                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 14-4370


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

ALEJANDRO GARCIA-LAGUNAS, a/k/a Alex Fuentes,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:12−cr−00376−F−1)


Argued:   September 17, 2015              Decided:    February 19, 2016


Before DUNCAN    and   DIAZ,   Circuit   Judges,     and   DAVIS,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
opinion.  Judge Diaz wrote the opinion, in which Judge Duncan
joined. Senior Judge Davis wrote a dissenting opinion.


ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North
Carolina, for Appellant.     Kristine L. Fritz, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
DIAZ, Circuit Judge:

      A jury convicted Alejandro Garcia-Lagunas of conspiracy to

distribute       cocaine      and    possess        with    intent     to     distribute

cocaine,    in    violation     of   21   U.S.C.       §§ 841(a),      846.      He    was

sentenced    to    188     months’     imprisonment.           On    appeal,     Garcia-

Lagunas challenges his conviction, arguing that he was deprived

of a fair trial because of several evidentiary errors, including

the   introduction       of    ethnically       charged       evidence.         He    also

challenges his sentence on several grounds, including that the

district court miscalculated the U.S. Sentencing Guidelines (the

“Guidelines”) range.            For the reasons that follow, we affirm

Garcia-Lagunas’s conviction, vacate his sentence, and remand for

resentencing.



                                          I.

      “On appeal from a criminal conviction, we recite the facts

in the light most favorable to the government.”                            United States

v. Washington, 743 F.3d 938, 940 (4th Cir. 2014).

                                          A.

      On    March     27,      2012,      Ronnie       Reed     was        arrested     in

Fayetteville,       North      Carolina        on    federal        drug     trafficking

charges.     Reed told the law enforcement officers that he had a

“Mexican drug supplier” named “Alex.”                      J.A. 92.        Reed led the

officers to three trailers in Robeson County—at 33 Sonoma, 47

                                           3
Sonoma, and 294 Maple Leaf—where he said he had purchased drugs

from “Alex.”        Reed also gave the officers four telephone numbers

that he had previously used to contact “Alex.”

       The   next    day,     the    police       simultaneously        executed    search

warrants     on   the    three      trailers.           The   officers    found    Garcia-

Lagunas’s parents at 33 Sonoma and ten kilogram wrappers buried

in a lean-to shed behind the trailer at 47 Sonoma.                         At 294 Maple

Leaf, officers followed a vehicle that left that location to a

trailer at 353 Westcott.                Detective Kurt Stein observed Marco

Hernandez     exit      the   353    Westcott       trailer      from    the   back,    and

Detective Pedro Orellano and Sergeant Gregory Johnson approached

him.    Orellano confirmed that Hernandez lived at the trailer and

obtained his consent to search it.

       The officers found Garcia-Lagunas and Brian Jacobs inside

the trailer.        Garcia-Lagunas had white powder under his nose and

appeared “impaired” to Detective Orellano.                        J.A. 248.        Garcia-

Lagunas      identified       himself    to       the    officers   as    Alex.        Both

Garcia-Lagunas and Jacobs told the officers that they did not

live in the trailer.            After Sergeant Johnson asked him to empty

his pockets, Garcia-Lagunas produced $600 cash and a cell phone.

When Detective Stein dialed one of the phone numbers Reed had

given the police for “Alex,” Garcia-Lagunas’s phone rang.                            Later

analysis of the phone’s records connected it to several known

drug dealers.

                                              4
       The officers searched the trailer.                      In the kitchen, they

found a handgun and several small baggies about one inch by one

inch in size.        In one bedroom, the officers found body armor; a

large digital scale; a small digital scale; a black plastic bag

containing a vacuum-sealed bag, which in turn contained about

800   grams    of    a   white    powder;       and   a   small    baggie    of   crack

cocaine.       The white powder field-tested positive for cocaine,

but later State Bureau of Investigation (“SBI”) laboratory tests

revealed that the powder contained no controlled substance.

                                          B.

       A    grand   jury   charged    Garcia-Lagunas 1          with   conspiring    to

distribute and possess with the intent to distribute 500 grams

of    cocaine,      in   violation   of     21    U.S.C.       §§ 841(a),    846,   and

unlawfully reentering the United States after having previously

been deported, in violation of 8 U.S.C. § 1326(a).                          He pleaded

guilty to the unlawful reentry charge and proceeded to trial on

the conspiracy charge.

       Before trial, the government gave notice of its intention

to call Detective Shawn Collins as an expert witness, stating

that he would “testify about drug trafficking investigations and

methods      utilized    by   drug   traffickers          to   operate   and   protect

their drug business.”            J.A. 32.       The district court also agreed

       1   Garcia-Lagunas was indicted under the name Alex Fuentes.



                                            5
to provide Garcia-Lagunas with a Spanish interpreter for the

proceedings.

       Collins was the government’s first witness, testifying both

as an expert and as an officer who had participated in the

investigation      and    the    relevant           searches.        After       hearing

testimony about Collins’s training and experience, the district

court ruled that Collins could testify as an expert in the field

of narcotics investigations.

       According to Collins, the white powder could have field-

tested positive for cocaine and still have been found to contain

no controlled substance in SBI’s laboratory analysis if someone

had added an excessive amount of cutting agent to the cocaine,

such that “when the lab sampled a small amount of that 800 grams

of   cocaine     there . . .    wasn’t         enough    cocaine    in   it    to      even

register with the SBI or the instruments they were using.”                             J.A.

111.

       Collins    also   told   the    jury      that    Garcia-Lagunas          was    “an

alien illegally in the United States.”                     J.A. 150.          After the

prosecution      asked   Collins      if   he    saw     that    Garcia-Lagunas         was

“being   assisted     with   the   help        of   an   interpreter”       in    court,

Collins testified that his informants had not indicated that

they had needed to use Spanish in their dealings with Garcia-

Lagunas.    J.A. 150-51.        Moreover, Collins testified that Garcia-

Lagunas “appeared to be fluent in English.”                     J.A. 151.

                                           6
       Four    drug     dealers—Reed,    Jacobs,     Thomas    Brewington,        and

Antonio Locklear—each testified pursuant to plea agreements to

having bought cocaine from Garcia-Lagunas.                 They each said that

they    had    spoken    to   Garcia-Lagunas     in      English.         They   also

testified that they did not know each other.                       Hernandez, the

owner of the trailer at 353 Westcott, testified, also pursuant

to a plea agreement, that Garcia-Lagunas had been staying in the

room in which the body armor and scales had been found for about

four weeks leading up to the arrest.

