NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

 v.

FRANCISCO MONTES-VARGAS,

Defendant-Appellant.

No. 13-10002

D.C. No. 2:10-cr-00708-FJM-3

MEMORANDUM*

Appeal from the United States District Court 

for the District of Arizona

Frederick J. Martone, District Judge, Presiding 

Argued and Submitted February 13, 2017

San Francisco, California

Before: CANBY, SILER**, and HURWITZ, Circuit Judges.

Francisco Montes-Vargas appeals his conviction and sentence on two drug 

charges. We affirm the conviction, but vacate the sentence and remand for 

resentencing. 

 

* This disposition is not appropriate for publication and is not precedent except 

as provided by Ninth Circuit Rule 36-3.

** The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for the 

Sixth Circuit, sitting by designation.

FILED

MAR 6 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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1. We review Montes-Vargas’s objections to Agent Nack’s testimony for 

plain error because Montes-Vargas failed to object to any of the challenged 

testimony below. United States v. Lopez-Martinez, 543 F.3d 509, 514 n.2 (9th Cir. 

2008) (citing United States v. Sherwood, 98 F.3d 402, 408 (9th Cir. 1996)). 

2. Assuming without deciding that an error occurred, Montes-Vargas 

cannot prove that it “seriously affect[ed] the fairness, integrity, or public reputation 

of [the] judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631 (2002). 

Montes-Vargas’s defense was based solely on the identity of the drug dealer

“Pastas.” Agent Nack’s testimony interpreting telephone conversations between

Montes-Vargas and his wife did not provide evidence that Montes-Vargas was 

indeed “Pastas.” Montes-Vargas’s mistaken-identity defense was countered through 

eyewitness identification testimony of two surveillance agents, voice identification 

made by two other witnesses, and Montes-Vargas’s statements during jail calls. See, 

e.g., United States v. Freeman, 498 F.3d 893, 905–06 (9th Cir. 2007) (holding any 

error harmless because the agent’s testimony was adequately corroborated by other 

trial evidence). 

3. An instruction explaining Agent Nack’s dual role as both an expert and 

a lay witness was not required because there was a clear demarcation between the

testimonies. See Freeman, 498 F.3d at 904 (“demarcation between lay and expert 

testimony” may “be revealed through direct or cross examination”).
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4. The Government admits that the Presentence Investigation Report 

incorrectly attributed 30 pounds of methamphetamine to Montes-Vargas when the 

parties stipulated to 24.5 pounds, which caused the district court to calculate a higher 

Guidelines range than it would have with the correct information. This “mistake in 

calculating the recommended Guidelinessentencing range is a significant procedural 

error that requires us to remand for resentencing.” United States v. MunozCamarena, 631 F.3d 1028, 1030 (9th Cir. 2011); see also Molina-Martinez v. United 

States, 136 S. Ct. 1338, 1345 (2016) (“When a defendant is sentenced under an 

incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls 

within the correct range—the error itself can, and most often will, be sufficient to 

show a reasonable probability of a different outcome absent the error.”). We remand 

on an open record, and decline to consider in the first instance whether the district 

court should consider the drugs recovered in a January 2010 seizure in resentencing

Montes-Vargas. See Williams v. United States, 503 U.S. 193, 205 (1992) (“[I]t is 

the prerogative of the district court, not the court of appeals, to determine, in the first 

instance, the sentence that should be imposed in light of certain factors properly 

considered under the Guidelines.”). 

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED

FOR RESENTENCING.