## F I L E D United States Court of Appeals Tenth Circuit 

### March 24, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 05-2117 MARTHA CECILIA MARES,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. NO. CR-04-310-JP)

Marc H. Robert, Assistant Federal Public Defender, Las Cruces, New Mexico, for Appellant. Laura Fashing, Assistant United States Attorney, Al buquerque, New Mexico, for Appellee.

Before LUCERO , McWILLIAMS , andTYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.

Defendant-Appellant Martha Mares was arrested at a border checkpoint on December 14, 2002, while driving a car carrying 32. 5 kilograms of marijuana concealed in the gas tank. Prior to trial for this offense, on December 11, 2003,-2-

Mares was again arrested at a border checkpoint carrying marijuana concealed in her car’s gas tank. The district court admitted th e evidence of the subsequent arrest at trial under Fed. R. Evid. 404(b). Mares now appeals her jury conviction of possessionwith intent to distribute marijuana in violation of 21 U.S.C. §§ 8 41(a)(1) and (b)(1)(D) and the 51-month sentence imposed by the district court. M ares argues that the district court erred (1) in admitting evidence of a subseque nt arrest for drug trafficking that occurred nearly a year after the crime for whi ch she was charged, and (2) in imposing an excessive sentence. Because the distri ct court did not abuse its discretion in admitting evidence of a subsequent cr ime under Fed. R. Evid. 404(b), and since Mares’s 51-month sentence was rea sonable, we AFFIRM the district court. I. Background The Two Arrests. On December 14, 2002, Mares was arrested at a borde r checkpoint just south of Alamogordo, New Mexico as she attempted to enter the United States. Mares told U.S. Border Patrol agent s the car belonged to a Mr. Alejandro Dominguez who was “kind of” her boyfriendand had loaned Mares the car so she, her friend, and her children could join him for a weekend of skiing in Ruidoso, New Mexico. (R. Vol. IV at 49, 77–78.) T he car had temporary licence plates, and Mares produced a recent bill of sale fo r the vehicle. Border Patrol-3-

agents noticed only one piece of luggage in the carand that none of the occupants had ski equipment, parkas or winter clothing. The combination of Mares’s answers and her unusual circumstances caused BorderPatrol agents to become suspicious. After an inspection of the undercarriage of her veh icle revealed tool marks indicating that the gas tank had recently been remo ved or serviced, the Border Patrol agents requested, and Mares gave, consent to a search of her gas tank. The search revealed three metal canisters packed with 3 2.5 kilograms of marijuana and Mares was arrested. Mares told the agents she was completely unaware of the marijuana in the gas tank and was “stunned” by its discovery despite the fact that the containers occupied almost eighty percent of th e gas tank. (R. Vol. IV at 151.) On questioning, Mares said she did not know where D ominguez lived and that she “[thought she knew] his cell phone number” even though they had been “going out for about three weeks” and she was suppo sed to meet him in Ruidoso with his car. (Id. at 78.) After arresting Mares, authorities attempted to locate Dominguez using information from the bill of sale M ares provided. This effort was fruitless because none of the information on th e bill of sale could be verified, and much of it, including Dominguez’s Social Securi ty Number, was fraudulent.1 The United States disclosed it intended to introduc e evidence subject to

Fed. R. Evid. 404(b) over two months prior to trial

. -4- While awaiting trial, Mares was again arrested by t he Border Patrol, this time at the Ysleta Port of Entry in El Paso, Texas, on December 11, 2003. As in her first arrest, three metal canisters of marijuan a were found in the gas tank of the vehicle she was attempting to drive into the Un ited States. This time, the canisters contained 43 kilograms of marijuana. Mar es claimed that a Mr. Alejandro Dominguez had forced her into transportin g this second load of marijuana after she confronted him about “us[ing]” her for the first load. However, she also admitted to Border Patrol agents that the same people who “hired” her for the first load had forced her to tr ansport this second load. (R. Vol. IV at 38, 51-52, 116–17.) Mares pleaded guilty to this second offense. The Trial. Mares maintained her innocence as to the first load of marijuana, and the case proceeded to trial in Novem ber 2004. Just before trial, Mares filed a motion in limine seeking to prevent t he United States from introducing evidence of her second arrest under Fed . R. Evid. 403 and 404(b). 1
The district court ruled that the evidence was admi ssible under Rule 404(b): [It is] offered for proper purpose under Rule 404(b ), to show, among other things, the common plan, knowledge, intent an d absence of mistake or accident . . . . It’s very similar, and the two incidences are very similar in nature in terms of the area in whic h they occurred, how the marijuana was packaged in metal containers, where they were in the vehicles and other things. . . . Obviously, it is prejudicial, but I-5-

