Mena-Flores

MEMORANDUM ***

Francisco Mena-Flores appeals his sentence, and Adrian Arellano-Zavala appeals his conviction and sentence for conspiracy to import heroin, aiding and abetting importation of heroin, conspiracy to distribute heroin, and aiding and abetting possession of heroin with intent to distribute. Mena-Flores was sentenced to 136 months imprisonment, and Arellano-Zavala was sentenced to 120 months imprisonment. We have jurisdiction, 18 U.S.C. § 3742 , 28 U.S.C. § 1291 , and affirm in part and vacate and remand in part.

I

Mena-Flores argues that his sentence of 136 months imprisonment runs afoul of Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and United States v. Nordby, 225 F.3d 1053 (9th Cir.2000). However, neither applies here, as Mena-Flores was sentenced below the statutory maximum for any quantity of heroin (20 years). See 21 U.S.C. § 841 (b)(1)(C); United States v. Garcia-Sanchez, 238 F.3d 1200, 1201 (9th Cir.2001).

II

Arellano-Zavala asserts that the AUSA’s calling him a liar during closing arguments was prosecutorial misconduct. However, there was no plain error because the AUSA’s statement was based upon reasonable inferences…