                    FOR PUBLICATION

      UNITED STATES COURT OF APPEALS
           FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                      No. 13-50059
               Plaintiff-Appellee,
                                                   D.C. No.
                    v.                        3:11-cr-04881-H-1

 KEVIN U. RANGEL-GUZMAN,
             Defendant-Appellant.                 OPINION


        Appeal from the United States District Court
          for the Southern District of California
         Marilyn L. Huff, District Judge, Presiding

                   Argued and Submitted
           January 10, 2014—Pasadena, California

                         Filed May 28, 2014

  Before: Alex Kozinski, Chief Judge, Richard R. Clifton,
  Circuit Judge, and Jed S. Rakoff, Senior District Judge.*

              Opinion by Chief Judge Kozinski




  *
     The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by
designation.
2            UNITED STATES V. RANGEL-GUZMAN

                           SUMMARY**


                           Criminal Law

    The panel affirmed a conviction for importation of
marijuana, vacated the sentence, and remanded for
resentencing in a case in which the prosecutor’s invocation of
her own personal knowledge during cross-examination was,
as the government concedes, improper.

    Reviewing for plain error, the panel held that the
defendant failed to demonstrate that the prosecutorial error
affected his substantial rights.

   The panel held that the district court didn’t adequately
explain why it declined to apply a two-level sentence
reduction pursuant to U.S.S.G. § 2D1.1(b)(16).


                             COUNSEL

Holly A. Sullivan (argued), San Diego, California, for
Defendant-Appellant.

Laura E. Duffy, United States Attorney; Bruce R. Castetter,
Assistant United States Attorney; William P. Cole, Assistant
United States Attorney; Kyle W. Hoffman, Assistant United
States Attorney (argued), San Diego, California, for Plaintiff-
Appellee.


  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
           UNITED STATES V. RANGEL-GUZMAN                   3

                         OPINION

KOZINSKI, Chief Judge:

    It is said that every dog has its day. Unfortunately for
Kevin Rangel-Guzman, the drug detection dog at the Otay
Mesa Port of Entry was having a fine day on September 5,
2011, when Rangel-Guzman and a friend attempted to re-
enter the United States. The dog alerted to their vehicle, and
Customs and Border Protection officers conducted a search.
Officers found 91.4 kilograms of marijuana, hidden in a
compartment behind the backseat. Good dog!

    Rangel-Guzman and his friend were promptly arrested
and interviewed separately. They both said Rangel-Guzman
had borrowed the car so that they could drive from Los
Angeles to Ensenada, Mexico. Rangel-Guzman, but not his
friend, was charged with importation of marijuana. See
21 U.S.C. §§ 952, 960.

     At his trial, Rangel-Guzman told a convoluted tale that
differed substantially from the story he had given the border
agents immediately after his arrest. He claimed that he met
his Aunt Martha and cousin Daniel for the first time at a
Quinceanera—a traditional Latino celebration of a girl’s
fifteenth birthday. During the Quinceanera, which allegedly
occurred just a month prior to Rangel-Guzman’s arrest,
Martha invited him to a wedding in Tecate, Mexico. He
claimed he went to the wedding by taking a bus from Los
Angeles to Tijuana and either a taxi or another bus to Tecate,
then returned to Los Angeles the same way.

    The day after the wedding, he decided to return to Mexico
to “have a good time.” Aunt Martha agreed to lend him a car,
4          UNITED STATES V. RANGEL-GUZMAN

which he picked up at her home. Rangel-Guzman and his
friend drove to his cousin Daniel’s house in Tecate, where
they left the car. They then took a lengthy cab ride to
Ensenada, where they spent a couple hours, before returning
to Daniel’s house to pick up the car. Rather than re-entering
the United States at Tecate, they drove to Otay Mesa,
ostensibly because Daniel said it would be quicker.

    During cross-examination, the Assistant United States
Attorney repeatedly attempted to impeach Rangel-Guzman by
referring to a meeting between herself, Homeland Security
Agent Baxter, Rangel-Guzman and Rangel-Guzman’s
attorney. In doing so, the AUSA made it clear that she had
questioned Rangel-Guzman and that he had made certain
statements inconsistent with his current testimony: “You told
us that you and your mother ran into Martha . . . You told us
that four or five months before . . . That’s what you told us
last week . . . Don’t you remember that I was shocked that
you were saying it was four to five months before you got
arrested?”

    Rangel-Guzman’s attorney didn’t object, the district judge
didn’t intervene and Rangel-Guzman was convicted. On
appeal, defendant argues that the prosecutor improperly
vouched and violated the advocate-witness rule. Rangel-
Guzman also claims that the district court erred when it held
that he failed to qualify for a two-point reduction in his base
sentencing level because he didn’t meet the requirements of
safety-valve relief. See U.S.S.G. §§ 2D.1(b)(16), 5C1.2(a).

