                               ON REHEARING

                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 14-4370


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

ALEJANDRO GARCIA-LAGUNAS, a/k/a Alex Fuentes,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:12−cr−00376−F−1)


Argued:   September 17, 2015                Decided:    September 1, 2016


Before DUNCAN    and   DIAZ,    Circuit   Judges,      and   DAVIS,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by published
opinion.  Judge Diaz wrote the opinion, in which Judge Duncan
joined. Senior Judge Davis wrote a dissenting opinion.


ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North
Carolina, for Appellant.    Kristine L. Fritz, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Kelly Margolis Dagger, ELLIS & WINTERS, LLP, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.




                              2
DIAZ, Circuit Judge:

       A     jury     convicted          Alejandro        “Alex”         Garcia-Lagunas          of

conspiracy to distribute or possess with intent to distribute

cocaine,      in    violation       of    21    U.S.C.       §§ 841(a),        846.        He   was

sentenced to 188 months’ imprisonment.                            Garcia-Lagunas appealed

and   we     affirmed      his     conviction,         finding       that      the    government

committed      nonconstitutional            error       by   using       ethnically        charged

evidence to rebut Garcia-Lagunas’s assertion that he was too

poor to have dealt in large quantities of drugs, but that such

error was harmless.               We also vacated his sentence, holding that

the        district       court’s        miscalculation             of        Garcia-Lagunas’s

Guidelines         range    was     plain       error    affecting            his    substantial

rights, and remanded for resentencing.

       Garcia-Lagunas filed a petition for rehearing and rehearing

en    banc.         We     granted       Garcia-Lagunas’s            petition        for    panel

rehearing,         thus    vacating       our    prior       opinion      and       mooting     the

petition for rehearing en banc.                      We directed briefing on whether

the    evidentiary         error,     if       assumed       to    be    of    constitutional

magnitude, was nonetheless harmless beyond a reasonable doubt.

We    now    again       affirm    Garcia-Lagunas’s               conviction,        vacate     his

sentence, and remand for resentencing.




                                                 3
                                                I.

                                                A.

       On     March       27,     2012,      Ronnie          Reed      was       arrested        in

Fayetteville,         North      Carolina,           on     federal       drug     trafficking

charges.           Reed   told    the     arresting          officers       that    he     had    a

“Mexican      drug    supplier”         named       “Alex”    and     led    them     to   three

trailers      in    Robeson      County—at       33       Sonoma,    47     Sonoma,      and    294

Maple Leaf—where he said he had purchased drugs from “Alex.”

Reed also gave the officers four telephone numbers that he had

previously used to contact “Alex.”

       The next day, the police executed search warrants on the

three    trailers.          They    found       Garcia-Lagunas’s             parents       at    33

Sonoma       and    ten   one-kilogram           wrappers,          several      with      “white

powdery residue” on them, buried in a lean-to shed behind the

trailer at 47 Sonoma.               J.A. 98.              At 294 Maple Leaf, officers

found an older male with a small user amount of cocaine.                                   During

earlier surveillance, officers had seen a car leave 294 Maple

Leaf and go to a trailer at 353 Westcott.                           As the search of the

three trailers had not turned up “Alex,” the officers decided to

try    353    Westcott.          When    they        arrived,       Detective      Kurt    Stein

observed Marco Hernandez exit the trailer from the back, and

Detective Pedro Orellano and Sergeant Gregory Johnson approached

him.     Orellano confirmed with Hernandez that Hernandez lived at

the trailer and obtained his consent to search it.

                                                4
      The officers found Garcia-Lagunas and Brian Jacobs inside

the trailer.    Garcia-Lagunas had white powder under his nose and

appeared   impaired.       Garcia-Lagunas           identified     himself   to    the

officers   as   Alex.      Both     Garcia-Lagunas          and   Jacobs   told   the

officers that they did not live in the trailer.                     After Sergeant

Johnson asked him to empty his pockets, Garcia-Lagunas produced

$600 cash and a cell phone, which had his photograph as its

background image.       When Detective Stein dialed one of the phone

numbers Reed had given the police for “Alex,” 1 Garcia-Lagunas’s

phone rang.

      The officers then searched the trailer.                     In the kitchen,

they found a handgun and several small baggies.                    In one bedroom,

the officers found body armor; a large digital scale; a small

digital scale; a black plastic bag containing a vacuum-sealed

bag, which in turn contained about 800 grams of a white powdery

substance;    and   a   small     baggie       of   crack   cocaine.       The   white

powder field-tested positive for cocaine, but later State Bureau

of   Investigation      (“SBI”)    laboratory         tests   revealed     that   the

powder contained no controlled substance.

      Analysis of Garcia-Lagunas’s phone’s records connected it

to several known drug dealers, including Reed, Jacobs, Thomas

      1Brian Jacobs and Thomas Brewington, a drug dealer who
purchased cocaine from Garcia-Lagunas, also gave officers that
same phone number for “Alex.”



                                           5
Brewington, Shaun Beard, and Reginald Clark.                 The records showed

that       from    February   9th   to   23rd,    2012,   there    were   185    calls

between Garcia-Lagunas and Beard; 60 between Garcia-Lagunas and

Clark; 56 between Garcia-Lagunas and Jacobs; 56 between Garcia-

Lagunas and Reed; and 160 between Garcia-Lagunas and various

numbers with a 404 area code, which the government identified as

Atlanta, a “drug hub city.”                J.A. 139.      From February 13th to

21st, 2012, there were 37 calls between Garcia-Lagunas and the

landline at 294 Maple Leaf.                    From February 22nd to February

23rd, 2012, there were five calls between Garcia-Lagunas and

Brewington.

                                           B.

       A     grand     jury   charged    Garcia-Lagunas 2   with    conspiring      to

distribute or possess with the intent to distribute 500 grams of

cocaine,          in   violation    of    21     U.S.C.   §§ 841(a),      846,    and

unlawfully reentering the United States after having previously

been deported, in violation of 8 U.S.C. § 1326(a).                        He pleaded

guilty to the unlawful reentry charge and proceeded to trial on

the conspiracy charge.

       Before trial, the government gave notice of its intention

to call Detective Shawn Collins as an expert witness, stating

that he would “testify about drug trafficking investigations and

       2   Garcia-Lagunas was indicted under the name Alex Fuentes.



                                            6
methods   utilized      by    drug      traffickers          to    operate      and   protect

their drug business.”             J.A. 32.         Separately, the district court

agreed to provide Garcia-Lagunas with a Spanish interpreter for

the proceedings.

     Collins was the government’s first witness, testifying both

as   an   expert   and       as    a    fact       witness        with   respect      to    the

investigation and the searches.                    According to Collins, the white

powder found in the trailer could have field-tested positive for

cocaine   and   still    have          been   found     to    contain      no    controlled

substance in SBI’s laboratory analysis if the cocaine had been

mixed with a sufficient amount of cutting agent such that “when

the lab sampled a small amount of that 800 grams of cocaine

there . . . wasn’t enough cocaine in it to even register with

the SBI or the instruments they were using.”                        J.A. 111.

     Collins    also     told      the    jury       that    Garcia-Lagunas           was   “an

alien illegally in the United States.”                            J.A. 150.       After the

prosecution     asked    Collins         if   he     saw    that     Garcia-Lagunas         was

being assisted by an interpreter in court, Collins responded

that his informants had not indicated that they had needed to

use Spanish in their dealings with Garcia-Lagunas.                                 Moreover,

Collins testified that Garcia-Lagunas “appeared to be fluent in

English.”    J.A. 151.

     Four   drug   dealers—Reed,              Jacobs,       Brewington,       and     Antonio

Locklear—each testified pursuant to plea agreements to having

                                               7
purchased cocaine from Garcia-Lagunas.                  Reed bought four to nine

ounces of cocaine from Garcia-Lagunas at the 47 Sonoma location

two times a week from October 2011 until Reed’s March 27, 2012

arrest,    adding   up    to   at   least    six    kilograms,       and      separately

bought nine to twenty ounces of cocaine from Garcia-Lagunas at

the Maple Leaf location at least once a week from December 2011

until March 27, 2012, adding up to at least four additional

kilograms.       Reed resold the drugs that he bought from Garcia-

Lagunas, and did not use them himself.

     Jacobs had been buying drugs from Garcia-Lagunas for about

eight years, prior to which Jacobs had sold to Garcia-Lagunas.

On the day of Garcia-Lagunas’s arrest, Jacobs had given $600 to

Garcia-Lagunas      for    three-quarters          of    an     ounce    of     cocaine.

Jacobs    also    testified     that    he    had       on    over   thirteen            other

occasions bought from a quarter of an ounce to three-quarters of

an ounce of cocaine from Garcia-Lagunas.

     According      to    Brewington,    he    bought         cocaine    from       Garcia-

Lagunas only once, at 294 Maple Leaf, and he bought nine ounces

on that occasion.         He discussed the amount of cocaine he could

resell    with   Garcia-Lagunas,        in    order      to    negotiate        a    better

price.     Brewington noted that when he tried to redistribute the

cocaine,     “one   of    [his]     people     that      [he]     gave     it       to    was

complaining that it wouldn’t” cook properly.                    J.A. 363.



                                         8
       Locklear began using Garcia-Lagunas as a source for drugs

around June of 2010.                 From then until March 2011, he bought

cocaine      from      Garcia-Lagunas        about       every    other     day,    and    he

purchased        the   drugs    to    resell       them.     On    direct    examination,

Locklear testified that he always bought at least nine ounces,

and never more than eighteen ounces, and estimated that he had

bought 29-30 kilograms total.                      However, on cross-examination,

Garcia-Lagunas impeached Locklear with a March 2011 statement to

law    enforcement,        in   which    he       had   apparently       attributed       only

three kilograms of cocaine to Garcia-Lagunas.

       Reed, Jacobs, Brewington, and Locklear each testified that

they       did   not     know   the     others,         except    that     Reed    knew    of

Brewington,        and    all   testified         to    having    spoken    English       with

Garcia-Lagunas.

       Hernandez,        the    owner    of       the    trailer    at     353    Westcott,

testified,        also    pursuant      to    a     plea   agreement,       that    Garcia-

Lagunas had been staying in the room in which the body armor and

scales had been found for about four weeks leading up to the

arrest, and that the armor and large scale belonged to Garcia-

Lagunas. 3       Hernandez also testified that while he had never seen

Garcia-Lagunas selling drugs, he had seen visitors, including

       3
       In their testimony, Detectives Collins and Orellano noted
that the room Hernandez attributed to Garcia-Lagunas looked as
if it had recently been moved into.



