United States v. Manuel Jimenez-Sanchez

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NOT FOR PUBLICATION FEB 27 2012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-

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…

Concurring:

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.

MEMORANDUM *

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 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. 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…