I. The Conviction

   Because Rangel-Guzman didn’t object to the line of
questioning he now claims was improper, we review for plain
            UNITED STATES V. RANGEL-GUZMAN                      5

error. United States v. Olano, 507 U.S. 725, 731–34 (1993).
Rangel-Guzman must therefore show an error that was both
plain and affected his substantial rights, meaning there is a
reasonable probability that, absent the error, the outcome of
his trial would have been different. Id. at 734–35.

    A. Plain Error

      Rangel-Guzman argues that the prosecutor engaged in
improper vouching by effectively acting as a witness.
Vouching occurs when a prosecutor “place[s] the prestige of
the government behind the witness or . . . indicate[s] that
information not presented to the jury supports the witness’s
testimony.” United States v. Roberts, 618 F.2d 530, 533 (9th
Cir. 1980). The advocate-witness rule prohibits attorneys
from testifying in a trial they’re litigating; the rule “expresses
an institutional concern, especially pronounced when the
government is a litigant, that public confidence in our
criminal justice system not be eroded by even the appearance
of impropriety.” United States v. Prantil, 764 F.2d 548, 553
(9th Cir. 1985). We have previously found error where a
prosecutor’s actions might have “tak[en] advantage of the
natural tendency of jury members to believe in the honesty of
. . . government attorneys” even when those actions didn’t “fit
neatly under either the advocate-witness rule or the vouching
rule.” United States v. Edwards, 154 F.3d 915, 922 (9th Cir.
1998).

    The prosecutor made a number of statements that used
variations on “but you told us” and “I asked you and you
said,” as well as assertions of fact about what had occurred
during the meeting: “Well, we went over and over it, Mr.
Rangel,” “[D]o you remember last week I specifically asked
you multiple times who accompanied you to the
6          UNITED STATES V. RANGEL-GUZMAN

Quinceanera?” And she left no doubt about her personal
feelings during the meeting: “Don’t you remember that I was
shocked that you were saying that it was four to five months
before you got arrested [that you met Martha]?”

    When a prosecutor interviews a suspect prior to trial, the
“correct procedure” is to do so “in the presence of a third
person so that the third person can testify about the
interview.” United States v. Watson, 87 F.3d 927, 932 (7th
Cir. 1996). Here, Agent Baxter was present for the interview,
so he could have taken the stand and testified that Rangel-
Guzman had made the prior inconsistent statements. See
United States v. Hibler, 463 F.2d 455, 461 (9th Cir. 1972).

    Instead of calling Baxter, the prosecutor became her own
rebuttal witness. By phrasing the questions as she did, she
essentially testified that Rangel-Guzman had made those
prior inconsistent statements. Doing so clearly took
“advantage of the natural tendency of jury members to
believe” in a prosecutor, Edwards, 154 F.3d at 922, and
required the jury to “segregate the exhortations of the
advocate from the testimonial accounts of the witness,”
Prantil, 764 F.2d at 553. And, because the prosecutor wasn’t
actually a witness, Rangel-Guzman had no opportunity to
cross-examine her about the accuracy or truthfulness of her
account.

    There can be no doubt that the AUSA was asking the jury
to choose whether to believe her or the defendant. This was
highly improper and unfair to the defendant.

    After oral argument before us, the United States Attorney
“concede[d] that [the] cross-examination of defendant was
error” and advised us that she “has instituted—in addition to
           UNITED STATES V. RANGEL-GUZMAN                    7

existing training—a semi-monthly training update for the
Criminal Division regarding pre-trial and trial phases . . . in
which prosecutorial error may occur.” We commend the
United States Attorney for the Southern District of California
for her forthrightness and hope that her example will be
followed by prosecutors across the circuit.

    We recognize the difficulty in identifying errors absent an
objection. And we understand the district court’s reluctance
to intervene when the opposing party, perhaps strategically,
declines to do so. But the prosecutor’s invocation of her own
personal knowledge during cross-examination was
unquestionably improper. Even absent objection, the court
should have recognized this and put a stop to it. See
Henderson v. United States, 133 S.Ct. 1121, 1129–30 (2013).

   B. Substantial Rights

    Rangel-Guzman must demonstrate a reasonable
probability that he wouldn’t have been found guilty had the
error not occurred. Olano, 507 U.S. at 734–35. The case
against him was strong. He was arrested attempting to enter
the United States with 91.4 kilograms of marijuana hidden in
his car. His only defense was that he didn’t know the drugs
were there. But a border patrol agent who inspected Rangel-
Guzman’s vehicle testified that the backseat was “abnormally
formed” and jutted out “very far.” And the story Rangel-
Guzman told the jury about how a large quantity of narcotics
wound up stuffed in the backseat without his knowledge
would have been tough to believe even had he made no prior
inconsistent statements.