                                               9
Jacobs,    give      Garcia-Lagunas       money.         He    also   saw    Jacobs      give

Garcia-Lagunas the gun that was found in the trailer. 4

     Detective Orellano testified about his participation in the

searches and the evidence that he and Detective Stein found in

the 353 Westcott trailer.                While cross-examining Orellano, the

defense       elicited     testimony      regarding           the    squalid     state     of

Garcia-Lagunas’s          living     conditions,         which       supported      Garcia-

Lagunas’s defense theory that he was a drug user but not a drug

dealer.        On     redirect,    Orellano       told        the   jury    that    he   had

extensive experience investigating “Hispanic drug traffickers,”

and that “they’re very modest living” because “they send the

majority      if    not   all   of    the   proceeds          back    to    their    native

countries.”         J.A. 270.

     Defense counsel objected.                 Asked to explain the relevance

of Orellano’s testimony, the government said that it rebutted

the defense’s implied argument “that it would be impossible for

the defendant to have dealt these large amounts of cocaine and

taken    in    this    large    amount    of     money    because      he’s    living     in

relatively low level conditions.”                   J.A. 271.          Defense counsel

responded that Orellano had not been qualified as an expert.



     4 When Garcia-Lagunas and Hernandez were placed in a cell
together after their arrests, Garcia-Lagunas called Hernandez a
“chiva,” a “term supposedly . . . for the people who collaborate
with the law.” J.A. 305-06.



                                            10
After    confirming     that     Orellano’s             testimony      was    based    on    his

training     and   experience,             the        district    court       overruled      the

objection. 5        Orellano      repeated              the     testimony      in     slightly

different      terms:      “It        is     consistent           with       Hispanic        drug

traffickers not to misuse the drug proceeds and to send or get

rid of the proceeds, send them to their native countries or

their next step over them in the drug trafficking organization.”

J.A. 274.      The government referred to this testimony during its

closing     argument       to    explain              Garcia-Lagunas’s         lack     of    an

“extravagant lifestyle.”          J.A. 520.

     Several       other     officers            testified       for     the     government.

Relevant to this appeal, Detective Matthew Taylor testified that

based on his training and experience, the type of baggies he

found in the kitchen at 353 Westcott were “mostly used for the

repackaging and sale of narcotics.”                       J.A. 411.          Detective Stein

testified,     based    on      his    training           and    experience,        that     the

vacuum-sealed bag containing the 800 grams of white powder was

of the type frequently used by drug traffickers “to seal in the

     5 After defense counsel renewed his objection, the court at
a bench conference stated: “I’m not quite sure what the
relevance of all of this is, but I do know, based on my
experience, that most Latins send money home whether they’re
drug dealers or not.”     J.A. 273.  Garcia-Lagunas contends that
the court’s statement emboldened the government to engage in
ethnic stereotyping.    The court’s comment is puzzling at best,
but we do not address it further because there is no evidence
that the jury heard it.



                                                 11
odor of the narcotics so that they’re harder to be detected

[and] easier to transport.”             J.A. 437-38.

       Through      cross-examination       and     closing    argument,          Garcia-

Lagunas presented two defense theories: first, that even if he

sold       drugs   to   the   dealer    witnesses,    he    did   so   in     a    simple

“buyer-seller” relationship, and the evidence was insufficient

to show that he was involved in a distribution conspiracy with

those dealers; 6 second, that he was too poor to have dealt in the

large quantities that the government’s witnesses attributed to

him.

       The court chose (without objection from the parties) not to

submit a special verdict sheet for the jury to indicate the

amount of cocaine Garcia-Lagunas was responsible for within the

conspiracy,        finding      it     sufficient    that     the      verdict      form

specifically referenced the indictment.                 The jury found Garcia-

Lagunas       guilty    of    conspiring    to    distribute      or   possess      with

intent to distribute 500 grams or more of cocaine.                          After the

verdict, the district court sua sponte directed the parties to

brief whether it erred by failing to instruct the jury to find

the    amount      of   cocaine      individually     attributable       to       Garcia-

Lagunas, as required by United States v. Collins, 415 F.3d 304

       6“A mere buyer-seller relationship is insufficient to
support a conspiracy conviction.” United States v. Howard, 773
F.3d 519, 525 (4th Cir. 2014).



                                           12
(4th Cir. 2005).            However, it ultimately ruled that no Collins

error had occurred.

      The      presentence        investigation             report     (the    “PSR”)    found

Garcia-Lagunas responsible for 39 kilograms of cocaine and 16

grams of crack cocaine, resulting in a base offense level of 34.

The PSR added three two-level enhancements for possession of a

dangerous weapon, threatening or directing the use of violence,

and obstruction of justice, resulting in a total offense level

of 40.      The PSR also found Garcia-Lagunas had a criminal history

score    of    zero,    putting         him    in        criminal    history    category      I.

Garcia-Lagunas objected to the drug weight calculation and the

three enhancements.

      The district court overruled Garcia-Lagunas’s objections to

the     drug     weight          calculation             and   the      dangerous       weapon

enhancement,      but       sustained         the        objections    to     the   other    two

enhancements, resulting in an offense level of 36.                                  An offense

level of 36 coupled with criminal history category I yielded a

Guidelines      range       of    188    to        235    months’     imprisonment.          The

government stated, however, that it would agree to a “two level

downward       variance      based      upon        the     Attorney     General’s      recent

directive      that    is    related          to    the     proposed    amendment       to   the

Guidelines, specifically the drug quantity base offense levels

in the Guideline that may end up being a two level drop for each

drug quantity,” provided that Garcia-Lagunas agreed not to later

                                                   13
seek a variance for the same reason.                         J.A. 678-79.            Garcia-

Lagunas so agreed, and the district court stated its intent “to

go down the two levels.”           J.A. 679-80.

       The    resulting     offense    level      of    34    yielded     a    Guidelines

range of 151 to 188 months’ imprisonment.                       The district court

then sentenced Garcia-Lagunas to 188 months’ imprisonment while

stating it was “impos[ing] a sentence at the low end of the

range    because     this    constitutes         the   defendant’s        first      felony

conviction.”         J.A.    680-81,       683.        The   court    also         sentenced

Garcia-Lagunas       to     a   consecutive            sentence      of       24     months’

imprisonment for his unlawful reentry conviction.                              Only after

announcing the sentence did the court allow Garcia-Lagunas to

allocute.



                                           II.

       Garcia-Lagunas argues that the government’s improper use of

an ethnic stereotype to rebut Garcia-Lagunas’s defense theory

that     he    was   too    poor      to    be     a    major     drug        dealer     was

constitutional error and was not harmless beyond a reasonable

doubt.        We will assume, as the government conceded, see Oral

Argument at 20:38–20:51, United States v. Garcia–Lagunas, No.

14–4370 (Sept. 17, 2015), http://coop.ca4.uscourts.gov/OAarchive

/mp3/14-4370-20150917.mp3, that the use of the stereotype was

constitutional error, and proceed directly to the question of

                                           14
whether the government has shown that the error was harmless

beyond a reasonable doubt.                   See, e.g., United States v. Evans,

216 F.3d 80, 89-90 (D.C. Cir. 2000) (declining to decide whether

error      was      constitutional        where    the    error    was    harmless      under

either constitutional or nonconstitutional standard).

                                              A.

        For all constitutional errors that do not “‘defy analysis

by “harmless error” standards[,]’ . . . ‘reviewing courts must

apply          [Federal     Rule     of     Criminal      Procedure]       Rule     52(a)’s

harmless-error            analysis    and    must    disregar[d]         errors   that    are

harmless beyond a reasonable doubt.’” 7                        United States v. Lovern,

293 F.3d 695, 700 (4th Cir. 2002) (third alteration in original)

(quoting Arizona v. Fulminante, 499 U.S. 279, 309 (1991) and

Neder v. United States, 527 U.S. 1, 7 (1999)).                                The essential

question is therefore: “Is it clear beyond a reasonable doubt

that       a    rational    jury     would    have   found       the   defendant       guilty

absent the error?”                 Neder, 527 U.S. at 18; see also United

States         v.   Camacho,   955    F.2d    950,       955    (4th   Cir.    1992)    (“The

decision below should only stand if, viewing the entire record,

it is clear beyond a reasonable doubt that the jury would have

       7
       Garcia-Lagunas does not argue that this constitutional
error is in the “limited class of fundamental constitutional
errors” that require automatic reversal without a harmlessness
analysis. United States v. Lovern, 293 F.3d 695, 700 (4th Cir.
2002).



                                              15
returned       a        guilty     verdict       absent         the    allegedly        harmless

error.”).          The burden rests on the government, the beneficiary

of the error, to show harmlessness.                        See Chapman v. California,

386 U.S. 18, 24 (1967).                  We have “the power to review the record

de   novo      in       order      to    determine         an    error’s         harmlessness.”

Fulminante, 499 U.S. at 295.

     Importantly,               “holding        the      error        harmless         does       not

‘reflec[t]          a      denigration           of      the      constitutional            rights

involved,’”         Neder,       527     U.S.    at   19       (alteration        in    original)

(quoting       Rose      v.   Clark,      478     U.S.     570,       577    (1986)),       and    we

emphasize that “[i]njection of a defendant’s ethnicity into a

trial     as       evidence       of     criminal        behavior           is   self-evidently

improper and prejudicial,” United States v. Cruz, 981 F.2d 659,

664 (2d Cir. 1992); see also United States v. Runyon, 707 F.3d

475, 494 (4th Cir. 2013) (“The Supreme Court has long made clear

that statements that are capable of inflaming jurors’ racial or

ethnic    prejudices             ‘degrade       the   administration             of    justice.’”

(quoting Battle v. United States, 209 U.S. 36, 39 (1908))).

     In     this         case,     the    government’s          reliance         on    an   ethnic

stereotype         to    explain        Garcia-Lagunas’s          living         conditions       was

particularly inapt given its failure to show that Garcia-Lagunas

was sending significant money anywhere.                           The record shows that

since 1988, Garcia–Lagunas has spent the great majority of his

time in the United States.                       While he does have two children

                                                 16
living    in   Mexico,    he   has    two    other   children    living    in   this

country, and at the time of his arrest his parents lived next

door to him.      Nor did the government present any evidence that

Garcia-Lagunas was sending proceeds to the “next step over [him]

in the drug trafficking organization.”                  J.A. 274.     Thus, the

government’s only “evidence” that Garcia–Lagunas was remitting

money was the generalization about Hispanic drug traffickers.

     That said, the harmless error rule “serve[s] a very useful

purpose    insofar   as    [it]      block[s]    setting   aside    convictions”

where the constitutional error had “little, if any, likelihood

of having changed the result of the trial.”                   Neder, 527 U.S. at

19 (alterations in original) (quoting Chapman, 386 U.S. at 22).

