                                                                                      FILED
                               NOT FOR PUBLICATION                                     DEC 19 2012

                                                                                  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. 11-50093

               Plaintiff - Appellee,                          D.C. No. 8:10-CR-00033-AG-2
   v.
                                                              MEMORANDUM *
 ISAAC REYES MARTINEZ,

               Defendant - Appellant.

                      Appeal from the United States District Court
                         for the Central District of California
                      Andrew J. Guilford, District Judge, Presiding

                        Argued and Submitted November 8, 2012
                                 Pasadena, California

Before:        REINHARDT and THOMAS, Circuit Judges, and NAVARRO,**
               District Judge.

        Appellant Isaac Reyes Martinez appeals his conviction after jury trial for

conspiracy to possess with intent to distribute methamphetamine, 21 U.S.C.

§§ 841(a)(1) and 846, and possession of firearms in furtherance of a drug

trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i).


   *
       This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
   **
      The Honorable Gloria M. Navarro, United States District Judge for the District of
Nevada, sitting by designation.
      We hold that the government violated Appellant’s Fifth Amendment right to

be convicted solely on the evidence adduced at trial, under United States v.

Schuler, 813 F.2d 978, 981–82 (9th Cir. 1987), by commenting in its closing

argument on Appellant’s demeanor in the courtroom during witness Acosta-Ruiz’s

testimony and identification of Appellant. Analyzing the record for harmless error

pursuant to Chapman v. California, 386 U.S. 18, 24 (1967), we cannot conclude

that this error was harmless beyond a reasonable doubt. See United States v.

Weatherspoon, 410 F.3d 1142, 1151 (9th Cir. 2005). Therefore we reverse

Appellant’s conviction and remand the case to the district court for a new trial.



      REVERSED and REMANDED.




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