       Detective Orellano testified about his participation in the

relevant searches and the evidence that he and Stein found in

the    353    Westcott    trailer.      During     its    cross-examination        of

Orellano,       the     defense    elicited      testimony         regarding      the

relatively squalid state of Garcia-Lagunas’s living conditions.

On    redirect,    Orellano    told     the   jury    that    he    had    extensive

experience investigating “Hispanic drug traffickers,” and that

“they’re very modest living” because “they send the majority if

not all the proceeds back to their native countries.”                     J.A. 270.

Defense counsel objected.             Asked to explain the relevance of

Orellano’s testimony, the government said that it rebutted the

defense’s implied argument “that it would be impossible for the

defendant to have dealt these large amounts of cocaine and taken

in this large amount of money because he’s living in relatively

low level conditions.”            J.A. 271.      Defense counsel responded

                                         7
that       Orellano    had    not      been     qualified      as    an   expert.        After

confirming that Orellano’s testimony was based on his training

and experience, the district court overruled the objection. 2                                The

government         referred       to     this        testimony      during      its    closing

argument      to    explain       Garcia-Lagunas’s         lack      of   an    “extravagant

lifestyle.”        J.A. 520.

       Several        other       officers      testified        for      the    government.

Relevant to this appeal, Detective Matthew Taylor testified that

based on his training and experience, the type of baggies he

found in the kitchen at 353 Westcott were “mostly used for the

repackaging and sale of narcotics.”                       J.A. 411.        Detective Stein

testified,         based     on    his    training       and     experience,          that   the

vacuum-sealed bag containing the 800 grams of white powder was

of the type frequently used by drug traffickers “to seal in the

odor of the narcotics so that they’re harder to be detected

[and] easier to transport.”                J.A. 437-38.

       The court chose (without objection from the parties) not to

submit a special verdict sheet for the jury to indicate the

       2
       After defense counsel renewed his objection, the court at
a bench conference stated: “I’m not quite sure what the
relevance of all of this is, but I do know, based on my
experience, that most Latins send money home whether they’re
drug dealers or not.”    J.A. 273.  Garcia-Lagunas contends that
the court’s statement emboldened the government to engage in
ethnic stereotyping.   While the court’s comment is puzzling at
best, we do not address it further because the jury did not hear
it.



                                                 8
amount of cocaine Garcia-Lagunas was responsible for within the

conspiracy,         finding      it    sufficient          that      the    verdict      form

specifically referenced the indictment.                       The jury found Garcia-

Lagunas     guilty     of     conspiring       to    distribute       and   possess      with

intent to distribute 500 grams or more of cocaine.                               After the

verdict,      the    court     sua    sponte       directed    the    parties     to   brief

whether it erred by failing to instruct the jury to find the

amount of cocaine individually attributable to Garcia-Lagunas,

as required by United States v. Collins, 415 F.3d 304 (4th Cir.

2005).      However, it ultimately ruled that no Collins error had

occurred.

      The      presentence       investigation         report      (the     “PSR”)     found

Garcia-Lagunas responsible for 39 kilograms of cocaine and 16

grams of crack cocaine, resulting in a base offense level of 34.

The PSR added three two-level enhancements for possession of a

dangerous weapon, threatening or directing the use of violence,

and obstruction of justice, resulting in a total offense level

of 40.      The PSR also found Garcia-Lagunas had a criminal history

score    of    zero,       putting    him    in     criminal      history    category      I.

Garcia-Lagunas objected to the drug weight calculation and the

three enhancements.

      The district court overruled Garcia-Lagunas’s objections to

the     drug        weight     calculation           and    the      dangerous         weapon

enhancement,         but     sustained      the     objections       to    the   other   two

                                               9
enhancements, resulting in an offense level of 36.                                  An offense

level of 36 coupled with criminal history category I yielded a

Guidelines    range      of       188    to     235    months’      imprisonment.              The

government stated, however, that it would agree to a “two level

downward     variance      based         upon    the       Attorney    General’s          recent

directive    that   is     related         to    the       proposed    amendment          to   the

Guidelines, specifically the drug quantity base offense levels

in the Guideline that may end up being a two level drop for each

drug quantity,” provided that Garcia-Lagunas agreed not to later

seek a variance for the same reason.                              J.A. 678-79.            Garcia-

Lagunas so agreed, and the district court stated its intent “to

go down the two levels.”                J.A. 679-80.

     The    resulting      offense         level       of    34    yielded     a    Guidelines

range of 151 to 188 months’ imprisonment.                             The district court

then sentenced Garcia-Lagunas to 188 months’ imprisonment while

stating it was “impos[ing] a sentence at the low end of the

range   because     this      constitutes            the    defendant’s        first      felony

conviction.”        J.A.      680-81,         683.          The   court    also         sentenced

Garcia-Lagunas      to        a     consecutive             sentence      of       24    months’

imprisonment for his unlawful reentry conviction.                                   Only after

announcing the sentence did the court allow Garcia-Lagunas to

allocute.




                                                10
                                         II.

        Garcia-Lagunas       first    challenges     several    of    the    district

court’s evidentiary rulings.             We review those rulings for abuse

of     discretion,    and     subject    them   to    harmless       error    review.

United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010).                       An

error is harmless when this court is able to conclude, “after

pondering      all   that    happened    without     stripping       the    erroneous

action from the whole, that the judgment was not substantially

swayed by the error.”          Id. (quoting United States v. Brooks, 111

F.3d    365,   371    (4th    Cir.    1997)).        But   we   may    disregard    a

constitutional error only if we are “able to declare a belief

that it was harmless beyond a reasonable doubt.”                           Chapman v.

California, 386 U.S. 18, 24 (1967).

        Where a defendant fails to timely object to an evidentiary

ruling, however, we review for plain error.                     United States v.

Keita, 742 F.3d 184, 189 (4th Cir. 2014).                    To make out a plain

error, “the defendant must show ‘there was an error, the error

was plain, and the error affected [the defendant’s] substantial

rights.’”      Id. (alteration in original) (quoting United States

v. Boykin, 669 F.3d 467, 470 (4th Cir. 2012)).

