United States v. Sierra-Estrada ( 2007 )


Menu:
  •                                                                       FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    October 1, 2007
    Elisabeth A. Shumaker
    TENTH CIRCUIT             Clerk of Court
    U N ITED STA TES O F A M ER ICA,
    Plaintiff-Appellee/                  Nos. 05-4086, 05-4117
    Cross-Appellant,
    v.                                               (D. Utah)
    ROBERTO SIERRA-ESTRADA, a/k/a                   (D.C. No. 2:02-CR-126-JTG)
    Chorizo,
    Defendant-Appellant/
    Cross-A ppellee.
    OR D ER AND JUDGM ENT *
    Before KELLY, A LA RC ÓN, ** and HENRY, Circuit Judges.
    A jury convicted Roberto Sierra-Estrada of conspiring to distribute
    methamphetamine in violation of 
    21 U.S.C. §§ 841
    (a)(1) and 846. The district
    court sentenced him to the mandatory minimum ten years’ imprisonment. M r.
    *
    This order and judgment is not binding precedent except under the
    doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
    Cir. R. 32.1.
    **
    The Honorable Arthur L. Alarcón , Senior Circuit Judge, United States
    Court of Appeals for the Ninth Circuit, sitting by designation.
    Sierra-Estrada appeals the district court’s denial of (1) his motion to suppress
    inculpatory statements he made to Federal Bureau of Investigation (FBI) agents,
    (2) his motion to dismiss the indictment based on the government’s deportation of
    a material witness, and (3) his motion for a mistrial based on prosecutorial
    misconduct during the rebuttal portion of the government’s closing argument.
    The government cross-appeals M r. Sierra-Estrada’s sentence, arguing that the
    district court erred as a matter of law when it refused to impose a twenty-year
    mandatory minimum sentence under § 21 U .S.C. § 841(b)(1)(A). W e exercise
    jurisdiction under 
    28 U.S.C. § 1291
    , and we affirm.
    I. BACKGROUND
    A . F ACTUAL B ACKGROUND
    On M arch 7, 2001, the FBI received a tip from a confidential informant that
    M r. Sierra-Estrada and another individual, later identified as Gabino Sanchez,
    were planning to transport methamphetamine to Kansas City. Later that day, FBI
    agents set up surveillance outside M r. Sierra-Estrada’s apartment near Salt Lake
    City. During the surveillance, an FBI agent observed a black Lincoln Continental
    matching information given by the informant and saw M r. Sierra-Estrada carry a
    red and white cooler into the apartment. W hen M r. Sanchez left the apartment by
    himself in the Lincoln, the FBI notified the Utah Highway Patrol.
    Utah Highway Patrol Troopers stopped M r. Sanchez’s vehicle for an
    equipment violation. During the stop, a drug detection dog indicated the presence
    -2-
    of drugs in a red and white cooler located on the passenger seat of M r. Sanchez’s
    vehicle. The officers discovered two packages containing approximately 382
    grams of methamphetamine in a secret compartment created in the cooler’s
    Styrofoam lining and arrested M r. Sanchez.
    Approximately a week-and-a-half after M r. Sanchez’s arrest, the FBI
    intercepted a telephone call between M r. Sierra-Estrada and Leonel Acevedo-
    Torres, a suspected drug dealer who was the subject of a court-ordered wiretap in
    Riverside County, California. During the call, which was translated from Spanish
    into English by the FBI, M r. Sierra-Estrada told M r. Acevedo-Torres, in code,
    about M r. Sanchez’s arrest and the large amount of methamphetamine that had
    been confiscated by law enforcement. M r. Sierra-Estrada further stated that, due
    in part to M r. Sanchez’s arrest, he would be unable to pay for drugs previously
    advanced by M r. Acevedo-Torres.
    On April 18, 2001, M r. Sanchez was indicted for possession of
    m etham phetamine w ith intent to distribute. The FBI subsequently conducted tw o
    interviews with him, the contents of which were memorialized in two FBI
    investigation reports (“FBI 302s”). Prior to the first interview, an FBI agent
    discovered a note in M r. Sanchez’s vehicle bearing M r. Sierra-Estrada’s cell
    phone number.
    During the initial interview, M r. Sanchez admitted he was transporting the
    methamphetamine seized by the Utah Highway Patrol to Kansas City. He did not,
    -3-
    however, mention M r. Sierra-Estrada. He instead stated that he had traveled to
    the apartment complex where M r. Sierra-Estrada lived to meet a man named
    “Pedro,” who was not involved with his transportation of the methamphetamine.
    W hen the interview ing agents showed him a picture of M r. Sierra-Estrada, M r.
    Sanchez indicated that he had met him at a dance in M exico but did not know his
    name or current whereabouts.
    During the second interview , M r. Sanchez again did not mention M r.
    Sierra-Estrada. He provided that he had stopped at the apartment where M r.
    Sierra-Estrada resided to better conceal the methamphetamine in a cooler he had
    purchased. According to M r. Sanchez, he did not know the individuals at the
    apartment, and they were unaware he was carrying methamphetamine.
    On November 8, 2001, M r. Sanchez pleaded guilty to possession of
    methamphetamine with intent to distribute. In February 2002, he was sentenced
    to thirty-four months’ imprisonment.
    On February 28, 2002, the Immigration and Naturalization Service notified
    the FBI that it had taken M r. Sierra-Estrada into custody on unrelated charges and
    that he was being held at the Summit County Jail. Because the FBI had been
    planning to arrest M r. Sierra-Estrada based on “information that he was getting
    ready to transport a shipment of methamphetamine to South Dakota,” it made
    arrangements to speak with him. Supp. Rec. vol. II, at 9.