don’t think it is unfairly prejudicial to the exten t that the probative value is substantially outweighed . . . I will, if the defendant requests, give appropriate instruction to the jury. . . (R. Vol. IV at 7.) A jury found Mares guilty of po ssession with intent to distribute less than 50 kilograms of marijuana in v iolation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D). Sentencing. The presentence report calculated Mares’s base offe nse level as 22 on the basis of the amount of marijuana invol ved. Upon the government’s informal objection, the probation officer recommend ed increasing Mares’s offense level by two for obstruction of justice bec ause of her false testimony at trial. Mares objected to this enhancement and also argued that she should have received a minor role adjustment under USSG § 3B1.2

. At her sentencing hearing, the district court foundthat Mares perjured herself at trial and, accordingly, increased her se ntence by two levels for obstruction of justice. The court also found that Mares was not entitled to a minor role adjustment because of the extensive plan ning involved and the distance she was willing to travel to traffic drugs . As a result, Mares’s total offense level was 24 and her criminal history categ ory I, resulting in a guideline recommendation of 51-63 months. The district courtsentenced Mares to 51 months in prison to be followed by three years supe rvised release. II. Analysis-6-

Mares argues the district court erred in two ways. First, she claims the court improperly admitted evidence at trial from he r second arrest for drug transportation. Her second claim is that the courtimproperly rejected her role as a minor participant and then enhanced her sentence because it determined she committed perjury at trial. We disagree with both of her claims. A. Evidence of Subsequent Act under Rule 404(b) We review the district court’s admission of evidenc e under Fed. R. Evid. 404(b) for abuse of discretion. United States v. Shumway , 112 F.3d 1413, 1419 (10th Cir. 1997). We will not reverse a district c ourt’s ruling if “it fall[s] within the bounds of permissible choice in the circumstanc es” and is not “arbitrary, capricious or whimsical.” Id. 1. Rule 404(b) Generally Federal Rule of Evidence 404(b) provides: Evidence of other crimes, wrongs or acts is not adm issible to prove the character of a person in order to show action in co nformity therewith. It may, however, be admissible for other purposes, such as proof of . . . intent, . . . plan, knowledge, . . . or absence of mistake. Our case law instructs courts to consider four fact ors in weighing the admissibility of evidence under Rule 404(b): (1) wh ether the evidence is offered for a proper purpose, (2) its relevancy, (3) that t he probative value of the evidence is not substantially outweighed by its prejudicial effect, and (4) a limiting instruction is given if the defendant so requests . See Huddleston v. United States ,-7-

485 U.S. 681, 691 (1988); United States v. Zamora , 222 F.3d 756, 762 (10th Cir. 2000). Evidence is admitted for a proper purpose if allowe d for one or more of the enumerated purposes in Rule 404(b). It is relevantif it tends to prove or disprove one of the elements necessary to the charged offens e. See Fed. R. Evid. 401. The danger of unfair prejudice resulting from the evide nce’s admission must not substantially outweigh the probative value of the e vidence under the balancing test of Fed. R. Evid. 403. See United States v. Tan , 254 F.3d 1204, 1211–12 (10th Cir. 2001) (in order for evidence to be inadm issible under Rule 403 the evidence’s unfair prejudice must do more than “dama ge the [d]efendant’s position at trial,” it must “make[] a conviction more likely because it provokes an emotional response in the jury or otherwise tends t o affect the jury’s attitude toward the defendant wholly apart from its judgmentas to his guilt or innocence of the crime charged”). The limiting instruction m ust caution the jury to consider the evidence only for the limited purposes for whic h it is admitted and not as probative of bad character or propensity to commit the charged crime. 2. Subsequent Acts It is settled in the Tenth Circuit that evidence of “other crimes, wrongs, or acts” may arise from conduct that occurs afterthe charged offense. Our cases have held that “[r]egardless of whether 404(b) evid ence is of a prior or-8-