        Garcia-Lagunas contends that (1) the admission of evidence

regarding Hispanic drug traffickers denied him due process and

equal     protection,       (2) the     district     court      allowed      improper

opinion     testimony        from     several   of     the      government’s      lay

                                         11
witnesses, (3) the district court improperly allowed Collins to

testify       as   an   expert    witness     in    spite       of    the   government’s

failure       to   comply    with    expert      disclosure          requirements,     and

(4) the       admission      of      evidence       regarding          Garcia-Lagunas’s

immigration status and use of an interpreter was plain error.

We consider each challenge in turn.

                                          A.

                                          1.

       Garcia-Lagunas contends that his Fifth Amendment guarantees

of due process and equal protection were violated by Orellano’s

ethnicity-based testimony, which the government used to create

an adverse inference against him.                  Alternatively, he argues that

even if the admission and repetition of this testimony in the

government’s closing argument did not violate his constitutional

rights, the evidence nonetheless was improperly admitted expert

testimony delivered by a lay witness.

       Garcia-Lagunas        objected       to     this     testimony        at     trial,

arguably on the improper-expert-testimony ground only.                            See Fed.

R.    Evid.    103(a)(1)(B).         Nonetheless,         the    government       at   oral

argument granted that, because of the troubling nature of the

error, we should review both contentions for harmless error.

Oral Argument at 22:17–23:10, United States v. Garcia-Lagunas,

No.       14-4370           (Sept.       17,         2015),            available         at

http://coop.ca4.uscourts.gov/OAarchive/mp3/14-4370-20150917.mp3.

                                          12
While we are not bound by the government’s concession, Pisano v.

Strach, 743 F.3d 927, 936 n.13 (4th Cir. 2014), we choose to

apply harmless error here as it does not affect the outcome.

                                           2.

     There is no dispute that “[a]ppeals to racial, ethnic, or

religious    prejudice      during    the       course       of    a    trial   violate    a

defendant’s      Fifth    Amendment    right      to     a    fair      trial.”     United

States v. Cabrera, 222 F.3d 590, 594 (9th Cir. 2000); accord

United States v. Runyon, 707 F.3d 475, 494 (4th Cir. 2013) (“The

Supreme    Court    has    long    made     clear   that          statements      that   are

capable     of    inflaming       jurors’       racial       or        ethnic   prejudices

‘degrade    the    administration         of    justice.’”         (quoting     Battle    v.

United States, 209 U.S. 36, 39 (1908))).

     Where the government injects ethnicity into a trial in a

manner that “invite[s] the jury to put [a defendant’s] racial

and cultural background into the balance in determining their

guilt,” constitutional error occurs. 3                 United States v. Vue, 13




     3  As the dissent correctly notes, the government here
concedes constitutional error.   While we do not lightly ignore
that concession, neither are we bound by it.       See Kamen v.
Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (“When an issue
or claim is properly before the court, the court is not limited
to the particular legal theories advanced by the parties, but
rather retains the independent power to identify and apply the
proper construction of governing law.”); United States v.
Robinson, 460 F.3d 550, 558 n.7 (4th Cir. 2006) (“[O]ur judicial
obligations compel us to examine independently the errors
(Continued)
                                           13
F.3d 1206, 1213 (8th Cir. 1994); see also United States v. Cruz,

981 F.2d 659, 664 (2d Cir. 1992) (“Injection of a defendant’s

ethnicity into a trial as evidence of criminal behavior is self-

evidently   improper      and       prejudicial      for     reasons   that     need   no

elaboration here.”).

       Several    of    our        sister    circuits      have     held    that     “the

introduction of evidence connecting the race or ethnicity of a

defendant to racial or ethnic generalizations about a particular

drug    trade    is    [constitutional            error].”         United   States     v.

Ramirez-Fuentes, 703 F.3d 1038, 1045 (7th Cir. 2013) (citing

Cruz, 981 F.2d at 663-64; Vue, 13 F.3d at 1212-13; and United

States v. Doe, 903 F.2d 16, 21 (D.C. Cir. 1990)).                             We accept

that these circuits correctly applied the law, but find that the

government’s      use         of    an      ethnic      stereotype      here,      while

regrettable, is materially distinguishable.

       In each of the cases where our sister circuits have found

constitutional        error    surrounding        the   use   of    ethnically     based

evidence, the government’s argument was, fundamentally, that a

certain ethnic or national group was a major participant in the

drug   trade,    that    the       defendant      belonged     to    that   ethnic     or




confessed.” (alteration in original) (quoting Young v. United
States, 315 U.S. 257, 258-59 (1942))).



                                             14
national group, and that the defendant was therefore more likely

to be a drug dealer.

      For example, in Doe, the government presented an expert

witness who testified that “‘[t]he Jamaicans . . . have had a

phenomen[al]     impact     on    the    drug     trade    in    the     District     of

Columbia,’    and    the   market      ‘has    been   taken     over    basically     by

Jamaicans,’”     where     there       was     reason     to    believe      that    the

government’s key witness, an American, owned the incriminating

evidence attributed to the Jamaican defendants.                       903 F.2d at 18,

28 (second alteration in original) (footnote omitted).                         The D.C.

Circuit ruled that this testimony was inadmissible because it

“strongly suggested that appellants were guilty because two of

them are Jamaican.”        Id. at 20–23.

      Similarly,      in   Vue,    the       government    introduced        a    custom

official’s testimony that 95% of opium smuggling cases in the

Twin Cities area “related to Hmong individuals.”                            13 F.3d at

1211–12.     The Eighth Circuit held that the introduction of such

testimony violated the Hmong defendants’ constitutional rights

“because   the      injection     of    ethnicity       into    the    trial     clearly

invited the jury to put the Vues’ racial and cultural background

into the balance in determining their guilt.”                     Id. at 1213; see

also Cabrera, 222 F.3d at 596 (“[H]ighlighting the ethnicity of

the other Cuban drug dealers under investigation at the time was

not   relevant . . . ;      the     reference      merely      made    it    seem   more

                                          15
likely in the eyes of the jury that [the defendants] were drug

dealers because of their ethnicity.”).

