UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-50069

Plaintiff-Appellee, D.C. No. v. 3:19-cr-04034- TWR-1 JOSE PABLO JIMENEZ-CHAIDEZ,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding

Argued and Submitted July 19, 2023 Pasadena, California

Filed March 25, 2024

Before: Jacqueline H. Nguyen and Danielle J. Forrest, Circuit Judges, and Richard D. Bennett, * District Judge.

Opinion by Judge Forrest; Partial Dissent by Judge Bennett

* The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. 2 USA V. JIMENEZ-CHAIDEZ

SUMMARY **

Criminal Law

The panel affirmed Jose Jimenez-Chaidez’s jury conviction for knowingly importing cocaine and methamphetamine, vacated his sentence, and remanded for resentencing. The panel held that the district court properly admitted evidence of Jimenez’s prior drug transports. The panel concluded that this prior-act evidence was admitted for the proper purpose of showing knowledge and intent under Federal Rule of Evidence 404(b)(2), and the evidence was not unduly prejudicial under Rule 403. The panel held that the district court did not abuse its discretion in allowing an FBI agent to testify about the extraction of data from a cellphone as a lay witness rather than an expert witness because the agent’s testimony did not require specialized knowledge. The panel held that the district court erred by not making an explicit reliability finding related to an expert’s testimony about the value of the drugs found in Jimenez’s vehicle when he was arrested, but this error was harmless. The panel vacated Jimenez’s sentence and remanded for resentencing in line with recent authority clarifying the process for conducting a mitigating role inquiry under U.S.S.G. § 3B1.2.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. JIMENEZ-CHAIDEZ 3

District Judge Bennett concurred with the majority with respect to its holdings that the prior-acts evidence was properly admitted, that any error as to drug value was harmless, and that the case must be remanded for resentencing. Dissenting in part, Judge Bennett would hold that the district court abused its discretion in treating the testimony regarding cellphone data as lay testimony because this testimony was clearly expert testimony within the ambit of Federal Rule of Evidence 702.

COUNSEL Jessica Agatstein (argued), Elana R. Fogel, and Sara M. Peloquin, Assistant Federal Public Defenders, Federal Defenders of San Diego, San Diego, California, for Defendant-Appellant. Daniel E. Zipp (argued), Assistant United States Attorney, Appellate Section Chief, Criminal Division; Derek Ko, Assistant United States Attorney; Deborah E. Bercovitch, Special Assistant United States Attorney; Randy S. Grossman, United States Attorney; United States Department of Justice, United States Attorney’s Office, San Diego, California; for Plaintiff-Appellee. 4 USA V. JIMENEZ-CHAIDEZ

OPINION FORREST, Circuit Judge:

Jose Jimenez-Chaidez drove large amounts of methamphetamine and cocaine into the United States from Mexico. He appeals his drug importation conviction and resulting sentence, arguing that the district court (1) admitted improper propensity evidence, (2) erroneously all