    On M arch 1, 2002, at approximately 7:30 p.m., two FBI agents met with
    -4-
    M r. Sierra-Estrada in a room at the Summit County Jail. At the outset of the
    interview, which was conducted through an FBI Spanish-language interpreter, the
    agents advised M r. Sierra-Estrada of his rights under M iranda v. Arizona, 
    384 U.S. 436
     (1966), and asked if he w anted to speak with them. In response, M r.
    Sierra-Estrada asked, “I w onder if I could have access to a law yer. Is it possible
    if I don’t have money?” Supp. Rec. vol. II, at 14. The agents replied that “it was
    possible, all he had to do was ask for one, one would be provided to him. W e
    would not interview him at that time. W e would wait until a later time to do the
    interview.” 
    Id.
    At approximately 7:42 p.m., the agents presented M r. Sierra-Estrada with a
    Spanish-language “advice of rights” form explaining his M iranda rights. The
    form also advised M r. Sierra-Estrada that he would waive his rights by signing it.
    After reading the form to himself, M r. Sierra-Estrada inquired whether “he could
    get a lawyer in the future if he wanted one.” Id. at 15. In response, one of the
    agents stated, “sure you can, as soon as you ask for one.” Id. M r. Sierra-Estrada
    then asked about the type of deal and sentence he would receive if he cooperated.
    The agents explained that they lacked the authority to discuss such matters, but
    would inform the prosecuting attorneys of all the information he provided. The
    agents also addressed M r. Sierra-Estrada’s concerns regarding the FBI’s ability to
    ensure his safety if he cooperated.
    M r. Sierra-Estrada continued to ask the agents questions for around 35 to
    -5-
    40 minutes. During this time, M r. Sierra-Estrada also re-read the advice of rights
    form, and was told by the agents “around five” times that the interview would
    stop as soon as he asked for an attorney. Id. at 17. At some point, M r. Sierra-
    Estrada inquired whether “he could start talking and stop talking later.” Id. at 18.
    The agents told him he could. At approximately 8:17 p.m., M r. Sierra-Estrada
    told the agents he wanted to talk to them and signed the advice of rights form.
    After doing so, M r. Sierra-Estrada proceeded to confess to conspiring to
    distribute the methamphetamine found in M r. Sanchez’s car. Specifically, he told
    the agents that he created the hidden compartment inside the cooler in which the
    methamphetamine was discovered in exchange for $500 from M r. Sanchez, that
    he placed the methamphetamine in the cooler, that he handed the cooler to M r.
    Sanchez, and that he told M r. Sanchez, who was nervous, to “take the
    methamphetamine and not to be afraid.” Id. vol. VI, at 58. M r. Sierra-Estrada
    also admitted that he was the person speaking to M r. Acevedo-Torres on the
    intercepted phone call and explained the contents of the conversation to the
    agents.
    On M arch 4, M r. Sierra-Estrada spoke with the FBI agents for a second
    time. Once again, M r. Sierra-Estrada was apprised of his M iranda rights through
    an interpreter and he signed a Spanish-language advice of rights form. During
    this interview, M r. Sierra-Estrada confirmed his involvement in the transportation
    and distribution of illegal narcotics for many years.
    -6-
    B. P ROCEDURAL H ISTORY
    On M arch 2, 2002, M r. Sierra-Estrada was indicted for conspiracy to
    distribute the methamphetamine hidden insider the cooler in M r. Sanchez’s
    vehicle.
    Prior to trial, he filed a motion to suppress the inculpatory statements he
    made during his FBI interview s. He argued that he had effectively invoked his
    right to counsel at the outset of his initial interview and, consequently, the agents
    should have stopped their questioning until an attorney was provided.
    On July 2, 2003, after holding an evidentiary hearing, the district court
    denied M r. Sierra-Estrada’s motion to suppress, stating that:
    [u]nder the totality of the circumstances, . . . I am convinced that this
    was not an invocation of the right to counsel. It was simply a matter of
    simple, careful questioning, all having to do with what m ight be
    provided in the future. I am satisfied that the answers . . . given by
    Agent Ross were appropriate, they w ere clear, and there is no doubt
    about the fact that if this defendant had asked for a lawyer at any time,
    he would have had one. Nothing prior to his execution of the document
    having to do with his rights and going ahead with questioning – by the
    time he had signed that he had a clear understanding that at any time he
    might invoke and ask for a law yer. H e never did. And this is a matter
    of the agents simply being careful. The time, 47 minutes, reflects not
    only careful handling of the matter, it reflects the necessity of
    interpretation of consideration and being sure that he understood the
    document. He looked at the document. He read it. H e had it read to
    him. It was in Spanish. I am satisfied that this is an appropriate
    procedure and I am going to deny the motion to suppress the custodial
    statements, and that motion is denied.
    Id. vol. III, at 13.
    On August 15, 2003, M r. Sierra-Estrada’s trial counsel moved the district
    -7-
    court for authorization to travel to the prison where M r. Sanchez was incarcerated
    in order to interview him. On August 25, 2003, the district court granted trial
    counsel’s motion. Three days earlier, however, unbeknownst to trial counsel, the
    Bureau of Prisons released M r. Sanchez from prison and turned him over to
    immigration officials for deportation. A memorandum from the Bureau of Prisons
    to the FBI indicated that M r. Sanchez had been given 334 days of credit for time
    served in federal custody prior to sentencing and had completed his 34-month
    sentence on August 22, 2003.
    On September 8, 2003, trial counsel moved for a continuance in order to
    secure M r. Sanchez’s presence at trial so that he could testify, and the government
    joined in the motion. The government also provided trial counsel for the first
    time with the FBI 302s from the two interviews it conducted with M r. Sanchez.
