                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 07 2016
                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 15-50012

              Plaintiff - Appellee,              D.C. No. 3:14-cr-01858-L-1

 v.
                                                 MEMORANDUM*
PAULINO ZAVALA-GARCIA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                 M. James Lorenz, Senior District Judge, Presiding

                             Submitted April 5, 2016**
                               Pasadena, California

Before: SILVERMAN and GRABER, Circuit Judges, and EZRA,*** District
        Judge.

      A jury convicted Defendant Paulino Zavala-Garcia of knowingly importing

illegal drugs into the United States. The court sentenced him to 60 months of

        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
        ***
         The Honorable David A. Ezra, United States District Judge for the
Western District of Texas, sitting by designation.
imprisonment. Defendant appeals his conviction and sentence. He argues that the

court failed to clarify ambiguous jury instructions, that the government’s closing

argument improperly raised propensity evidence and false inferences, that the jury

instructions failed to require the government to meet its burden of proving every

element of an offense, and that the court erred in imposing a 20-year statutory

maximum sentence. We affirm.

      1. Defendant first claims that the court erred in its response to a jury

question asking whether the word "drugs" in the jury instructions referred literally

to drugs or whether the term could include contraband. We review for abuse of

discretion a district judge’s response to a question from the jury. United States v.

Romero-Avila, 210 F.3d 1017, 1024 (9th Cir. 2000). In response to the jury’s

question, the judge referred the jury back to the original instructions. The

instructions required that the government prove beyond a reasonable doubt that the

defendant knew that the substances he was bringing into the country "were

methamphetamine, cocaine, fentanyl or some other prohibited drug." The record,

therefore, shows that the judge answered the jury’s question; the response was not

an abuse of discretion.

      2. Next, Defendant objects to the government’s statement in its closing

argument that the "defendant’s not a welder," but he did "cross a welding machine


                                          2
on multiple occasions," as an improper attempt to use propensity evidence that

Defendant had smuggled drugs previously in a welding machine. At trial,

Defendant objected to the prosecutor’s remarks, though on different grounds. We

review for abuse of discretion a district court’s denial of an objection in closing

argument. United States v. Etsitty, 130 F.3d 420, 424 (9th Cir. 1997) (per curiam).

We review for plain error an objection not originally raised at trial. United States

v. French, 748 F.3d 922, 937 (9th Cir.), cert. denied, 135 S. Ct. 384 (2014). Under

either standard, we affirm. The disputed statement did not imply that Defendant

had previously smuggled drugs. In fact, in rebuttal, the government said that "[t]he

United States isn’t arguing that he has smuggled drugs before." In context, the

statement simply cast doubt on Defendant’s explanation for why he—who is not a

welder—was crossing the border with a welding machine on this occasion. The

district court’s ruling was neither an abuse of discretion nor plain error.

      3. Defendant also challenges the jury instructions for failing to require the

jury to find that Defendant knew which specific drugs he was importing. We

review de novo alleged misstatements of law in jury instructions. United States v.

Cortes, 732 F.3d 1078, 1084 (9th Cir. 2013). We have recently held that "the

government need not prove that the defendant knew the precise type or quantity of

the drug he imported." United States v. Jefferson, 791 F.3d 1013, 1019 (9th Cir.


                                           3
2015), cert. denied, 2016 WL 532846 (U.S. Mar. 21, 2016) (No. 15-8101). Such

knowledge is not an element of a drug-smuggling offense. Id. Under this

precedent, there was no error.

      4. Finally, Defendant challenges the application of the statutory maximum

sentence because the jury instructions did not require the jury to find that

Defendant knew which type of drugs he was importing. We review de novo

challenges to the legality of a sentence. United States v. Tighe, 266 F.3d 1187,

1190 (9th Cir. 2001). Because knowledge of drug type is not an element of the

offense under which Defendant was convicted, Jefferson, 791 F.3d at 1015, failure

to include the knowledge of specific drug type in jury instructions does not affect

the legality of the sentence.

      AFFIRMED.




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