                           NOT FOR PUBLICATION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




                                          2
conduct at sentencing does not violate the Constitution.” 474 F.3d 654, 657 (9th

Cir. 2007).

      AFFIRMED.




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