                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 15 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-10489

              Plaintiff - Appellee,              D.C. No. 4:08-cr-00878-JMR-
                                                 JCG-8
  v.

MIGUEL E. MARTINEZ, AKA Indio,                   MEMORANDUM*

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                      John M. Roll, District Judge, Presiding

                             Submitted June 12, 2012**
                              San Francisco, California

Before: D.W. NELSON, RAWLINSON, and IKUTA, Circuit Judges.

       The district court did not plainly err in denying Martinez’s motion for a new

trial because the prosecutor’s statements in closing argument did not constitute

impermissible vouching: they neither bolstered the credibility of a government


        *
             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).
witness nor suggested that there was additional evidence the jury was not being

shown. See United States v. Hermanek, 289 F.3d 1076, 1098 (9th Cir. 2002). The

prosecutor’s “we know” statements did not depict the prosecutor as part of the

investigatory team but rather were a rhetorical device used to summarize the

evidence and describe permissible inferences. See id. Moreover, given the

overwhelming evidence of guilt, there is no reason to think that these claimed

improprieties “seriously affected the fairness, integrity, or public reputation of

judicial proceedings, or . . . would result in a miscarriage of justice.” United States

v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002) (quoting United States v. Tanh Huu

Lam, 251 F.3d 852, 861 (9th Cir. 2001)) (internal quotation marks omitted).

      The district court did not clearly err in determining that Martinez was

responsible for more than 10,000 kilograms of marijuana. Assuming that the

relevant drug quantity had to be proved by clear and convincing evidence, see

United States v. Lynch, 437 F.3d 902, 916 (9th Cir. 2006), the government met its

burden providing, among other things, the testimony of Martinez’s co-conspirators,

given under oath and pursuant to a plea agreement, see United States v. Alvarez,

358 F.3d 1194, 1213 (9th Cir. 2004), that Martinez was the primary supplier of an

operation that transported approximately that amount of marijuana over a six-year

period. See United States v. Culps, 300 F.3d 1069, 1076 (9th Cir. 2002).


                                           2
Moreover, any error in approximation was harmless because a calculation error had

mistakenly given Martinez a base offense level of 40 instead of 43; even if we

were to hold that the evidence did not support 10,000 kg of marijuana, on remand

the properly calculated base offense level would be no lower than 41. See United

States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010).

      The district court did not clearly err in applying a sentencing enhancement

for possession of a firearm during the commission of a drug offense. The district

court could find by a preponderance of the evidence that the firearm with a unique

canister discovered at Martinez’s home was the same firearm used in connection

with the conspiracy. Moreover, the record established that Martinez had

supervisory responsibility over the armed individuals protecting his drug loads,

and thus had constructive possession of those firearms. See United States v.

Cazares, 121 F.3d 1241, 1245 (9th Cir. 1997).

      Finally, the district court did not clearly err in applying an enhancement for

reckless endangerment based on the high-speed car chase. Even assuming that a

nexus is required between the reckless endangerment and the crime of conviction,

see United States v. Duran, 37 F.3d 557, 559–60 (9th Cir. 1994), abrogated on

other grounds by Tapia v. United States, 131 S. Ct. 2382 (2011), the evidence was

overwhelming that Martinez’s flight in the Dodge Ram was connected to his role


                                         3
in the drug conspiracy because he was fleeing with a shoe box containing

thousands of dollars in drug proceeds.

      AFFIRMED.




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