                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                               JAN 25 2013

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

UNITED STATES OF AMERICA,                        No. 12-50014

              Plaintiff - Appellee,              D.C. No. 3:11-cr-00468-JAH-1

  v.
                                                 MEMORANDUM*
RAUL JIMENEZ,

              Defendant - Appellant.


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

                     Argued and Submitted December 6, 2012
                              Pasadena, California

Before: PREGERSON, NOONAN, and PAEZ, Circuit Judges.

       Appellant, Raul Jimenez, appeals his conviction for importation of

marijuana in violation of 21 U.S.C. §§ 952 and 960. He also appeals the sentence

imposed by the district court, which did not grant him a minor role reduction under

U.S.S.G. § 3B1.2. We affirm both the conviction and the sentence.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The parties are familiar with the facts. Appellant was convicted in federal

court of smuggling marijuana across the border from Mexico in a spare tire under

his rental car. His sentence did not include any adjustment for minor role status.

The Government introduced evidence of other recent border crossings, called

“T.E.C.S.” evidence.

      Appellant argued that the T.E.C.S. evidence constituted evidence of “other

acts” under Federal Rule of Evidence 404(b). Appellant argued that it was

inadmissible because the prosecution could not establish a relevant permissible use

of the evidence, but rather it only served to prove propensity, and impermissible

use under Rule 404(b). He also argued that the probative value of this evidence

was substantially outweighed by the danger of unfair prejudice, and that its

admission would waste time and cause confusion under Rule 403. With regard to

sentencing, Appellant argued that the district court improperly denied him an

adjustment for minor role status.

      A district court’s construction of a Federal Rule of Evidence is a question of

law subject to de novo review. United States v. Sanchez-Robles, 927 F.2d 1070,

1077 (9th Cir. 1991). This court reviews questions of the admissibility of

evidence involving factual determinations for an abuse of discretion. Id. at 1077-

78. This court reviews a district court’s determination that the defendant was not a
minor participant in the offense for clear error. United States v. Pena-Gutierrez,

222 F.3d 1080, 1091 (9th Cir. 2000).

      We affirm the conviction. Although the T.E.C.S. evidence qualified as

404(b) evidence, see United States v. Vega, 188 F.3d 1150, 1154 (9th Cir. 1999),

the district court judge did not abuse his discretion in admitting it to establish

dominion and control over the vehicle. The defense’s theory of the case relied on

the idea that someone else had access to and knowledge of the rental car for a

significant length of time prior to the arrest. Appellant’s offer to stipulate to his

dominion over the car on those dates did not eliminate the Government’s right to

choose what evidence to produce at trial. See United States v. Allen, 341 F.3d 870,

888 (9th Cir. 2003). The T.E.C.S. evidence also had relevance under Rule 401

because it was relevant to establish Appellant’s dominion and control of the

vehicle. We also find it was not unduly prejudicial under 403.

      We affirm the sentence. The district court did not err in rejecting defendant’s

request for a downward adjustment for a minor role. The district court explicitly

stated that it was mindful of the nature and extent of Appellant’s involvement in

the crime and reasoned that the defendant had provided nothing to show that he

was a minor participant.
      Conclusion. The district court did not abuse its discretion in admitting the

T.E.C.S. evidence to establish dominion and control over the vehicle, nor did the

district court err in denying defendant’s request for a downward adjustment.

      AFFIRMED.
