Defendant-appellant Jorge A. Vázquez Rivera (“defendant”) appeals from his conviction on one count of conspiracy to possess cocaine and heroin with intent to distribute under 21 U.S.C. § 846. For the reasons stated below, we affirm his conviction.
I.
We recount the relevant facts in the light most favorable to the jury verdict.
See United States v. Casas,
The government presented the testimony of seven witnesses in its case in chief, six of whom testified pursuant to plea agreements. José Borrero Feliciano (“Borrero”) testified that, after he was released from prison in 1991, he approached defendant about working for him in the drug business. Borrero stated that, after defendant consulted with Roberto Soto An-dón (“Soto”), he began selling cocaine and heroin on behalf of defendant and Soto. *480 According to Borrero, defendant told him that he was in charge of the drug point at the La Ceiba Housing Project in Ponce, Puerto Rico (“the Ceiba drug point”). Borrero stated that he never saw defendant sell drugs on the street, but that he went to defendant’s home to replenish his drug supplies.
Alberto Negron Constantino (“Negron”) testified that he met defendant in 1995 and sold him cocaine and heroin for distribution by Soto’s drug operation. Negron initially sold cocaine and heroin to defendant’s brother Víctor Vázquez Rivera. In late 1996 or early 1997, Negron began working for Soto. According to Negron, Soto removed defendant as the head of the Ceiba drug point. Negron then took over the Ceiba drug point and began purchasing the cocaine and heroin for the drug point himself. Another co-conspirator, Daniel Sanchez Ortiz (“Sánchez”), testified that he was a drug runner in the Soto organization and that he bought and sold drugs from defendant’s brother. While Sánchez never dealt directly with defendant, he was instructed by Víctor Vázquez Rivera that he was acting on behalf of defendant.
Another witness, Edwin Meléndez Neg-ron, stated that he had been supplied drugs by defendant for his drug point elsewhere in the Ponce area. In addition, he testified that he went to Las Cucharas jail in Ponce, Puerto Rico with defendant to visit Soto while he was confined there. Alexander Figueroa Delgado testified that he lived for about a month with a cousin who sold heroin for defendant. Finally, Yazmin Laracuente Alameda testified that after her husband was arrested on drug charges, she began selling cocaine for defendant.
Defendant appealed from the jury verdict, alleging the following: (1) improper testimony from a government witness; (2) the prosecutor’s closing arguments were rife with error; and (3) defendant’s sentence was improperly enhanced. In supplemental briefing, defendant also appealed his sentence on the basis that it was imposed in violation of
United States v. Booker,
— U.S. -,
II.
A. Improper Testimony
Defendant argues on appeal that the casé agent, Iván Lugo, gave improper vouching testimony. Because there was no contemporaneous objection, we review for plain error. To show plain error, a defendant must show that an error occurred, which was clear and obvious; and that it affected defendant’s substantial rights and seriously impaired the fairness, integrity or public reputation of the public proceedings.
See United States v. Pérez-Ruiz,
Defendant argues that the testimony of Agent Lugo was improper because, in the course of rebuttal, the prosecution twice elicited a statement from Lugo purporting to “certify” that Víctor Vázquez Rivera, defendant’s brother, would not have received a safety valve credit if he had not incriminated the defendant. Further, defendant argues, it was improper to allow testimony that Agent Lugo “already knew” that defendant was involved in drug trafficking.
Improper vouching occurs when “prosecutors ... place the prestige of the United States behind a witness by making personal assurances of credibility or by suggesting that facts not before the jury support the witness’s account.”
United States v. Torres-Galindo,
*481 Agent Lugo initially testified in the government’s case in chief. The statements that defendant objects to on appeal were given after defendant’s brother, Victor Vázquez Rivera, testified for the defense. Víctor Vázquez Rivera testified that his brother was not involved in Roberto Soto’s operations and that he had never distributed cocaine or heroin. In order to impeach Vázquez Rivera’s testimony, the government called Agent Lugo to the stand again. He testified to the following:
Q [by AUSA]: Sir, did you have an opportunity to interview Victor Vázquez Rivera?
Agent Lugo: Yes, ma’am.
