                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           NOV 30 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.   13-10439

              Plaintiff-Appellee,                D.C. No. 4:11-cr-02486-DCB-
                                                 DTF-4
 v.

LUIS CARLOS VASQUEZ,                             MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                  David C. Bury, Senior District Judge, Presiding

                    Argued and Submitted September 13, 2016
                            San Francisco, California

Before: GOULD and BERZON, Circuit Judges, and TUNHEIM,** Chief District
Judge.

      Defendant Luis Carlos Vasquez appeals his convictions following a jury trial

for conspiring to possess marijuana with intent to distribute, possessing marijuana

with intent to distribute, conspiring to import marijuana, and importing marijuana,

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
under 21 U.S.C. §§ 841, 846, 960, 963. We have jurisdiction under 28 U.S.C.

§ 1291. For the reasons that follow, we affirm the conviction, but vacate the

sentence, and remand for resentencing without the weapon enhancement.

                                           I.

      As a preliminary matter, we deny the government’s motion to supplement

the record on appeal to include cover letters, a memorandum submitted in-camera,

and an email between the parties. The government argues that these documents are

necessary to complete the factual record of communications between the parties.

Under Federal Rule of Appellate Procedure 10(e)(2), the record may be

supplemented by material that “is omitted from or misstated in the record by error

or accident.” The cover letters and communications between the parties were

never a part of the record before the district court, and thus do not fall within the

confines of this rule. No extraordinary circumstances counsel in favor of

expanding the record for any other reason here. See Lowry v. Barnhart, 329 F.3d

1019, 1024 (9th Cir. 2003).

                                           II.

      We review Vasquez’s challenge to the government’s decision not to call

co-defendant Victor Stuppi as a witness for plain error because Vasquez did not

object at trial. See United States v. Cabrera, 201 F.3d 1243, 1246 (9th Cir. 2000).


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“Reversal on this basis is justified only if it appears more probable than not that

prosecutorial misconduct materially affected the fairness of the trial.” Id. (quoting

United States v. Sayakhom, 186 F.3d 928, 943 (9th Cir. 1999), amended by 197

F.3d 959 (9th Cir. 1999)).

       Vasquez provides no case law suggesting that the government commits

misconduct by failing to call a witness on its witness list. To the contrary, criminal

defendants have no right to pretrial disclosure of government witnesses, see

Weatherford v. Bursey, 429 U.S. 545, 559 (1977); United States v. Jones, 612 F.2d

453, 454 (9th Cir. 1979); it follows then that when the government opts to disclose

a witness list, it is not required to call all witnesses on the list. Additionally,

Vasquez has not shown that the government’s decision not to call Stuppi materially

affected the fairness of his trial because he could have called Stuppi himself, but he

chose not to. Thus, the government’s decision not to call Stuppi was not

misconduct materially affecting the fairness of Vasquez’s trial.

       Furthermore, the decision not to call Stuppi was not suppression of

exculpatory evidence or witnesses under Brady1 or Giglio2 because the

government’s decision not to call a witness is not “suppression” of evidence. See


       1
           Brady v. Maryland, 373 U.S. 83 (1963).
       2
           Giglio v. United States, 405 U.S. 150 (1972).
                                             3
United States v. Bond, 552 F.3d 1092, 1097 (9th Cir. 2009) (rejecting argument

that the government “suppressed” evidence by failing to call a witness favorable to

the defendant because the defendant was aware of the witness and could have

called the witness himself, and the government’s decision not to call the witness

was trial strategy).

                                         III.

       We review the district court’s discovery ruling and denial of Vasquez’s

motion to continue for abuse of discretion. See United States v. Wilkes, 662 F.3d

524, 543 (9th Cir. 2011) (denial of motion to continue); United States v. Mitchell,

502 F.3d 931, 964 (9th Cir. 2007) (discovery ruling). To the extent Vasquez

argues that the government’s actions amounted to prosecutorial misconduct, he

must show he was denied a fair trial. United States v. Christophe, 833 F.2d 1296,

1300-01 (9th Cir. 1987). “[R]eversal is warranted only if it is more probable than

not that the misconduct materially affected the verdict.” Id. (citations omitted).

       Vasquez’s challenges based on delayed discovery or disclosure fail because

Vasquez has not demonstrated an essential element of a Brady violation—

suppression of exculpatory or impeaching evidence. See United States v. Olsen,

704 F.3d 1172, 1181 (9th Cir. 2013). While the government disclosed some

information shortly before the second trial, the government disclosed much of the


                                           4
same evidence prior to the first trial, and there is no indication that the government

had the newer information for any significant period of time before disclosing it.