    Inexplicably, these reports were not contained in the government’s previous
    discovery disclosures. The district court granted M r. Sierra-Estrada’s motion.
    An investigator for M r. Sierra-Estrada eventually contacted M r. Sanchez in
    M exico via telephone. M r. Sanchez, however, was unwilling to speak about the
    case. The FBI then contacted M r. Sanchez, but he indicated that he was unwilling
    to testify for M r. Sierra-Estrada. He also refused to allow the government or trial
    counsel to interview him in M exico.
    M r. Sierra-Estrada moved to dismiss the indictment because M r. Sanchez’s
    deportation violated his Fifth Amendment right to due process and his Sixth
    -8-
    Amendment right to compulsory process. At a hearing on this motion, M r. Sierra-
    Estrada suggested that, rather than dismissing the case, the district court could
    admit the previously undisclosed FBI 302 reports without regard to hearsay or
    foundation objections. The government agreed that it would not object to the
    admission of the FBI 302s at trial.
    The district court ruled as follow s:
    The motion to dismiss is denied subject to the discussion that we’ve had
    about an agreement that there is no bad faith in the sense of the United
    States Attorney’s office having caused in any w ay the deportation.
    W hat might be said about the failure of an FBI agent to have revealed
    those 302 statements [prior to the September 8, 2003, hearing] is still
    a possibility of something that might be raised in cross-exam ination.
    But the most significant thing that could be raised is what was said by
    M r. Sanchez in the two interviews with the FBI agent and that can come
    in. And with that understanding and the lack of bad faith on the part of
    the United States Attorney’s Office, we’ll go ahead and deny the motion
    subject to those conditions.
    Id. vol. IV, at 34-35.
    During a two-day trial, the government introduced evidence regarding (1)
    M r. Sierra-Estrada’s custodial statements, (2) the intercepted phone call between
    M r. Sierra-Estrada and M r. Acevedo-Torres, (3) the note from M r. Sanchez’s
    vehicle containing M r. Sierra-Estrada’s cell phone number, (4) the seizure of
    methamphetamine from the cooler in M r. Sanchez’s vehicle, and (5) testimony
    that M r. Sierra-Estrada was seen outside of his apartment carrying a similar
    cooler. The FBI 302s were also admitted as evidence and the jury heard some
    additional testimony regarding M r. Sanchez’s statements. During the rebuttal
    -9-
    portion of the government’s closing argument, the prosecutor stated the jury had a
    duty to be a part of the “shining city on the hill” described by President Reagan
    by connoting M r. Sierra-Estrada as an unwelcome transgressor. Id. vol. VII, at
    27. 1
    Defense counsel promptly objected. The district court overruled the
    objection stating, “It’s argument. The jury can evaluate that. Go ahead.” Id. at
    28. Follow ing closing arguments, the court instructed the jury that “[s]tatements,
    objections and arguments of counsel are not evidence.” Id. at 33.
    After the case w as submitted to the jury, M r. Sierra-Estrada moved for a
    mistrial based on the prosecutor’s “shining city on the hill” statement. The
    district court denied the motion, and the jury convicted M r. Sierra-Estrada of
    conspiracy to distribute methamphetamine in violation of 
    21 U.S.C. §§ 841
    (a)(1)
    and 846.
    C. S ENTENCING
    Following M r. Sierra-Estrada’s conviction, the United States Probation
    Office prepared a presentence investigation report (“PSR”). The PSR noted that
    M r. Sierra-Estrada was subject to a mandatory minimum sentence of 10 years and
    a maximum sentence of life in prison. See 
    21 U.S.C. § 841
    (b)(1)(A). Because
    M r. Sierra-Estrada had an offense level of 34 and a criminal history category of I,
    1
    W e set forth the prosecutor’s statement in more detail below.
    -10-
    his recommended Sentencing Guidelines range w as 151 to 188 months. However,
    because the government had filed an information prior to trial pursuant to 
    21 U.S.C. § 851
     alleging that M r. Sierra-Estrada w as subject to a 20-year mandatory
    minimum sentence based on a prior California felony drug conviction, the PSR
    stated that the Guideline sentence was 20 years’ imprisonment. See 
    21 U.S.C. § 841
    (b)(1)(A).
    M r. Sierra-Estrada objected to the 20-year enhanced mandatory minimum,
    arguing that the government failed to prove beyond a reasonable doubt that his
    prior California conviction was a felony. See 
    21 U.S.C. § 851
    (c) (stating that if a
    defendant “denies any allegation of the information of prior conviction . . . . the
    United States attorney shall have the burden of proof beyond a reasonable doubt
    on any issue of fact”). The district court held an evidentiary hearing, at which the
    government introduced certified copies of court records indicating that M r.
    Sierra-Estrada had pleaded guilty to possessing heroin in violation of 
    Cal. Health & Safety Code § 11352
    . These court records included: (1) a complaint filed in
    Riverside Superior Court, charging M r. Sierra-Estrada with violating 
    Cal. Health & Safety Code §§ 11351
     (Counts I & III) and 11352 (Counts II and IV); (2) a
    criminal information, charging M r. Sierra-Estrada with two counts of violating §
    11352; (3) a copy of the docket, showing that M r. Sierra-Estrada pleaded guilty to
    § 11352 and was granted 36 months probation; and (4) a disposition sheet
    purporting to show a history of M r. Sierra-Estrada’s case from arrest through
    -11-
    sentencing. These documents indicated that the offense of conviction was a
    felony.
    Although M r. Sierra-Estrada conceded that possession of heroin w as a
    felony, he argued the government failed to prove that conviction beyond a
    reasonable doubt. For support, M r. Sierra-Estrada introduced two probation
    reports, both w ith the w ord “felony” crossed out and granting probation to M r.