The rule thus “recognizes the principle that the central purpose

of a criminal trial is to decide the factual question of the

defendant’s     guilt     or    innocence, . . .        and     promotes    public

respect for the criminal process by focusing on the underlying

fairness of the trial.”              Id. at 18 (alteration in original)

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)).

                                            B.

     In this case, Garcia-Lagunas was found guilty of coming “to

a mutual understanding to try to accomplish the . . . plan of

distributing or possessing with intent to distribute 500 grams

or more of cocaine,” and “knowingly bec[oming] a member of that

conspiracy.”      J.A. 554.          We are satisfied beyond a reasonable

                                            17
doubt    that—even       without      the     government’s    improper        use       of    an

ethnic stereotype—a rational jury still would have arrived at

that verdict.

                                              1.

       We begin first with the quantity of the drugs involved in

the conspiracy.             At trial, the government presented evidence

that Garcia-Lagunas sold far greater amounts of cocaine than the

500 grams charged in the indictment.                     The testimony of Reed,

Jacobs,      Brewington,       and    Locklear      attributed     to   Garcia-Lagunas

the sale of nearly 40 kilograms—40,000 grams—of cocaine.                                Thus,

the    jury    need     only   have     credited      1.3%   of    that      quantity         to

satisfy the government’s burden.

       The fact that Reed, Jacobs, Brewington, and Locklear were

known drug dealers each testifying pursuant to a plea agreement

certainly casts some doubt on their credibility.                              See United

States v. Garcia, 752 F.3d 382, 397 (4th Cir. 2014) (noting that

a     witness’s       testimony       for     the    government     “was       put       into

question . . . not least because his testimony was in return for

sentencing          considerations       by    the    Government        in    a     [state]

prosecution in which he faced a maximum potential sentence of

life    in    prison     and . . .       deportation”).           But   see       id.    (“Of

course,       the    jury   was      unquestionably     entitled        to   credit          the

testimony of [that government witness].”).                        Here, however, the

testimony of three of the dealers was bolstered by phone records

                                              18
showing an extraordinary volume of phone calls (in a compressed

period of time) between them and Garcia-Lagunas. 8            See, e.g.,

J.A. 338 (Jacobs testifying that he and Garcia-Lagunas exchanged

“somewhere around th[e] range” of 56 calls from February 10th to

22nd, 2012); cf. United States v. Johnson, 617 F.3d 286, 298

(4th Cir. 2010) (finding error not harmless where codefendant

drug dealers’ testimony was inconsistent, there was otherwise

“scant   evidence,”   and   defendant   “called   seven    witnesses     to

testify about his legitimate source of income”).

     In addition, circumstantial physical evidence also pointed

to Garcia-Lagunas’s guilt.       See United States v. Holness, 706

F.3d 579, 598-600 (4th Cir. 2013) (finding error harmless beyond

a   reasonable   doubt   even   where   “the   government’s    case    was

predominantly    circumstantial”).      Garcia-Lagunas’s    room   had    a

large scale in it that the jury heard was of the type commonly

used by dealers to weigh drugs in large quantities, as well as a

smaller scale typically used to weigh user amounts of drugs,

which had what appeared to be cocaine and crack cocaine residue

on it.




     8 The phone records were largely irrelevant to Locklear’s
testimony, as the subpoenaed records covered February 9th to
23rd, 2012, and Locklear testified that he stopped purchasing
from Garcia-Lagunas following his arrest in March 2011.



                                   19
        In the same room, officers found a bulletproof vest that

Detective      Collins    testified       was    “another        tool    of     the   drug

trade.”       J.A. 106.       Hernandez told the jury that the vest and

the large scale belonged to Garcia-Lagunas.                        Inside a storage

container     in   Garcia-Lagunas’s         room    was    800    grams    of    a    white

powdery substance, packed in a vacuum-sealed bag and again in a

garbage bag.        The substance field-tested positive for cocaine,

though the readings were “light.”                   J.A. 108.           Subsequent SBI

test results showed that the powder did not contain a controlled

substance but Collins explained that such a result was possible

even if there were cocaine present, given the techniques used in

the lab, if the cocaine had had a significant amount of cutting

agent    added     to   it.     The      government’s       evidence      showed      that

Garcia-Lagunas      was    “known     for    adding       too    much   additive      into

cocaine which would produce a very small amount of cocaine.”

J.A. 111; see also J.A. 363 (Brewington testifying that when he

tried    to   resell     cocaine    he    purchased       from    Garcia-Lagunas,        a

customer complained that “[i]t wouldn’t cook properly”).

        Other tools of the drug trade were found in the trailer’s

main room.         Police found a .32 caliber revolver in a purple

Crown Royal bag in a cabinet over the stove, which Jacobs had

given to Garcia-Lagunas that day.                  There were several phones on




                                            20
the kitchen table when Collins entered the trailer, 9 and Collins

testified that he had seen dealers who dealt in large quantities

with four to six different phones, because “it’s harder for a

law    enforcement     officer     to   keep   track   of   several   different

phones at a time.”          J.A. 85.     In addition, Reed testified that

he    had    used   three   to   four   different   phone   numbers   to   reach

Garcia-Lagunas.        Finally, officers also found one-inch-by-one-

inch plastic baggies on top of the kitchen cabinets and in a box

on top of the refrigerator.

       The     circumstances       of     Garcia-Lagunas’s      arrest     also

demonstrate that he was a drug dealer.                 Jacobs testified that

when he had previously bought cocaine from Garcia-Lagunas at the

Westcott trailer, he bought between a quarter of an ounce and

three-quarters of an ounce, and that on the day of the arrest,

he was there to purchase three-quarters of an ounce and had

given Garcia-Lagunas $600 for it.               Hernandez saw Jacobs give

Garcia-Lagunas “some money . . . and a gun,” J.A. 298, and saw

Garcia-Lagunas count the cash before pocketing it.               And when the

officers arrived, Garcia-Lagunas was found with $600 in cash.




       9The record does not explain where the phones were when
Sergeant Johnson and Detective Stein first entered the trailer,
except for the phone that Garcia-Lagunas removed from his
pocket.



                                         21
      With   respect        to    the    conspiracy     element      of      the   offense,

“[g]iven the ‘clandestine and covert’ nature of conspiracies,

the   government       can       prove   the     existence    of    a       conspiracy     by

circumstantial evidence alone.”                    United States v. Howard, 773

F.3d 519, 525 (4th Cir. 2014) (quoting United States v. Burgos,

94 F.3d 849, 857 (4th Cir. 1996) (en banc)).                            While “[a] mere

buyer-seller        relationship           is     insufficient          to     support      a

conspiracy       conviction,”           evidence    that     such       a    buyer-seller

relationship      is   continuing         and    includes    repeated        transactions

“can support the finding that there was a conspiracy, especially

when coupled with substantial quantities of drugs.”                           Id. at 525-

26 (quoting United States v. Reid, 523 F.3d 310, 317 (4th Cir.

2008)).

      Here, the most direct evidence that Garcia-Lagunas shared a

“mutual    understanding”          to    distribute     cocaine      was     Brewington’s

testimony    that      he    discussed      the    amount     of    cocaine        he   could

“move” with Garcia-Lagunas, so that Garcia-Lagunas “would lower

the   price,”     J.A.      361-62,      which    indicates     that        Garcia-Lagunas

knew Brewington was a reseller and not buying the drugs for his

own use.        In addition, Reed and Locklear each testified that

they were buying from Garcia-Lagunas more than twice a week and

that they were reselling the drugs that they bought from Garcia-

Lagunas.        See Howard, 773 F.3d at 526 (noting that defendant

selling    to    “frequent        customers       who   often      resold      the      drugs”

                                            22
supported a conspiracy conviction).                More circumstantially, the

high    quantities     and    frequency     of    transactions        attributed    to

Garcia-Lagunas support the government’s contention that he knew

his buyers were redistributing the drugs.

                                        2.

       On this record, we are satisfied that the constitutional

error was harmless beyond a reasonable doubt.                   Put another way,

we conclude “that the district court’s judgment, entered on the

jury’s guilty verdict, could not have been substantially swayed”

by the improperly admitted evidence.                United States v. Holness,

706 F.3d 579, 600 (4th Cir. 2013).

       Garcia-Lagunas’s reliance on our decision in United States

v. Johnson, 617 F.3d 286 (4th Cir. 2010), to argue otherwise

misses the mark.        There, we held that a nonconstitutional error

in     admitting     police     testimony        regarding      the     meaning     of

wiretapped phone calls was not harmless in a drug conspiracy

case where “[n]o drugs were found, no financial evidence was

presented     and     there     was    no        surveillance     that     captured

[defendant] engaging in illicit activity, despite the extensive

investigation       mounted     by    the    local      DEA,”    and     where     the

erroneously        admitted    testimony         lent   “critical       credibility

bolstering the government’s reliance on the testimony of three

convicted drug dealers.”         Id. at 295-96.



                                        23
       We    emphasized       there,     however,      that   the    testifying       drug

dealers “often contradicted themselves,” id. at 295, and the

contradictions were highlighted by a DEA agent who originally

testified as a government witness but was called by the defense

“to testify regarding his interview with [one of the witnesses]

and the inconsistencies between the information he collected in

the interview and [that witness’s] testimony at trial,” id. at

291 n.5.

       In addition, Johnson presented a much stronger defense than

Garcia-Lagunas did, testifying that he had never been involved

with drugs, had no criminal record, was a former Marine and

State Trooper, and had legitimate sources of income.                                Id. at

291.        He   also    called     several    witnesses      to    testify    to    those

legitimate        sources      of    income,         and   several    witnesses        who

testified about his lifestyle and character, including that he

had never been involved with drugs.                   Id. at 291-92, 298.

       Finally, the erroneously admitted testimony in Johnson was

central to the government’s case: A government witness testified

that the language Johnson and a non-testifying codefendant used

in a phone call was code related to drug dealing.                              With the

contradictory       testimony       of   the       codefendant     dealers,    this    was

essentially        the    entirety       of    the     government’s     case    against

Johnson.          Id.    at   296     (“Had        Agent   Smith’s    testimony       been

excluded, the jury would have weighed the testimony of Johnson,

                                              24
a veteran and former law enforcement officer with no criminal

record, against that of a convicted drug dealer and two co-

defendants with long rap sheets.”).

