United States v. Alvaro Plancarte-Alvarez, United States of America v. Alvaro Plancarte-Alvarez

A jury convicted Alvaro Plancarte-Al-varez of importing marijuana in violation of 21 U.S.C. §§ 952 and 960, and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841 (a)(1). The convictions were grounded in events that occurred on May 28, 2002. Plan-carte-Alvarez challenges the convictions, contending that the district court erroneously admitted evidence regarding a prior marijuana smuggling incident in violation of Federal Rules of Evidence 404(b) and 403. On cross-appeal, the government challenges Plancarte-Alvarez’s sentence, arguing that the district court should have included the weight of the marijuana involved in the prior incident in determining the base offense level for the offenses of conviction. Plancarte-Alvarez moves to dismiss the cross-appeal, contending it is moot because he has been deported and is unavailable for resen-tencing. See Fed.R.Crim.P. 43(a).

We affirm Plancarte-Alvarez’s convictions. We deny his motion to dismiss the government’s cross-appeal, and we affirm his sentence but do so without prejudice to the government, so that it may move to vacate the sentence and have Plancarte-Alvarez resentenced in the event that he…