    Sierra-Estrada. He argued these documents created an ambiguity as to whether he
    was convicted of a felony. The government offered no explanation why the w ord
    “felony” was crossed out.
    At sentencing, the district declined to apply the enhanced mandatory
    minium. The court concluded that the recommended Guidelines range “overstated
    the seriousness of this” and sentenced M r. Sierra-Estrada to the mandatory
    minimum ten years’ imprisonment. Id. at 12.
    Both parties filed timely notices of appeal.
    II. DISCUSSION
    On appeal, M r. Sierra-Estrada challenges the district court’s denial of (1)
    his motion to suppress the inculpatory statements he made during his FBI
    interview s, (2) his motion to dismiss the indictment, and (3) his motion for a
    mistrial. W e address these challenges in turn.
    A. I NVOCATION OF R IGHT TO C OUNSEL
    M r. Sierra-Estrada argues the district court erred in denying his motion to
    -12-
    suppress the inculpatory statements he made to the FBI because he clearly
    invoked his right to counsel during his initial FBI interview. In reviewing the
    denial of a motion to suppress, we examine the district court’s factual findings for
    clear error, its legal determinations de novo, and we view the evidence in the light
    most favorable to the government. United States v. M cKerrell, 
    491 F.3d 1221
    ,
    1224-25 (10th Cir. 2007). Accordingly, in assessing whether the district court
    properly determined that M r. Sierra-Estrada failed to invoke the right to counsel,
    we accept the district court’s factual findings regarding the words M r. Sierra-
    Estrada used unless they are clearly erroneous. United States v. M arch, 
    999 F.2d 456
    , 459 (10th Cir. 1993). W e review de novo, however, “[w]hether those words
    actually invoked the right to counsel.” 
    Id.
     (internal quotations and citation
    omitted).
    Under M iranda, law enforcement officers m ust advise a suspect who is
    subjected to custodial interrogation that he has the right to remain silent, that
    statements can be used against him, that he has the right to counsel, and that he
    has the right to have counsel appointed. 
    384 U.S. at 467-73
    . Although a suspect
    may waive those rights, all questioning must stop if the suspect requests an
    attorney at any time during the custodial interrogation. Edwards v. Arizona, 
    451 U.S. 477
    , 484-85 (1981). Questioning may only resume if a lawyer has been
    provided or the suspect himself reinitiates communication with law enforcement.
    
    Id.
    -13-
    In D avis v. United States, 
    512 U.S. 452
    , 458-59 (1994), the Supreme Court
    set forth the standard for evaluating whether a suspect has invoked the right to
    counsel during a custodial interrogation. Under Davis, a suspect only invokes
    that right by “articulat[ing] his desire to have counsel present sufficiently clearly
    that a reasonable police officer in the circumstances would understand the
    statement to be a request for an attorney.” 
    512 U.S. at 459
    . “[I]f a suspect makes
    a reference to an attorney that is ambiguous or equivocal in that a reasonable
    officer in light of the circumstances would have understood only that the suspect
    might be invoking the right to counsel,” law enforcement questioning need not
    cease. 
    Id.
     (emphasis in original). Furthermore, when a suspect’s request is
    ambiguous or equivocal, law enforcement officers are not constitutionally
    required to clarify that statement, though it may be “good police practice” to do
    so. 
    Id. at 461
    .
    In application, these principles indicate that statements contemplating the
    invocation of the right to counsel are not sufficient to actually invoke the right to
    counsel. See 
    id. at 462
     (holding that the defendant failed to unambiguously
    request counsel when he stated, “M aybe I should talk to a lawyer”); United States
    v. Zamora, 
    222 F.3d 756
    , 765-66 (10th Cir. 2000) (defendant’s statement that “I
    might want to talk to an attorney” was not a clear invocation); Burket v.
    Angelone, 
    208 F.3d 172
    , 198 (4th Cir. 2000) (holding “I think I need a law yer”
    was not a clear invocation); Diaz v. Senkowski, 
    76 F.3d 61
    , 63-65 (2d Cir. 1996)
    -14-
    (holding “I think I want a lawyer” and “Do you think I need a lawyer?” were not
    clear invocations). Rather, to invoke the right to counsel, a statement must
    contain “the clear implication of a present desire to consult with counsel.” Lord
    v. Duckworth, 
    29 F.3d 1216
    , 1221 (7th Cir. 1994). Compare United States v.
    Johnson, 
    400 F.3d 187
    , 197 (4th Cir. 2005) (holding that answ ering “no” in
    response to “Do you want to make a statement at this time without a lawyer?” was
    a clear invocation) with United States v. Doe, 
    170 F.3d 1162
    , 1166 (9th Cir.
    1999) (holding that “W hat time w ill I see a law yer?” w as not a clear invocation).
    Applying the Supreme Court’s decision in Davis to his case, M r. Sierra-
    Estrada first contends he unambiguously invoked his right to counsel at the outset
    of his first FBI interview when he inquired, “I w onder if I could have a lawyer.
    Is it possible if I don’t have money?” Supp. Rec. vol. II, at 14. W e disagree.
    From an objective standpoint, this statement was ambiguous at best because it
    does not suggest a present desire to speak with counsel. Instead, the plain
    language suggests that M r. Sierra-Estrada was inquiring into whether his right to
    an attorney was contingent upon his ability to pay for one. See Lord, 
    29 F.3d at 1220-21
     (holding that defendant’s statement that “I can’t afford a law yer but is
    there anyway I can get one?” was not a clear invocation of the right to counsel).
