Tolentino

MEMORANDUM **

Defendant Edgar Tolentino appealed 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. We affirmed Defendant’s conviction and sentence in a memorandum disposition. United States v. Tolentino, 98 Fed. Appx. 694 , 2004 WL 1178714 (9th Cir.2004) (unpublished disposition). The Supreme Court vacated that disposition and remanded to this court in light of United States v. Booker, — U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). Tolentino v. United States, — U.S. -, 125 S.Ct. 996 , 160 L.Ed.2d 1030 (2005). We affirm Defendant’s conviction, but remand the sentence to the district court.

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, 541 U.S. 149 , 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 allowing expert…