       In    short,     Johnson    and   this     case     are    poles    apart.        And

unlike many of the cases that have found that an evidentiary

error was not harmless (Johnson included), what Garcia-Lagunas

did with his earnings from the drug trade was not an element of

the prosecution’s case against him.                      Cf. Satterwhite v. Texas,

486   U.S.     249,     258-59    (1988)    (finding       psychiatrist’s         improper

testimony not harmless beyond a reasonable doubt where jury had

to    find    “future     dangerousness”         beyond    a     reasonable      doubt   to

sentence defendant to death, he was the only psychiatrist to

testify at sentencing, and he “stated unequivocally that, in his

expert       opinion”    the     defendant       would    “‘present       a     continuing

threat to society by continuing acts of violence’” (quoting the

record)); United States v. Williams, 632 F.3d 129, 134 (4th Cir.

2011)       (finding    improperly       admitted     stipulation         not    harmless

beyond a reasonable doubt because it “essentially established an

element of the crime”).

       Moreover,       although    the     government      repeated       the   offensive

stereotype in its closing argument, the improper evidence did

not pervade the trial.              Cf. Garcia, 752 F.3d at 398 (finding

improperly admitted testimony about the meaning of defendant’s

phone calls not harmless where the testifying agent testified

                                            25
six of the twelve days of the trial, was recalled to the stand

eighteen times, and “[f]rom the beginning of the trial to the

end of the trial, the calls and the meaning of the words used in

those calls were the centerpiece of the [g]overnment’s case”).

Finally, the challenged testimony did not open the door to the

admission of further damaging evidence that would otherwise not

have come in.     Cf. Fulminante, 499 U.S. at 300 (finding improper

admission    of   duplicative      confession   not   harmless    beyond    a

reasonable    doubt   where   it    “led   to   the   admission   of   other

evidence prejudicial to” the defendant).

     In     short,    whatever     questions    Garcia-Lagunas’s       living

conditions may have raised, it is beyond clear to us that a

rational jury would have nonetheless convicted him of the drug

conspiracy offense, even had they heard nothing of Orellano’s

improper testimony.      Accordingly, we hold that the evidentiary

error was harmless beyond a reasonable doubt. 10




     10 Garcia-Lagunas also complains that Detective Orellano
should not have been permitted to testify to the practices of
Hispanic drug traffickers because he was not testifying as an
expert.    Having assumed that Orellano’s testimony violated
Garcia-Lagunas’s constitutional rights, but having found it
harmless beyond a reasonable doubt, we do not address this
separate objection.



                                      26
                                             III.

       Garcia-Lagunas          also    contends     that      (1) the    admission    of

evidence regarding Garcia-Lagunas’s immigration status and use

of     an   interpreter        was    plain    error,    (2) the      district    court

improperly allowed Collins to testify as an expert witness in

spite       of     the     government’s      failure     to    comply     with    expert

disclosure         requirements,       and    (3) the    district       court    allowed

improper opinion testimony from several of the government’s lay

witnesses.

       We        review     these    evidentiary       challenges       for   abuse   of

discretion.          Johnson, 617 F.3d at 292.                 Where Garcia-Lagunas

objected at trial, we review for harmless error, leaving the

judgment intact where we are able to conclude, “after pondering

all that happened without stripping the erroneous action from

the whole, that the judgment was not substantially swayed by the

error.”      Id. (quoting United States v. Brooks, 111 F.3d 365, 371

(4th Cir. 1997)).

       Where Garcia-Lagunas failed to timely object, we review for

plain error.              United States v. Keita, 742 F.3d 184, 189 (4th

Cir. 2014).         To make out a plain error, “the defendant must show

‘there was an error, the error was plain, and the error affected

[the    defendant’s]          substantial      rights.’”        Id.     (alteration   in

original) (quoting United States v. Boykin, 669 F.3d 467, 470

(4th Cir. 2012)).

                                              27
                                      A.

     Garcia-Lagunas contends that the district court erred in

admitting evidence regarding his immigration status and use of

an interpreter at trial.         Because the defense failed to timely

object at trial, we review for plain error.

     Evidence of a crime or wrong is not admissible to prove a

defendant’s bad character in order to show that he acted in

accordance with that character.            Fed. R. Evid. 404(b)(1).      Such

evidence may be admissible, however, “for another purpose, such

as proving . . . identity.”        Id. 404(b)(2).      Under Rule 404(b),

we use a four-part test to assess admissibility: “(1) the prior-

act evidence must be relevant to an issue other than character,

such as intent; (2) it must be necessary to prove an element of

the crime charged; (3) it must be reliable; and (4) . . . its

probative   value   must   not   be   substantially    outweighed   by    its

prejudicial nature.”       United States v. Lespier, 725 F.3d 437,

448 (4th Cir. 2013) (alteration in original) (quoting United

States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997)).

                                      1.

     The government presented evidence that Garcia-Lagunas was

an alien illegally in the United States.            The government argues

that this was relevant to Garcia-Lagunas’s identity.            At trial,

the officers explained that “they learned that a Mexican man

going by the name ‘Alex’ was a significant source of cocaine in

                                      28
Cumberland      and     Robeson      Counties.”           Appellee’s       Br.    at    42.

According to the government, Garcia-Lagunas’s immigration status

was thereby relevant as evidence that he was “Alex.”                            We do not

agree.

      Collins      testified         solely       that     “[t]he     defendant         was

previously    deported        from    the   United       States     and    is    an    alien

illegally in the United States right now.”                          J.A. 150.           This

testimony    has      almost    no    probative          value    concerning      Garcia-

Lagunas’s Mexican nationality; it establishes only that he is

not a United States citizen.                     We reject the notion that an

individual’s status as an illegal alien, without more, creates

an   inference     of   Mexican      nationality.           And,    importantly,        the

government could easily have shown that Garcia-Lagunas was from

Mexico without highlighting his immigration status.                         See Fed. R.

Evid. 404(b) advisory committee’s note (“The determination must

be   made   whether     the    danger    of      undue    prejudice       outweighs     the

probative value of the evidence in view of the availability of

other means of proof . . . .”).                  Because the probative value of

Garcia-Lagunas’s          immigration            status,         especially       without

reference to his country of citizenship, was so low, we find

that it was substantially outweighed by its prejudicial nature.

It   was    not,      therefore,      permissible         404(b)     evidence.          See

Lespier, 725 F.3d at 448.



                                            29
     Garcia-Lagunas’s evidentiary challenge, however, fails on

plain error review.         “To be ‘plain,’ an error must be ‘clear’ or

‘obvious’ . . . .”        United States v. Ramirez-Castillo, 748 F.3d

205, 215 (4th Cir. 2014) (quoting United States v. Olano, 507

U.S. 725, 734 (1993)).               Even if the error here was plain, we

“may correct the error” only if it also “affect[s] substantial

rights.”     Olano,      507    U.S.     at    732      (alteration   in    original)

(emphasis omitted).            An error affects substantial rights “in

most cases” if it “affected the outcome of the district court

proceedings.”       Ramirez-Castillo, 748 F.3d at 215 (quoting Olano,

507 U.S. at 734).

     We    need   not    address       whether       the   improper   admission    of

Garcia-Lagunas’s immigration status was plain because we find

that it did not affect the outcome of the trial.                           As we have

discussed,    the    jury      had    before       it   substantial    evidence    of

Garcia-Lagunas’s        participation         in   a    conspiracy    to   distribute

cocaine, and his immigration status was not referenced again

after Collins’s testimony.             Thus, we find no plain error on this

record.

                                          2.

     Garcia-Lagunas also challenges the government’s references

to his use of an interpreter at trial, arguing that they were

intended to paint him as a “faker” for relying on an interpreter

when he did not need one.            Appellant’s Br. at 36.

                                          30
       The government’s witnesses told the jury that they spoke to

Garcia-Lagunas in English when they dealt with him, and some of

those witnesses could only speak English.                   To prove that Garcia-

Lagunas    was     the     man   who     dealt    with     these    witnesses,      the

government had good reason to clarify to the jury that he could

in fact speak English, in spite of the impression his use of an

interpreter       may    have    created.        We    therefore     find   that   the

government’s       references      to    Garcia-Lagunas’s          interpreter     were

relevant     to     identity,      and    their       probative     value   was     not

substantially       outweighed      by    any    threat     of     prejudice.       See

Lespier, 725 F.3d at 448.           Accordingly, we find no error.

                                          B.

                                          1.

       Garcia-Lagunas next contends that the district court erred

in allowing Detective Collins to testify as an expert witness

where the government failed to comply with the expert disclosure

requirements.           Because the defense failed to timely object at

trial, we again review for plain error.

       Federal Rule of Criminal Procedure 16(a)(1)(G) requires the

government, on the defendant’s request, to provide the defendant

a written summary of any expert testimony that it intends to

use.    That summary “must describe the witness’s opinions, the

bases     and     reasons    for    those       opinions,    and     the    witness’s

qualifications.”            Fed.    R.    Crim.       P.   16(a)(1)(G).           “Rule

                                          31
16(a)(1)(G) ‘is intended to minimize surprise that often results

from    unexpected         expert      testimony . . .           and     to    provide      the

opponent      with    a    fair   opportunity          to   test       the    merit    of   the

expert’s testimony through focused cross-examination.’”                                United

States v. Smith, 701 F.3d 1002, 1007 (4th Cir. 2012) (quoting

Fed. R. Crim. P. 16(a)(1)(G) advisory committee’s note to 1993

amendment).

       Garcia-Lagunas points out that the government’s notice that

Collins would “testify about drug trafficking investigations and

methods    utilized        by   drug     traffickers        to   operate       and    protect

their     drug    business,”          J.A.   32,       failed     to     state      Collins’s

qualifications,           opinions,     or   “the      bases     and    reasons       for   his

opinions.”       Appellant’s Br. at 38.

       While     Garcia-Lagunas          has      a    viable        argument       that    the

government’s         short      and    summary        notice     failed       to    meet    the

requirements of Rule 16(a)(1)(G), we need not decide whether the

district court’s admission of the testimony was plain error, as

Garcia-Lagunas cannot establish that any such error affected his

substantial rights.

       On that score, while Garcia-Lagunas claims that Collins’s

testimony was “completely unexpected,” id. at 39, he fails to

point to any specific portion of the testimony that took him by

surprise.        Collins’s testimony largely served to provide the

jury    the      contextual           background       of      how     drug        trafficking

                                             32
organizations function and explain the significance of certain

physical    evidence.      Given      the    limited    scope      of   the    physical

evidence,     Garcia-Lagunas          surely     anticipated        the       line   of

questioning     regarding        the         negative    SBI        test       results.

Accordingly, Garcia-Lagunas cannot establish that more specific

notice of the scope of Collins’s testimony would have so changed

the defense’s ability to cross-examine him that the trial would

have come out differently.            See United States v. Jones, 739 F.3d

364, 370 (7th Cir. 2014) (“We need not consider whether the

error [of admitting expert testimony without notice] could be

considered    plain,    because       [the    defendant]      cannot       demonstrate

that he would not have been convicted absent the error, or that

the introduction of that testimony without complying with the

expert   testimony      requirements         resulted    in    a    miscarriage      of

justice.”).