Q: And what was the purpose of that interview?
A: It was a safety valve debriefing.
Q: Please explain to the members of the jury, what is a safety valve debriefing?
A: Safety valve debriefing is an opportunity for the defendant [referring to Víctor Vázquez Rivera] to speak to the government and give us his admissions of their [sic] criminal activities. And this statement cannot be used against him once [he] give[s] it to us at that particular time, and in return they receive the benefit of the safety valve debriefing.
Q: When you say give the opportunity, [Víctor Vázquez Rivera] an opportunity to speak about him, is he also required under the law to speak about everything he knows?
A: Yes, ma’am.
THE COURT: Well, when you say about everything he knows, so that we are exact, the requirement on the safety valve debriefing is that he testifies about everything he knows about the offense that he is pleading to, or other offenses that have a common scheme or plan with that offense....
Q: Do you recall what, if anything, did Víctor Vázquez say about Jorge Vázquez, his brother during that debriefing?
A: Yes, ma’am. The first thing that I remember in reference to that is when I started talking to him about his brother and Robert[o Soto-An-dón], he refused to talk. He said that he wasn’t going to say anything regarding his brother or Robert[o Soto-Andón], And at that point—
A: At that point he was advised, you know, that if he didn’t say everything that he knew, he couldn’t receive credit.
He kept stubbornly saying that he wasn’t going to say anything, that he didn’t care.
At that point I contacted the U.S. Attorney’s Office and advised them of the problem I was having. And you know, it was conveyed to Mr. Vázquez, Víctor Vázquez, that he had to say everything that he knew related to the charges that he had been involved, with the criminal activities he had been charged, and that part of that was talking about his brother.
He stated that he was not going to testify against his brother or anybody else and then reluctantly admitted his brother worked for Robert[o Soto-Andón], he was a runner for [him],
Q: Sir, do you know if the government certified later on [sic] the court that Víctor Vázquez had complied with *482 meeting with the United States and providing all information he had?
A: Yes, ma’am.
Q: [After Agent Lugo was shown a copy of his notes] Sir, is this the only reference to Robertfo Soto-An-dón] and [defendant] in any of these notes?
A: Yes, ma’am. If you notice, it has the asterisk next to it, that was when we reached the point during the interview that I began to have the problem that I mentioned earlier with Mr. Víctor Vázquez. Once I asked him about Robert[o Soto-An-dón] and his brother, that was when we had that problem and I made those notations there, the asterisk. Also, the part about [defendant] being a “compadre” of—
Q: Why did you put that down?
A: Because I didn’t know that. I knew about Robert[o Soto-Andón] organization, about the drug trafficking, but I had no knowledge that [defendant] was the “compadre” of Roberta Soto-Andón]. So I felt that was something I had to write down to-remember it.
Q: Who gave you that information?
A: Víctor Vázquez, ma’am....
After defendant’s counsel cross-examined Agent Lugo regarding his taking of notes during the safety valve debriefing, Agent Lugo gave the following testimony on redirect:
Q: Mr. Lugo, would the government have certified that Víctor Vázquez had provided the information 'if he had not stated the information about his brother?
A: No, the government would not certify him.
Defendant argues that Agent Lugo attempted to vouch for the credibility of Víctor Vázquez Rivera. Defendant’s argument fails because Agent Lugo was not attempting to bolster the credibility of any witness, he was merely explaining the procedure under 18 U.S.C. § 3553(f). Agent Lugo was not, as defendant suggests, stating that Víctor Vázquez Rivera told the truth at the safety valve hearing, although that is its purpose.
See generally United States v. Matos,
Defendant also objects to the agent’s testimony regarding his knowledge of the drug operation as inadmissible hearsay, and points to
United States v. Casas,
Defendant also argues that the statement regarding the safety valve hearing was improper hearsay testimony. Where, as here, a statement is introduced to impeach a statement that a witness provided on direct examination, the statement is admissible for that purpose. The government argues that the evidence is admissible under Fed.R.Evid. 613(b), which provides for the admissibility of extrinsic evidence of a prior inconsistent statement by a witness as long as the witness is afforded an opportunity to explain or deny his statement.
