United States v. Leonard Jackson , 459 F. App'x 639 ( 2011 )

FILED
NOT FOR PUBLICATION NOV 23 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10173
Plaintiff - Appellee, D.C. No. 2:08-cr-00164-KJD-
GWF-2
v.
LEONARD JACKSON, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
George W. Foley, Magistrate Judge, Presiding
Argued and Submitted November 17, 2011
San Francisco, California
Before: THOMAS, GOULD, and BYBEE, Circuit Judges.
The district court sentenced Leonard Jackson to 200 months’ imprisonment
based on a guilty jury verdict on the counts of conspiracy to interfere with
commerce by robbery and conspiracy to posses cocaine with intent to distribute.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Jackson first contends that the district court erred in rejecting his request for
a below-guideline sentence based on sentencing entrapment and that, because of
this error, his sentence is substantively unreasonable.
“Sentencing entrapment occurs when a defendant is predisposed to commit a
lesser crime, but is entrapped by the government into committing a crime subject to
more severe punishment.” United States v. Mejia, 559 F.3d 1113, 1118 (9th Cir.
2009). In United States v. Naranjo, this court recognized that “a downward
departure is warranted when sentencing entrapment occurs.” 52 F.3d 245, 250 (9th
Cir. 1995). The purpose of the sentencing entrapment departure is to ensure that
the sentence properly takes into account the defendant’s culpability and ability to
commit the crime. See United States v. Staufer, 38 F.3d 1103, 1107 (9th Cir.
1994).
In the typical sentencing entrapment situation, a government agent
convinces a drug dealer to buy or sell more drugs than he would otherwise be
inclined to deal in. See United States v. Briggs, 623 F.3d 724, 729 (9th Cir. 2010).
To prove sentencing entrapment of this type, a defendant must show that the
government “engaged in outrageous official conduct which caused the individual
to commit a more significant crime for which a greater penalty attaches.” United
States v. Si, 343 F.3d 1116, 1128 (9th Cir. 2003). Thus, the defendant bears the
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burden of proving that he did not have the intent or the resources to complete the
transaction or operation, see Naranjo, 52 F.3d at 250, but that he was predisposed
to commit only a lesser crime, see Staufer, 38 F.3d at 1108.
We have recognized that something similar to sentencing entrapment may
occur in another way, based on the dangers inherent in “fictional stash house
operations.” Briggs, 623 F.3d at 729. Because the government creates the
scenario, it is free to set the amount of drugs “at an arbitrarily high level” and
“minimize the obstacles that a defendant must overcome to obtain the drugs.” Id.at 729–30. Therefore, courts should “take a hard look to ensure that the proposed
stash-house robbery was within the scope of [the defendant’s] ambition and
means.” Id. at 730.
In this case, Jackson did not allege, nor offer any proof, that the government
engaged in outrageous conduct causing him to commit a more significant crime
than he was predisposed to commit. Jackson’s sole argument is that the fictional
stash-house scenario implicates sentencing entrapment because “the amount of
cocaine was huge, the amount of potential profit tremendous, and the operation,
from the defendants’ perspective, relatively hassle free.” The planned operation
included at least twenty-two to thirty-nine kilograms of cocaine, at a potential
value of over $1.2 million, and Jackson was told that the house would be guarded
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by two men (one armed), and that this would be a dangerous operation requiring
the use of weapons.
Although in some future case the balance of equities may be such that
similar scenarios rise to the level of sentencing entrapment, Jackson fails to show
that the proposed stash house robbery was not within the scope of his ambition or
means. Therefore, the district court did not err in rejecting Jackson’s sentencing
entrapment defense.
Jackson’s second claim is that the district court erred by failing to sua sponte
enter judgment of acquittal based on entrapment as a matter of law. The defense of
entrapment has two elements: (1) the government induced the defendant to commit
the crime, and (2) the defendant was not predisposed to commit the crime. See Si,
343 F.3d at 1125. The mere fact that the government provided the robbery target,
whether real or fictional, is not enough to prove inducement. See id. “The
principal element of entrapment is the defendant’s predisposition to commit the
crime.” Staufer, 38 F.3d at 1108 (internal quotation marks omitted). To show that
the district court should have found entrapment as a matter of law, a defendant
must show “undisputed evidence making it patently clear that an otherwise
innocent person was induced to commit the illegal act.” Id. (internal quotation
marks omitted).
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Jackson claims that he is entitled to entrapment as a matter of law because he
had no felony criminal record. Jackson presented no other evidence that the
government induced him or that he was not predisposed to commit the crime, and
in fact, the evidence shows that Jackson was a willing participant in the proposed
robbery. Because Jackson has not provided undisputed evidence that he was
“otherwise innocent,” there was no error. See Staufer, 38 F.3d at 1108.
AFFIRMED.
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