NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 19 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-10204
Plaintiff - Appellee, D.C. No. 2:09-cr-00824-SRB-3
v.
MEMORANDUM*
NICOLAS AGUILAR-MONTOYA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted October 12, 2011
San Francisco, California
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Nicolas Aguilar-Montoya was convicted for possession of marijuana with
intent to distribute and conspiracy to do the same, and was sentenced to 42 months’
imprisonment. He appeals his conviction and sentence. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Aguilar-Montoya contends, first, that he is entitled to a new trial because the
prosecutor made statements in his closing arguments that improperly injected his
personal opinions into the trial. Because Aguilar-Montoya failed to object at trial
to any of the prosecutor’s statements, we review for plain error. United States v.
Washington, 462 F.3d 1124, 1136 (9th Cir. 2006). We conclude that the
prosecutor did not engage in misconduct: his repeated use of phrases such as “of
course” and “right” did not convey to the jury that his arguments were intended “as
personal assurances.” United States v. Weatherspoon, 410 F.3d 1142, 1147 n.3
(9th Cir. 2005). Instead, the statements of which Aguilar-Montoya complains were
“phrased in such a manner that it [was] clear to the jury that the prosecutor [was]
summarizing evidence rather than inserting personal knowledge and opinion into
the case.” United States v. Hermanek, 289 F.3d 1076, 1098 (9th Cir. 2002).
Aguilar-Montoya also claims that the district court deprived him of his Sixth
Amendment right to a jury trial when it calculated the applicable Guidelines
sentencing range using 139 kilograms as the amount of marijuana involved in
Aguilar-Montoya’s offenses, even though the jury had declined to find that more
than 50 kilograms was involved. As he concedes, however, his claim is foreclosed
by our decision in United States v. Mercado, which held that “the use of acquitted
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conduct at sentencing does not violate the Constitution.” 474 F.3d 654, 657 (9th
Cir. 2007).
AFFIRMED.
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