See United States v. Winchenbach,
B. Closing Argument
Defendant argues that the Assistant United States Attorney engaged in prose-cutorial misconduct during closing argument and rebuttal. Because there was no objection made in the district court during the closing argument, we review only for plain error.
See Pérez-Ruiz,
1. Vouching During Closing Argument
“A prosecutor improperly vouches for a witness when she places the prestige of her office behind the government’s case by, say, imparting her personal belief in a witness’s veracity or implying that the jury should credit the prosecution’s evidence simply because the government can be trusted.”
Pérez-Ruiz,
The defense alleges that the following statements made during closing arguments constituted improper vouching:
[d]id [Victor] implicate his brother? If not, how did he get that advantage from ten to five? Because he complied with the safety valve, and he was told this is a confidential things [sic], this is for intelligence purposes.
Couldn’t Agent Lugo come up with a better story if we’re going to talk about, you know, I’m going to come and “cuad-rar esto” 1 to say something that didn’t happen. Consider what was not said, look at those notes. Couldn’t Agent Lugo put, “Yes, he told me this, this, and this, and this didn’t happen.” Wouldn’t that be a better story to present before the jury?
And that’s one thing I also ask you, when you consider are these people *484 making up stories, couldn’t they have made up a better story? They’ve been in jail for four years, couldn’t everything have come in here “cuadrao,” he lived here, he did this and this. They had all the time in the world, but that was not the case. They had contradictions like human beings are [sic].
According to defendant, the prosecution improperly vouched for witnesses during closing argument because it used the fact that Víctor Vázquez Rivera got a safety valve reduction as evidence of his truthfulness. Defendant argues that the government put its prestige behind Victor Vázquez Rivera’s testimony.
Defendant argues that under
United States v. Auch,
The closing argument was “a logical counter to the assertions of defense counsel, made in summation, that various government witnesses had fabricated their testimony because they wanted the [defendant] behind bars and would stop at nothing to put him there. We typically cede prosecutors some latitude in responding to defense counsel’s allegations of fabrication.”
Pérez-Ruiz,
2. Reference to murder conviction
Defendant argues that the prosecution made a gratuitous reference to Soto’s murder conviction by saying that he was serving time for murder when defendant visited him at Las Cucharas and that the prosecutor argued guilt by association. “A defendant is entitled to have the question of his guilt determined by the evidence against him, not on whether a co-defendant or government witness has been convicted of the same charge.”
United States v. Dworken,
On the first day of trial, the government and defendant informed the judge that they had reached an agreement not to mention most or any murders that involved witnesses. Soto was convicted of first degree murder and released on probation before the conspiracy at issue here began. The government’s theory of the ease involved the defendant’s visits to Soto’s house, in particular where he went with a government witness during Soto’s probation. Defendant concedes that this association was relevant to the conspiracy, but argues that there was no need to *485 mention the conviction and the only reason that the prosecutor did so was so the jury would be more likely to convict.
The government argues that evidence of the murder conviction was already entered into the record through the testimony of several witnesses.
See United States v. McKeeve,
Moreover, at the beginning of the trial, counsel agreed that while certain murders would not be mentioned to the jury, there were some murders incidental to the conspiracy which would be entered into evidence. Because there was a specific agreement between the parties, we are convinced this could not rise to any error on the part of the district court.
See Casas,
3. Improper Appeal to Jury’s Passion And Prejudice
Defendant argues that the cumulative effect of the closing was to inflame the jury’s passions to deprive him of a fair trial. Defendant argues that the closing, as excerpted below, incited the jury to find him guilty.
[TJhere’s going to be argument, oh, they were really bad people, they would rob, all they did was sell drugs, and they would consume drugs. But when you hear that argument, ask yourself, people like Borrero, who was he selling drugs for? [Defendant]. People who are smarter than him. People who have better opportunities than people like [Borrero] that just grew up at the Ceiba Housing Project, that never had an education, never had an opportunity.