subsequent act, its admissibility involves a case-s pecific inquiry that is within the district court’s broad discretion.” United States v. Olivo , 80 F.3d 1466, 1469 (10th Cir. 1996). Where the uncharged acts show mo tive, intent, or knowledge, they are admissible “whether the acts involved prev ious conduct or conduct subsequent to the charged offense, as long as the u ncharged acts are similar to the charged crime and sufficiently close in time.” United States v. Zamora , 222 F.3d 756, 762 (10th Cir. 2000). Subsequent acts evidence is particularly relevant w hen a defendant’s intent is at issue. In Olivo , for example, the defendant was charged with arran ging for the transportation of large amounts of marijuana onboard his employer’s trucking fleet. 80 F.3d at 1468. The marijuana was compres sed, wrapped, dipped in tar, rewrapped and secreted in grocery boxes. Prior to trial, the defendant drove a vehicle containing a large amount of marijuana, and the marijuana was also compressed into blocks, wrapped several times and c oncealed inside grocery boxes. Although the subsequent act occurred over o ne year after the charged offense, we held that evidence of this crime was pr operly admitted under Rule 404(b) to show intent and planning. We further hel d that the length of time between the two incidents did not undermine its pro bative value. The events were of sufficient similarity to justify the district co urt’s admission of the evidence under an abuse of discretion standard.-9-

We have routinely upheld the admissibility of subse quent acts evidence in other cases. See, e.g., Zamora , 222 F.3d at 762 (evidence of subsequent robbery properly admitted under 404(b) to prove knowledge, intent and lack of mistake); United States v. Gutierrez , 696 F.2d 753, 755 (10th Cir. 1982) (evidence of robbery five weeks after charged robbery properly a dmitted under Rule 404(b) to prove identity); United States v. Abreu , 962 F.2d 1425 (10th Cir. 1992) (evidence of defendant’s subsequent possession of cocaine rel evant to prove intent in drug trafficking case). Although generally admissible, subsequent conduct, just as prior conduct, must share similarity with the charged crime. Zamora , 222 F.3d at 762. It need not be identical. Gutierrez , 696 F.2d at 755. Similarity may be demonstrated through “physical similarity of the acts or throughthe ‘defendant's indulging himself in the same state of mind in the perpetrati on of both the extrinsic offense and charged offenses.’” Zamora , 222 F.3d at 762 (quoting United States v. Queen , 132 F.3d 991, 996 (4th Cir. 1997)). We have identified a number of non-exclusive factor s in assessing similarity: (1) whether the acts occurred closely i n time. See Olivo , 80 F.3d at 1468; see also United States v. Bonnett , 877 F.2d 1450, 1461 (10th Cir. 1989) (reviewing the admission of subsequent bad acts und er Rule 404(b) and explaining that “[t]he closeness in time and the si milarity in conduct [are] matters-10-

left to the trial court, and [its] decision will no t be reversed absent a showing of abuse of discretion”); (2) geographical proximity, see Zamora , 222 F.3d at 762–63 (evidence of robbery of restaurant in same t own as charged attempted bank robbery); (3) whether the charged offense and the other acts share similar physical elements, see id. ; see also Gutierrez , 696 F.2d at 755 (subsequent robbery similar to charged robbery in that defendant in both instances drove getaway car and used her children as “cover”); and (4) whether the charged offense and the other acts are part of a common sch eme, see United States v. Becker , 230 F.3d 1224, 1232-33 (10th Cir. 2000) (drug def endant’s prior convictions for methamphetamine possession and distribution not admissible under Rule 404(b) in part because the prior acts la cked a common scheme with the charged offense of methamphetamine production ). With these principles in mind, we turn to Mares’s argument. 3. Application Mares’s argument at trial was that she was a victimof trickery when she was arrested in 2002. She claimed her friend, Alej andro Dominguez, duped her into unknowingly carrying drugs across the Mexican/American border. Consequently, she maintains the subsequent arrest c ontributed nothing to the jury’s determination of the elements of the prior c harged crime. She also argues the subsequent conduct was too far removed in time and place to satisfy the-11-

requirements of Rule 404(b). In response, the gove rnment argues the evidence of Mares’s December 2003 arrest satisfies at least thr ee of the purposes articulated in Fed. R. Evid. 404(b): (1) it shows Mares’s knowledge of the marijuana canisters found in her gas tank in December 2002, ( 2) it establishes that transportation of marijuana in her gas tank was part of a plan or conspiracy to smuggle drugs, and (3) it tends to show the earlierconduct was not a mistake or accident. The government also argues the time and place of the two incidents are close enough to satisfy Rule 404(b). We agree. The first Huddleston factor—proper purpose—is easily met here. The evidence tends to show Mares willingly and knowingl y participated in a drug trafficking scheme. Her central defense to the cha rges was lack of knowledge that the car contained drugs at the time of the 200 2 arrest. The 2003 arrest, however, rebuts her version of events because it sh ows conduct bearing the same hallmarks of the earlier border crossing: the drugs were smuggled in the same secretive way, in both cases she claimed to be borr owing a car for which no registration was available, she had a prepared cove r story regarding her plans in the United States, and finally in both cases she cl aimed Alejandro Dominguez was the mastermind. In light of these identifying circ umstances, the district court did2Mares relies on a Seventh Circuit case to argue th at subsequent narcotics

activity is particularly irrelevant to prior drug c rimes. United States v. Betts , 16 F.3d 748 (7th Cir. 1994). Betts does not advance her argument: the court specifically said that “when a defendant raises the defense that he was duped on the first occasion, evidence of subsequent conduct may be admissible to establish that his conduct was not inadvertent but knowing.” Id. at 759.

