                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 22 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-50053

              Plaintiff-Appellee,                D.C. No. 3:08-cr-04309-W-1

  v.
                                                 MEMORANDUM *
MIGUEL LEY,

              Defendant-Appellant.



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

                          Submitted December 8, 2010 **
                              Pasadena, California

Before: TROTT and WARDLAW, Circuit Judges, and MOSMAN, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Michael W. Mosman, United States District Judge for
the District of Oregon, sitting by designation.
      On October 16, 2008, Miguel Ley was arrested by Border Patrol officers

who discovered approximately 171 pounds of marijuana hidden in a diesel tank in

the bed of Mr. Ley’s pickup truck. Mr. Ley was the driver, sole occupant, and

owner of the truck.

      On April 16, 2009, Mr. Ley was convicted of two counts: (1) importing in

excess of 50 kilograms of marijuana in violation of 21 U.S.C. §§ 952 and 960; and

(2) possessing with intent to distribute in excess of 50 kilograms of marijuana in

violation of 21 U.S.C. § 841(a)(1). ER 171. He was sentenced to 30 months in

custody and three years of supervised release. ER 172–173.

      Mr. Ley appeals his conviction on two grounds. First, he argues that the

prosecutor made improper remarks during closing argument and rebuttal that

unfairly prejudiced him, and that the district court’s handling of those remarks

constituted reversible error. Second, he argues that the district court erred in its

instructions to the grand jury that they should indict in every case where there is

probable cause.




                                           2
      As to the first ground, we conclude that the complained-of statements by the

prosecutor were not improper, with one exception.1 Moreover, even if allowing the

statements was error, doing so was harmless error and certainly not plain error.2

The case against Mr. Ley was strong, and his defense theory was implausible; it is

unlikely that a reasonable juror’s decision would have been different absent the

prosecutor’s remarks.

      Mr. Ley’s second ground for appeal—that the grand jury instructions were

improper—is squarely foreclosed by Ninth Circuit en banc precedent. See United

States v. Navarro-Vargas, 408 F.3d 1184, 1204–06 (9th Cir. 2005) (en banc).

      AFFIRMED.




      1
       The statement in closing argument by the prosecutor that removing the
“700 pounds of propane” would require a “forklift” was improper. However,
defense counsel’s objection was sustained and an appropriate instruction was
given.
      2
         At trial, defense counsel did not object to most of the statements, so those
statements are subjected to plain error analysis; the one statement to which defense
counsel objected is reviewed under the more stringent harmless error standard.
United States v. Nobari, 574 F.3d 1065, 1073, 1080 (9th Cir. 2009). This
distinction is unimportant here, however, because we conclude that any error was
harmless.

                                          3
