FILED
NOT FOR PUBLICATION JUN 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10489
Plaintiff - Appellee, D.C. No. 4:08-cr-00878-JMR-
JCG-8
v.
MIGUEL E. MARTINEZ, AKA Indio, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
John M. Roll, District Judge, Presiding
Submitted June 12, 2012**
San Francisco, California
Before: D.W. NELSON, RAWLINSON, and IKUTA, Circuit Judges.
The district court did not plainly err in denying Martinez’s motion for a new
trial because the prosecutor’s statements in closing argument did not constitute
impermissible vouching: they neither bolstered the credibility of a government
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
witness nor suggested that there was additional evidence the jury was not being
shown. See United States v. Hermanek, 289 F.3d 1076, 1098 (9th Cir. 2002). The
prosecutor’s “we know” statements did not depict the prosecutor as part of the
investigatory team but rather were a rhetorical device used to summarize the
evidence and describe permissible inferences. See id. Moreover, given the
overwhelming evidence of guilt, there is no reason to think that these claimed
improprieties “seriously affected the fairness, integrity, or public reputation of
judicial proceedings, or . . . would result in a miscarriage of justice.” United States
v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002) (quoting United States v. Tanh Huu
Lam, 251 F.3d 852, 861 (9th Cir. 2001)) (internal quotation marks omitted).
The district court did not clearly err in determining that Martinez was
responsible for more than 10,000 kilograms of marijuana. Assuming that the
relevant drug quantity had to be proved by clear and convincing evidence, see
United States v. Lynch, 437 F.3d 902, 916 (9th Cir. 2006), the government met its
burden providing, among other things, the testimony of Martinez’s co-conspirators,
given under oath and pursuant to a plea agreement, see United States v. Alvarez,
358 F.3d 1194, 1213 (9th Cir. 2004), that Martinez was the primary supplier of an
operation that transported approximately that amount of marijuana over a six-year
period. See United States v. Culps, 300 F.3d 1069, 1076 (9th Cir. 2002).
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Moreover, any error in approximation was harmless because a calculation error had
mistakenly given Martinez a base offense level of 40 instead of 43; even if we
were to hold that the evidence did not support 10,000 kg of marijuana, on remand
the properly calculated base offense level would be no lower than 41. See United
States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010).
The district court did not clearly err in applying a sentencing enhancement
for possession of a firearm during the commission of a drug offense. The district
court could find by a preponderance of the evidence that the firearm with a unique
canister discovered at Martinez’s home was the same firearm used in connection
with the conspiracy. Moreover, the record established that Martinez had
supervisory responsibility over the armed individuals protecting his drug loads,
and thus had constructive possession of those firearms. See United States v.
Cazares, 121 F.3d 1241, 1245 (9th Cir. 1997).
Finally, the district court did not clearly err in applying an enhancement for
reckless endangerment based on the high-speed car chase. Even assuming that a
nexus is required between the reckless endangerment and the crime of conviction,
see United States v. Duran, 37 F.3d 557, 559–60 (9th Cir. 1994), abrogated on
other grounds by Tapia v. United States, 131 S. Ct. 2382 (2011), the evidence was
overwhelming that Martinez’s flight in the Dodge Ram was connected to his role
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in the drug conspiracy because he was fleeing with a shoe box containing
thousands of dollars in drug proceeds.
AFFIRMED.
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