      Here, in contrast, the government did not ask the jury to

put   Garcia-Lagunas’s      ethnicity      on    the    side     of        the    scale

indicating    guilt   by   stating   or    implying     that    a   defendant        of

Hispanic   descent    is   more   likely    to   be    involved       in    the    drug

trade.     Put another way, it did not try to inflame any jury

prejudice against Hispanic defendants by tying Hispanic identity

to a propensity for criminality.           Rather, as the government now

concedes, 4   it   inappropriately    relied      on    an     ethnically         based

generalization to refute Garcia-Lagunas’s suggestion that he was

too poor to be a major drug dealer. 5



      4The government nonetheless denies that its use of such
evidence was reversible error.
      5The government’s brief directs our attention to United
States v. Khan, 787 F.2d 28 (2d Cir. 1986).        In Khan, the
defendant, a Pakistani man, “attempted to rebut the government’s
portrayal of him as a major drug dealer by suggesting that he
was a poor man.” 787 F.2d at 34. The government responded by
introducing an expert who testified, in part, that “heroin
dealers in Pakistan, like all Pakistanis, [wear] the same
national dress-pantaloon, baggy pants, and a knee length top.”
Id.   The Second Circuit found that the testimony was relevant
and not unduly prejudicial because it explained that “even if
[the defendant] had made a great deal of money in the heroin
trade, it would not necessarily show from the manner of his
dress.” Id.

     Khan does not help the government here.         First, the
government’s witness in Khan was testifying as an expert.
Second, Khan lived in Pakistan, so the testimony could fairly be
understood to be about a cultural practice in the country,
(Continued)
                                     16
      This use of stereotype was particularly inapt because of

the lack of evidence that Garcia-Lagunas himself was sending

significant money anywhere.           The record shows that since 1988,

Garcia-Lagunas has spent the great majority of his time in the

United   States.      While    he    does   have     two    children     living   in

Mexico, he also has two children living in this country, and at

the time of his arrest his parents lived next door to him.

Thus, the government’s only “evidence” that Garcia-Lagunas was

remitting    money    was   its     generalization         about   Hispanic    drug

traffickers.

      Nonetheless, although the government made improper use of

an ethnic stereotype, it did not encourage the jury to consider

Garcia-Lagunas’s       ethnicity       as     evidence        of    his       guilt.

Accordingly, we find no constitutional violation, although we

also conclude that the evidence was irrelevant.                        Testing the

evidentiary error for harm, however, we find none.

      Here, the “over-arching issue at trial” was whether Garcia-

Lagunas conspired to deal in large quantities of cocaine, not

what he did with any proceeds he made.                United States v. Cole,

631   F.3d   146,    155    (4th    Cir.    2011).         Significant    evidence




rather than a generalization about how a certain ethnicity or
nationality behaves. Finally, the testimony in Khan was about a
readily observable practice.



                                       17
supported the jury’s finding that he did so conspire.                       At trial,

four     witnesses     who        did    not     know     each     other    testified

consistently to their dealings with Garcia-Lagunas.                        See United

States v. Briley, 770 F.3d 267, 277 (4th Cir. 2014) (finding

evidentiary error harmless where “[a]n array of witnesses gave

clear,        compelling,     and        consistent       accounts       about     [the

defendant’s] actions”), cert. denied, 135 S. Ct. 1844 (2015);

cf. Johnson, 617 F.3d at 295 (finding erroneous admission of a

DEA agent’s testimony as a lay witness was not harmless where

the only direct evidence linking the defendant to the charged

crime was the testimony of one codefendant that was contradicted

by another codefendant’s testimony).                    In addition, when Garcia-

Lagunas was arrested, he had white powder on his nose, $600 in

cash, and was near a handgun.               In his room, the police found 800

grams of a white powder substance, two digital scales, and body

armor.     Bags used for drug dealing were also found at locations

associated      with   Garcia-Lagunas.             Finally,      his   phone   number,

which    matched    that     of    Reed’s      source    of   supply,    “Alex,”   was

connected to several known drug dealers.

        On this record then, “[w]e can say, ‘with fair assurance,

after     pondering     all       that     happened      without       stripping    the

erroneous action from the whole,’ that the jury’s consideration

was     not     ‘substantially          swayed’”    by     Orellano’s      testimony.

Briley, 770 F.3d at 278 (quoting Kotteakos v. United States, 328

                                            18
U.S. 750, 765 (1946)). 6       We therefore find no cause to reverse

based on the error.

                                        B.

     We next address Garcia-Lagunas’s argument that the district

court    erred   in   admitting    evidence      regarding   his   immigration

status and use of an interpreter at trial.              Because the defense

failed to timely object at trial, we review for plain error.

     Evidence of a crime or wrong is not admissible to prove a

defendant’s bad character in order to show that he acted in

accordance with that character.              Fed. R. Evid. 404(b)(1).       Such

evidence may be admissible, however, “for another purpose, such

as proving . . . identity.”         Id. 404(b)(2).       Under Rule 404(b),

we use a four-part test to assess admissibility: “(1) the prior-

act evidence must be relevant to an issue other than character,

such as intent; (2) it must be necessary to prove an element of

the crime charged; (3) it must be reliable; and (4) . . . its

probative   value     must   not   be   substantially    outweighed    by    its

prejudicial nature.”         United States v. Lespier, 725 F.3d 437,

448 (4th Cir. 2013) (quoting United States v. Queen, 132 F.3d

991, 995 (4th Cir. 1997)).


     6 Garcia-Lagunas also alleges that Detective Orellano should
not have been permitted to testify to the practices of Hispanic
drug traffickers because he was not testifying as an expert.
Having determined that Orellano’s testimony was irrelevant but
harmless, we do not address this separate objection.


                                        19
                                            1.

      The government presented evidence that Garcia-Lagunas was

an alien illegally in the United States.                    The government argues

that this was relevant to Garcia-Lagunas’s identity.                            At trial,

the officers explained that “they learned that a Mexican man

going by the name ‘Alex’ was a significant source of cocaine in

Cumberland      and     Robeson      Counties.”          Appellee’s       Br.     at    42.

According to the government, Garcia-Lagunas’s immigration status

was thereby relevant as evidence that he was “Alex.”                           We do not

agree.

      Collins      testified         solely       that    “[t]he      defendant         was

previously    deported        from    the   United       States    and    is    an     alien

illegally in the United States right now.”                          J.A. 150.           This

testimony    has      almost    no    probative       value       concerning      Garcia-

Lagunas’s Mexican nationality; it establishes only that he is

not a United States citizen.                     We reject the notion that an

individual’s status as an illegal alien, without more, creates

an   inference     of   Mexican      nationality.          And,     importantly,        the

government could easily have shown that Garcia-Lagunas was from

Mexico without highlighting his immigration status.                        See Fed. R.

Evid. 404(b) advisory committee’s note (“The determination must

be   made   whether     the    danger   of       undue   prejudice       outweighs      the

probative value of the evidence in view of the availability of

other means of proof . . . .”).                  Because the probative value of

                                            20
Garcia-Lagunas’s              immigration           status,      especially       without

reference to his country of citizenship, was so low, we find

that it was substantially outweighed by its prejudicial nature.