    This interpretation is particularly reasonable in light of M r. Sierra-Estrada’s
    failure to request counsel or ask the agents to stop the interview after the agents
    responded to his statement by explaining he would have an attorney as soon as he
    -15-
    “ask[ed] for one.” Supp. Rec. vol. II, at 17.
    Alternatively, M r. Sierra-Estrada contends that a reasonable officer would
    have understood him to have requested counsel prior to waiving his
    M iranda rights because he referenced an attorney multiple times over the forty-
    seven m inutes preceding his waiver, he had no understanding of A merican laws,
    and he could not speak English. But an examination of the circumstances
    surrounding M r. Sierra-Estrada’s w aiver indicates just the opposite. First, M r.
    Sierra-Estrada’s additional inquires as to whether “he could get a lawyer in the
    future if he w anted one” and “start talking and stop talking later,” like his inquiry
    at the outset of his interview , suggest that he was seeking to clarify his right to
    counsel, not actually invoking it. Supp. Rec. vol. II, at 18, 45; see United States
    v. Uribe-G alindo, 
    990 F.2d 522
    , 524, 526-27 (10th Cir. 1992) (holding that a
    defendant asking “whether he could have an attorney later on if he asked for one”
    did not invoke the right to counsel). Second, there is no evidence that M r. Sierra-
    Estrada’s request for counsel was lost in translation; an FBI interpreter was
    present throughout the interview and M r. Sierra-Estrada agreed both orally and in
    writing to waive his M iranda rights after being advised of those rights in his
    native language. Given this evidence, we agree with the district court that the
    amount of time – forty-seven minutes – leading up to M r. Sierra-Estrada’s waiver
    of his M iranda rights, “reflects . . . careful handling of the matter” by the FBI.
    Supp. Rec. vol. III, at 13. Accordingly, M r. Sierra-Estrada did not invoke his
    -16-
    right to counsel.
    B. D EPORTATION OF G ABINO S ANCHEZ
    M r. Sierra-Estrada also contends the district court erred in denying his
    motion to dismiss the indictment because his Fifth Amendment due process rights
    and his Sixth Amendment compulsory process rights were violated when the
    government deported M r. Sanchez from the U nited States. At trial, the defense
    theory was essentially that M r. Sierra-Estrada had no knowledge of the
    methamphetamine discovered in M r. Sanchez’s car. M r. Sierra-Estrada contends
    M r. Sanchez would have corroborated this claim because M r. Sanchez did not
    implicate M r. Sierra-Estrada during his FBI interviews.
    A district court’s refusal to dismiss to an indictment is reviewed for an
    abuse of discretion. United States v. Alcaraz-Arellano, 
    441 F.3d 1252
    , 1265
    (10th Cir. 2006). A district court abuses its discretion if its decision “is based
    upon an error of law or a clearly erroneous finding of fact.” U nited States v. Lin
    Lyn Trading, Ltd., 
    149 F.3d 1112
    , 1117 (10th Cir. 1998) (internal quotation
    marks omitted).
    To obtain relief from the deportation of a potentially favorable witness, a
    defendant must make “some plausible showing of how [his] testimony would have
    been both material and favorable to his defense.” United States v.
    Valenzuela-Bernal, 
    458 U.S. 858
    , 873 (1982); United States v. Caballero, 
    277 F.3d 1235
    , 1241 (10th Cir. 2002). In addition to materiality, we have held that a
    -17-
    defendant must also “demonstrate governmental bad faith to obtain an order
    dism issing [his] indictment.” C aballero, 
    277 F.3d at 1242
    . Here, however, we
    need not decide whether M r. Sierra-Estrada met his burden to show bad faith on
    the part of the government because the testimony of M r. Sanchez was not
    material. 
    Id.
     (“[F]ailure to show the materiality of . . . lost testimony absolves us
    of examining the bad faith prong.”). Evidence is material “only if there is a
    reasonable likelihood that the testimony could have affected the judgment of the
    trier of fact.” Valenzuela-Bernal, 
    458 U.S. at 874
    . There is no such likelihood
    here.
    First and foremost, the evidence that M r. Sierra-Estrada conspired to
    distribute methamphetamine can only be described as overwhelming. This
    evidence included M r. Sierra-Estrada’s confession to the FBI that he created the
    hidden compartment in the cooler in which the methamphetamine was found for
    $500, that he placed the methamphetamine in the cooler, and that he
    directed M r. Sanchez to “take the methamphetamine and not to be afraid.” Supp.
    Rec. vol. VI, at 58. The government also introduced evidence that M r. Sanchez’s
    car had been seen leaving M r. Sierra-Estrada’s apartment, that M r. Sierra-Estrada
    had been observed carrying a cooler similar to the one in which the
    methamphetamine was discovered into his apartment, that M r. Sierra-Estrada
    discussed M r. Sanchez’s arrest during an intercepted phone call, and that a napkin
    discovered in M r. Sanchez’s car contained M r. Sierra-Estrada’s phone number.
    -18-
    Furthermore, we note that the FBI 302s detailing M r. Sanchez’s statements to the
    FBI were introduced at trial. Because the jury convicted M r. Sierra-Estrada
    notwithstanding the presence of those statements, we think it is highly unlikely
    the jury would have rendered a different verdict had it heard M r. Sanchez testify.
    Accordingly, the district court did not abuse its discretion in denying M r. Sierra-
    Estrada’s motion to dismiss his indictment.