Nor is there any indication that Vasquez was unable to use any of the information

at trial. See United States v. Vgeri, 51 F.3d 876, 880 (9th Cir. 1995) (finding no

Brady violation where late-disclosed information was still used during cross-

examination, and thus, “[t]he government disclosed the information at a time when

it was of value to [the defendant]”); United States v. Gordon, 844 F.2d 1397, 1403

(9th Cir. 1988) (finding no Brady violation where the defense received the

documents during the trial with enough time to make use of them, including the

opportunity to recall witnesses).

      Furthermore, reversal is warranted only if a Brady or Rule 16 violation

resulted in prejudice, and Vasquez has shown none here. See Olsen, 704 F.3d at

1181 (Brady violation); United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th

Cir. 1997) (Rule 16 violation).

                                          IV.

      We review the district court’s decision to admit co-defendant Karla Prieto’s

testimony regarding Juan Tiznado’s statement under the coconspirator hearsay

exclusion for abuse of discretion and the district court’s underlying determinations

that the statement was made during and in furtherance of the conspiracy for clear


                                           5
error. See United States v. Moran, 493 F.3d 1002, 1010 (9th Cir. 2007). Under

Federal Rule of Evidence 801(d)(2)(E), a statement is not hearsay if it “was made

by the party’s coconspirator during and in furtherance of the conspiracy.”

      The district court did not err in finding the statement occurred during the

conspiracy because evidence suggested that the conspiracy dated back to before the

2011 statement, with border crossings occurring as early as 2010. It is less clear,

however, that the statement was made in furtherance of the conspiracy. At the time

of the statement, Prieto was already a member of the conspiracy. Prieto testified

that she felt more secure knowing that someone at the border was working with the

members of the conspiracy, but there is no indication that Tiznado, Prieto’s

boyfriend and coconspirator, made the statement for that particular purpose. See

United States v. Williams, 989 F.2d 1061, 1068 (9th Cir. 1993) (“In determining

whether a statement is made ‘in furtherance of’ a conspiracy, the court looks to the

declarant’s intent in making the statement, not the actual effect of the statement.”

(citation omitted)).

      Even if the district court clearly erred in finding the statement was made in

furtherance of the conspiracy, however, the error is “harmless ‘unless we have

grave doubt whether the erroneously admitted evidence substantially affected the

verdict.’” United States v. Alvarez, 358 F.3d 1194, 1214 (9th Cir. 2004) (quoting


                                           6
United States v. Ellis, 147 F.3d 1131, 1134 (9th Cir. 1998)). Even without

testifying about Tiznado’s statement, Prieto could have testified that she knew that

someone was working with the conspiracy at the border, and that she saw Tiznado

smiling or nodding at Vasquez in greeting, which likely would have conveyed a

similar message. Additionally, the defense introduced significant impeachment

evidence regarding Prieto, which may have lessened the impact of her testimony as

a whole. Thus, any error in admitting Prieto’s testimony regarding Tiznado’s

statement was harmless because it did not substantially affect the verdict.

                                          V.

      Because Vasquez’s counsel failed to object, we must determine whether the

prosecutor’s vouching comments during closing arguments amounted to plain

error. United States v. Smith, 962 F.2d 923, 933 (9th Cir. 1992). We find that the

prosecutor engaged in improper vouching during closing arguments by

encouraging the jury to consider during their deliberations whether the prosecutor

would have suborned perjury, which he stated was a federal crime that could result

in jail time. See United States v. Weatherspoon, 410 F.3d 1142, 1146 (9th Cir.

2005) (finding that the prosecutor improperly vouched by stating that the police

officer witnesses would risk losing their pension and livelihood, and could face

perjury charges if they lied because it “urged that the existence of legal and


                                           7
professional repercussions served to ensure the credibility of the officers’

testimony”); Smith, 962 F.2d at 933-35 (finding improper vouching where “[t]he

cumulative effect of [the prosecutor’s] statements was to submit the prosecutor’s

personal conviction of [the defendant’s] guilt, together with the government’s as a

whole, as factors for the jury to consider in its deliberations along with the actual

evidence”).

      In light of defense counsel’s strong suggestion during closing arguments that

the government suborned perjury, however, the prosecutor’s vouching did not

implicate the fundamental fairness of the trial, and therefore, it was not reversible

plain error. See United States v. Young, 470 U.S. 1, 11-16 (1985) (concluding that

vouching that is an “invited response” and does no more than “right the scale,”

when considered in context, does not amount to reversible plain error).

Additionally, the vouching statement did not implicate the fundamental fairness of

the trial in light of the defense counsel’s impeachment evidence regarding Prieto,

the district court’s general jury instructions about attorney arguments not being

evidence, and the significant circumstantial evidence of Vasquez’s guilt. See

United States v. Necoechea, 986 F.2d 1273, 1280-81 (9th Cir. 1993) (finding no

reversible plain error where there was a general jury instruction that attorneys’

arguments were not evidence, the witness’s “credibility was forcefully challenged


                                           8
at trial,” and there was “significant circumstantial evidence connecting” the

defendant with the crime).