It    was       not,    therefore,       permissible         404(b)   evidence.       See

Lespier, 725 F.3d at 448.

          Garcia-Lagunas’s evidentiary challenge, however, fails on

plain error review.                “To be ‘plain,’ an error must be ‘clear’ or

‘obvious.’”            United States v. Ramirez-Castillo, 748 F.3d 205,

215 (4th Cir. 2014) (quoting United States v. Olano, 507 U.S.

725, 734 (1993)).                 Even if the error here was plain, we “may

correct the error” only if it also “affects substantial rights.”

Olano, 507 U.S. at 732 (emphasis and alteration omitted).                              An

error affects substantial rights “in most cases” if it “affected

the       outcome      of    the    district     court    proceedings.”         Ramirez-

Castillo, 748 F.3d at 215 (quoting Olano, 507 U.S. at 734).

          We   need    not    address     whether      the     improper   admission    of

Garcia-Lagunas’s immigration status was plain because we find

that it did not affect the outcome of the trial.                            The jury had

before it substantial evidence of Garcia-Lagunas’s participation

in    a    conspiracy        to     distribute      cocaine,    and   his    immigration

status         was    not    referenced    again       after    Collins’s     testimony.

Thus, we decline to find plain error on this record.




                                               21
                                        2.

     Garcia-Lagunas also challenges the government’s references

to his use of an interpreter at trial, arguing that they were

intended to paint him as a “faker” for relying on an interpreter

when he did not need one.         Appellant’s Br. at 36.

     The government’s witnesses told the jury that they spoke to

Garcia-Lagunas in English when they dealt with him, and some of

those witnesses could only speak English.               To prove that Garcia-

Lagunas    was    the    man    who    dealt    with    these    witnesses,      the

government had good reason to clarify to the jury that he could

in fact speak English, in spite of the impression his use of an

interpreter      might   have   created.        We   therefore    find   that    the

government’s      references     to    Garcia-Lagunas’s         interpreter     were

relevant    to    identity,      and    their    probative       value   was     not

substantially      outweighed     by    any    threat    of     prejudice.      See

Lespier, 725 F.3d at 448.         Accordingly, we find no error.

                                        C.

                                        1.

     Garcia-Lagunas next contends that the district court erred

in allowing Detective Collins to testify as an expert witness

where the government failed to comply with the expert disclosure

requirements.       Because the defense failed to timely object at

trial, we again review for plain error.



                                        22
       Federal Rule of Criminal Procedure 16(a)(1)(G) requires the

government, on the defendant’s request, to provide the defendant

a written summary of any expert testimony that it intends to

use.    That summary “must describe the witness’s opinions, the

bases     and   reasons        for    those       opinions,           and        the   witness’s

qualifications.”              Fed.    R.     Crim.       P.      16(a)(1)(G).                 “Rule

16(a)(1)(G) ‘is intended to minimize surprise that often results

from    unexpected       expert       testimony . . .            and        to     provide      the

opponent    with    a    fair    opportunity           to   test       the       merit   of     the

expert’s testimony through focused cross-examination.’”                                   United

States v. Smith, 701 F.3d 1002, 1007 (4th Cir. 2012) (quoting

Fed. R. Crim. P. 16(a)(1)(G) advisory committee’s note to 1993

amendment).

       Garcia-Lagunas points out that the government’s notice that

Collins would “testify about drug trafficking investigations and

methods    utilized      by    drug    traffickers          to    operate          and   protect

their     business,”          J.A.     32,        failed         to     state          Collins’s

qualifications,         opinions,      or    “the      bases     and        reasons      for    his

opinions.”      Appellant’s Br. at 38.

       While    Garcia-Lagunas          has       a    viable         argument         that    the

government’s       short      and     summary         notice     failed           to   meet    the

requirements of Rule 16(a)(1)(G), we need not decide whether the

district court’s admission of the testimony was plain error, as



                                             23
Garcia-Lagunas cannot establish that any such error affected his

substantial rights.

       On that score, while Garcia-Lagunas claims that Collins’s

testimony was “completely unexpected,” id. at 39, he fails to

point to any specific portion of the testimony that took him by

surprise.       Collins’s testimony largely served to provide the

jury    the     contextual     background         of   how     drug     trafficking

organizations function and explain the significance of certain

physical      evidence.     Given    the    limited    scope     of   the   physical

evidence and that the government would clearly try to explain

why the white powder did not test positive for any controlled

substance      in   the   laboratory,      Garcia-Lagunas       cannot      establish

that more specific notice of the scope of Collins’s testimony

would have so changed his counsel’s ability to cross-examine

Collins that the trial would have come out differently.                          See

United States v. Jones, 739 F.3d 364, 370 (7th Cir. 2014) (“We

need    not    consider    whether    the     error     [of    admitting      expert

testimony      without    notice]   could    be     considered    plain,      because

[the defendant] cannot demonstrate that he would not have been

convicted absent the error, or that the introduction of that

testimony       without     complying        with      the     expert       testimony

requirements resulted in a miscarriage of justice.”).




                                        24
                                        2.

      Garcia-Lagunas      also    contends    that    Collins’s    testimony

explaining how the white powder might have field-tested positive

but   tested   negative    in    the     laboratory   for   any   controlled

substance was improper lay opinion testimony, as Collins was not

an expert in SBI laboratory techniques.               Counsel objected at

trial; therefore we review for harmless error.

      After defense counsel’s objection, the government elicited

testimony from Collins demonstrating his familiarity with the

methods used by the SBI in its laboratory tests.             In particular,

he testified that he knew from his training and experience that

they would test only a portion of a controlled substance.               This

foundation     testimony         adequately     demonstrated       Collins’s

competence to testify on this issue. 7



                                       III.

      Garcia-Lagunas next challenges his sentence.             “We review a

criminal sentence for procedural and substantive reasonableness



      7Garcia-Lagunas also contends that the district court erred
in admitting lay opinion testimony from Detectives Taylor and
Stein concerning the use of small plastic baggies and vacuum-
sealed bags in drug trafficking. Because Garcia-Lagunas did not
object at trial, we review for plain error.        Garcia-Lagunas
cannot meet that high bar.     Given the weight of the evidence
against him, we are confident that the complained-of testimony
did not affect the outcome of the proceeding.



