Opinion
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant and codefendant appealed from convictions and sentences imposed by the United States District Court for the Southern District of California, Rudi M. Brewster, District Judge, for conspiracy to import heroin, aiding and abetting importation of heroin, conspiracy to distribute heroin, and aiding and abetting possession of heroin with intent to distribute. The Court of Appeals held that Assistant United States Attorney's (AUSA) calling defendant a liar during closing arguments did not constitute plain error because the AUSA's statement was based upon reasonable inferences from the evidence, rather than personal opinion.
Affirmed in part; vacated and remanded in part. Appeals from the United States District Court for the Southern District of California, Rudi M. Brewster, District Judge, Presiding.
Before RYMER and RAWLINSON, Circuit Judges, and RESTANI, Judge.
Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Francisco Mena-Flores appeals his sentence, and Adrian Arellano-Zavala appeals his conviction and sentence for conspiracy to import heroin, aiding and abetting importation of heroin, conspiracy to distribute heroin, and aiding and abetting possession of heroin with intent to distribute. Mena-Flores was sentenced to 136 months imprisonment, and Arellano-Zavala was sentenced to 120 months imprisonment. We have jurisdiction, 18 U.S.C. § 3742, 28 U.S. C.§ 1291, and affirm in part and vacate and remand in part.
I
Mena-Flores argues that his sentence of 136 months imprisonment runs afoul of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and United States v. Nordby, 225 F.3d 1053 (9th Cir.2000). However, neither applies here, as Mena-Flores was sentenced below the statutory maximum for any quantity of heroin (20 years). See 21 U.S.C. § 841(b)(1)(C); United States v. Garcia-Sanchez, 238 F.3d 1200, 1201 (9th Cir.2001).
II
Arellano-Zavala asserts that the AUSA's calling him a liar during closing arguments was prosecutorial misconduct. However, there was no plain error because the AUSA's statement was based upon reasonable inferences from the evidence rather than personal opinion. See United States v. Cabrera, 201 F.3d 1243, 1250 (9th Cir.2000); United States v. Nash, 115 F.3d 1431, 1439 (9th Cir.1997) (holding that "[t]he prosecutor's statement that Nash lied during his testimony is also a proper basis for government argument"); United States v. Molina, 934 F.2d 1440, 1445 (9th
Page 983.
Cir.1991) ("In a case that essentially reduces to which of two conflicting stories is true, it may be reasonable to infer, and hence to argue, that one of the two sides is lying.").
III
Arellano-Zavala argues that the government introduced insufficient evidence to overcome his entrapment defense. We "should not disturb the jury's finding unless, viewing the evidence in the light most favorable to the government, no reasonable jury could have concluded that the government had disproved either of the elements of the entrapment defense." United States v. Jones, 231 F.3d 508, 516 (9th Cir.2000). Santiago's response about Arellano-Zavala's "reluctance" was explained and his credibility (as well as Arellano-Zavala's) was resolved by the jury in the government's favor. Beyond this, Arellano-Zavalla talked about drugs and prices during his first conversation with Santiago, told him he had acquaintances who could provide drugs, and seemed eager to make money. This suffices to show that he was not induced by government agents but was in fact predisposed to distribute heroin.
IV
The government cross-appeals Arellano-Zavala's sentence, seeking remand because the district court granted a three-level downward departure for acceptance of responsibility and refused a two-level enhancement for obstruction of justice. We cannot find an explanation for these decisions in the record, and it is difficult for us to reconcile them given the district court's indication that Arellano-Zavala perjured himself and, after having taken his case to trial, only admitted to involvement without apparently accepting responsibility for his conduct. As the commentary suggests, taking a case to trial and committing perjury both appear inconsistent with acceptance of responsibility. See USSG § 3E1.1 comment. (nn.2 & 4). Similarly, perjury may constitute an obstruction of justice where the testimony is (1) false, (2) on a material matter, and (3) done with willful intent. See United States v. Ancheta, 38 F.3d 1114, 1118 (9th Cir.1994) (citing United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993)); USSG § 3C1.1 comment. (n. 4(b)). Therefore, we remand so that the district court may determine whether Arellano-Zavala obstructed justice, making a two-level increase mandatory, or accepted responsibility.
Except for these two adjustments for acceptance of responsibility and obstruction of justice, the sentence is not at issue and need not be revisited on remand. We vacate the sentence only insofar as it pertains to these two adjustments, and remand only for a determination with respect to whether Arellano-Zavala obstructed justice or accepted responsibility. If the court finds that he did accept responsibility, it should also determine by which level his offense level should be decreased.
AFFIRMED in part; VACATED and REMANDED in part.