Benavides

MEMORANDUM *

Denny Benavides appeals his conviction after jury trial of possession with intent to distribute, and importation, of marijuana in violation of 21 U.S.C. §§ 952 , 960, and 841(a)(1). He argues that the district court erroneously admitted evidence of prior bad acts not relevant to the charged offenses, and that the court should have dismissed the indictment because the statutes under which he was prosecuted unconstitutionally treat drug type and quantity as sentencing factors rather than elements of the offense. Because the parties are familiar with the facts, we will not repeat them in further detail. We find that the evidence was indeed admitted in error, but that the error was harmless. We affirm Benavides’ convictions.

The evidence in question is testimony at trial with regard to a report generated by the Treasury Enforcement Communication System. The evidence showed that Bena-vides’ truck had crossed the border six times in the three weeks up to Benavides’ arrest. The evidence is irrelevant under Federal Rule of Evidence 404(b), which provides in part that “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to…