                                        25
under a deferential abuse-of-discretion standard.”                           Washington,

743 F.3d at 943 (citing Gall v. United States, 552 U.S. 38, 51

(2007)).        First,    we    must       “ensure      that     the    district       court

committed no significant procedural error, such as failing to

calculate   (or    improperly         calculating)         the    Guidelines         range.”

Gall, 552 U.S. at 51.           If the sentence is procedurally sound, we

then move on to “consider the substantive reasonableness of the

sentence imposed under an abuse-of-discretion standard.”                                   Id.

Because Garcia-Lagunas          did    not       object    to    any    of   the     alleged

sentencing errors, we review for plain error.                          United States v.

Lynn, 592 F.3d 572, 576–77 (4th Cir. 2010).

                                            A.

      Garcia-Lagunas       first       challenges          the     district          court’s

determination that it did not commit a Collins error in failing

to   instruct    the     jury    to    determine        the     quantity     of      cocaine

Garcia-Lagunas was responsible for within the conspiracy.

      For   drug    offenses,         21    U.S.C.      § 841(b)        “sets      forth    a

graduated    penalty      scheme       based       on     the    quantity       of    drugs

attributable to the defendant.”                   United States v. Foster, 507

F.3d 233, 250 (4th Cir. 2007).                    The statute imposes mandatory

minimum and maximum penalties when a defendant is responsible

for a threshold quantity of drugs.                        Here, Garcia-Lagunas was

convicted of a conspiracy to distribute 500 grams or more of

cocaine.    Under § 841(b)(1)(B), Garcia-Lagunas was subject to a

                                            26
sentence     of    no    less   than    five      and      no    more     than    40    years’

imprisonment.

     However,       in   United    States        v.   Collins,       we    held       that   “an

individual        defendant,    found       guilty      of      conspiracy       to    violate

§ 841(a),     [should       not]       be     sentenced           under      § 841(b)         by

considering the amount of narcotics distributed by the entire

conspiracy,” 415 F.3d 304, 312 (4th Cir. 2005), but rather “the

jury must determine what amount of cocaine base was attributable

to [each defendant],” id. at 314.

     The district court, relying on United States v. Williams,

439 F. App’x 254 (4th Cir. 2011) (per curiam), found that it did

not need to submit this question to the jury, as “there [was] no

uncertainty        regarding     the    amount        of        cocaine    the     defendant

distributed and no co-conspirators for the jury to consider,”

and therefore “the drug quantity charged in the indictment can

serve   as   the     statutory     sentencing         threshold         under     § 841(b).”

J.A. 639.

     We hold that this was not plain error.                             Although Williams

was unpublished and therefore not precedential, it suggests that

even if the district court erred, such error was not plain.                                  See

Williams, 439 F. App’x at 257; see also United States v. Hughes,

401 F.3d 540, 547 (4th Cir. 2005) (“An error is plain ‘where the

law at the time of trial was settled and clearly contrary to the

law at the time of appeal.’” (quoting Johnson v. United States,

                                            27
520 U.S. 461, 468 (1997))).               In addition, there is no indication

that the district court was inclined to go below the mandatory

minimum     of    five    years’     imprisonment,         and    thus    Garcia-Lagunas

cannot establish that the error affected his substantial rights.

                                             B.

        Finally,      Garcia-Lagunas        argues    that        the    district        court

erred procedurally when it calculated his offense level as 36.

We    agree,      and     also     find     that   the      error        was     plain     and

substantially affected Garcia-Lagunas’s rights.

      At sentencing, the district court announced that Garcia-

Lagunas’s total offense level was 36 after sustaining two of his

objections to the PSR’s calculation.                       The government responded

that it would not object to a downward departure of two levels

to reflect upcoming amendments to the Guidelines, and the court

agreed     to    go   down   those    two    levels.         Thus,      Garcia-Lagunas’s

total      offense      level    should     have   been      34,    which      would      have

yielded a Guidelines range of 151 to 188 months’ imprisonment.

While the 188 month sentence the court imposed was within this

range, the court specifically stated that it was “impos[ing] a

sentence at the low end of the range.”                     J.A. 683.       Additionally,

in its “Statement of Reasons” form, the court scored Garcia-

Lagunas’s total offense level at 36, noting that it sustained

one   of    Garcia-Lagunas’s         objections       to    the    PSR     and    used     the

anticipated           Guidelines          amendment         reduction,           but       not

                                             28
acknowledging that it sustained a second objection.                      Thus, the

court’s error in sentencing Garcia-Lagunas under offense level

36 instead of 34 was plain.           See United States v. Ford, 88 F.3d

1350, 1356 (4th Cir. 1996) (finding plain and prejudicial error

where   the    erroneous    addition       of     points   to   the    defendant’s

criminal history score caused the defendant “to be sentenced at

a more severe guideline range”).

     We also find that the error significantly affected Garcia-

Lagunas’s substantial rights.                  The district court made clear

that it intended to sentence Garcia-Lagunas at the low end of

the range to reflect his lack of criminal history.                    Thus, had it

consulted the correct range, there is good reason to believe the

court would have sentenced Garcia-Lagunas to 151, rather than

188, months’ imprisonment.

     This fact distinguishes United States v. Molina-Martinez,

588 F. App’x 333 (5th Cir. 2014) (per curiam), cert. granted,

136 S. Ct. 26 (2015).            There, the Fifth Circuit found that the

defendant could not show that the plain error in sentencing him

under the wrong offense level affected his substantial rights

because (1) his sentence under the wrong level fell within the

range for the correct level, and (2) he could not “point to

‘additional evidence’ in the record, other than the difference

in   ranges,    to   show   an     effect       on   his   substantial    rights.”