And you think about Alexander Figueroa. Oh, he’s a convicted murderer. And yes, he is, and he’s a despicable human being, a person that had no pity for people like Jeannette, the 19-year-old girl that he carjacked. When you examine his testimony, I invite you, ladies and gentlemen, to consider what has Alex Figueroa done all his life? Since he was 12 years old, all he did was consume narcotics, ‘meterse drogas’ as they say, and rob. And rob for what? To get more money, to get more drugs.
And who was [sic] the drugs he was selling for? [Defendant]. I submit to you when you consider credibility, you say Alexander Figueroa is real bad, we agree he is real bad. But who was he doing that for? For people like [defendant], that you heard evidence, even from [defense] witnesses, that had better opportunities in life. That’s who he was selling drugs for.
These statements are of the species of commentary that may inflame the jury’s passion. Not only was the issue of drug trafficking addressed as social malaise, but it seemed to introduce an element of social standing into the closing — that defendant was more guilty than the others because he had had the opportunity to do something with his life, but instead chose drug
*486
trafficking. We cannot say, however, that “[t]hese comments interjected issues having no bearing on the defendant’s guilt or innocence and improperly appealed to the jury to act in ways other than as dispassionate arbiters of the facts.”
United States v. Mooney,
Defendant also argues that the prosecution, in closing, improperly referred to defendant’s testimony, intimating it was untruthful. The prosecutor stated “[w]ho has the most interest in the outcome of this case? [Defendant], who takes the stand and tells you, ladies and gentlemen, that [Soto’s] dad asked him to go visit him in jail so he can talk to him.” However, on this issue, as above, the government argues that the defense had put every witnesses’s credibility at issue. Under such circumstances, this type of reference cannot fairly be construed as an inappropriate reference to defendant’s credibility.
See Pérez-Ruiz,
Finally, defendant argues that, given the prosecution’s behavior during the trial, he was denied a fair trial. We have held that “individual errors insufficient of themselves to necessitate a new trial may in the aggregate have a more debilitating effect.”
United States v. Sepúlveda,
C. Sentencing
Following the jury verdict, the defendant’s case was transferred to a sentencing judge who reviewed the trial transcript and imposed a sentence based on the United States Sentencing Guidelines (“USSG”). The sentencing judge accepted the pre-sentence report’s (“PSR”) drug quantity recommendation of five to fifteen kilograms, and imposed a three-level enhancement under USSG § 3Bl.l(b) for the defendant’s role in the offense and a two-level enhancement under USSG § 2Dl.l(b)(l) for weapon possession. The resulting sentencing range was 210 to 262 months. The applicable range was reduced to 210 to 240 months because of the twenty-year statutory maximum.
3
21 U.S.C. § 841(b)(1)(C). The judge imposed a sentence of 210 months in prison and three years of supervised release. The
*487
defendant objected to all three of the sentencing judge’s findings in a written response to the PSR, arguing, with references to
Apprendi v. New Jersey,
Both parties submitted supplemental briefing following the Supreme Court’s decisions in
Blakely v. Washington,
— U.S. -,
The
Booker
holding applies to all cases, like the present one, pending on direct review at the time it was decided.
In its supplemental brief on
Booker,
the government concedes the error was preserved, but, for the first time, argues that the defendant has waived the
Blakely
/
Booker
argument by failing to raise it in his initial brief on appeal.
4
While we have often reiterated that issues raised only in a reply brief or at oral argument are generally considered waived, we will exercise our discretion to consider new issues under exceptional circumstances.
See, e.g., N. Am. Specialty Ins. Co. v. Lapalme,
1. Standard of review
As we indicated in
Antonakopoulos,
the
Booker
error “is not that a judge (by a preponderance of the evidence) determined facts under the Guidelines which increased a sentence beyond that authorized by the jury verdict or an admission by the defendant; the error is only.that the judge did so in a mandatory Guidelines system.”
The defendant seizes on this sentence, arguing that it implies that cases that do involve a Sixth Amendment violation must be automatically remanded, without harmless error review. We agree that the defendant’s sentence involved a Sixth Amendment violation within the meaning of Booker: neither the drug quantity, the defendant’s role in the offense, nor his responsibility for the possession of a firearm by a co-conspirator were admitted by the defendant or found by the jury. Nevertheless, we disagree that harmless error review is inapplicable to such eases.
