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NOT FOR PUBLICATION FEB 27 2012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.