* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

** The Honorable Jack Zouhary, Dist rict Judge for the U.S. District Court for the Northern District of Ohio, sitting by designation.

1 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee,
v. SERGIO TELLO-CARRILLO, Defendant - Appellant. No. 12-50206 D.C. No. 3:11-cr-03698-JLS-1
MEMORANDUM *

Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding Argued and Submitted April 11, 2013 Pasadena, California Before: REINHARDT and MURGUIA, Circuit Judges, and ZOUHARY, District Judge. ** 

# FILED
APR 22 2013 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 Sergio Tello-Carrillo (“Tello”) appeals his conviction of 8 U.S.C. § 1324(a)(2)(B)(ii) (Bringing in Illegal Alie ns for Financial Gain) & 18 U.S.C. § 2 (Aiding and Abetting). Tello raises four challenges to his conviction. We reject each challenge and affirm. 1. Tello contends that the testimony of th e Border Patrol agents raised the inference that he was identified as a foot guide on the day of the incident because he was already on a list of suspected foot guides. This inference, Tello argues, violated the district court’s pre-trial ruling and thus constituted prosecutorial misconduct. Tello argues further that this inference violated his Confrontation Clause rights. Tello’s challenge fails for three reas ons. First, the record does not support Tello’s contention. Based on the totality of the agents’ testimony, a juror was just as likely, if not more likely, to believe that Tello was identified as a foot guide on the day of the incident because of his c onduct that day, not because he was on a list of suspected foot guides. Second, Tello ha s failed to identify a viable legal basisfor relief. The district court found that the government properly followed its pretrial ruling, thus foreclosing Tello’s theory of prosecutorial misconduct. Additionally, the alleged inference is neith er a testimonial statement nor hearsay, and thus raises no Confrontation Clause concerns. Cf. Crawford v. Washington ,3 541 U.S. 36, 59 & n.9 (2004). Finally, even if the inference were legally improper, it was not sufficiently prejudicial to warrant a mistrial. 2. Tello’s challenge to the admissibility of the rebuttal testimony of Agent Acevedo is without merit. Because Acev edo’s testimony was based on his personal experience and was relevant to assessing th e plausibility of Tello’s defense theory, it was admissible as lay testimony under Federal Rule of Evidence 701. 3. Tello’s fair trial challenge based on the presence of Border Patrol agents in the courtroom during closing argument is foreclosed by Holbrook v. Flynn , 475 U.S. 560 (1986), in which the Supreme Cour t held that the presence of uniformed law enforcement officers was not “so i nherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial.” Id. at 572. Here, the Border Patrol agents were not even uniformed. 4. Tello’s sufficiency of evidence challe nge is likewise without merit. The testimony of Leonila Gatica-Analco, when viewed “in the light most favorable to the prosecution,” United States v. Nevils , 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc), was adequate to a llow “any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)). AFFIRMED.