United States v. Francisco Montes-Vargas
679 F. App'x 588
| 9th Cir. | 2017Background
- Francisco Montes-Vargas was convicted on two drug charges and appealed.
- At trial, Agent Nack testified about telephone conversations; Montes-Vargas did not object below, so appellate review was for plain error.
- Montes-Vargas’s defense was mistaken identity: he argued he was not the drug dealer nicknamed “Pastas.”
- The government presented eyewitness surveillance ID, voice identifications by two witnesses, and Montes-Vargas’s jail-call statements corroborating identity.
- The Presentence Investigation Report (PSR) attributed 30 pounds of methamphetamine to Montes-Vargas, but the parties had stipulated to 24.5 pounds; this miscalculation affected the Guidelines range.
- The Ninth Circuit affirmed the conviction but vacated the sentence and remanded for resentencing because of the Guidelines error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/plain-error of Agent Nack’s testimony | Nack’s interpretive testimony was improper and harmful | Any error was harmless because other evidence proved identity | Plain-error review; even assuming error, not prejudicial—harmless due to corroborating evidence; conviction affirmed |
| Need for instruction on dual expert/lay role | Montes-Vargas argued jury should have been instructed about Nack’s dual role | Government argued testimony was clearly demarcated between lay and expert parts | No instruction required; demarcation between lay and expert testimony was clear |
| Sentencing: PSR drug-quantity miscalculation | Sentencing based on incorrect 30 lb figure inflated Guidelines | Government conceded the PSR was incorrect; parties had stipulated 24.5 lbs | Procedural error in Guidelines calculation; sentence vacated and remanded for resentencing |
| Scope of remand re: additional January 2010 seizure | Montes-Vargas sought limitation on what district court may consider on remand | Government may argue all relevant evidence should be considered | Court remanded on open record and left consideration of January 2010 seizure to district court’s prerogative |
Key Cases Cited
- United States v. Lopez-Martinez, 543 F.3d 509 (9th Cir.) (plain-error review when defendant fails to object at trial)
- United States v. Sherwood, 98 F.3d 402 (9th Cir.) (procedural context for appellate review of unpreserved errors)
- United States v. Cotton, 535 U.S. 625 (error must seriously affect fairness, integrity, or public reputation to warrant reversal under plain-error standard)
- United States v. Freeman, 498 F.3d 893 (9th Cir.) (agent testimony harmless when corroborated by other evidence)
- United States v. Munoz-Camarena, 631 F.3d 1028 (9th Cir.) (incorrect Guidelines calculation is a significant procedural error requiring resentencing)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (an incorrect Guidelines range can itself show a reasonable probability of a different outcome)
- Williams v. United States, 503 U.S. 193 (district court has prerogative to determine sentence in light of properly considered Guidelines factors)