                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 04 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 13-50502

              Plaintiff - Appellee,              D.C. No. 3:13-cr-00436-W-1

  v.
                                                 MEMORANDUM*
FRANCISCO JAVIER GOMEZ,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Southern District of California
                Thomas J. Whelan, Senior District Judge, Presiding

                      Argued and Submitted January 6, 2015
                              Pasadena, California

Before: KOZINSKI, WARDLAW, and W. FLETCHER, Circuit Judges.

       Francisco Javier Gomez appeals his conviction for knowingly and

intentionally importing more than 500 grams of a substance containing

methamphetamine into the United States in violation of 21 U.S.C. §§ 952 and 960.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The only issue for our review is whether the prosecutor misstated the

evidence during closing argument so as to warrant reversal of Gomez’s conviction.

We review this claim for plain error because Gomez did not object to the

prosecutor’s statements at trial. United States v. Atcheson, 94 F.3d 1237, 1244 (9th

Cir. 1996).

      We find that the prosecutor did misstate the evidence during closing

argument. In a post-arrest interview, Gomez stated that the methamphetamine-

filled food cans belonged to a woman who crossed the street in front of his car “at

the first bridge, when you’re coming from the- from Zona Rio.” During closing

argument, the prosecutor displayed photographs of the last bridge one would

encounter traveling from Zona Rio to the Port of Entry, and argued that, because of

the surrounding fencing depicted in the photographs, Gomez’s exchange with the

woman could not have occurred. The prosecutor’s argument that the woman could

not have crossed the street at that point, which rendered Gomez’s statement not

credible, was not based on the evidence in the record and was therefore improper.

United States v. Mageno, 762 F.3d 933, 943 (9th Cir. 2014).

      The prosecutor’s misstatements, however, did not affect Gomez’s substantial

rights, and therefore do not warrant reversal. We do not find “a reasonable

probability that the error[] affected the outcome of the trial.” Id. at 944 (internal


                                           2
quotation marks omitted). Gomez’s explanation for his acquisition of the

methamphetamine-filled food cans was implausible. The photographs in the

record of the first bridge coming from Zona Rio show that the woman would have

had to cross multiple lanes of highway traffic and a concrete divider to reach

Gomez’s car, while carrying approximately twenty-seven pounds of

methamphetamine. It is extremely unlikely that a drug trafficker would place

methamphetamine worth almost half a million dollars in a stranger’s car, or that

Gomez would permit a stranger to place uninspected goods in his car as he was

about to cross the border. Moreover, Gomez’s statements were inconsistent as to

his acquisition of the methamphetamine.

      Gomez was the driver and sole occupant of a vehicle containing a significant

amount of methamphetamine, which alone is evidence of knowledge. United

States v. Collins, 764 F.2d 647, 652 (9th Cir. 1985). Because there was

overwhelming evidence of Gomez’s guilt, and his defense was implausible, the

prosecutor’s misstatements during closing argument did not affect Gomez’s

substantial rights.

      AFFIRMED.




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