Molina-Martinez,     588    F.    App’x    at    334–35.     Indeed,     the   Fifth

                                          29
Circuit specifically distinguished United States v. Pratt, 728

F.3d 463 (5th Cir. 2013), which had facts much more like this

case.    There, “the district court affirmatively stated on the

record that . . . it was choosing a sentence in the middle of

the Guidelines range.”     Molina-Martinez, 588 F. App’x at 335

(citing Pratt, 728 F.3d at 482). 8

     In United States v. Knight, 606 F.3d 171 (4th Cir. 2010),

where we found the defendant had not shown that the use of an

incorrect sentencing range affected her substantial rights, we

explicitly distinguished a hypothetical case that is very close

to what happened here.   There, the district court plainly erred

in sentencing Knight under a Guidelines offense level of 26,

with an advisory range of 92-115 months’ imprisonment, instead



     8 The Supreme Court has granted Molina-Martinez’s petition
for certiorari on the question of whether an appellate court
should presume, for the purposes of plain-error review, that the
application of the wrong Guidelines range to a criminal
defendant affected his substantial rights. See Molina-Martinez,
136 S. Ct. 26 (2015); Petition for Certiorari, Molina-Martinez
v. United States, 2015 WL 5766728 at *i (No. 14-8913). Even if
the Court holds that an appellate court should not make that
presumption, our finding in this case would not be affected, as
we rely not on a presumption but rather on the district court’s
stated intent to sentence Garcia-Lagunas at the low end of the
applicable Guidelines range—the “additional evidence” that was
absent in Molina-Martinez.    Alternatively, if the Court holds
that appellate courts should presume a sentence under the
incorrect Guidelines range affects a defendant’s substantial
rights, then it would only confirm that Garcia-Lagunas’s
substantial rights were affected by the error.     Thus, we need
not await the Supreme Court’s ruling in Molina-Martinez.



                                30
of the correct level of 24, with an advisory range of 77-96

months.          Knight,   606    F.3d     at    177-78.         The    district        court

compared Knight favorably to another defendant the court had

sentenced that day, who had received a sentence of about half of

his Guidelines range.            Id. at 178-79.              The district court then

sentenced Knight to 60 months in prison.                        Id. at 179.         Knight

argued that the court’s intent was to sentence her, like the

other defendant, to “roughly half” of her Guidelines range, and

so the sentencing error affected her substantial rights because

the court would have sentenced her to “roughly half” of 77-96

months under the correct range.                Id.

     We rejected this argument, finding it “pure speculation”

that the sentencing “court’s limited statements about the other

defendant” had the meaning that Knight ascribed to them.                                 Id.

We   explicitly       distinguished        a     hypothetical          case    where     the

sentencing court either “explicitly connected Knight’s sentence

to the sentence given to the other defendant” or “explicitly

connected       the   60-month     sentence           ultimately       imposed    to     the

advisory    range—for      example,      by      stating       that    it     intended    to

impose a sentence that was a certain percentage of the low or

high end of the advisory range.”                       Id.     Here, the sentencing

court     did    explicitly      connect        the     sentence       imposed    to     the

advisory range, and thus Garcia-Lagunas’s claim is not “pure

speculation.”         Garcia-Lagunas           therefore       has     shown     that    his

                                           31
substantial rights were affected by the miscalculation because

it is very likely “he would have received a lower sentence had

the error not occurred.”          Id. at 178.

     And though we need not always correct plain error, Keita,

742 F.3d at 189, we choose to do so here.                     Fairness dictates

that Garcia-Lagunas be sentenced under the correct Guidelines

range, particularly when doing so could potentially lead to a

sentence reduction.           See Ford, 88 F.3d at 1356 (“[S]entencing a

defendant at the wrong guideline range seriously affects the

fairness,   integrity,         and     public    reputation      of   the    judicial

proceedings.”).        “Three years of a man’s life is not a trifling

thing.”   Id. 9



                                          IV.

     In   sum,    we   hold     that    any     evidentiary   errors    in   Garcia-

Lagunas’s   trial      were    either     harmless    or   did    not   affect    his

substantial rights.           The district court, however, plainly erred

in calculating Garcia-Lagunas’s Guidelines range, and such error

affected his substantial rights.                Accordingly, we affirm Garcia-




     9 As we are vacating on this issue, we need not address
Garcia-Lagunas’s other claim of procedural unreasonableness, his
claim of substantive unreasonableness, or his claim that the
district court’s failure to allow him a presentence allocution
affected his substantial rights.



                                          32
Lagunas’s   conviction,   vacate   his   sentence,   and   remand   for

resentencing.

                                                     AFFIRMED IN PART,
                                                      VACATED IN PART,
                                                          AND REMANDED




                                   33
DAVIS, Senior Circuit Judge, dissenting:

       The     Government           correctly        concedes       that      it         was

constitutional error for prosecutors to elicit and rely upon

testimony consisting of a blatant ethnic generalization in hopes

that     the   jury       would    draw     inferences      adverse     to   Appellant

Alejandro      Garcia-Lagunas.             Because    the   Government       failed       to

prove    beyond      a    reasonable       doubt   that     its   reliance     on    such

testimony      did       not   contribute    to    the    jury’s    verdict,        as    my

friends in the majority implicitly acknowledge, I am compelled

to dissent from their conclusion to affirm the judgment.

       During his trial, Garcia-Lagunas sought to show that he

was, at most, a common drug abuser and not a sophisticated drug

distributor who trafficked in large volumes of cocaine.                        To make

this     distinction,           Garcia-Lagunas       utilized      questions       during

cross-examination of prosecution witnesses to establish that he

lived a meager lifestyle devoid of any of the drug proceeds that

should    follow      a    high-volume      distributor.          For   example,     when

cross-examining Detective Shawn Collins, Garcia-Lagunas elicited

testimony      about      the     assets   discovered       at    the   residences        of

Ronnie Reed, one of Garcia-Lagunas’s alleged purchasers and a

Government witness.               J.A. 153-55.        During searches of Reed’s

residences related to federal drug trafficking charges, officers

found and ultimately seized more than $100,000 in U.S. currency,

multiple telephones, a 2008 Infiniti, a 2006 Chevy Impala, a

                                            34
2004 Acura, a 2004 BMW, a 2002 Lincoln Navigator, and multiple

firearms.       J.A. 154-55.

       Contrasting this showing of the wealth accumulated by Reed

during the four to five years that he sold drugs prior to his

2012       arrest,   the   cross-examinations          of    Detective         Collins    and

Detective Pedro Orellano established that Garcia-Lagunas lived a

life of limited means.                Their testimony showed that, on the

evening       detectives         arrested        Garcia-Lagunas,          he    was    found

shirtless and shoeless in the “kitchen/living room area” of a

small trailer in which he rented a room for less than $350 per

month.        J.A. 103-04, 315.             The detectives did not find any

vehicles belonging to Garcia-Lagunas, and they only uncovered

$600 in currency.             J.A. 176.      Ultimately, Garcia-Lagunas hoped

this testimony would cause the jury to ask: how can a man who is

allegedly       responsible        for   selling      hundreds          of    thousands    of

dollars       in     cocaine 1    have      no     proceeds        to    evidence      those

transactions?           Any      experienced       (and     even    an       inexperienced)

Assistant       United     States     Attorney       prosecuting         cases    in     this

Circuit would fully expect (and be prepared for) this kind of

defense tack on this record.