                                           VI.

       Cumulatively, the above-discussed errors are not sufficiently prejudicial to

require reversal. “[W]hile a defendant is entitled to a fair trial, he is not entitled to

a perfect trial, ‘for there are no perfect trials.’” United States v. Payne, 944 F.2d

1458, 1477 (9th Cir. 1991) (quoting Brown v. United States, 411 U.S. 223, 231-32

(1973)). There is significant circumstantial evidence that Vasquez was involved in

the drug conspiracy, and he has not shown how any of these alleged errors,

individually or cumulatively, could have changed the verdict in this case.

                                           VII.

       The district court’s factual finding supporting a 2-level enhancement for

obstruction of justice under U.S.S.G. § 3C1.1 is reviewed for clear error. See

United States v. Jimenez, 300 F.3d 1166, 1170 (9th Cir. 2002). To support an

obstruction of justice sentencing enhancement the district court must make three

findings: “(1) the defendant gave false testimony, (2) on a material matter, (3) with

willful intent.” United States v. Castro-Ponce, 770 F.3d 819, 822 (9th Cir. 2014)

(quoting United States v. Garro, 517 F.3d 1163, 1171 (9th Cir. 2008)). Here, the

district court found that Vasquez committed perjury when he testified at both of his


                                            9
trials, and the court made all three necessary findings, stating “that [Vasquez’s]

testimony was false, that it was material to the issues, [and] that it was willful.”

Contrary to Vasquez’s contention, none of the cases cited require that the district

court identify specific instances of false testimony. See id.; United States v. Acuna,

9 F.3d 1442, 1445 (9th Cir. 1993) (“[A] district court is not required to enumerate

specifically which portions of a defendant’s testimony are false to justify an

enhancement for obstruction of justice.” (citation omitted)). Thus, the district

court did not clearly err in applying a sentencing enhancement for obstruction of

justice because it made all three required findings.

                                          VIII.

      Because Vasquez did not object to the imposition of a weapons enhancement

under U.S.S.G. § 2D1.1(b)(1), we review for plain error. See United States v.

Lindsey, 634 F.3d 541, 555 (9th Cir. 2011). Because Vasquez possessed a weapon

during the crime due to his position as a Customs and Border Patrol Officer, the

enhancement applies “unless it is clearly improbable that the weapon was

connected with the offense.” U.S.S.G. § 2D1.1, n.11(A) (2012). The district court

recognized that the weapon was not connected to the offense when denying the

probation officer’s recommendation to apply the weapons enhancement with




                                           10
regard to Vasquez’s coconspirators, but applied the sentencing enhancement

without explanation during Vasquez’s sentencing hearing.

      Applying the weapons enhancement for possession of a service weapon

during the commission of a crime may be warranted where the weapon provided

additional security or where there was some likelihood that the weapon would be

used during the offense. See, e.g., United States v. Marmolejo, 106 F.3d 1213,

1216 (5th Cir. 1997) (applying the weapons enhancement where armed INS officer

transported drugs, acting as an “armed guard”); United States v. Ruiz, 905 F.2d

499, 507-08 (1st Cir. 1990) (applying the weapons enhancement where a police

officer’s service weapon “instilled confidence in those who relied upon him for

protection in exchange for drugs, and fear in those who dealt with his suppliers”).

      Here, however, Vasquez’s involvement in the offense was limited to

allowing vehicles to pass through his checkpoint without searching for contraband;

there is no indication that the presence of Vasquez’s weapon had any impact on the

offense or that Vasquez presented a risk of using the weapon in connection with

the offense of conviction under any circumstances. Thus, the district court plainly

erred in imposing the 2-level weapons enhancement. We vacate Vasquez’s

sentence and remand for resentencing without the enhancement.

                                         IX.


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      Sentencing reductions due to reduced base offense levels for drug offenses

after Amendment 782 are typically sought by bringing a petition under 18 U.S.C.

§ 3582(c)(2), rather than by remand after direct appeal. See United States v.

Boykin, 785 F.3d 1352, 1364 n.9 (9th Cir. 2015). Because remand is warranted on

another ground, however, the district court may consider any change in base

offense level due to Amendment 782 at Vasquez’s resentencing.

                                          X.

      This is not an “unusual case[]” that satisfies one of the “extraordinary

exceptions” to the typical procedure that claims of ineffective assistance of counsel

are raised in collateral proceedings rather than direct appeal, United States v.

Jeronimo, 398 F.3d 1149, 1156 (9th Cir. 2005), overruled on other grounds by

United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc), and

thus, we will decline to hear Vasquez’s ineffective assistance of counsel claims.

AFFIRMED in part; VACATED in part; and REMANDED for resentencing.




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