NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. LUIS SANCHEZ, Defendant - Appellant. No. 13-50376 D.C. No. 3:12-cr-00552-WQH-1

MEMORANDUM *

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding Argued and Submitted December 12, 2014 Pasadena, California Before: GRABER, GOULD, and CALLAHAN, Circuit Judges. Luis Sanchez appeals his jury convi ction and sentence for one count of importing methamphetamine in violati on of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. See United States v. Sadler , 480 F.3d 932, 940 (9th Cir. 2007) (holding that Rule 4(b) of the Federal Rules of 

# FILED

JAN 12 2015 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.Appellate Procedure, unlike Rule 4(a), is a non-jurisdictional claim-processing rule subject to forfeiture). First, the district court did not plainly err when it allowed the border officer to explain why he directed Sanchez’s car to a secondary inspection lot. Evidence is relevant if “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401; see United States v. Wycoff , 545 F.2d 679, 681 (9th Cir. 1977) (concluding that evidence showi ng a criminal defendant was advised of his rights was relevant “to lay a proper foundation for the admission of any statements given” later by the defendant). Here, the border officer’s reasons for referring Sanchez’s car to the secondary inspection lot explain how the car, which moved across the border from Mexico into the United States, was searched and the methamphetamine was found. The border o fficer’s reasons for referring Sanchez’s car to another lot for further inspecti on laid a proper foundation to prove (1) importation of (2) methamphetamine, elements of the offense of conviction. See United States v. Munoz , 412 F.3d 1043, 1050 (9th Cir. 2005) (finding evidence of an inspector’s observations relevant as both circumstantial evidence of the defendant’s state of mind and evidence tending to provide the jury “context in which to assess” the defendant’s state of mind).

2Second, the district court did not plainly err by admitting Richard Thompson’s testimony about his prior drug-smuggling activities with Sanchez. See Fed. R. Evid. 404(b). There is a l ogical connection between Sanchez’s prior drug-smuggling activities with Thompson and Sanchez’s act of driving methamphetamine across the United States -Mexico border, particularly because those prior drug-smuggling activities tend to show knowledge, training, and eagerness on the part of Sanchez to learn more about drug smuggling. See United States v. Mayans , 17 F.3d 1174, 1181–82 (9th Cir. 1994) (requiring the government to prove a “logical connecti on between the knowledge gained as a result of the commission of the prior act a nd the knowledge at issue in the charged act”). The evidence of prior drug smuggli ng tends to show that Sanchez knew that he was importing methamphetamine rather than unwittingly driving it across the border. Finally, the district court’s decision not to apply a “minor role” downward adjustment to Sanchez’s base offense level at sentencing pursuant to U.S.S.G. § 3B1.2(b) was not clearly erroneous. Sanchez challenges no specific factual findings related to this decision, desp ite the provision’s Application Note that states, in relevant part, “[t]he determinati on whether to apply . . . subsection (b) . . . is based on the totality of the circumstan ces and involves a determination that is

3heavily dependent upon the facts of the particular case.” Id. cmt. n.3(C). It was his burden to show that he was substantially less culpable than a typical participant in such a drug-smuggling offense, but he submitted no evidence that his role was less than that of a typical drug smuggler. In denying a minor role adjustment, the court expressly noted the absence of ev idence to meet Sanchez’s burden; found that Sanchez was smuggling a large quantity of methamphetamine, more than five kilograms; and found evidence of Sanchez’ s active efforts to become involved in the smuggling operation. AFFIRMED.

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