    C. P ROSECUTORIAL M ISCONDUCT
    M r. Sierra-Estrada also contends the district court erred in denying his
    motion for a mistrial based on the rebuttal portion of the prosecutor’s closing
    argument. There, the prosecutor stated:
    Tomorrow , our nation lays to rest President Reagan. Those of you who were
    alive during the presidency w ill remember he often talked about America
    being a shining city on the hill. W e stand for something. W e stand for the
    right to have a jury trial when you’re accused by the U nited States of America
    of a crime. That doesn’t mean that the jury trial has to find beyond any doubt
    that you’re guilty. It’s beyond a reasonable doubt. Your duty, as you retire
    to deliberate, is to be part of that city on the hill. Tell Sierra-Estrada that
    coming to our country to deal methamphetamine, to deal heartache, to deal
    heartbreak, to deal destruction is w rong and we will not stand for it.
    
    Id.
     vol VII, at 27-28 (emphasis added).
    M r. Sierra-Estrada asserts that the prosecutor’s reference to President
    Reagan’s “city on the hill” “suggested to the jury that it had a civic duty to
    convict.” Aplt’s Br. at 18. He also contends the prosecutor’s reference to “our
    country” emphasized that M r. Sierra-Estrada “came from a foreign country, spoke
    a foreign language, and was not an American citizen,” and thereby “invite[d] the
    -19-
    jury to . . . convict on the basis of [his] ethnicity.” Id. at 20 (emphasis added).
    Because the prosecutor’s statements arguably involved ethnic innuendo,
    M r. Sierra-Estrada suggests that we cannot apply harmless error review and that
    his conviction should be reversed without examining the prejudicial effect of
    those statements, if any. See M cCleskey v. Kemp, 
    481 U.S. 279
    , 309 & n.30
    (1987) (stating that “[b]ecause of the risk that the factor of race may enter the
    criminal justice process, we have engaged in ‘unceasing efforts’ to eradicate
    racial prejudice from our criminal justice system” and that “prosecutorial
    discretion cannot be exercised on the basis of race”); United States v. Saccocia,
    
    58 F.3d 754
    , 774 (1st Cir. 1995) (“Due to the singular importance of keeping our
    criminal justice system on an even keel, respecting the rights of all persons,
    courts must not tolerate prosecutors’ efforts gratuitously to inject issues like race
    and ethnicity into criminal trials.”).
    W e disagree with M r. Sierra-Estrada’s contention that harmless error
    review is unwarranted. Only in “rare cases” will an error be deemed “structural”
    and “thus require[] automatic reversal.” W ashington v. Recuenco, 
    126 S. Ct. 2546
    , 2551 (2006). “If the defendant had counsel and was tried by an impartial
    adjudicator, there is a strong presumption that any other constitutional errors that
    may have occurred are subject to harmless-error analysis.” Neder v. United
    States, 
    527 U.S. 1
    , 8 (1999) (alteration and internal quotation marks omitted).
    Because M r. Sierra-Estrada objected contemporaneously and later moved
    -20-
    for a mistrial based on the prosecutor’s statements, we review the district court’s
    decision for abuse of discretion. United States v. Gabaldon, 
    91 F.3d 91
    , 94 n.2
    (10th Cir. 1996).
    Thus, in examining a prosecutor’s allegedly improper statements, we
    generally apply a two-part test. United States v. Harlow, 
    444 F.3d 1255
    , 1265
    (10th Cir. 2006). W e first determine whether the statements were indeed
    improper. U nited States v. M artinez-N ava, 
    838 F.2d 411
    , 416 (10th Cir. 1988).
    W e then assess whether the statements warrant reversal, examining “the curative
    acts of the district court, the extent of the misconduct, and the role of the
    misconduct within the case as a whole.” United States v. Pulido-Jacobo, 
    377 F.3d 1124
    , 1134 (10th Cir. 2004); see also Soap v. Carter, 
    632 F.2d 872
    , 878 (10th Cir.
    1980) (Seymour, J., dissenting) (considering the significance of the statement in
    the context of the trial as a whole, the presence of curative instructions, the
    prosecutor’s motive, and the presence of overw helming evidence of guilt). In
    considering these factors, we must be mindful that “[t]he Supreme Court has
    articulated different harmless-error standards, depending upon whether the error
    is of constitutional dimension.” Harlow, 
    444 F.3d at 1265
     (internal quotation
    marks omitted).
    Non-constitutional errors are harmless unless they have “a ‘substantial
    influence’ on the outcome or leave[] one in ‘grave doubt’ as to whether [they] had
    such effect.” United States v. Rivera, 
    900 F.2d 1462
    , 1469 (10th Cir. 1990) (en
    -21-
    banc) (quoting Kotteakos v. United States, 
    328 U.S. 750
    , 765 (1946)). In
    contrast, most constitutional errors may be deemed harmless only if the reviewing
    court is convinced beyond a reasonable doubt that the errors did not affect the
    outcome of the trial. Harlow, 
    444 F.3d at 1265
    . W ith regard to prosecutorial
    misconduct, the harmless error standard that we must apply depends upon the
    kind of misconduct involved. Compare 
    id.
     (treating vouching as a non-
    constitutional error and examining “whether it had a substantial influence on the
    outcome, or leaves us in grave doubt as to whether it had such an effect”) with
    United States v. Rahseparian, 
    231 F.3d 1267
    , 1275 (10th Cir. 2000) (applying the
    beyond a reasonable doubt standard when the prosecutor commented on the
    defendant’s failure to testify).
    In this appeal, the government does not defend the prosecutor’s statements
    on appeal. Instead, it contends that “it is clear beyond a reasonable doubt that the
    jury would have returned a guilty verdict absent the allegedly improper
    statement.” Aple’s Br. at 26. See also United States v. Kornegay, 
    885 F.2d 713
    ,
    719 (10th Cir. 1989) (“There is no need to examine in depth the existence of error
    where the record convincingly shows that the asserted error, whether or not
    actually error, was harmless beyond a reasonable doubt.”); cf. United States v.
