
    UNITED STATES of America, Plaintiff-Appellee, v. Nicolas AGUILAR-MONTOYA, Defendant-Appellant.
    No. 10-10204.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Oct. 12, 2011.
    Filed Oct. 19, 2011.
    
      Karla Delord, Assistant U.S., Krissa Marie Lanham, USPX-Office of the U.S. Attorney, Phoenix, AZ, for Plaintiff-Appel-lee.
    Daniel L. Kaplan, Assistant Federal Public Defender, FPDAZ-Federal Public Defender’s Office, Phoenix, AZ, for Defendant-Appellant.
    Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
   MEMORANDUM

Nicolas Aguilar-Montoya was convicted for possession of marijuana with intent to distribute and conspiracy to do the same, and was sentenced to 42 months’ imprisonment. He appeals his conviction and sentence. We affirm.

Aguilar-Montoya contends, first, that he is entitled to a new trial because the prosecutor made statements in his closing arguments that improperly injected his personal opinions into the trial. Because Aguilar-Montoya failed to object at trial to any of the prosecutor’s statements, we review for plain error. United States v. Washington, 462 F.3d 1124, 1136 (9th Cir.2006). We conclude that the prosecutor did not engage in misconduct: his repeated use of phrases such as “of course” and “right” did not convey to the jury that his arguments were intended “as personal assurances.” United States v. Weatherspoon, 410 F.3d 1142, 1147 n. 3 (9th Cir.2005). Instead, the statements of which Aguilar-Montoya complains were “phrased in such a manner that it [was] clear to the jury that the prosecutor [was] summarizing evidence rather than inserting personal knowledge and opinion into the case.” United States v. Hermanek, 289 F.3d 1076, 1098 (9th Cir.2002).

Aguilar-Montoya also claims that the district court deprived him of his Sixth Amendment right to a jury trial when it calculated the applicable Guidelines sentencing range using 139 kilograms as the amount of marijuana involved in Aguilar-Montoya’s offenses, even though the jury had declined to find that more than 50 kilograms was involved. As he concedes, however, his claim is foreclosed by our decision in United States v. Mercado, which held that “the use of acquitted conduct at sentencing does not violate the Constitution.” 474 F.3d 654, 657 (9th Cir.2007).

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
     