The language the defendant relies upon from
Booker
anticipates the outcome of harmless error review in cases challenging only the mandatory application of the Guidelines, but it does not preclude harmless error review of cases involving an underlying Sixth Amendment violation.
5
The Supreme Court has made clear that not all errors of constitutional dimension require automatic reversal.
Chapman v. California,
The burden of proving that the preserved
Booker
error did not affect the defendant’s substantial rights lies with the government.
See Chapman,
2. Harmless error
The government contends that the sentencing judge’s belief that the Guidelines were mandatory did not contribute to the defendant’s sentence, but it has failed to meet its heavy burden of proving this claim beyond a reasonable doubt. In support of its position, the government refers to statements made by the sentencing judge that suggest he was convinced of the factual basis for the enhancements he applied. But even if, as the government further alleges, each factor were supported by overwhelming evidence, factual certainty alone would not be sufficient to show beyond a reasonable doubt that the judge, acting under an advisory Guidelines system, would have applied the same sentence on the basis of those factors. In the instant case, the government has pointed to no statement or action of the sentencing judge that would assure us that he would have imposed the same sentence in the absence of mandatory Guidelines. To the contrary, our doubt on this point is enhanced by the fact that, while the applicable Guidelines constrained the sentencing judge to the upper margin of sentences available under 21 U.S.C. § 841(b)(1)(C), the sentence he chose was at the low end of that margin.
Finally, the government suggests that we may find the
Booker
error harmless if we determine that the resulting sentence is reasonable.
See Booker,
3. Remedy
Two distinct options are available to remedy preserved
Booker
error that has not been proven harmless. We can vacate the sentence and remand for resentencing, or we can follow the lead of the Second Circuit and remand for a determination of whether the sentencing judge would have applied a different sentence under an advisory Guidelines regime.
See Crosby,
Despite these advantages, we decline to engage in this sort of limited remand for preserved Booker error when the government has failed to prove harmlessness. We do not anticipate that there will be so many such cases that reconvening sentencing hearings will create a significant administrative burden. And, while the problem of newly arisen sentencing factors is significant, it will have to be addressed if a sentencing court determines that a different sentence would have been imposed under advisory Guidelines. Thus, we cannot be certain of avoiding the problem with Crosby remands.
Given the limited benefit of
Crosby
remands in the context of preserved error, we prefer to follow a more traditional route. Although this is a case of first impression, roughly analogous precedent exists in those cases where we have found that the sentencing judge mistakenly believed that he was without authority to depart from a Guidelines sentence.
See United States v. Delgado-Reyes,
Because we remand for resentencing under
Booker,
we will not consider the defendant’s remaining claim that the facts found by the sentencing judge are insufficient to support the enhancements applied. The new sentence will, however, be subject to reasonableness review should it be challenged in the future.
Booker,
III.
For the reasons stated above, we affirm the defendant’s conviction, but vacate his sentence. We remand to the district court for resentencing in accordance with the Sentencing Reform Act of 1984, Pub.L. 98-473, Title II, §§ 211-238, 98 Stat.1987 (1984), as altered in Booker.
Affirmed, Vacated and Remanded.
Notes
. "Square this.”
. In
Manning,
this court condemned as vouching a portion of the prosecutor’s statement containing the argument that a detective would have created a more damaging story-had he intended to fabricate evidence.
Manning,
. Without the findings in question, the Guidelines sentencing range would have been ten to sixteen months.
. The government notes, further, that defendant's opening brief acknowledged that "the sentencing judge correctly determined that under
Apprendi v. New Jersey,
. The defendant’s references to
Sullivan v. Louisiana,
. As the Second Circuit explained in
United States v. Crosby,
. We express no opinion as to whether
Booker
error arising out of the mandatory application of the Guidelines alone, without any underlying Sixth Amendment violation, is constitutional in nature.
Cf. United States v. Haidley,
. We note that the Seventh Circuit has also developed a partial-remand procedure for de
*491
termining prejudice in cases of unpreserved
Booker
error.
See United States v. Paladino,