3 Mares also claims her conduct bears no “signature q uality” which sets it apart from the hundreds, if not thousands, of drug arrests at the Mexican border. While this may be true, her conduct contains other indicia of similarity that make it admissible for the applicable purposes under Fed . R. Evid 404(b). “Signature quality” evidence, see United States v. Oberle , 136 F.3d 1414, 1419 (10th Cir. 1998) is often introduced to show identity. Eviden ce under Rule 404(b) need only be of a “signature quality” when being introduced f or the purpose of proving identity by modus operandi . In this case, no one disputes that Mares committ ed both smuggling crimes. -12- not err in finding the subsequent similar act was o ffered for a proper purpose under Rule 404(b). 2
The second Huddleston factor is relevance. This factor is also easily satisfied. In addition to the 2002 arrest’s relevance to Mares’s knowledge or plan, she admitted after her 2003 arrest that the s ame people who had paid her to transport the load of marijuana in 2002 forced her to transport the 2003 load. The evidence thus tends to show Mares (1) knew marijuan a was in her gas tank in 2002, (2) made no mistake about carrying this load of illegal drugs in 2002, and (3) was party to a plan to transport the drugs in h er vehicle’s gas tank. Its similarity is obvious. 3
The third Huddleston factor requires the court to balance the probative value of the evidence against its prejudicial effec t under Fed. R. Evid. 403.-13-

Mares contends that the 2003 offense occurred too l ong after the charged offense—one year—and was too geographically distantto be of much probative value. Our cases make clear that the degree to whi ch factors such as temporal distance and geographical proximity are important t o a determination of the probative value of similar acts will necessarily de pend on the unique facts of each case’s proffered evidence. Here, the subsequent ac t is nearly identical to the prior act, and, combined with Mares’s admission about the circumstances of the subsequent conduct, allow a fact finder to draw obv ious conclusions bearing on Mares’s defense that she was duped into carrying th e drugs. The “exclusion of evidence under Rule 403 . . . is an extraordinary r emedy and should be used sparingly.” United States v. Tan , 254 F.3d 1204, 1211 (10th Cir. 2001). While the evidence was “prejudicial” to Mares in the sens e that it rebutted her theory of defense, such is the nature of evidence establishin g an element of the charged crime. The district court did not err in finding i ts probative value highly relevant and therefore admissible. The final factor in Huddleston allows the defendant to receive a limiting instruction upon request. Here, the court offered and issued a limiting instruction approved by Mares’s counsel. In sum, the district court properly found the evide nce satisfied all four Huddleston factors. The evidence was thus properly admitted under Rule 404(b).-14-

B. Sentencing Error Since United States v. Booker , 543 U.S. 220 (2005) we review sentences for reasonableness. Mares argues that the districtcourt committed two errors at her sentencing. First, she claims it erred in calc ulating the applicable guideline range by wrongfully denying her a reduction in sent ence for her minor role in the drug smuggling scheme, and improperly increasing he r sentence for obstruction of justice based on her perjury at trial. Second, she contends the 51-month sentence imposed was not reasonable in light of 18 U.S.C. § 3553(a). We reject both arguments. 1. Adjustments/Guideline Error In considering whether the district court erred in its calculation of the applicable Guideline range, we review the district court’s factual findings for clear error, United States v. Kristl , 437 F.3d 1050, 1054 (10th Cir. 2006). We review its legal conclusions regarding the applicat ion of the guidelines de novo

. Id. Minor Participant. The district court found that Mares was not entitle d to a two-level downward departure as a minor participantin the drug conspiracy. The minor participant adjustment is available for: a defendant who is convicted of a drug trafficking offense, whose role in that offense was limited to transporting or stor ing drugs and who is accountable . . . only for the quantity of drugs th e defendant personally transported or stored.-15-

