                             NOT FOR PUBLICATION                         FILED
                      UNITED STATES COURT OF APPEALS                      MAR 6 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT



    UNITED STATES OF AMERICA,                     No.    13-10002

                       Plaintiff-Appellee,        D.C. No. 2:10-cr-00708-FJM-3

     v.                                           MEMORANDUM*

    FRANCISCO MONTES-VARGAS,

                       Defendant-Appellant.

                    Appeal from the United States District Court
                              for the District of Arizona
                    Frederick J. Martone, District Judge, Presiding

                       Argued and Submitted February 13, 2017
                              San Francisco, California

Before: CANBY, SILER**, and HURWITZ, Circuit Judges.

          Francisco Montes-Vargas appeals his conviction and sentence on two drug

charges.      We affirm the conviction, but vacate the sentence and remand for

resentencing.



*
      This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
      The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for the
Sixth Circuit, sitting by designation.
      1.     We review Montes-Vargas’s objections to Agent Nack’s testimony for

plain error because Montes-Vargas failed to object to any of the challenged

testimony below. United States v. Lopez-Martinez, 543 F.3d 509, 514 n.2 (9th Cir.

2008) (citing United States v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996)).

      2.     Assuming without deciding that an error occurred, Montes-Vargas

cannot prove that it “seriously affect[ed] the fairness, integrity, or public reputation

of [the] judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631 (2002).

Montes-Vargas’s defense was based solely on the identity of the drug dealer

“Pastas.” Agent Nack’s testimony interpreting telephone conversations between

Montes-Vargas and his wife did not provide evidence that Montes-Vargas was

indeed “Pastas.” Montes-Vargas’s mistaken-identity defense was countered through

eyewitness identification testimony of two surveillance agents, voice identification

made by two other witnesses, and Montes-Vargas’s statements during jail calls. See,

e.g., United States v. Freeman, 498 F.3d 893, 905–06 (9th Cir. 2007) (holding any

error harmless because the agent’s testimony was adequately corroborated by other

trial evidence).

      3.     An instruction explaining Agent Nack’s dual role as both an expert and

a lay witness was not required because there was a clear demarcation between the

testimonies. See Freeman, 498 F.3d at 904 (“demarcation between lay and expert

testimony” may “be revealed through direct or cross examination”).

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       4.     The Government admits that the Presentence Investigation Report

incorrectly attributed 30 pounds of methamphetamine to Montes-Vargas when the

parties stipulated to 24.5 pounds, which caused the district court to calculate a higher

Guidelines range than it would have with the correct information. This “mistake in

calculating the recommended Guidelines sentencing range is a significant procedural

error that requires us to remand for resentencing.”           United States v. Munoz-

Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011); see also Molina-Martinez v. United

States, 136 S. Ct. 1338, 1345 (2016) (“When a defendant is sentenced under an

incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls

within the correct range—the error itself can, and most often will, be sufficient to

show a reasonable probability of a different outcome absent the error.”). We remand

on an open record, and decline to consider in the first instance whether the district

court should consider the drugs recovered in a January 2010 seizure in resentencing

Montes-Vargas. See Williams v. United States, 503 U.S. 193, 205 (1992) (“[I]t is

the prerogative of the district court, not the court of appeals, to determine, in the first

instance, the sentence that should be imposed in light of certain factors properly

considered under the Guidelines.”).

       CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED
       FOR RESENTENCING.




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