             Case: 13-11522    Date Filed: 12/20/2013   Page: 1 of 7


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-11522
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 8:10-cr-00407-JSM-AEP-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

MIGUEL ANTHONY MOLINA,
a.k.a. Pito,

                                                            Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                              (December 20, 2013)

Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

      Miguel Anthony Molina appeals his convictions and sentences for

possessing a firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(e)(1), and distributing heroin, in violation of 21 U.S.C. § 841(a)(1) and
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(b)(1)(C).   On appeal, he argues that: (1) the government failed to present

sufficient evidence to rebut beyond a reasonable doubt his defense of entrapment;

and (2) the court erred in setting his offense level as an armed career criminal at

34, under U.S.S.G. § 4B1.4(b)(3)(A), based on its conclusion that he possessed a

gun in connection with a drug offense. After careful review, we affirm.

      We review challenges to the sufficiency of the evidence to rebut an

entrapment defense de novo. United States v. Francis, 131 F.3d 1452, 1456 (11th

Cir. 1997). We are limited to determining whether the government presented

sufficient evidence for a reasonable jury to conclude that the defendant was

predisposed to take part in the crime. Id. A jury’s verdict cannot be overturned if

any reasonable construction of the evidence would allow the jury to find the

defendant guilty beyond a reasonable doubt. United States v. Brown, 43 F.3d 618,

622 (11th Cir. 1995). On sufficiency review, we view all evidence and make all

inferences in favor of the government and cannot overturn the verdict if any

reasonable construction of the evidence would allow for a guilty verdict. Francis,

131 F.3d at 1456. As for Molina’s challenge to the court’s Sentencing Guidelines

determination, we review the argument for plain error, because he did not object to

this issue below. United States v. Barrington, 648 F.3d 1178, 1195 (11th Cir.

2011), cert. denied, 132 S.Ct. 1066 (2012). To establish plain error, a defendant

must show: (1) there is error; (2) that is plain; and (3) affected his substantial


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rights; and if those three prongs are met, we have discretion to correct an error (4)

that seriously affected the fairness, integrity or public reputation of judicial

proceedings. United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005).

      First, we are unpersuaded by Molina’s claim that the government presented

insufficient evidence to rebut his entrapment defense.        The elements of the

affirmative defense of entrapment are: (1) government inducement of the crime;

and (2) the defendant’s lack of predisposition to commit the crime before the

inducement. United States v. Orisnord, 483 F.3d 1169, 1178 (11th Cir. 2007). The

defendant bears the initial burden of production on the first element and may meet

this burden “by producing any evidence sufficient to raise a jury issue that the

government’s conduct created a substantial risk that the offense would be

committed by a person other than one ready to commit it.” Id. (quotation omitted).

Once the defendant meets this burden, the government must then prove beyond a

reasonable doubt that the defendant was predisposed to commit the offense. Id.

      The defendant’s burden of production to show government inducement is

“light.” Brown, 43 F.3d at 623. However, “the government’s mere suggestion of a

crime or initiation of contact is not enough.” Id. Rather, inducement requires “an

element of persuasion or mild coercion.”       Id.   We have also explained that

“inducement consists of opportunity plus something like excessive pressure or

manipulation of a non-criminal motive.” Id. The Supreme Court has said that,


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where a government agent simply provides a defendant with the opportunity to

commit a crime and the defendant accepts, the entrapment defense “is of little use

because the ready commission of the criminal act amply demonstrates the

defendant’s predisposition.” Jacobson v. United States, 503 U.S. 540, 549-50

(1992). It went on to note that, in a case like that, “it is unlikely that [an]

entrapment defense would [] warrant[] a jury instruction.” Id. at 550.

      In Orisnord, the defendants argued that there was insufficient evidence of

their predisposition to commit the charged offenses. 483 F.3d at 1177-78. We,

however, did not reach the issue of predisposition because we determined that the

defendants failed to meet their burden of production on the inducement element.

Id. at 1178. Because nothing in the record demonstrated that the government had

to “push” the scheme on the defendants or that any of the defendants expressed a

refusal to participate, the defendants failed to meet their burden. Id.

      Here, Molina failed to meet his burden of production that the government

induced him to commit a criminal offense. The evidence of entrapment comes

solely from Molina’s testimony. In support of the defense, he testified that he sold

the undercover officer the gun only because the government’s confidential

informant (“CI”) wanted him to sell the gun.          He also testified that the CI

explained that Molina had to sell the gun because the undercover would not

purchase it from the CI, who owed money to the undercover. However, beyond


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that explanation, Molina put forth no evidence that the CI had to do anything more

than ask him to sell the gun. While Molina put forth testimony that he had no

interest in handling or dealing in guns, his claimed lack of a predisposition to deal

in guns is irrelevant if he failed to meet his burden of production that the

government induced him to sell the gun. See Orisnord, 483 F.3d at 1178. Thus,

just as in Orisnord, because nothing in the record demonstrates that the government

had to “push” or otherwise encourage Molina to possess the gun, albeit temporarily

and for the sole purpose of selling it, and Molina put forth no evidence that he

initially refused or was reluctant to sell the gun for the CI, Molina failed to meet

his burden of production even if we take his testimony at face value.

      We are also unconvinced by Molina’s claim that the court plainly erred in

setting his offense level as an armed career criminal at 34, based on its conclusion

that he possessed a gun in connection with a drug offense. Under the Guidelines, a

defendant considered to be an armed career criminal receives an offense level of

“(A) 34, if the defendant used or possessed the firearm or ammunition in

connection with . . . a controlled substance offense, as defined in § 4B1.2(b), . . . or

(B) 33, otherwise.” U.S.S.G. § 4B1.4(b)(3). In United States v. Young, we held

that the “in connection with” language of § 4B1.4(b)(3) must be construed

according to its ordinary meaning. 115 F.3d 834, 836 (11th Cir. 1997). We

concluded that, where a gun was obtained as the fruit of a burglary, the “in


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connection with” language was satisfied because it properly reflected the context

of the gun possession. Id. at 837-38. We also rejected the holding of other circuits

that “in connection with” is only satisfied where the firearm serves a purpose

related to the crime. Id. at 838. We thus have found the application of the §

4B1.4(b)(3)(A) provision appropriate where a defendant was arrested while

simultaneously possessing heroin and a gun, because “the presence of the gun

potentially emboldened [the defendant] to undertake illicit drug sales.” United

States v. Gainey, 111 F.3d 834, 837 (11th Cir. 1997).

      Here, the fact that Molina possessed the gun and heroin simultaneously is

sufficient for a conclusion that Molina possessed a gun in connection with a drug

offense. See id.; see also United States v. Carrillo-Ayala, 713 F.3d 82, 96 (11th

Cir. 2013). For starters, the evidence does not conclusively show that Molina did

not possess the gun at any point during the discussion of a heroin transaction.

Rather, the record shows that Molina did not negotiate a price for the gun until

after he discussed the heroin. Further, contrary to Molina’s suggestion that the

heroin transaction was wholly separate and occurred only after the sale of the gun

was finalized and Molina relinquished possession of the gun, the record reflects

that the CI referred to the heroin transaction as “the other matter that we agreed the

other day.”    This indicates that when Molina possessed the gun, the parties

understood the potential for a heroin transaction, and Molina possessed the heroin.


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Accordingly, even though the record does not show that Molina had a loaded gun

in his pocket while possessing heroin, the simultaneous possession here is enough

to demonstrate that the court did not plainly err in imposing an offense level of 34.

      AFFIRMED.




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