FILED
NOT FOR PUBLICATION OCT 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10622
Plaintiff - Appellee, D.C. No. 2:12-cr-00924-GMS-1
v.
MEMORANDUM*
PABLO NAVARRETTE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted October 9, 2014**
Phoenix, Arizona
Before: WALLACE, SILVERMAN, and M. SMITH, Circuit Judges.
Pablo Navarrette was convicted of sixteen counts of False Statement in
Connection with the Acquisition of a firearm, in violation of 18 U.S.C. §
924(a)(1)(A), and sentenced to 33 months in prison. Navarrette appeals, arguing
that the district court erred by: (1) admitting evidence at trial concerning his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
personal finances; and (2) imposing a four-level sentencing enhancement under
U.S.S.G. § 2K2.1(b)(5). Because the parties are familiar with the facts and
procedural history of this case, we repeat only those facts necessary to resolve the
issues raised on appeal. We affirm.
The district court did not abuse its discretion by admitting evidence
pertaining to Navarrette’s personal finances. Navarrette was charged under 18
U.S.C. § 924(a)(1)(A) for providing a false address in connection with the
purchase of over $21,000 in firearms between March 2008 and March 2010. At
trial, the government introduced records showing that Navarrette reported
approximately $19,000 in earnings in 2008 and $30,000 in 2009, to demonstrate
that Navarrette likely used unreported funds to purchase the firearms and therefore
had a motive to distance himself from the transactions.
Evidence pertaining to Navarrette’s personal finances was relevant under
Federal Rule of Evidence 401, because it suggested that Navarrette had a motive to
provide a false address in connection with the firearms purchases. See Fed. R. Ev.
401. Although the evidence may suggest that Navarrette used unreported funds to
purchase the firearms, this evidence is not barred as evidence of another bad act
under Rule 404(b), because: (1) Rule 404(b) does not apply to other “offenses
committed as part of [the same] criminal episode,” United States v. Lillard, 354
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F.3d 850, 854 (9th Cir. 2003); and (2) Rule 404(b) does not bar evidence of other
bad acts offered to prove “motive.” United States v. Dorsey, 677 F.3d 944, 951
(9th Cir. 2012) (citing Fed. R. Ev. 404(b)).
Where evidence of other bad acts is offered for a permissible reason, “the
‘only’ conditions justifying the exclusion of the evidence are those described in
Rule 403,” United States v. Curtin, 489 F.3d 935, 944 (9th Cir. 2007) (internal
citations omitted), and we will not hold that the district court abused its discretion
under this Rule, so long as the record shows that the court engaged in Rule 403’s
balancing inquiry, Lillard, 354 F.3d at 855. Here, the district court not only
engaged in Rule 403’s balancing inquiry, the court also provided a limiting
instruction, which is generally sufficient to cure any prejudicial impact caused by
prior bad act evidence. United States v. Bailey, 696 F.3d 794, 809 (9th Cir. 2012)
(citing Dubria v. Smith, 224 F.3d 995, 1002 (9th Cir. 2000)).
With respect to sentencing, the district court did not err in imposing a four-
level sentencing enhancement under U.S.S.G. § 2K2.1(b)(5). Navarrette was
convicted under 18 U.S.C. § 924(a)(1)(A). The statute has no mandatory minimum
sentence and carries a maximum sentence of 60 months. See 18 U.S.C. §
924(a)(1)(D). At sentencing, the district court calculated a base offense level of
twelve and added a four-level sentencing enhancement under U.S.S.G. §
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2K2.1(b)(5), finding that “the defendant engaged in the trafficking of firearms.”
Because the district court ultimately sentenced Navarrette to 33 months in prison, it
did not violate Alleyne v. United States, 133 S. Ct. 2151 (2013) or Apprendi v. New
Jersey, 530 U.S. 466 (2000). See United States v. Vallejos, 742 F.3d 902, 906 (9th
Cir. 2014) (neither Alleyne nor Apprendi is implicated where a judge imposes a
sentencing enhancement that does not affect the statutory maximum sentence or
the mandatory minimum sentence). Moreover, the district court’s finding that
Navarrette trafficked firearms was not clearly erroneous. The evidence in the pre-
sentence report (PSR) fairly implied that Navarrette trafficked firearms into
Mexico, and Navarrette presented no contrary evidence. See United States v.
Newhoff, 627 F.3d 1163, 1170 (9th Cir. 2010) (the district court may rely on the
PSR to find facts underlying a sentencing enhancement); United States v.
Marin-Cuevas, 147 F.3d 889, 895 (9th Cir.1998) (the district court may rely on
circumstantial evidence to find facts underlying a sentencing enhancement).
AFFIRMED.
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