                                         2.

      Garcia-Lagunas      also        contends    that     Collins’s          testimony

explaining how the white powder might have tested positive in

the   field   but   negative     in    the    laboratory      for   any     controlled

substance was improper lay opinion testimony, as Collins was not

an expert in SBI laboratory techniques.                    Counsel objected at

trial; therefore we review for harmless error.

      After defense counsel’s objection, the government elicited

testimony from Collins demonstrating his familiarity with the

                                         33
methods used by the SBI in its laboratory tests.              In particular,

he testified that he knew from his training and experience that

they would test only a portion of a controlled substance.                 This

foundation           testimony      adequately    demonstrated       Collins’s

competence to testify on this issue. 11



                                        IV.

     Garcia-Lagunas next challenges his sentence.                 “We review a

criminal sentence for procedural and substantive reasonableness

under     a    deferential       abuse-of-discretion   standard.”       United

States v. Washington, 743 F.3d 938, 943 (4th Cir. 2014) (citing

Gall v. United States, 552 U.S. 38, 51 (2007)).              First, we must

“ensure       that    the   district    court    committed   no    significant

procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range.”              Gall, 552 U.S. at 51.      If

the sentence is procedurally sound, we then move on to “consider

the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard.”            Id.    Because Garcia-Lagunas did

not object to any of the alleged sentencing errors, we review

     11 Garcia-Lagunas also contends that the district court
erred in admitting lay opinion testimony from Detectives Taylor
and Stein concerning the use of small plastic baggies and
vacuum-sealed bags in drug trafficking.    Because Garcia-Lagunas
did not object at trial, we review for plain error.       Garcia-
Lagunas cannot meet that high bar.      Given the weight of the
evidence against him, we are confident that the complained-of
testimony did not affect the outcome of the proceeding.



                                         34
for plain error.            United States v. Lynn, 592 F.3d 572, 576–77

(4th Cir. 2010).

                                              A.

      Garcia-Lagunas             first     challenges              the    district          court’s

determination that it did not commit a Collins error in failing

to   instruct     the      jury    to     determine          the     quantity         of    cocaine

Garcia-Lagunas was responsible for within the conspiracy.

      For    drug      offenses,         21   U.S.C.          § 841(b)         “sets       forth    a

graduated     penalty        scheme        based        on    the        quantity      of     drugs

attributable to the defendant.”                     United States v. Foster, 507

F.3d 233, 250 (4th Cir. 2007).                      The statute imposes mandatory

minimum and maximum penalties when a defendant is responsible

for a threshold quantity of drugs.                            Here, Garcia-Lagunas was

convicted of a conspiracy to distribute 500 grams or more of

cocaine.     Under § 841(b)(1)(B), Garcia-Lagunas was subject to a

sentence    of    no      less    than     five     and       no    more       than    40    years’

imprisonment.

      However,      in    United     States        v.    Collins,         we    held       that    “an

individual       defendant,        found      guilty         of    conspiracy         to    violate

§ 841(a),     [should        not]        be     sentenced            under       § 841(b)           by

considering the amount of narcotics distributed by the entire

conspiracy,”        415    F.3d     304,      312       (4th       Cir.     2005)      (emphasis

omitted), but rather “the jury must determine what amount of

cocaine base was attributable to [each defendant],” id. at 314.

                                              35
       The district court, relying on United States v. Williams,

439 F. App’x 254 (4th Cir. 2011) (per curiam), found that it did

not need to submit this question to the jury, as “there [was] no

uncertainty     regarding          the     amount      of   cocaine     the   defendant

distributed and no co-conspirators for the jury to consider,”

and therefore “the drug quantity charged in the indictment can

serve as the statutory sentencing threshold under § 841(b).”

J.A. 639.

       This    was     not     plain        error.          Although     Williams      was

unpublished     and    therefore          not    precedential,     it   suggests    that

even if the district court erred, such error was not plain.                            See

Williams, 439 F. App’x at 257; see also United States v. Hughes,

401 F.3d 540, 547 (4th Cir. 2005) (“An error is plain ‘where the

law at the time of trial was settled and clearly contrary to the

law at the time of appeal.’” (quoting Johnson v. United States,

520 U.S. 461, 468 (1997))).                 In addition, Garcia-Lagunas cannot

show that any such error affected his substantial rights.                               He

was    sentenced      under     21       U.S.C.      § 841(b)(1)(B),     which   has    a

mandatory minimum of five years’ imprisonment.                          Had he instead

been sentenced under the more lenient § 841(b)(1)(C), he would

have    been   subject        to     a    mandatory      minimum   of    three   years’

supervised     release       and     a    mandatory     maximum    of   twenty   years’

imprisonment.



                                                36
        There   is     no     indication       that      the     district      court     was

inclined, in the absence of a five-year mandatory minimum, to

give     Garcia-Lagunas         a     sentence      of    less       than    five   years’

imprisonment.           Nor     was    Garcia-Lagunas’s          sentence      above     the

twenty year mandatory maximum that would have applied under the

more    lenient      subsection.           Garcia-Lagunas        therefore      fails     to

establish that there was plain error or that such error affected

his substantial rights.

                                              B.

       Finally,      Garcia-Lagunas          argues      that    the    district       court

erred procedurally when it calculated his offense level as 36.

We     agree,    and     also       find     that   the     error      was    plain      and

substantially affected Garcia-Lagunas’s rights.

       At sentencing, the district court announced that Garcia-

Lagunas’s total offense level was 36 after sustaining two of his

objections to the PSR’s calculation.                      The government responded

that it would not object to a downward departure of two levels

to reflect upcoming amendments to the Guidelines, and the court

agreed    to    go   down     those    two    levels.          Thus,   Garcia-Lagunas’s

total    offense       level    should       have   been       34,   which    would     have

yielded a Guidelines range of 151 to 188 months’ imprisonment.

While the 188 month sentence the court imposed was within this

range, the court specifically stated that it was “impos[ing] a

sentence at the low end of the range.”                     J.A. 683.        Additionally,

                                              37
in its “Statement of Reasons” form, the court scored Garcia-

Lagunas’s total offense level at 36, noting that it sustained

one    of    Garcia-Lagunas’s     objections       to    the    PSR       and    used   the

anticipated         Guidelines      amendment            reduction,             but     not

acknowledging that it sustained a second objection.                             Thus, the

court’s error in sentencing Garcia-Lagunas under offense level

36 instead of 34 was plain.           See United States v. Ford, 88 F.3d

1350, 1356 (4th Cir. 1996) (finding plain and prejudicial error

where       the   erroneous    addition    of     points       to    the    defendant’s

criminal history score caused the defendant “to be sentenced at

a more severe guideline range”).

       We also find that the error significantly affected Garcia-

Lagunas’s substantial rights.                  The district court made clear

that it intended to sentence Garcia-Lagunas at the low end of

the range to reflect his lack of criminal history.                         Thus, had it

consulted the correct range, there is good reason to believe the

court would have sentenced Garcia-Lagunas to 151, rather than

188, months’ imprisonment.

       After our original opinion in this case, the Supreme Court

in    Molina-Martinez     v.    United    States,       136    S.    Ct.    1338,       1347

(2016), held that “in the ordinary case a defendant will satisfy

his burden to show prejudice by pointing to the application of

an    incorrect,      higher    Guidelines       range    and       the    sentence      he

received thereunder.”          In that case, as here, the district court

                                          38
sentenced the defendant under an incorrect Guidelines range, but

gave him the lowest sentence under that incorrect range, which

also fell within the correct Guidelines range.                        The Court held

that    despite     the   district      court’s         failure     to    explain      the

sentence, “the [d]istrict [c]ourt’s selection of a sentence at

the bottom of the range, . . . ‘evinced an intention . . . to

give the minimum recommended by the Guidelines.’”                         Id. at 1347-

48 (alteration in original) (quoting Brief for the United States

at 18, Molina-Martinez, 136 S. Ct. 1338 (No. 13-40324)).                             Here,

the    sentencing    court    made   this     intention        explicit,       and    thus

“there is at least a reasonable probability that the [d]istrict

[c]ourt     would    have     imposed    a     different       sentence”        had     it

sentenced    Garcia-Lagunas      under       the    correct       Guidelines        range.

Id.     Because     “[t]hat    probability         is    all   that      is   needed    to

establish an effect on substantial rights,” Garcia-Lagunas has

established that effect.         Id. at 1349.

       And though we need not always correct plain error, Keita,

742 F.3d at 189, we do so here.               Fairness dictates that Garcia-

Lagunas     be    sentenced     under    the       correct        Guidelines     range,

particularly when doing so could potentially lead to a sentence

reduction.       See Ford, 88 F.3d at 1356 (“[S]entencing a defendant

at the wrong guideline range seriously affects the fairness,

integrity, and public reputation of the judicial proceedings.”).

“Three years of a man’s life is not a trifling thing.”                        Id.

                                         39
                               V.

     We affirm Garcia-Lagunas’s conviction.   The district court,

however,   plainly   erred   in     calculating   Garcia-Lagunas’s

Guidelines range, and the error affected his substantial rights.

Accordingly, we vacate the sentence and remand for resentencing.


                                                  AFFIRMED IN PART,
                                                   VACATED IN PART,
                                                       AND REMANDED




                               40
DAVIS, Senior Circuit Judge, dissenting:

      On our panel rehearing, my friends in the majority assume

for   the    sake       of   argument         that       the    improper       and   prejudicial

testimony elicited and relied upon by the Government to convict

Appellant     Alejandro         Garcia-Lagunas                 amounts    to    constitutional

error.      There is no need for assumptions; this is unequivocally,

and admittedly, a case of constitutional error.                                  Moreover, the

majority concludes that the Government’s error, as compounded by

the   district       court’s        failure         to    correct        it,    even    if    of    a

constitutional          magnitude,        was        harmless       beyond       a     reasonable

doubt.       I,     however,        remain      compelled          to    conclude       that    the

Government        did    not    carry         its     burden       of     proving      beyond       a

reasonable     doubt         that   its       clearly          unconstitutional        use     of   a

blatant ethnic generalization did not contribute to the jury’s

verdict.           Accordingly,           I     respectfully             dissent       from     the

majority’s decision to refuse, once again, to order a new trial.

                                                I.