    Doe, 
    903 F.2d 16
    , 27-28 (D.C. Cir 1990) (applying the beyond a reasonable doubt
    standard to prosecutor’s reference to race in closing argument).
    Considering the trial as a whole, we agree with the government that
    -22-
    the prosecutor’s statements – proper or not – were harmless beyond a
    reasonable doubt. First, the district court ameliorated the effect of the
    prosecutor’s statements by instructing the jury that the “statements,
    objections and arguments of counsel are not evidence.” Supp. Rec. vol.
    VII, at 33. See United States v. Broomfield, 
    201 F.3d 1270
    , 1277 (10th
    Cir. 2000) (concluding that prosecutor’s statement did not influence the
    jury and noting that “[t]he court also instructed the jurors that the
    statements and arguments of counsel are not to be considered evidence in
    the case”). Second, the evidence of M r. Sierra-Estrada’s guilt, especially
    his confession to the FBI that he created the hidden compartment in the
    cooler, sold the cooler to M r. Sanchez for $500, placed the
    methamphetamine inside the cooler, and directed M r. Sanchez to transport
    the methamphetamine to Kansas City, was overw helming.
    Under these circumstances, the prosecutor’s statements, thought ill-
    advised because of the potential ethnic innuendo, were not “flagrant enough
    to influence the jury to convict on grounds other than the evidence
    presented.” U nited States v. M eienberg, 
    263 F.3d 1177
    , 1180 (10th Cir.
    2001) (internal quotation marks omitted). This being the case, we conclude
    that any misconduct was harmless beyond a reasonable doubt.
    D. G OVERNMENT ’ S C ROSS -A PPEAL
    In its cross-appeal, the government challenges the district court’s
    -23-
    decision not to apply a twenty-year mandatory minimum sentence under 
    21 U.S.C. § 841
    (b)(1)(A ). That statute provides in part that, if a person is
    convicted of distributing methamphetamine in violation of § 841(a)(1),
    “after a prior conviction for a felony drug offense has become final, such
    person shall be sentenced to a term of imprisonment which may not be less
    than 20 years.” 
    21 U.S.C. § 841
    (b)(1)(A ). A “felony drug offense” is
    defined as “an offense that is punishable by imprisonment for more than
    one year under any law of the United States . . . that prohibits or restricts
    conduct relating to narcotic drugs, marihuana, anabolic steroids, or
    depressant or stimulant substances.” 
    Id.
     § 802(44).
    In the event a defendant challenges the existence of a prior
    conviction, the government must prove the alleged felony beyond a
    reasonable doubt. Id. § 851(c)(1) (“If the person denies any allegation of
    the information of prior conviction, or claims that any conviction alleged is
    invalid, . . . . the United States attorney shall have the burden of proof
    beyond a reasonable doubt on any issue of fact.”). “[F]or purposes of
    determining a felony conviction, what matters is not the actual sentence
    which the defendant received, but the maximum possible sentence.” United
    States v. William s, 
    442 F.3d 1259
    , 1261 (10th Cir. 2006) (alteration and
    internal quotation marks omitted).
    Here, the government contends that it met this burden by proving
    -24-
    beyond a reasonable doubt that M r. Sierra-Estrada was convicted in a
    California state court of possessing heroin in violation of California H ealth
    & Safety Code § 11352. Nevertheless, the government asserts, the district
    court erroneously relied on the sentence that he actually received, a 49-day
    jail term, in characterizing the conviction as a misdemeanor that could not
    be used to enhance his sentence. 2
    In response, M r. Sierra-Estrada does not dispute that a conviction
    under California H ealth & Safety Code § 11352 for possession of heroin
    would constitute a “prior conviction for a felony offense” under 21 U.S.C.
    841(b)(1)(A). However, he maintains, the record does not establish beyond
    a reasonable doubt that he was convicted of that offense. He further
    contends that the district court based its refusal to apply the enhanced
    2
    W e note the government’s opening brief in its cross-appeal is rife with
    error. First, as noted by M r. Sierra-Estrada, the government states that “[i]t is
    undisputed that the court records establish that Sierra-Estrada was convicted of
    violating 
    Cal. Health & Safety Code § 11351
    ” A ple’s Br. at 44 (emphasis added);
    however, “[t]he issue at the evidentiary hearing was whether M r. Sierra-Estrada
    had been convicted under § 11352, not § 11351.” A plt’s Reply Br. at 29. In its
    reply brief, the government “apologizes for this obvious factual error,” but
    maintains that “this error has no impact on the legal analysis” because § 11352,
    like § 11351, qualifies as a “prior conviction for a felony drug offense” under 
    21 U.S.C. § 841
    (b)(1)(A). G ov’t Reply Br. at 3-4.
    Second, as pointed out by M r. Sierra-Estrada, the document attached to the
    government’s brief containing the caption “Consolidated Superior and M unicipal
    Courts of R iverside County” w as not introduced or discussed in the evidentiary
    hearing. Aplt’s Reply Br. at 22 n.10. Thus, this document is not properly before
    the court.
    -25-
    twenty-year minimum on the government’s failure of proof. As a result, he
    concludes, the district court’s erroneous reference to the length of his
    actual sentence in characterizing the offense as a misdemeanor does not
    entitle the government to relief.
    1.       Standard of Review
    W e review de novo the question of whether a rational trier of fact
    could find the evidence of a prior conviction sufficient to enhance a
    defendant’s sentence under § 841(b)(1)(A). See United States v. Green,
    
    175 F.3d 822
    , 834 (10th Cir. 1999). W e view the evidence and all
    reasonable inferences therefrom in the light most favorable to the verdict.
