Garcia-Munoz

MEMORANDUM **

Armando Garcia-Munoz appeals both his conviction and sentence following a jury verdict for attempted murder of a United States Border Patrol agent.

1. Garcia’s claims of prosecutorial misconduct fail. Although he asserts as the “primary” act of misconduct the prosecutor’s alleged reference to him as “the devil” in closing argument, he has since stipulated that this reference was in fact a transcription error. Nor did the prosecutor engage in impermissible “vouching” when she argued in closing that Agent Garcia had not violated any Border Patrol policies by returning the stolen gun to its owner or instructing the civilian owner to watch the aliens while in custody. These were reasonable inferences to be drawn from Agent Garcia’s testimony that he did not believe he was violating agency policy. See United States v. Atcheson, 94 F.3d 1237 , 1244 (9th Cir.1996) (prosecutor’s reasonable inferences from the record do not constitute misconduct); United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993) (same). Nor was it impermissible vouching to point out that Agent Garcia lacked any incentive to fabricate. Necoechea, 986 F.2d at 1279 .

2. Garcia’s other claims of…