      During trial, Garcia-Lagunas’s counsel sought to show that

Garcia-Lagunas was, at most, a common drug abuser and not a

sophisticated drug distributor who trafficked large volumes of

cocaine as alleged in the indictment.                           To make this distinction,

counsel strategically questioned Government witnesses on cross-

examination about Garcia-Lagunas’s meager lifestyle, a lifestyle

devoid of the flamboyant trappings derived from drug proceeds

                                                41
that    one     might    expect       to   surround      a    high-volume        narcotics

distributor.          For example, the cross-examinations of convicted

drug dealer Ronnie Reed and Detectives Shawn Collins and Pedro

Orellano tended to establish that Garcia-Lagunas lived a life of

truly limited means.            Reed testified that he never knew Garcia-

Lagunas to have any “fancy things” such as jewelry, firearms, or

vehicles.       J.A. 222.       Detectives Collins and Orellano testified

that, on the evening of his arrest, Garcia-Lagunas was found

shirtless and shoeless in the “kitchen/living room area” of a

small trailer at 353 Wescott Drive in which he had recently

begun renting a room for less than $350 per month.                          J.A. 103-04,

315.     Detective          Collins    described      the     bedroom       belonging   to

Garcia-Lagunas as in “disarray” and explained to the jury that

it   looked     as    though    Garcia-Lagunas         had     yet    to    unpack   since

moving     to    the    trailer,        as    his     belongings       were      scattered

throughout the small room in laundry baskets.                        J.A. 120.

       Further       law-enforcement         testimony       showed    that   detectives

searched      the     353    Wescott       trailer,    as     well     as   three    other

trailers in and around Robeson County, North Carolina, where it

was alleged that Garcia-Lagunas had previously sold cocaine, and

not one of the searches uncovered evidence of profits consistent

with an individual allegedly trafficking hundreds of thousands

of dollars’ worth of cocaine.                 In fact, the only items of value

that the searches uncovered, a .32 caliber revolver and $600 in

                                             42
U.S. currency, were described as having been brought to the 353

Wescott trailer the night of Garcia-Lagunas’s arrest by Brian

Jacobs, allegedly in exchange for three-quarters of an ounce of

powder cocaine.          J.A. 298, 320–21, 342.            However, no powder

cocaine was actually found at that trailer or any other of the

trailers linked to Garcia-Lagunas.

     Testimony revealed that the only substances discovered by

law enforcement to lab-test positive for the presence of cocaine

were two baggies containing user amounts of crack cocaine, for

which Garcia-Lagunas was not charged.              J.A. 117, 122, 124, 404.

Counsel    for       Garcia-Lagunas    provided    an     explanation    for   the

presence of those drugs by questioning the Government witnesses

about     his    client’s      personal    drug    use.       Three     different

Government witnesses testified that they had observed Garcia-

Lagunas use drugs, J.A. 320, 349, 355, 376, and Jacobs testified

that,     for    a    number   of   years,     Garcia-Lagunas    had     actually

purchased small amounts of cocaine from him for Garcia-Lagunas’s

personal use, J.A. 354.             Further, several detectives explained

to the jury that, on the night of his arrest, Garcia-Lagunas had

white powder under his nose, which, together with his dilated

pupils and erratic movements, suggested that he had ingested

cocaine immediately before the arrival of the law-enforcement

officers.       J.A. 103–04, 248, 283.



                                          43
      To    bring      home   the     defense   theory    of    the    case,   counsel

emphasized during cross-examination that Garcia-Lagunas’s meager

lifestyle did not square with the portrait that the Government

was painting of a sophisticated, large-volume drug trafficker.

Counsel astutely presented the theory by offering the jury the

opportunity to contrast Garcia-Lagunas’s lifestyle with that of

Reed,      one   of    Garcia-Lagunas’s         alleged   purchasers.          Counsel

questioned Detective Collins and Reed on cross-examination about

Reed’s drug-trafficking operation and the proceeds that Reed had

amassed during the four years that he sold drugs prior to his

2012 arrest on federal drug trafficking charges.                        J.A. 153-55,

225-30.      During searches of Reed’s family home and stash house,

officers found more than $100,000 in U.S. currency, multiple

telephones, a 2008 Infiniti, a 2006 Chevy Impala, a 2004 Acura,

a 2004 BMW, a 2002 Lincoln Navigator, and multiple firearms.

J.A. 154-55.          The officers also found contraband consistent with

a   large-scale       drug-trafficking       operation,        including     more   than

180 grams of crack cocaine, more than three-and-a-half kilos of

powder      cocaine,      240     grams    of    marijuana,       money      that   the

Fayetteville police department had used to conduct controlled

buys from Reed, a cocaine press, and a money counter.                        J.A. 225-

29.

      The     upshot     of     all   of   this,    contrary      to   the     majority

opinion’s one-sided spin on the evidence, is that there were

                                           44
two,       competing      narratives       before             the    jury.        And       it    was    the

jury’s call, not the job of the members of this appellate panel,

to    judge       the    credibility           of    all      of     the     evidence,           weigh   it

accordingly,            and    reach       a        fair       and        impartial         verdict      in

accordance with law.

       Ultimately, counsel for Garcia-Lagunas hoped the testimony

he elicited would prompt the following question from at least

one    juror       (because     of     course,           he    only       needed       to   garner       the

interest          of    one    juror    to          raise      a     possibility            of    a     more

beneficial outcome than the one he got): how can a man who is

allegedly         responsible        for       selling           hundreds         of    thousands         of

dollars’       worth      of   cocaine 1        not       have       on    hand    any      discernable

direct       or    indirect     proceeds            of     any      kind    on    the       day    of    his

arrest, with zero indication from any source that his arrest was

imminent?          Any experienced (and even an inexperienced) Assistant

United States Attorney prosecuting cases in this Circuit would

fully expect (and be prepared for) this kind of defense tack on

this record.




       1
       According to the testimony of the four drug dealers
testifying pursuant to plea agreements, Garcia-Lagunas sold to
them, in the aggregate, at least 39 kilos of cocaine, with each
kilo of cocaine valuing approximately $30,000 to $32,000 during
the relevant time frame.   J.A. 205, 208, 239, 340-42, 360-61,
388.


                                                     45
      My friends in the majority may not think much of defense

theories     in        general,          or     of     Garcia-Lagunas’s               theory      in

particular,       but       that    is        what    it     was,       fully    supported        by

admissible    evidence,            and    well       within      the    realm    of    plausible

disputation       by    a    lawyer      committed          to    her    Fifth-       and    Sixth-

Amendment-based         obligations             to     her       client. 2        As        in   any

prosecution, whether for a crime involving the infliction of

unspeakable violence upon actual victims, or in the prosecution

of the most plain-vanilla so-called “white collar” offense, and

any   prosecution           in   between,       the    defendant         in     our    system     is

entitled to have the jury grapple, if it must, with his defense

theory,    unaided          by     blatantly         foul     blows      delivered          by   the

prosecution, abetted by the trial judge, in the use of racial or

ethnic entreaties aimed at undermining or dismissing outright




      2Recall that the indictment in this case charged a greater-
included offense of conspiring to distribute or possess with the
intent to distribute 500 grams or more of cocaine, in violation
of 21 U.S.C. §§ 841(a), 846.        Importantly, therefore, the
defense theory in this case not only militated in favor of an
acquittal, but perhaps even more important from the defense
perspective, it laid the basis for the jury’s consideration of a
lesser included offense involving a lesser amount of narcotics
and thus a lower potential sentence.       Cf. United States v.
Hickman, 626 F.3d 756, 763-71 (4th Cir. 2010) (holding that
evidence was insufficient to support the jury’s guilty verdict
on the indicted conspiracy involving greater drug amount but
remanding for resentencing on conspiracy involving lesser drug
amount).


                                                 46
the defense theory of the case.                  But that is precisely what

happened here.

     As Garcia-Lagunas’s defense theory became apparent during

trial, the Government seemingly recognized for the first time

the absence of drug trafficking proceeds as a potential weakness

in its case, a case in which it now argues the evidence of guilt

was always overwhelming.          The Government opted not to cure the

ostensible     weakness    through       the     introduction      of     admissible

evidence     by,   for    example,      moving    to     admit    proof     of     wire

transfers from Garcia-Lagunas to individuals in Mexico.                          Either

because such evidence did not exist 3 or because the Government

failed to adequately prepare its case, the Government instead

sought to counter the defense theory by eliciting an outrageous

ethnic     stereotype     about   the     propensity       of     “Hispanic       drug

traffickers” to live modestly while sending “the majority if not

all the proceeds back to their native countries.”                         J.A. 270.

The Government then highlighted this irrelevant and unsupported

racial   generalization      at   the    outset     of   its     rebuttal    closing

argument, stating:



     3 As my colleagues in the majority point out, Garcia-Lagunas
has resided in the United States since he was a teenager, and
the majority of his family, including his parents, spouse, and
two of his children, also live in the United States, making it
improbable that he was sending large amounts of money back to
individuals in Mexico.


                                         47
     Ladies and Gentlemen, what did Detective Orellano tell
     you about Hispanic drug trafficking organizations
     [sic] and about what they do with their money?      He
     told you that they package that money and they send it
     back to their home country as part of the drug
     trafficking organization. That’s why we don’t have an
     extravagant lifestyle associated with this Defendant,
     fancy cars, any of the things like Ronnie Reed has
     talked about.

J.A. 520.

     The relative ability of this particular stereotype to sway

one or more jurors is evidenced by its extraordinary confirming

effect   on    the   presiding   judge.     In   response   to    a   renewed

objection     to   Detective   Orellano’s   testimony,   the     trial   judge

held a bench conference and admitted that he “wasn’t quite sure

the relevance of” the Detective’s testimony regarding Hispanic

drug traffickers, but that, “based on [his] experience, . . .

most Latins [sic] send money home whether they’re drug dealers

or not.” 4    J.A. 273.   The Government admittedly hoped the jurors


     4 The majority chooses not to address how the trial judge’s
statements could have independently affected the jury’s thinking
because they were voiced during a bench conference and there is
no affirmative evidence that the jury heard the trial judge’s
reinforcing remarks. However, it is not Garcia-Lagunas’s burden
to demonstrate the rippling effects of the Government’s
unconstitutional testimony.    Rather, the Government is tasked
with establishing that its constitutional error did not
contribute to the jury’s verdict. Here, the Government has not
attempted to show that the trial judge’s statements did not
affect the jury’s consideration of Garcia-Lagunas’s defense
theory. Moreover, I note that, having both served as a juror on
three occasions in criminal cases tried in Maryland state
courts, and having presided for 14 years over federal jury
trials employing “white noise” to keep jurors in the dark, I
(Continued)
                                     48
would draw a similar inference when rendering a verdict.                               J.A.

273.

       To counter Garcia-Lagunas’s primary defense theory and cure

a   perceived     hole    in    its    case,    the    Government      offered         up   a

generalization      about       Garcia-Lagunas’s        ethnicity      to    the    jury.

