                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 20 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50101

                Plaintiff-Appellee,             D.C. No.
                                                3:15-cr-02819-LAB-1
 v.

JOSE LUIS RAMIREZ,                              MEMORANDUM*

                Defendant-Appellant.

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

                             Submitted July 14, 2017**
                               Pasadena, California

Before: PREGERSON and WARDLAW, Circuit Judges, and CHEN,*** District
Judge.

      Defendant-Appellant José Luis Ramirez appeals his jury convictions for

importing heroin and methamphetamine into the United States. We have


      *
             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).
      ***
            The Honorable Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
jurisdiction under 28 U.S.C. § 1291. We affirm.

       On June 30, 2015, Ramirez drove a Volkswagen Jetta from Tijuana, Mexico,

to the Otay Mesa Port of Entry. At the port of entry, a border patrol officer

inspected the Volkswagen’s undercarriage with a mirror and saw signs that the rear

bumper had recently been removed. A narcotics dog then alerted on the car.

Border patrol officers then transported the Volkswagen to a secondary lot for

further examination. The officers found 51 packages of methamphetamine and one

package of heroin hidden in the gas tank, rear bumper, and spare tire. The officers

then arrested Ramirez.

       On July 30, 2015, the government charged Ramirez with importing

methamphetamine into the United States, violating 21 U.S.C. §§ 952 and 960. The

government failed to charge Ramirez for the heroin. Counsel was appointed and

Ramirez entered a not guilty plea.

       On November 5, 2015, the government filed a superseding indictment,

adding a charge of importing heroin into the United States in violation of 21 U.S.C.

§§ 952 and 960. Ramirez was arraigned on the superseding indictment on

December 2, 2015, the first day of trial. Neither Ramirez, nor his attorney,

objected to starting the trial.

       At trial, Ramirez’s only defense was that he did not know the drugs were in

the Volkswagen. He did not challenge the existence, type, or quantity of the drugs.


                                          2
The jury found Ramirez guilty of both counts. The district court sentenced

Ramirez to 92 months imprisonment, deviating from the maximum statutory

penalty of 240 months. The district court discussed the methamphetamine

conviction, but not the heroin conviction, when it calculated Ramirez’s sentence.

      On appeal, Ramirez argues for the first time that his rights under

§ 3161(c)(2) of the Speedy Trial Act were violated because he did not get an

additional 30 days to prepare his defense after he first appeared through counsel on

the superseding indictment. Because Ramirez failed to raise this argument before

the district court, we review for plain error. United States v. Flores-Sanchez, 477

F.3d 1089, 1092 (9th Cir. 2007).

      Section 3161(c)(2) of the Speedy Trial Act provides:

      Unless the defendant consents in writing to the contrary, the trial shall not
      commence less than thirty days from the date on which the defendant first
      appears through counsel or expressly waives counsel and elects to proceed
      pro se.

18 U.S.C. § 3161(c)(2). It is well-settled that § 3161(c)(2) does not require the 30-

day preparation period to restart upon the filing of a superseding indictment. See

United States v. Rojas-Contreras, 474 U.S. 231, 234 (1985); Flores-Sanchez, 477

F.3d at 1093. However, the Supreme Court has explained that § 3161(h)(7)(A) of

the Act gives the district court “broad discretion . . . to grant a continuance” if a

defendant is “prejudiced by the return of the superseding indictment.” Rojas-

Contreras, 474 U.S. at 236 (citing statute, formerly § 3161(h)(8)).

                                           3
      Here, it is undisputed that Ramirez was afforded nearly five months to

prepare his defense between the time he first appeared through counsel on July 7,

2015, and the first day of trial on December 2, 2015.

      Further, the superseding indictment did not prejudice Ramirez. His

defense—that he did not know the drugs were in the car—remained the same.

Indeed, the government needed to prove only that Ramirez believed he imported

“some controlled substance,” not that he knew the specific type of drug. See

United States v. Jefferson, 791 F.3d 1013, 1015 (9th Cir. 2015).

      Additionally, the district court did not discuss the heroin conviction when it

calculated Ramirez’s sentence. This, coupled with the district court’s decision to

substantially deviate from the maximum penalty, indicates that the heroin

conviction did not affect Ramirez’s punishment.

      We share Ramirez’s concern over the government’s ability to add new

charges so close to trial. However, the superseding indictment did not prejudice

Ramirez in any way. We therefore conclude that the district court did not commit

any error, much less plain error, by proceeding to trial the same day that Ramirez

first appeared through counsel on the superseding indictment.



AFFIRMED.




                                         4
