

the crime. Nonetheless, the court permitted the government to admit Flores-

Perez’s prior alien smuggling acts under Rule 404(b) to prove Flores-Perez’s

knowledge, intent, and plan—all uncontested issues. As to these uncontested

issues, Flores-Perez’s prior alien smuggling acts had minimal, if any, probative

value. See United States v. Vavages, 151 F.3d 1185, 1193 (9th Cir. 1998) (noting

that evidence of the defendant’s prior conviction offered to prove knowledge was

minimally probative when the only real issue was identity); United States v.

Romero, 494 Fed. Appx. 809, 814 (9th Cir. 2012) (Watford, J., dissenting).

      As to the contested issue in this case—whether Flores-Perez took a

substantial step towards commission of the crime—his prior alien smuggling acts

had no probative value, except as impermissible propensity evidence. Once the

jury learned that Flores-Perez previously was involved in alien smuggling, his
defense was doomed. Thus, the risk of unfair prejudice from his prior alien

smuggling acts was great and substantially outweighed the evidence’s minimal

probative value.