The Government hoped that, like the presiding judge, the jurors

would believe that Garcia-Lagunas’s modest lifestyle could not

rationally undermine allegations that he distributed hundreds of

thousands of dollars’ worth of cocaine because he assuredly had

been    sending     his    significant         proceeds       back   to     his    native

country, electing to live like a pauper in the United States.

       Tellingly,        even       the   Government          concedes       that       the

elicitation of Detective Orellano’s testimony during re-direct

and    the   recitation        of   the   testimony      at    the    outset      of    the

rebuttal closing argument amounted to a constitutional error.

Oral Argument at 20:38-20:51, United States v. Garcia-Lagunas,

No.      14-4370          (Sept.          17,         2015),         available              at

http://coop.ca4.uscourts.gov/OAarchive/mp3/14-4370-20150917.mps.



know full well that statements made during bench conferences not
infrequently remain within earshot of nearby and attentive
jurors.   Accordingly, because there is nothing in the record
here to suggest that the judge’s remarks went unheard in this
instance, it undeniably falls on this Panel, in conducting a
harmless-error review, to fully consider the trial judge’s
statements and their potential, if not likely, impact on the
jury’s verdict.


                                           49
During oral argument, when asked whether the error amounted to

constitutional        error,     counsel       for     the     Government          responded

unequivocally, “Yes.”           Id.    The Panel then asked, as a result of

the Government’s belief that constitutional error had occurred,

whether   it    was     the    Government’s         burden      “to       prove    beyond     a

reasonable doubt that the error had no substantial effect on the

jury’s verdict.”         Id.     In response, counsel for the Government

firmly stated, “That’s correct.”                Id.

      Accordingly, because it is clear that “[a]ppeals to racial,

ethnic,   or    religious      prejudice        during    the    course       of    a     trial

violate a defendant’s Fifth Amendment right to a fair trial,”

United States v. Cabrera, 222 F.3d 590, 594 (9th Cir. 2000), I

see no reason to resort to assumptions in addressing Garcia-

Lagunas’s appeal.             See, e.g., United States v. Vue, 13 F.3d

1206, 1213 (8th Cir. 1994) (concluding that a constitutional

error occurs when the Government “invite[s] the jury to put [a

defendant’s] racial and cultural background into the balance in

determining      their    guilt”).         The        Government’s         appeal       to   an

unabashed      ethnic    generalization         was     plainly       a    constitutional

error, and as a result, it is the Government’s burden to prove

that its error was harmless beyond a reasonable doubt.                              And, for

the   reasons     set    forth        below,    I     cannot     conclude          that      the

Government carried that burden in this case.



                                           50
                                              II.

      As   the   majority        explains,         not    all     constitutional    errors

mandate reversal.         However, when a non-structural constitutional

error occurs, the reviewing court may only disregard the error

so long as the Government can carry its burden of demonstrating

that the error was “harmless beyond a reasonable doubt.”                            Neder

v.   United   States,      527    U.S.    1,        7    (1999)    (quoting   Chapman    v.

California,      386     U.S.    18,     24    (1967)).            Here,   the   majority

concludes that the Government has met its harmless-error burden

because    “even   without        the    [G]overnment’s            improper   use   of   an

ethnic stereotype[,] a rational jury still would have arrived at

that verdict.”         Ante at 17. 5     For several reasons, I believe this

analysis grievously misses the mark.



      5As discussed fully infra, in framing the issue as it does,
the majority commits a fundamental error that has been
identified and warned against by distinguished legal scholars
and others for decades:

     Properly applied, harmless error analysis should ask
     only whether the state can demonstrate that error did
     not sufficiently affect the outcome at trial and not,
     conversely, whether evidence of guilt outweighed the
     impact of any error.   See Sullivan v. Louisiana, 508
     U.S. 275, 279 (1993) (“The inquiry . . . is . . .
     whether the guilty verdict actually rendered in this
     trial was surely unattributable to the error.     That
     must be so, because to hypothesize a guilty verdict
     that was never in fact rendered--no matter how
     inescapable the findings to support that verdict might
     be--would violate the jury-trial guarantee.”); Jason
     M. Solomon, Causing Constitutional Harm: How Tort Law
     Can Help Determine Harmless Error in Criminal Trials,
(Continued)
                                              51
       Rule       52(a)    of     the   Federal      Rules    of     Criminal     Procedure

mandates that “[a]ny error, defect, irregularity, or variance

that does not affect substantial rights must be disregarded.”

Fed.    R.    Crim.        Pro.    52(a).       Rule       52(a)’s    “emphasi[s]      [on]

‘substantial rights’” serves two important purposes.                               Chapman,

386 U.S. at 22.                 First, it stresses the significance of the

factfinding         process,       recognizing        that,    at     its    heart,     “the

central purpose of a criminal trial is to decide the factual

question of the defendant’s guilt or innocence.”                                 Neder, 527

U.S. at 18 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681

(1986)).       Second, it “promotes public respect for the criminal

process      by    focusing       on    the   underlying      fairness      of   the   trial

rather than on the virtually inevitable presence of immaterial

error.”           Van     Arsdall,      475   U.S.    at     681.      Accordingly,      in

practice, Rule 52(a) works to “save the good”—those convictions



       99 Nw. U. L. Rev. 1053, 1085-98 (2005) (arguing that
       judges should look at evidence of influence on jury
       rather than focusing primarily on untainted evidence
       of guilt).

Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev.55, 108
n.195 (2008); see also John M. Greabe, The Riddle of Harmless
Error Revisited, 54 Hous. L. Rev. (forthcoming 2016) (manuscript
at 12 n.70) (“The [Supreme] Court has at . . . times . . .
suggested that the presence of overwhelming evidence of guilt
alone renders an error harmless. But these statements—which are
akin to a ‘correct result’ test of the sort rejected in Chapman—
are contradicted by the Court’s more carefully reasoned cases
and should not be taken to express the proper formulation.”
(internal citations omitted)).

                                               52
that, while the product of an imperfect trial, were the subject

of    “constitutional             errors         which        in     the       setting         of     [the]

particular        case      [were]      so       unimportant         and       insignificant              that

they may . . . be deemed harmless”—while excising the bad—those

convictions that might have been impacted by the complained of

error.       Chapman, 386 U.S. at 22–24.

       The     Supreme          Court    applied             Rule    52(a)’s          harmless-error

analysis       in       Neder     when       a     criminal         defendant             challenged         a

district court’s failure to submit the materiality element of

the defendant’s tax-fraud charges to the jury.                                       527 U.S. at 4.

The   Supreme       Court       began    by        stating         the    overarching              test    for

determining          whether        a     constitutional                  error        is      harmless:

“[W]hether it appears ‘beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.’”                                                Id.

at    15   (quoting         Chapman,         386      U.S.     at    24).            To    answer         that

question,         the    Court     first         considered         the       ways        in   which       the

Government          could        carry        its          burden        of        establishing            the

materiality         element.         Id.         at    16.      It       explained         that,      “[i]n

general,      a     false    statement           is    material          if    it     has      a    natural

tendency       to       influence,       or       [is]       capable          of    influencing            the

decision of the decisionmaking body to which it was addressed”

but noted that “several courts have determined that any failure

to report income is material.”                             Id. (alterations in original)

(citations and internal quotation marks omitted).                                              The Court

                                                      53
then described how, at trial, the Government had “introduced

evidence that Neder failed to report over $5 million in income

from the loans he obtained,” and that “[t]he failure to report

such    substantial     income      incontrovertibly”             established      the

materiality element of his charges.             Id.

       After   emphasizing      that    Neder    did       not    even   attempt     to

contest materiality, either before the jury or on appeal, the

Supreme     Court   concluded    that,    “[i]n   this       situation,      where    a

reviewing court concludes beyond a reasonable doubt that the

omitted element was uncontested and supported by overwhelming

evidence, such that the jury verdict would have been the same

absent error, the erroneous instruction is properly found to be

harmless.”      Id. at 16–17.          And specifically applying the test

set forth in Chapman, the Court further noted that, “We think it

beyond cavil here that the error ‘did not contribute to the

verdict obtained.’”          Id. at 17 (quoting Chapman, 386 U.S. at

24).

       It is true that reading portions of Neder in isolation and

out    of   context   from    the   remainder         of    the    Supreme   Court’s

extensive harmless-error jurisprudence, as the majority does in

this case, could lead one to conclude that all a reviewing court

must do to satisfy itself of an error’s harmlessness is ask

whether it is beyond a reasonable doubt that a jury would have



                                         54
found    the    defendant       guilty     if    the   error    had   never    occurred.

Such an approach, however, is misplaced and ill-advised.

       First,    it     fails    to    give      proper   credence     to    the   narrow

nature    of     the     holding      in   Neder.         In    summarizing    why    its

harmless-error inquiry reached “an appropriate balance between

society’s interest in punishing the guilty [and] the method by

which decisions of guilt are to be made,” the Court took care to

explain that,

       [i]n a case such as this one, where a defendant did
       not, and apparently could not, bring forth facts
       contesting the omitted element, answering the question
       whether the jury verdict would have been the same
       absent the error does not fundamentally undermine the
       purpose of the jury trial guarantee.

Id. at 18–19.          Unlike Neder, the present appeal clearly does not

fit within the narrow subset of cases where the fact that a

rational jury could have found the defendant guilty absent the

erroneous omission necessarily dictates that the error did not

contribute to the verdict.

       Second, merely assuring oneself that a rational jury would

have    nonetheless       convicted        the     criminal    defendant     absent   the

error fails to heed important guidance from the Supreme Court.

The Supreme Court has explained that, in the case of affirmative

error, a reviewing court should not simply confine itself to the

abstract and ask “whether, in a trial that occurred without the

error,    a     guilty     verdict      would       surely     have   been    rendered.”


                                              55
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993).                    Rather, a Rule

52(a)     harmless-error     analysis     requires     us    to    consider     “what

effect [the error] had upon the guilty verdict in the case at

hand” and assure ourselves that “the guilty verdict actually

rendered in [the] trial was surely unattributable to the error.”

Id.       This   is   so   because,   when    we    frame    the    harmless-error

analysis in the abstract and remain content to imagine a world

where      the   Government     exclusively         relied        upon    admissible

evidence, we not only fail to consider the error’s actual effect

on the jury, but we also “improperly conflate[] sufficiency-of-

the-evidence      review    with   the    appropriate        Chapman      standard.”

United States v. Holness, 706 F.3d 579, 598 (4th Cir. 2013)

(quoting Virgin Islands v. Martinez, 620 F.3d 321, 338 (3d Cir.

