                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 29 2010

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

UNITED STATES OF AMERICA,                        No. 09-50227

               Plaintiff - Appellee,             D.C. No. 3:07-cr-00486-H-2

  v.
                                                 MEMORANDUM *
RAUL BECERRA-CURIEL,

               Defendant - Appellant.


                     Appeal from the United States District Court
                       for the Southern District of California
                      Marilyn L. Huff, District Judge, Presiding

                         Argued and Submitted March 4, 2010
                                Pasadena, California

Before:        KOZINSKI, Chief Judge, W. FLETCHER, Circuit Judge and
               TUNHEIM,** District Judge.

       The district court did not abuse its discretion by admitting evidence of

defendant’s prior arrest for alien smuggling. See Fed. R. Evid. 404(b); United

States v. Ramirez-Jiminez, 967 F.2d 1321, 1325–27 (9th Cir. 1992).

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
                                                                                   page 2
      Nor did the district court err by denying defendant’s Rule 29 motions on

Count 1 of the indictment. (Defendant does not challenge the sufficiency of the

evidence supporting his conviction on Count 2.) The testimony of the material

witness and the 404(b) evidence are sufficient to support the conclusion that

defendant knew or recklessly disregarded the fact the material witness “ha[d] not

received prior official authorization to come to, enter, or reside in the United

States.” 8 U.S.C. § 1324(a)(2). That evidence is also sufficient to support a

finding that defendant knew the material witness had been hidden in the car as part

of an alien smuggling operation “for the purpose of commercial advantage or

private financial gain.” Id. § 1324(a)(2)(B)(ii). And that evidence, combined with

the testimony of the Customs and Border Protection officers, would also allow a

rational juror to conclude beyond a reasonable doubt that defendant took at least

one affirmative step intending to aid or encourage that operation, whether at the

“load house” or the border. There is sufficient evidence to support defendant’s

conviction for aiding and abetting a violation of 8 U.S.C. § 1324(a)(2)(B)(ii). See

United States v. Lopez-Martinez, 543 F.3d 509, 515–16 (9th Cir. 2008).


      AFFIRMED.
