Cubias

MEMORANDUM *

Jose Bernardo Cubias appeals his jury trial conviction and nine-year sentence for conspiracy to distribute heroin and distribution of heroin on evidentiary and due process grounds. The government cross-appeals the defendant’s sentence, arguing that the district court erred in refusing to apply the statutory 10-year minimum sentence and a two-level enhancement for obstruction of justice. Because the parties are familiar with the facts, we recite only those facts necessary to explain our disposition. For the reasons set forth below, we affirm the defendant’s conviction, vacate his sentence and remand to the district court for resentencing in conformity with United States v. Buckland, 289 F.3d 558 (9th Cir.2002) (en banc).

Evidentiary Claims

DEA Agent’s Hearsay About Cubias’ Prior Trafficking: The DEA agent testified that “our investigation revealed that Mr. Cubias was involved in the trafficking of narcotics prior to the [confidential informant Vela] making any controlled purchases.” Cubias argues that this testimony was impermissible hearsay, that it prejudiced the guilt phase of the trial and, specifically, the jury’s special finding that more than one kilogram of…