Gutierrez

MEMORANDUM **

Francisco Javier Gutierrez (“Gutierrez”) appeals his conviction under 8 U.S.C. § 1326 for unlawfully attempting to reenter the United States after being deported. We affirm. Because the parties are familiar with the facts of this case, we do not repeat them here except as necessary to explain our decision.

I. Prosecutorial Misconduct Claims

Gutierrez alleges three different instances of prosecutorial misconduct that he claims tainted his trial. We review de novo the question whether prosecutorial misconduct occurred. See United States v. Velarde-Gomez, 269 F.3d 1023, 1028 (9th Cir.2001) (en banc). Where prosecutorial misconduct violates federal constitutional rights, we must reverse unless the misconduct was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). Otherwise, we reverse only if it is “more probable than not that the prosecutor’s misconduct materially affected the verdict.” United States v. Sanchez, 176 F.3d 1214, 1225 (9th Cir.1999).

A. Comments on Gutierrez’s Silence

Gutierrez argues that the prosecutor in this case impermissibly used his post-arrest silence to impeach him during…