                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              NOV 16 2009

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

UNITED STATES OF AMERICA,                        No. 08-10231

             Plaintiff - Appellee,               D.C. No. 4:05-cr-01125-RCC-JJM

  v.
                                                 MEMORANDUM *
TAJMA DE MARCUS MURPHY,

             Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    Raner C. Collins, District Judge, Presiding

                    Argued and Submitted November 3, 2009
                           San Francisco, California

Before: HUG, RYMER and McKEOWN, Circuit Judges.

       Tajma De Marcus Murphy appeals his conviction and sentence on charges of

importing cocaine. We affirm.



                                          I

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Although the parties dispute whether Murphy preserved an objection to

admissibility of prior-act evidence and thus whether our review is de novo or for

abuse of discretion, we see no reversible error regardless of which standard is

applied. In context, Murphy’s statement to Agent Stevens that he had previously

been recruited to drive loads across the border as well as to drive loads from

Nogales and Rio Rico to Tucson helped explain how and why he became an

informant. Murphy’s position was that he made no such statement and the

testimony was inadmissible because it was false; the jury disbelieved him. He did

not otherwise argue that admitting the statement offended Rule 404(b) or Rule 403

and we cannot see how it plainly did. Nor did the district court err by failing to

give a limiting instruction given the way the testimony unfolded. In any event, the

court’s general instructions admonished the jury that Murphy was on trial only for

the crimes charged in the indictment, not for any other activities. See United States

v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987).



                                          II

      Murphy argues that the district court failed to recognize it had authority to

consider substantial assistance and depart even in the absence of a motion pursuant

to U.S.S.G. § 5K1.1. However, the issue was not so cleanly presented to the


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district court. The court in fact gave a sentence that was lower than the guidelines

range, and did so in part after looking at how Murphy got involved in the first

place and considering that law enforcement asked him to do work. The

government acknowledged Murphy’s substantial assistance at sentencing. Cf.

United States v. Khoury, 62 F.3d 1138, 1140 (9th Cir. 1995). To the extent

Murphy claims that the government withheld its § 5K1.1 motion for improper

reasons, there is no support for this in the record. United States v. Murphy, 65 F.3d

758, 762-63 (9th Cir. 1995).

      AFFIRMED.




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