                                                                             FILED
                            NOT FOR PUBLICATION                               FEB 27 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 11-50007

              Plaintiff - Appellee,               D.C. No. 3:09-cr-04261-BTM-1

  v.
                                                  MEMORANDUM *
MANUEL JIMENEZ-SANCHEZ,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Southern District of California
                   Barry T. Mosµowitz, District Judge, Presiding

                      Argued and Submitted February 8, 2012
                               Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

       Manuel Jimenez-Sanchez ('Jimenez') appeals from his conviction and

sentence for illegally reentering the United States. He argues that the district court

erred in admitting the 'quasi-expert' testimony of a federal agent and that his

rights under the Confrontation Clause were violated by the admission of parts of



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
his A-file. He also contends that the district court erroneously held that he was not

eligible for a cultural assimilation departure and improperly aggregated his

sentences for a prior illegal reentry and violation of supervised parole. We affirm

Jimenez's conviction and sentence.1

      1. Jimenez asserts that the district court erred in allowing Agent Brenner to

offer 'quasi-expert' testimony as to Jimenez's ability to climb White Cross were

he under the influence of heroin. Because Jimenez did not object to Agent

Brenner's testimony in the district court, we review his assertion for plain error.

United States v. Burgum, 633 F.3d 810, 813 (9th Cir. 2011). The government did

not raise the question of Jimenez's use of drugs in its case in chief. Rather, it was

defense counsel who elicited Agent Brenner's opinion that Jimenez appeared to be

a drug user. He did so to bolster Jimenez's defense that he lacµed the intent to re-

enter the United States because he had ingested heroin a couple of hours before his

arrest while still in Mexico. Under these circumstances, Jimenez has not shown

that the admission of Agent Brenner's testimony was error.

      2. Jimenez's second argument on appeal is that the district court erred in

admitting his A-file, or portions of his A-file. Again, because Jimenez did not



      1
             Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.

                                           2
raise the objection in the district court, we review his claim for plain error.

Burgum, 633 F.3d at 813. Jimenez asserts that pursuant to the Supreme Court's

opinion in Michigan v. Bryant, 131 S. Ct. 1143 (2011), certain portions of the A-

file should be excluded as testimonial. His arguments are not persuasive. Nothing

in Bryant undermines the business record exception recognized by the Supreme

Court in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539-40 (2009), and

Bryant's 'primary purpose' standard cannot be stretched into a 'possible use' test.

Moreover, Jimenez stipulated to the admission of portions of the A-file, has not

identified which portions of the A-file he claims are truly testimonial, and has not

proffered any argument as to why the admission of those portions of the A-file is

prejudicial.

      3. Jimenez next argues that the district court improperly held that he was

categorically ineligible for a cultural assimilation departure. The district court's

sentence is reviewed for an abuse of discretion. Gall v. United States, 552 U.S. 38,

51 (2007). The district judge considered Jimenez's request for a cultural

assimilation departure, and, as a matter of discretion, declined to grant a deviation

based on Jimenez's prior immigration law violations and his repeated resort to

criminal activity when he reentered the United States. Jimenez has not shown that




                                            3
the district court incorrectly applied the law or committed a clear error of

judgment. See United States v. Edwards, 595 F.3d 1004, 1015 (9th Cir. 2010).

      4. Finally, Jimenez argues that the district court erred in aggregating his

prior 30-month sentence for two counts of illegal entry with his 24-month sentence

for violating his supervised release. However, the sentences were based on the

same underlying conduct, and when the district court asµed defense counsel 'so the

penalty he paid for coming bacµ illegally last time was 54 months,' counsel

admitted that was true. Moreover, Jimenez does not deny that the district court

could properly consider an incremental increase in his sentence. Jimenez has not

shown that the district court's determination that a 66-month sentence was the

minimum necessary to deter Jimenez and others was unreasonable or an abuse of

discretion.

      Jimenez's conviction and sentence are AFFIRMED.




                                           4
                                                                             FILED
United States v. Jimenez-Sanchez, No. 11-50007                                   FEB 27 2012

                                                                          MOLLY C. DWYER, CLERK
REINHARDT, Circuit Judge, Concurring:                                      U.S . CO U RT OF AP PE A LS




      I concur as to points one and two on the ground that there was no plain error.

I concur as to points three and four for the reasons set forth in the majority

disposition.
