Perez-Diaz

MEMORANDUM *

Defendant Ramon Perez-Diaz appeals his jury conviction for importation of, and possession with intent to distribute, methamphetamine, in violation of 21 U.S.C. §§ 841 (a)(1), 952, and 960, and his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm Perez-Diaz’s conviction, vacate his sentence, and remand for re-sentencing.

The district court properly admitted the methamphetamine. Perez-Diaz failed to demonstrate that the search at the border in which the Inspector discovered the methamphetamine resulted in any damage to, or destruction of, his truck. 1 In addition, the district court was well within its discretion in refusing to give the proposed “theory of defense” jury instruction in its entirety. 2 The second sentence of the instruction proposed by the defense was argumentative and assumed the existence of Julio and his alleged role, issues about *718 which questions of fact existed. 3 The first sentence of the proposed instruction, which the judge adopted, adequately covered Perez-Diaz’s theory of defense — that he unknowingly transported methamphetamine in his truck.

Regarding Perez-Diaz’s sentencing, the district court correctly denied…