    Rangel-Guzman’s only corroboration for his convoluted
tale came from the friend who had accompanied him to
8           UNITED STATES V. RANGEL-GUZMAN

Mexico. Like Rangel-Guzman, the friend told a very
different story at trial than she did to the agents when she was
first arrested. She admitted on the stand that, during her post-
arrest interview, she didn’t mention the existence of Rangel-
Guzman’s cousin, Daniel, or that Rangel-Guzman had left the
borrowed car at Daniel’s house. In fact, she never said they’d
gone to Tecate at all. Instead, she told the officers that she
and Rangel-Guzman had driven the car directly to Ensenada.
And she admitted during cross-examination that, by the time
she told a very different story at trial, she and Rangel-
Guzman had begun a romantic relationship. Because there’s
no reason to believe the jury would have accepted the version
of events posited by Rangel-Guzman and his friend at
trial—even absent the prosecutor’s erroneous cross-
examination—Rangel-Guzman has failed to demonstrate that
the prosecutorial error in this case affected his substantial
rights. Olano, 507 U.S. at 735.

II. The Sentence

    The district court’s factual determination that a defendant
doesn’t qualify for safety-valve relief is reviewed for clear
error. United States v. Real-Hernandez, 90 F.3d 356, 360
(9th Cir. 1996). But the court must provide its reasons for
applying or declining to apply the safety-valve provision. Id.

    The safety-valve provision requires the district court to
impose a sentence “without regard to any statutory minimum
sentence” if five factors are met. 18 U.S.C. § 3553(f); see
also U.S.S.G. § 5C1.2(a). And the sentencing guidelines
provide for a two-level decrease in the defendant’s base
offense level if the safety-valve requirements are met.
U.S.S.G. § 2D1.1(b)(16). Although Rangel-Guzman didn’t
face a minimum sentence, he argues that he qualified for the
            UNITED STATES V. RANGEL-GUZMAN                       9

two-level decrease. The parties agree that Rangel-Guzman
satisfies the first four safety-valve factors—the only dispute
is whether he “truthfully provided to the Government all
information and evidence . . . concerning the offense . . . .”
18 U.S.C. § 3553(f)(5); see also U.S.S.G. § 5C1.2(a)(5).

    We agree with Rangel-Guzman that the district court
didn’t adequately explain why it declined to apply the two-
level sentence reduction. The sentencing hearing began with
the court discussing the government’s request for an
obstruction of justice enhancement. See U.S.S.G. § 3C1.1.
The court, the government and Rangel-Guzman’s lawyer then
discussed the cooperation Rangel-Guzman provided and the
alleged inconsistencies between what he told the government
and what he testified to. The first mention of the safety-valve
came when the district court noted its disagreement “with the
defense recommendation for a safety valve . . . I don’t think
that he’s met all the prongs of the safety valve.” The court
immediately turned back to the obstruction enhancement and
reviewed the evidence presented at sentencing before
eventually declining to apply the obstruction enhancement.

    The government argues that the same evidence speaks to
both the obstruction of justice enhancement and the safety-
valve provision and, consequently, the court’s reasons for
denying the safety-valve were included in its discussion of
obstruction. The government’s obstruction argument was that
Rangel-Guzman committed perjury.               The prosecutor
conceded that Rangel-Guzman had provided information to
the government during the course of the investigation, but
asserted that “the crux of our inquiry [at sentencing] is . . . his
testimony at trial.”
10          UNITED STATES V. RANGEL-GUZMAN

     But the safety-valve provision turns on whether Rangel-
Guzman provided the government with “all information and
evidence . . . concerning the offense,” not the veracity of his
trial testimony. 18 U.S.C. § 3553(f)(5). And even if Rangel-
Guzman’s truthfulness at trial were an issue, the district court
clearly wasn’t convinced Rangel-Guzman had lied on the
stand, declining to apply the obstruction enhancement. While
it’s possible that the district court decided that the safety-
valve requirements weren’t met for the same reasons that it
found the obstruction enhancement was inappropriate, there
is nothing in the record to indicate that is so. We decline the
government’s invitation to guess what the district judge was
thinking.

                   *           *          *

    Although the government admits that the prosecutor’s
cross-examination of Rangel-Guzman was error, Rangel-
Guzman has not shown that the outcome of the trial would
have been different, had the error not occurred. We therefore
affirm the conviction. But, because the district court failed to
adequately explain its reasons for denying Rangel-Guzman’s
request for a two-level reduction in his Guidelines sentence,
we vacate the sentence and remand for resentencing.

  AFFIRMED in part, VACATED in part and
REMANDED.