2010)).      Here, when I consider the specifics of the Government’s

prosecution      of   Garcia-Lagunas      and   the    unique      nature      of   the

unconstitutional testimony and the prosecution’s arguments based

thereon, I am unable to conclude beyond a reasonable doubt that

the   complained      of   error   did    not      contribute      to    the   jury’s

verdict. 6


      6 In this regard, it bears mention that not all
constitutional infringements visited upon defendants in criminal
cases stand on equal footing.    That is to say, as one scholar
argues,   “judicial  proceedings   marred  by   unconstitutional
discrimination on the basis of race, religion, ethnicity,
national origin, or gender and intentional misconduct by
government officials such as . . . prosecutors” deserve a
(Continued)
                                         56
      From opening statements through closing arguments, Garcia-

Lagunas’s trial lasted a mere thirteen hours spread over the

course     of    three       days.      Within      those    thirteen     hours,      when

confronted with a gaping hole in its confident characterization

of Garcia-Lagunas as a sophisticated drug trafficker responsible

for the distribution of more than 39 kilos of cocaine valued at

more than $1 million, the Government knowingly and purposefully

elicited    inadmissible          and    prejudicial        testimony     from   a    law-

enforcement       officer.           While   the    Government      did   not    qualify

Detective Orellano as an expert, it repeatedly requested that he

testify pursuant to his “training and experience” investigating

Hispanic        drug        trafficking       organizations.            J.A.     272–74.

Accordingly, when Detective Orellano explained to the jury that

it did not need to be concerned that the investigation into

Garcia-Lagunas recovered no proceeds and instead revealed a man

of abject poverty because such evidence was actually “consistent

with the method of operation of Hispanic drug traffickers,” he

did   so    with       an    authority       that   any     juror   would      have    had




heightened level of scrutiny in the analysis of harmless error.
Greabe, supra note 5, at 5.




                                              57
difficulty discounting. 7               The    Government no doubt hoped that

Detective Orellano’s years of experience investigating “Hispanic

drug    traffickers”           would   carry    weight     with   the    jury,     and    the

import of his testimony to the Government’s case is evidenced by

the Government’s decision to begin its rebuttal closing remarks

by asking, “What did Detective Orellano tell you about Hispanic

drug trafficking organizations and about what they do with their

money?”      J.A. 520.

       The weighty impact of this unconstitutional testimony and

argument     is    illuminated         further      when    one   considers       that    the

Government’s            case      against       Garcia-Lagunas           relied      almost

exclusively upon criminal defendants testifying pursuant to plea

agreements        and       circumstantial       evidence.          As    Garcia-Lagunas

pointed out to the jury, the Government was unable to present

any direct evidence that Garcia-Lagunas participated in a drug

trafficking conspiracy through law-enforcement testimony.                                When

cross-examining             Detective     Collins,         Garcia-Lagunas         confirmed

that,      despite      a    lengthy    investigation        into    a    “Mexican       drug



       7Importantly, further exacerbating the impact of this
improper testimony, the trial judge asked Orellano, in open
court before the jury, to state the basis of his opinion.   The
magic words “training and experience” were quickly forthcoming,
and the trial judge promptly overruled counsel’s renewed
objection.     J.A. 272–73.     One can easily understand the
remarkable impact on a juror who observes such a display of
judicial approval of a law-enforcement witness.


                                               58
trafficker       named      Alex,”       the    Government         did     not        have    direct

evidence    of    any      hand-to-hand          transactions         or    controlled          buys

involving Garcia-Lagunas.                     J.A. 152–53.           This lack of direct

evidence is especially probative when one considers that law-

enforcement        officers             had     Reed,        Garcia-Lagunas’s                alleged

purchaser, under “intense surveillance” while Reed was allegedly

visiting Garcia-Lagunas at least three times a week to purchase

cocaine.       J.A.        152–53,       204–06.           Despite    these       frequent      and

consistent       rendezvous,            law    enforcement        never         saw    Reed    with

Garcia-Lagunas and did not become aware of the locations of the

meetings until after Reed was arrested on his own federal drug

trafficking charges.              Id.

      Of   greatest        significance          to       this   appeal’s        harmless-error

analysis, however, is not the highly prejudicial method by which

the unconstitutional evidence was presented to the jury, the

Government’s repeated and strategic reliance upon the evidence,

or the strength vel non of the Government’s case against Garcia-

Lagunas.         The       most    critical          factor      here      is    the     uniquely

troublesome nature of the unconstitutional testimony.                                    Not only

do “[a]ppeals to racial, ethnic, or religious prejudice during

the   course     of    a    trial       violate       a    defendant’s      Fifth       Amendment

right to a fair trial,” but on a broader note, they also place

the public’s trust in “[t]he fairness and integrity of [our]

criminal” justice system at risk.                           Cabrera, 222 F.3d at 594,

                                                59
597; see also Pena–Rodriguez v. People, 350 P.3d 287, 294 (Colo.

2015) (Marquez, J., dissenting), cert. granted sub nom. Pena–

Rodriguez v. Colorado, No. 15-606, 2016 WL 1278620 (U.S. Apr. 4,

2016) (“Racial discrimination in our jury trial system not only

violates our Constitution and the laws enacted under it but is

at war with our basic concepts of a democratic society and a

representative         government,”           and    “the    harm     caused     by       such

discrimination is not limited to the defendant—there is injury

to    the    jury    system,       to   the    law    as    an   institution,        to   the

community at large, and to the democratic ideal reflected in the

processes      of    our   courts.”       (internal        citations    and    quotations

marks omitted)).           And it is in recognition of this fact that

several of our sister circuits have unequivocally condemned the

use     of    impermissible         ethnic      or    racial     generalizations           and

reversed the convictions of criminal defendants, even where the

reviewing      panel    believed        that    the   non-erroneous          evidence      was

sufficient to convict.               See, e.g., Cabrera, 222 F.3d at 596–97

(reversing          defendants’          convictions         after      noting        that,

“[a]lthough we find that the evidence was sufficient to convict

Cabrera and Mulgado, Detective Brook’s repeated references to

their       Cuban   origin     and      his    generalizations        about    the    Cuban

community prejudiced Cabrera in the eyes of the jury”); Vue, 13

F.3d at 1213 (reversing defendants’ convictions despite finding

that    the    evidence      was     sufficient       to    sustain    the    convictions

                                               60
because the panel believed that “the injection of ethnicity into

the    trial    clearly      invited     the   jury    to     put    the   [defendants’]

racial and cultural background into the balance of determining

their guilt,” thereby undermining the bedrock principle of our

legal system--“[f]ormal equality before the law”).                         I agree that

it is “much too late in the day to treat lightly the risk that

racial bias may influence a jury’s verdict in a criminal case.”

United States v. Doe, 903 F.2d 16, 21 (D.C. Cir. 1990).

       Here, because the Government repeatedly encouraged the jury

to     consider      Garcia-Lagunas’s          ethnicity       and    draw     inferences

contrary to Garcia-Lagunas’s interest in reliance upon an ethnic

generalization, I am unable to conclude that the constitutional

error did not contribute to the jury’s verdict.                            Specifically,

the effect of the error was to eviscerate the sole plausible

defense theory of the case, one with ample evidentiary support

in the record.           Indeed, I am baffled how any reviewing court

could    consider      an    error     of   this    magnitude       harmless    beyond   a

reasonable doubt, either to a criminal defendant’s conviction or

our criminal justice system on the whole.                      By presenting to the

jury its unconstitutionally constructed racial taxonomy of the

universe       of    North     Carolina      drug     traffickers—African-American

drug    dealers       like     Reed,   who     live    the    high    life     and   spend

lavishly and ostentatiously, with lots of cash and drugs lying

about,     in       contrast     to    “Hispanic       drug     traffickers,”        whose

                                             61
members, even long-time residents in this country, like Garcia-

Lagunas,        habitually          choose        to     live     in     abject       poverty—the

Government blatantly bolstered its case in contravention of well

known and well settled constitutional norms.

      Moreover,             as     the       majority           opinion           correctly     and

comprehensively explains, the jury knew, for lack of a timely

objection or motion in limine by defense counsel, although it

should not have been told, that Garcia-Lagunas was present in

this country illegally. The majority refuses to treat that error

as   one    remediable           under      our   plain     error       doctrine.      But    plain

error      as     to      that    singular        issue     to    one       side,     the     jury’s

knowledge of that irrelevant and highly prejudicial fact renders

the prosecution’s resort to racial and ethnic animus more, not

less,      condemnable,          and     should        factor    into       the    harmless-error

analysis.         It blinks reality not to do so.

                                                  III.

      It is ironic that, in a break from our sister circuits, and

at a moment in our country’s history when uncommon attention is

being      paid      to    issues      of    racial      and     ethnic      stereotyping       and

consequent           mistreatment,           actual       or     threatened,         this      Court

chooses         to     privilege         the      Government           to     employ,       without

consequence, irrelevant, prejudicial, and factually unwarranted

evidence of blatant racial stereotyping to obtain a criminal

conviction.            In this moment, not even the ethnic heritage of

                                                  62
distinguished federal judges is beyond trashing in the public

sphere,    and       by     a   prominent         candidate        for    the   most    powerful

office on the planet, no less.                          All this at a time when this

Court    has     otherwise            stood      firmly      against       manifestations        of

insidious       racial          and    ethnic      animus      in        voting,   N.C.    State

Conference of NAACP v. McCrory, --- F.3d ---, 2016 WL 4053033

(4th     Cir.        July       29,     2016),         employment,         Boyer–Liberto         v.

Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc), and

many other domains of civic, economic, and political life.

        After this published opinion, future panels of this Court

will be required to struggle with the issue of just how much

evidence of guilt is enough evidence of guilt to permit the

Court to give the Government a pass when it bolsters its pursuit

of a conviction through resort to gratuitous racial and ethnic

evidence intended to spur one or more jurors to convict.                                       This

case    sets     a    very       low       bar,    considering           that   the    level     of

certainty that the constitutional violation had no effect upon

any    juror     is       agreed      to    be    “beyond      a    reasonable        doubt,”     a

standard that, interestingly, this Court has long refused to

allow trial judges to define for ordinary jurors.                                     See United

States v. Walton, 207 F.3d 694, 699 (4th Cir. 2000) (en banc)

(“We    find     no       reason      to    alter      our    current       practice      of    not

requiring       a     jury       instruction           defining      reasonable        doubt     in

criminal cases.”).               Perhaps, as we approach the 50th anniversary

                                                  63
of the seminal teachings of Chapman v. California, the time has

come for this Court to undertake an examination of just what

“beyond a reasonable doubt” means, after all.

     I would vacate the conviction on the conspiracy count of

the indictment and order a new trial.




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