Argued and Submitted, Pasadena, California January
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:11-cr-04881-H-1. Marilyn L. Huff, District Judge, Presiding.
Holly A. Sullivan (argued), San Diego, California, for Defendant-Appellant.
Laura E. Duffy, United States Attorney; Bruce R. Castetter, Assistant United States Attorney; William P. Cole, Assistant United States Attorney; Kyle W. Hoffman, Assistant United States Attorney (argued), San Diego, California, for Plaintiff-Appellee.
Before: Alex Kozinski, Chief Judge, Richard R. Clifton, Circuit Judge, and Jed S. Rakoff, Senior District Judge.[*] Opinion by Chief Judge Kozinski.
KOZINSKI, Chief Judge:
It is said that every dog has its day. Unfortunately for Kevin Rangel-Guzman, the drug detection dog at the Otay Mesa Port of Entry was having a fine day on September 5, 2011, when Rangel-Guzman and a friend attempted to re-enter the United States. The dog alerted to their vehicle, and Customs and Border Protection officers conducted a search. Officers found 91.4 kilograms of marijuana, hidden in a compartment behind the backseat. Good dog!
Rangel-Guzman and his friend were promptly arrested and interviewed separately. They both said Rangel-Guzman had borrowed the car so that they could drive from Los Angeles to Ensenada, Mexico. Rangel-Guzman, but not his friend, was charged with importation of marijuana. See 21 U.S.C. § § 952, 960.
At his trial, Rangel-Guzman told a convoluted tale that differed substantially from the story he had given the border agents immediately after his arrest. He claimed that he met his Aunt Martha and cousin Daniel for the first time at a Quinceanera--a traditional Latino celebration of a girl's fifteenth birthday. During the Quinceanera, which allegedly occurred just a month prior to Rangel-Guzman's arrest, Martha invited him to a wedding in Tecate, Mexico. He claimed he went to the wedding by taking a bus from Los Angeles to Tijuana and either a taxi or another bus to Tecate, then returned to Los Angeles the same way.
The day after the wedding, he decided to return to Mexico to " have a good time." Aunt Martha agreed to lend him a car, which he picked up at her home. Rangel-Guzman and his friend drove to his cousin Daniel's house in Tecate, where they left the car. They then took a lengthy cab ride to Ensenada, where they spent a couple hours, before returning to Daniel's house to pick up the car. Rather than re-entering the United States at Tecate, they drove to Otay Mesa, ostensibly because Daniel said it would be quicker.
During cross-examination, the Assistant United States Attorney repeatedly attempted to impeach Rangel-Guzman by referring to a meeting between herself, Homeland Security Agent Baxter, Rangel-Guzman and Rangel-Guzman's attorney. In doing so, the AUSA made it clear that she had questioned Rangel-Guzman and that he had made certain statements inconsistent with his current testimony: " You told us that you and your mother ran into Martha . . . You told us that four or five months before . . . That's whet you told us last week . . . Don't you remember that I was shocked that you were saying it was four to five months before you got arrested?"
Rangel-Guzman's attorney didn't object, the district judge didn't intervene and Rangel-Guzman was convicted. On appeal, defendant argues that the prosecutor improperly vouched and violated the advocate-witness rule. Rangel-Guzman also claims that the district court erred when it held that he failed to qualify for a two-point reduction in his base sentencing level because he ...