USSG § 3B1.1, cmt. n. 3(A). According to Mares, sh e was only a low-level courier and did not play a major role in the drug r ing; therefore, she should have received the adjustment. The district court found to the contrary: [T]he distance is greater than the other cases in w hich I give minor participation [to a defendant on the basis of servi ng as a mere “mule” in a drug-trafficking scheme]. If they’re simply bringi ng it across the border and delivering it not further than Las Cruces, for example, to my mind, they’re doing a very short turn-around trip for whi ch they’re usually not paid very much . . . . In this instance you have t he fact of the defendant bringing along a friend and two children. . . . I do think in this instance there is more planning than is normal, and for thatreason I don’t think that minor participation is appropriate. (R. Vol. III at 15–16.) When combined with the evi dence that she had been “hired” for the 2002 drug run, the court did not er r in finding the minor participant adjustment inapplicable
. Obstruction of Justice. Mares also argues that the district court erred b y increasing her offense level by two levels for obstruction of justice. The Guidelines provide for a two-level increase if the defendant: . . . (A) willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the co urse of the investigation, prosecution, or sentencing of the in stant offense of conviction, and (B) the obstructive conduct related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense. USSG § 3C1.1.4 In order to establish that a defendant committed pe rjury, the district court

must find that (1) the defendant gave false testimo ny while under oath, (2) concerning a material matter, and (3) the false tes timony was willful and not the result of confusion, mistake or faulty memory. United States v. Chavez , 229 F.3d 946, 955 (10th Cir. 2000). The district court prop erly found all three elements. -16- The district court found that Mares had committed e xtensive perjury at trial in denying her role in the drug smuggling scheme. 4 Its conclusion rested on a number of observations gleaned from Mares’s trial t estimony. In particular, the court found that Mares was more deeply involved in the scheme than she suggested, given the many discrepancies in her test imony. For example, Mares lied at trial in a number of ways, claiming: (1) sh e did not know there was marijuana in the vehicle, (2) Alejandro Dominguez t hreatened her into carrying the 2003 load despite her initial contention that s he did not know there was anything in her gas tank, (3) she was not hired to drive the first load of marijuana, (4) she did not notice anything strange about the g as gauge on the car she was driving even though approximately eighty percent of the gas tank’s volume was occupied by marijuana, and (5) she was not party to a plan to conceal over 32 kilograms of marijuana in the car’s gas tank despit e the fact that she was arrested with marijuana hidden in her gas tank in 2003. Under the sentencing guidelines, perjury can support an enhancement for obstruction of justice. USSG § 3C1.1, cmt. n. 4(b) ; United States v. SalazarSamaniega , 361 F.3d 1271, 1275-76 (10th Cir. 2004). The jury rejected Mares’s-17-

testimony that she was unaware her car contained drugs at the time of the 2002 arrest. The district court did not err in finding she wilfully obstructed justice at her trial by committing perjury, and as such proper ly increased her guideline offense level by two. 2. Reasonableness under 18 U.S.C. § 3553(a) Mares’s last argument is that the 51-month sentence imposed is unreasonable in light of the factors set out in 18 U.S.C. § 3553(a). We have held that a sentence within a correctly calculated guide line range is entitled to a presumption of reasonableness
. Kristl , 437 F.3d at 1054. At sentencing, Mares made several blanket policy ar guments regarding the general unreasonableness of guideline sentences in drug cases, but did not articulate exactly how any one of the seven § 3553( a) factors should be applied to require a different sentence. Mares did argue thather lack of prior criminal history entitled her to the “safety valve” provisio n of 18 U.S.C. § 3553(f), reflected at USSG § 3B1.2. In arguing for a depart ure under the guidelines Mares also noted that she has two young children, one of whom has health problems, and that she herself has medical problems. We will con strue her presentation of these circumstances as an argument for an adjustment base d on her personal “history and characteristics” under § 3553(a)(1).-18-

It is apparent from the transcript of the sentenc ing proceedings that the district court considered Mares’s personal history and familial obligations when it elected to impose a guideline sentence at the very bottom of the applicable range. We will “not demand that the district court recite any magic words to show us that it fulfilled its responsibility to be mindful of th e factors that Congress has instructed it to consider.” United States v. Contreras-Martinez , 409 F.3d 1236, 1242 (10th Cir. 2005). While the district court may have been able to justify a nonguideline sentence on the basis of Mares’s perso nal history and characteristics, including her familial obligations , it was not obligated to do so. This is especially true in light of Mares’s failure to explicitly present her family’s situation in terms of § 3553(a)(1). We cannot say the district court imposed an unreasonable sentence in failing to impose a senten ce outside the applicable guideline range.
III. Conclusion For the foregoing reasons, we hold that the distric t court properly admitted evidence of Mares’s subsequent acts under Fed. R. E vid. 404(b) and imposed a reasonable sentence under 18 U.S.C. 3553(a).