                                                                           FILED
                              NOT FOR PUBLICATION                            JUL 17 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               )     No. 12-10222
                                        )
      Plaintiff – Appellee,             )     D.C. No. 4:11-cr-03035-JGZ-HCE-1
                                        )
      v.                                )     MEMORANDUM*
                                        )
TIFFANY NICOLE WILSON,                  )
                                        )
      Defendant – Appellant.            )
                                        )

                    Appeal from the United States District Court
                             for the District of Arizona
                    Jennifer G. Zipps, District Judge, Presiding

                               Submitted July 8, 2013**
                               San Francisco, California

Before:      FERNANDEZ, PAEZ, and BERZON, Circuit Judges.

      Tiffany Nicole Wilson appeals her conviction and sentence for possession of

marijuana for sale. See 21 U.S.C. § 841(a)(1), (b)(1)(C). We affirm.

      (1)    Wilson first argues that the district court erred when it excluded the

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
out of court statement of Joel Fuentes. We disagree. The statement was hearsay,1

and was not admissible as an exception for statements against interest,2 or pursuant

to the residual exception.3 It was neither of an inculpatory nature4 nor reliable.5

Nor was any exceptional circumstance shown. See United States v. Bonds, 608

F.3d 495, 500–01 (9th Cir. 2010).

       (2)      Wilson next claims that the district court erred when it excluded the

testimony of Rebecca Molina. However, the district court did not abuse its

discretion6 when it determined that the evidence of a wholly separate and

dissimilar transport of marijuana was not relevant7 and, in effect, was unduly

prejudicial.8

       1
           See Fed. R. Evid. 801.
       2
           See Fed. R. Evid. 804(b)(3).
       3
           See Fed. R. Evid. 807(a).
       4
       See United States v. Shryock, 342 F.3d 948, 981 (9th Cir. 2003); see also
Williamson v. United States, 512 U.S. 594, 603–04, 114 S. Ct. 2431, 2437, 129 L.
Ed. 2d 476 (1994).
       5
       See Shryock, 342 F.3d at 982; see also Lilly v. Virginia, 527 U.S. 116, 131,
119 S. Ct. 1887, 1897, 144 L. Ed. 2d 117 (1999).
       6
           See United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir. 2004).
       7
           See Fed. R. Evid. 401.
       8
           See Fed. R. Evid. 403; United States v. Wiggan, 700 F.3d 1204, 1213 (9th
                                                                        (continued...)

                                             2
      (3)      Wilson then asserts that the district court erred when it admitted

expert testimony regarding the use of unknowing drug couriers. We do not agree.

The district court was not required to conduct a pretrial qualification hearing,9 and

the expert’s background and expertise were thoroughly supported by the evidence

developed at trial.10 Moreover, admitting testimony regarding the use (or, rather,

nonuse) of unknowing drug couriers was proper in this case. See United States v.

Sepulveda-Barraza, 645 F.3d 1066, 1072 (9th Cir. 2011); United States v. Murillo,

255 F.3d 1169, 1177–78 (9th Cir. 2001), overruled on other grounds as recognized

in United States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007).

      (4)      Wilson also claims that the district court erred when it did not give her

proffered, and argumentative, instruction on knowledge. However, the instructions

given by the district court made it plain that the prosecution had to prove

knowledge,11 and the court was not required to instruct in the language desired by



      8
       (...continued)
Cir. 2012).
      9
          See United States v. Alatorre, 222 F.3d 1098, 1103–04 (9th Cir. 2000).
      10
        See United States v. Hankey, 203 F.3d 1160, 1168–70 (9th Cir. 2000); see
also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141–42, 119 S. Ct. 1167, 1171,
143 L. Ed. 2d 238 (1999).
      11
           See United States v. Romm, 455 F.3d 990, 1002 (9th Cir. 2006).

                                            3
Wilson;12 she could argue her lack of knowledge to the jury, which was not

subjected to misleading or inadequate instructions regarding knowledge.13 The

district court did not err.

       (5)      Finally, Wilson asserts that her sentence must be set aside because the

district court procedurally erred and the sentence was substantively unreasonable.

Not so. The record shows that the district court adequately considered the 18

U.S.C. § 3553(a) factors, and sufficiently explained the sentence. See United

States v. Rangel, 697 F.3d 795, 806 (9th Cir. 2012); United States v. Carty, 520

F.3d 984, 992 (9th Cir. 2008) (en banc). Moreover, we will not consider Wilson’s

claim that the district court should have considered her “aberrant behavior”14

departure assertion when it calculated her guideline range. That is a matter that is

encompassed in the substantive reasonableness alchemy because it can be treated

as a reason for a variance.15 In fact, in this case, the district court expressly treated


       12
      See United States v. Thomas, 612 F.3d 1107, 1122 n.7 (9th Cir. 2010);
Romm, 455 F.3d at 1002.
       13
            See United States v. Orozco-Acosta, 607 F.3d 1156, 1164–65 (9th Cir.
2010).
       14
        See USSG §5K2.20. All references to the guidelines in this disposition are
to the November 1, 2011, version.
       15
        See United States v. Ellis, 641 F.3d 411, 421–22 (9th Cir. 2011); United
States v. Dallman, 533 F.3d 755, 761 (9th Cir. 2008); United States v. Mohamed,
459 F.3d 979, 986–87 (9th Cir. 2006).

                                            4
the aberrant behavior assertion as a variance consideration.

         Nor can we say that the sentence was substantively unreasonable. The

guideline range for her offense was from fifty-one to sixty-three months,16 but the

district court fixed her sentence at thirty-six months. In so doing, the district court

sufficiently explained its decision,17 and on the record before us we cannot say that

the below guideline range sentence was unreasonable.18

         AFFIRMED.




         16
              See USSG §2D1.1(a)(5), (c)(8); see also USSG Ch. 5, Pt. A, sentencing
table.
         17
        See United States v. Petri, __ F.3d __, __, No. 11-30337, 2013 WL
1490604, at *7–8 (9th Cir. Apr. 12, 2013); Carty, 520 F.3d at 992–93; United
States v. Maciel-Vasquez, 458 F.3d 994, 995 (9th Cir. 2006).
         18
        See United States v. Oseguera-Madrigal, 700 F.3d 1196, 1200 (9th Cir.
2012); United States v. Espinoza-Baza, 647 F.3d 1182, 1195 (9th Cir. 2011);
Carty, 520 F.3d at 994 (guideline sentences “‘will usually be reasonable’”).

                                              5