    See id.
    2. Sufficiency of the Evidence
    At sentencing, the government presented (1) the original felony
    complaint alleging that M r. Sierra-Estrada violated 
    Cal. Health & Safety Code §§ 11351
     and 11352; (2) the information charging him with a
    violation of § 11352; (3) the docket report showing that he pleaded guilty
    to § 11352; (4) the disposition record showing that he pleaded guilty to §
    11352; and (5) a California booking photograph of M r. Sierra-Estrada.
    Upon considering this evidence, the district court first noted that “the
    matter of the enhancement from ten years to 20 years turns upon whether or
    not the prior offense was sentenced as a felony or as a misdemeanor.” Rec.
    -26-
    vol. III, at 10 (emphasis added). The court continued:
    I have looked at all of the documents, and I have a copy of the
    original felony complaint, the original felony information[,] and
    a copy of the docket sheet. But the final document, which seems
    to me makes the whole thing ambiguous and troubles me, is the
    document that is a form that is used in lieu of what we do in
    federal practice, issue a separate judgment and commitm ent, so
    that there will be no question about what the offense was and
    what the sentence was.
    I have two documents. One is the original and one is the
    amended form[,] and they are Exhibits A and B. The w ord
    felony is crossed out in both of those forms, so it is not quite
    correct to say that there is not any basis for questioning it.
    And then the sentence goes on to sound very much like a
    m isdemeanor sentence. It is a sentence of 49 days in jail and
    then probation, probation after a fine of $50 and another amount
    in the amount of $85. I can’t tell for sure what happened. It was
    presented at the hearing that this was a plea bargain and ended up
    being a felony conviction. It sure looks that way. There is
    nothing to the contrary, other than the fact that the document, the
    operative document that I am looking at, provides for 49 days of
    time, $135, including the $50 fine, and various indications about
    reporting to a probation officer.
    I regard the matter as ambiguous. I regard the prior history in
    R iverside , C alifo rnia a s ev idencing sentencing fo r a
    m isdemeanor. That is what it appears to me based upon the
    document and the testimony at trial.
    Id. vol. III, at 10-12 (emphasis added).
    W e agree with M r. Sierra-Estrada and the district court that a
    factfinder could conclude that the evidence w as insufficient to establish
    beyond a reasonable doubt that he was convicted of the felony of
    possession of heroin in violation of California Health & Safety Code §
    -27-
    11352. W e acknowledge that the government’s submission of the docket
    report and disposition record indicating that he pleaded guilty to a § 11352
    offense w ould ordinarily be convincing evidence of a conviction. However,
    as M r. Sierra Estrada observes, the government failed to introduce evidence
    of a final judgment. The absence of such a judgment is significant because
    California law provides that “[a] copy of the judgment of conviction shall
    be filed with the papers in the case.” See 
    Cal. Penal Code § 1207
    (emphasis added).
    M oreover, in the absence of a final judgment, the fact that the w ord
    “felony” was crossed out in the probation reports— a matter that the
    government failed to explain — supports the inference that M r. Sierra-
    Estrada “entered into plea negotiations w ith the prosecutor and ultimately
    pled [sic] to a misdemeanor.” Aplt’s Reply Br. at 35 n.16. See Green, 
    175 F.3d at 833-36
     (reversing district court because government failed to prove
    beyond a reasonable doubt that defendant had committed two prior felony
    convictions because the felonies were in names used by the defendant as
    aliases and the government did not produce any physical evidence – like a
    picture or fingerprints – linking the defendant to the prior convictions); see
    also United States v. Stallings, 
    301 F.3d 919
    , 921 (8th Cir. 2002) (holding
    that the district court’s reliance on a prior California conviction to enhance
    a defendant’s sentence was improper after it concluded that “judgment was
    -28-
    never properly entered against [the defendant]”).
    A transcript of the plea hearing would have been helpful. “[T]he
    court’s oral pronouncement of judgment . . . . controls over the clerk’s
    minute order . . . .” People v. Farell, 
    28 Cal. 4th 381
    , 384 n.2 (2002); see
    also People v. M esa, 
    14 Cal. 3d 466
    , 471 (1975) (“[A] discrepancy between
    the judgment as orally pronounced and as entered in the minutes is
    presumably the result of clerical error.”). However, the government
    conceded at sentencing that it did not attempt to procure a plea hearing
    transcript.
    W e agree with M r. Sierra-Estrada that the district court based its
    refusal to impose the 20-year enhanced sentence under § 841(b)(1)(A ) in
    part on the government’s failure to prove beyond a reasonable doubt that he
    was actually convicted of a felony under California Health & Safety Code §
    11352. See Rec. vol. III, at 11-12 (“I regard the matter as ambiguous. I
    regard the prior history in Riverside, California as evidencing sentencing
    for a misdemeanor. That is what it appears to me based upon the document
    and the testimony at trial.”). Accordingly, the district court’s erroneous
    statement that “the matter of the enhancement from ten years to 20 years
    turns upon whether or not the prior offense was sentenced as a felony or as
    a misdemeanor,” Rec. vol. III, at 10 (emphasis added), does not entitle the
    government to relief. Even if the district court had not so erred, the
    -29-
    ambiguities it noted establish a reasonable doubt regarding the alleged
    felony conviction.
    III. CONCLUSION
    Therefore, we AFFIRM the district court’s denial of M r. Sierra-
    Estrada’s motions to suppress inculpatory statements, dismiss the
    indictment, and grant a mistrial. W e also A FFIRM the district court’s
    imposition of a ten-year sentence.
    Entered for the Court,
    Robert H. Henry
    Circuit Judge
    -30-