United States v. Rangel-Guzman, No. 13-50059 (Kozinski, CJ, with Clifton, J, and Rakoff, DJ (SDNY)) --

The Ninth Circuit affirmed a conviction for importation of marijuana but remanded for resentencing. It rejected, on plain-error review, the defendant's claim of improper vouching when the prosecutor impeached the defendant's testimony with her own recollection of an interview she conducted with him and the case agent. But it remanded for resentencing because the district court failed to explain why the defendant did not qualify for the two-level safety-valve reduction under U.S.S.G. § 2D1.1(b)(16).

At the Otay Mesa port of entry, a drug-sniffing dog alerted to 91.4 kilograms of marijuana that were hidden in a car that the defendant was driving.  ("Good dog!", Kozinski says.)  At trial, the defendant told a story that differed from the story that he told the prosecutor and the case agent during a pretrial interview.  The prosecutor impeached the defendant's testimony by asking questions like "Didn't you tell us such-and-such during the interview?" and "Don't you remember that I was shocked when you told me thus-and-so?"  Defense counsel neglected to object to this line of impeachment.  The defendant was convicted. Although the defendant faced no mandatory minimum sentence, he asked for the two-level safety-valve reduction under U.S.S.G. § 2D1.1(b)(16), but the sentencing judge did not explain why he should not receive that reduction. 

The court of appeals affirmed the conviction, rejecting the defendant's vouching claim on plain-error review. Obviously the prosecutor was vouching, because she relied on her own independent recollection of what happened during the pretrial interview instead of calling the case agent to testify to the defendant's inconsistent statements. (This much the government conceded.)  But this error did not affect the defendant's substantial rights because there was overwhelming evidence against the defendant that he knew the marijuana was hidden in the car.  Thus his vouching claim failed.

However, the court remanded for resentencing because the sentencing judge failed to address whether the defendant was eligible for the 2-level safety-valve reduction under U.S.S.G. § 2D1.1(b)(16).  The government asked the judge to increase the defendant's offense level under U.S.S.G. § 3C1.1 for obstruction of justice, arguing that the defendant's trial testimony was perjured.  The district court denied that sentencing enhancement.  On appeal, the government argued that denying the obstruction-of-justice enhancement implicitly denied the safety-valve, because the sentencing judge must have also concluded that the defendant did not meet the safety valve's truthful-disclosure requirement.  The Ninth Circuit held that these two findings are not the same, and sent the case back for resentencing to allow the sentencing judge to make that finding in the first instance.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/05/28/12-10196.pdf