Gamino

MEMORANDUM *

Ramon Gamino appeals his convictions after a jury trial for importation of marijuana in violation of 21 U.S.C. §§ 952 , 960 and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841 (a)(1). His principal contention on appeal is that the district court erred in admitting testimony about Treasury Enforcement Communication Systems (“TECS”) records that showed his truck had crossed the border on six prior occasions. We hold the district court did not err in admitting the testimony.

Gamino contends the district court abused its discretion in admitting the evidence because the Government had not provided sufficient notice pursuant to Fed. R. Evid 404(b). See United States v. Vega, 188 F.3d 1150, 1154 (9th Cir.1999). At the September 2 motion in limine hearing, Gamino moved to exclude the TECS records due to lack of notice. The district court ruled that Gamino could renew the motion later if the records were not received. On September 10, the Friday before trial began, Gamino received the TECS records. On Monday, September 18, just before trial began, Gamino again moved to exclude the TECS records. The district court ruled that due to lack of…

concurring.

I concur in the court’s disposition. I write separately to note only that Gamino’s decision at sentencing to maintain his innocence—and therefore deny knowledge of the drugs—did not in and of itself preclude the district court from applying the two-level reduction under USSG § 5C1.2(a). See United States v. Sherpa, 110 F.3d 656, 660-61 (9th Cir.1996). I agree that given the evidence of Gamino’s guilt, the district court did not err in finding him ineligible for a safety valve adjustment. See id.