Tolentino

MEMORANDUM **

Defendant Edgar Tolentino timely appeals his convictions for importing marijuana and for possession of marijuana with intent to distribute it, in violation of 21 U.S.C. §§ 841 , 952, and 960.

1. Defendant first argues that he was improperly denied discovery regarding the qualifications of a drug-detector dog and that border agents relied improperly on the dog’s alert to find reasonable suspicion to search the gas tank of his vehicle. That argument is foreclosed by United States v. Flores-Montano, — U.S. -, 124 S.Ct. 1582 , 158 L.Ed.2d 311 (2004), which held that no suspicion is required for a border search of a gas tank.

2. The district court did not err in deriving the base offense level, by finding that the weight of the marijuana was more than 40 kilograms. There was evidence that the gross weight of the marijuana was 48.64 kilograms, that the packaging was plastic shrink-wrap, that there were 44 packages, and that one of the packages weighed about one kilogram. Moreover, when the court suggested that the packaging weighed about 10 percent of the total, defense counsel suggested that the packaging might weigh up to 17 percent of the total, which still left more…