       1
       According to the testimony of four drug dealers testifying
pursuant to plea agreements, Garcia-Lagunas sold them, in the
aggregate, at least 39 kilos of cocaine, with each kilo of
cocaine valuing approximately $30,000 to $32,000 during the
relevant time frame.    J.A. 205, 208, 239, 340-42, 360-61, 388.


                                             35
       As Garcia-Lagunas’s defense theory became apparent during

trial,      however,     the   Government     seemingly      recognized    for     the

first      time    the   absence   of    drug   trafficking      proceeds     as    a

potential weakness in its case.                 The Government opted not to

cure       the    ostensible    weakness      through   the     introduction       of

admissible evidence by, for example, moving to admit proof of

wire transfers from Garcia-Lagunas to family in Mexico.                      Either

because such evidence did not exist 2 or because the Government

failed      to    adequately   prepare   its    case,   it    instead     sought    to

counter the theory offered by Garcia-Lagunas by eliciting an

outrageous ethnic stereotype about the propensity of “Hispanic

drug traffickers” to live modestly while sending “the majority

if not all the proceeds back to their native countries.”                         J.A.

270.       The Government then drove this racial generalization home

at the outset of its closing argument, stating:

       Ladies and Gentlemen, what did Detective Orellano tell
       you about Hispanic drug trafficking organizations and
       about what they do with their money? He told you that
       they package that money and they send it back to their
       home   country  as   part  of   the  drug   trafficking
       organization. That’s why we don’t have an extravagant
       lifestyle associated with this Defendant, fancy cars,
       any of the things like Ronnie Reed has talked about.

       2
       As my colleagues in the majority point out, Garcia-Lagunas
has resided in the United States since he was a teenager, and
the majority of his family, including his parents, spouse, and
two of his children, also live in the United States, making it
improbable that he was sending large amounts of money back to
family in Mexico.



                                         36
J.A. 520.

       The relative ability of this particular stereotype to sway

the jury is evidenced by its effect on the presiding judge.                           In

response        to    a   renewed      objection      to    Detective       Orellano’s

testimony, the trial judge held a bench conference and admitted

that he “wasn’t quite sure the relevance of” the Detective’s

testimony regarding Hispanic drug traffickers, but that, “based

on [his] experience, . . . most Latins send money home whether

they’re        drug   dealers    or   not.” 3      J.A.    273.      The    Government

admittedly hoped the jurors would draw a similar inference when

rendering a verdict.            J.A. 273.

       As the majority explains, “[a]ppeals to racial, ethnic, or

religious       prejudice    during     the      course    of   a   trial   violate    a

defendant’s Fifth Amendment right to a fair trial.”                         United v.

Cabrera, 222 F.3d 590, 594 (9th Cir. 2000).                         A number of our

sister circuits have interpreted this basic principle to mean

that       a    constitutional        error      occurs    when     the     Government

       3The majority suggests that the trial judge’s statements
could not have independently affected the jury because they were
voiced during a bench conference. To the contrary, I note that,
as Juror Number 2 in a recent state criminal trial (and based on
the “white noise” used in my courtroom when I served as a
federal    district  judge),   statements   made   during  bench
conferences, whether conducted under the hopeful veil of “white
noise” or not, often remain within earshot of nearby and
attentive jurors. There is nothing in the record here to suggest
that the judge’s remarks went unheard in this instance.



                                            37
“invite[s] the jury to put [a defendant’s] racial and cultural

background into the balance in determining their guilt.”                              United

States v. Vue, 13 F. 3d 1206, 1213 (8th Cir. 1994); United

States v. Cruz, 981 F.2d 659, 663-64 (2d Cir. 1992); United

States v. Doe, 903 F.2d 16, 20-24 (D.C. Cir. 1990).                                  This is

exactly what the Government did here.

       To counter Garcia-Lagunas’s primary defense theory and cure

a     perceived      hole      in    its   case,    the     Government         offered       up

generalizations           about     Garcia-Lagunas’s       ethnicity      to    the     jury.

The Government hoped that, like the presiding judge, the jurors

would    believe      that       Garcia-Lagunas’s     modest      lifestyle          did    not

undermine allegations that he distributed hundreds of thousands

of dollars in cocaine because he had assuredly been sending his

significant proceeds back to his native country, electing to

live    like    a    pauper       here.     And    while    the   majority          seeks    to

distinguish         the   ethnic      generalization       tactically      elicited         and

repeated in this case on the ground that the ethnically based

“evidence” was used in a more nuanced fashion than was true in

the    cases    decided        in    our   sister    circuits,      the     Government’s

specific       method      for      injecting     Garcia-Lagunas’s         ethnicity         as

evidence in favor of his guilt makes it no less improper.

       Most    tellingly,           even   the    Government      concedes       that       the

elicitation of Detective Orellano’s testimony during re-direct

and    recitation         of   the     testimony     at    the    outset       of    closing

                                             38
argument amounted to a constitutional error.                    Oral Argument at

20:38-20:51, United States v. Garcia-Lagunas, No. 14-4370 (Sept.

17,                   2015),                        available                     at

http://coop.ca4.uscourts.gov/OAarchive/mp3/14-4370-20150917.mps.

During oral argument, when asked whether the error amounted to

constitutional       error,    counsel        for   the   Government    responded

unequivocally, “Yes.”         Id.     The Panel then asked, as a result of

the Government’s belief that constitutional error had occurred,

whether   it   was    the     Government’s      burden    “to   prove    beyond    a

reasonable doubt that the error had no substantial effect on the

jury’s verdict.”        Id.    In response, counsel for the Government

firmly stated, “That’s correct.”              Id.

      Accordingly, because the Government’s appeal to an ethnic

generalization was plainly a constitutional error and because

the Government failed to prove beyond a reasonable doubt that

its reliance on such testimony did not contribute to the jury’s

verdict in a drug conspiracy case resting almost entirely on the

testimony   of   four    drug       dealers    testifying    pursuant     to   plea

agreements, I would vacate and remand for a new trial.                            By

rejecting the Government’s concession that constitutional error

occurred here, and thereby refusing to apply the only applicable

harmlessness     standard,      the     majority      affirms    the    conviction

because there was sufficient evidence to support it.

      It errs in doing so.          I respectfully dissent.

                                         39
