### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50606

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. SERGIO TOSTADO, also known as Sergio Tostado-Becerra, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 4:12-CR-31-1

Before JONES, WIENER, and GRAVES, Circuit Judges. PER CURIAM: * Defendant-Appellant Sergio Tostado was charged by ind i c tment with

a i d i ng and abetting the p ossession with the intent to distribute l ess than 5 0 kilograms of m arijuana. That indictment accused Tostado o f knowingly transporting marijuana through a border checkpoint in Alpine, Texas. Tostado proceeded to trial on the issue of intent, insisting that he had driven the load of dr u g s i n his capacity as a confidential informant (CI) for the government and that he never intended to distribute the dru g s . A j u ry convicted Tostado, and U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Decem ber 5, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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the district court sentenced him to 41 months of imprisonment and a three-year term of supervised release. In his first issue on a ppeal, Tostado contends that the district court erred in admitting expert-opinion t estimony from Wade Sparks, a special agent with the Drug Enforcement Administration ( DEA), arguing that the t estimony was impermissible profile evidence. A profile i s “ a compilation of characteristics that aid l aw enforcement officials in identifying persons who migh t b e ” involved in a particular type of enterprise. United States v. Sanchez-Hernandez , 507 F.3d 826, 8 31 (5th Cir. 2007) (internal quotation marks and citation omitted). In drug trafficking cases, “ qual i fied narcotics a gent[s] typically may testify about the significance of certain conduct or m ethods o f operation unique t o t h e drug business so long as the testimony is helpful and its relevance is not substantially outweighed by the possibility of u nfair p rejudice or confusion.” U nited States v. Gonzalez-Rodriguez , 621 F.3d 354, 3 6 3 ( 5th Cir. 2010). Testimony offered for the
purpose of proving the defendant’s guilt by comparing him to a generic profile, however, is p u re profile evidence, which is inadmissible u nder Federal Rule of Evidence 702. United States v. Montes-Salas , 669 F .3d 240, 248 (5th C ir. 2012); Sanchez-Hernandez , 507 F.3d at 833. The testimony T ostado challenges is the agent’s r eply to the p rosecutor’s questions regarding what would happen to him if, as a DEA agent, he should try to transport a load of d r u g s t h r o ugh a checkpoint without prior approval, as Tostado had done. Agent Sparks answered: If I did that on m y own as Mr. Tostado did, I would b e p l a c e d in second a r y j ust as he was. My car would b e searched as he w as. I would hope I would be thrown in a c ell as h e was. And I w ould be sitting at the same table at trial as he is. Tostado asser t s that Sparks’s t estimony was impermissible profile evidence because it indicated that a “good” CI f ollows the instructions o f his handler and that the jury s hould c onvict him regardless of his a ctual intent because h e did not follow his handler’s instructions. Tostado thus contends that the t estimony
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constituted an expert opinion on the ultimate i ssue of intent, in vio l a t i o n of Federal Rule of Evidence 7 04. See Fed. R. Evid. 704(b) (“In a criminal case, an expert witness m ust not state an opinion about whether the d efendant did or did not have a m ental s tate or condition that constit u t e s a n element of the crime charged or of a defense. Those matters a r e f o r t h e trier of fact alone.”). The untoward effect of the t estimony was a mplified, he contends, when the prosecutor reiterated it during closing argument. We review the district court’s decision to a dmit testimony for an abuse of discretion, and such a decision is subject t o a harmless error analysis

. U n i t e d States v. Setser , 568 F.3d 482, 494 (5th Cir. 2 009). We disagree with Tostado’s characterization of Sp ark s ’ s t e s timony as suggesting that the j ury should convict regardless of T ostado’s a ctual intent in bringing th e drugs through the checkpoint. We note, additionally, that this testimony w as given on the heels of Sparks’s explanation of the planning, coordination, and multiple levels of prior approval that one required by the DEA for a government a ctor t o bring a load of drugs through a bo r der checkpoint. “ [B]ecause the ‘overall context’ of the [challenged] testimony establishes that the statements were p art of the agent’s ‘legitimate background testimo n y’ about how” an undercover operation works, it did not cross the “fine but critical line” i nto the impermissible territory of pure profile evidence. See Montes-Salas , 669 F.3d at 250 (internal quotation marks

a n d c i t ation omitted). Further, to the e xtent that Sparks’s testimony is considered profile evidence, it was permissible because it was “used to rebut the defendant’s innocent explanation for his behavior.” See id. at 248. We conclude that the district c o u r t did not abuse its discretion in admitting the challenged testimony. See Setser , 568 F.3d at 494. In his second issue, Tostado challenges the district court’s a pplication at sentencing of a two-level adjustment, u nder U.S.S.G. § 3C1.1, for obstruction of justice. In particular, he challenges the ruling that he committed perjury.

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The district court conclu d e d that Tostado’s trial testimony that he was bringing the drugs through the checkpoint in h i s c a p a c ity a s a CI and that he had n o intent of distributing the drugs w as f al s e . T h at factual finding is one that we review for clear error. See United States v. Juarez-Duarte , 513 F.3d 204, 208 ( 5th Cir. 2008). T ostado testified t h a t , from the instructions he received when he was signed up as a CI, h e u n d e r s tood that h e could n ot possess contraband without the prior knowledge and c onsent of his controlling agent, and that he could not take any independent action on behalf of the government. In light of the record, the district court’s f inding of perjury is plausible and is not clearly erroneous. See id. T ostado thus has not shown that t h e d i s t r i c t court erred i n applying the § 3C1.1 adjustment. See § 3 C1.1 & comment nn.2 & 4(B); United States v. Dunnigan , 507 U.S. 87, 94-96 (1993). AFFIRMED.

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