Normand

MEMORANDUM *

Normand appeals from his conviction and sentence for two counts of attempted manufacture of methamphetamine in violation of 21 U.S.C. §§ 841 (a)(1) and 841(b)(1)(A), physical interference with a search in violation of 21 U.S.C. §§ 856 (a)(1) and 856(b), and tampering with a witness in violation of 18 U.S.C. §§ 1512 (b)(1), 1512(b)(2)(A), 1512(b)(2)(c), and 1512(i). The district court had jurisdiction pursuant to 18 U.S.C. § 3231 . We have jurisdiction over this timely filed appeal under 28 U.S.C. § 1291 , and we affirm in part, vacate in part, and remand for resentencing.

Normand raises five trial issues on appeal. First, he contends that his second trial violated his Fifth Amendment right against double jeopardy. Normand raises this issue for the first time on appeal and, though it remains unclear whether a double jeopardy claim that was not raised in the district court is subject to plain error review or is deemed to have been waived, see United States v. Hernandez-Guardado, 228 F.3d 1017, 1028 (9th Cir.2000), we need not settle the question for it is not outcome determinative.

At the first trial in December 1998, the jury acquitted Normand on count four of the…