                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 03-4845



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ALAN LAVERTE WAY,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CR-
02-210-DKC)


Submitted:   June 30, 2004                  Decided:   July 14, 2004


Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Christopher M. Davis, Mary E. Davis, DAVIS AND DAVIS, Washington,
D.C., for Appellant. Thomas M. DiBiagio, United States Attorney,
James M. Trusty, Donna C. Sanger, Assistant United States
Attorneys, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

             Alan Laverte Way appeals his jury convictions and 360-

month sentence for conspiring to murder (18 U.S.C. § 1117 (2000));

attempt to kill an officer of the United States government (18

U.S.C. § 1114 (2000)) and solicitation to commit a crime of

violence (18 U.S.C. § 373 (2000)).           Way first contends that the

district court erred in denying his request for a jury instruction

on entrapment.      We review a district court’s refusal to give an

entrapment instruction de novo.        United States v. Phan, 121 F.3d

149,   154   (4th   Cir.   1997).     Way    argues   that   the   Government

excessively pressured him into the criminal endeavor because a

Government agent offered him money and a Government informant

provided him with the intended victim’s “home” address.

             To be entitled to a requested jury instruction, the

defendant must establish a sufficient evidentiary foundation to

support the instruction.        United States v. Lewis, 53 F.3d 29, 33

n.8 (4th Cir. 1995).         “Entrapment is an affirmative defense, and

the defendant has the initial burden to ‘produce more than a

scintilla of evidence that the government induced him to commit the

charged offense’ before the burden shifts to the government to

prove beyond a reasonable doubt that the defendant was predisposed

to commit the crime.”      United States v. Sligh, 142 F.3d 761, 762-63

(4th Cir. 1988) (internal citations omitted).          “‘Inducement’ . . .

involves     elements   of    governmental     overreaching    and   conduct


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sufficiently excessive to implant a criminal design in the mind of

an otherwise innocent party.       Solicitation, by contrast, is the

provision of an opportunity to commit a criminal act.”                   United

States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993).

           We   have   reviewed   the    record   and   conclude    that   the

district court did not err in denying the request to instruct the

jury on entrapment because Way failed to show Government inducement

or his lack of predisposition to the crime based on his actions of

initiating the cellblock conversation that led to the conspiracy

and repeatedly contacting an undercover officer about implementing

the object of the conspiracy.      See Lewis, 53 F.3d at 33 n.8.

           Next, Way argues that the district court erroneously

denied his motion for downward departure based on the “imperfect

entrapment” theory.     Where, as here, the district court was aware

of its authority to depart and declined to do so, the district

court’s refusal to depart is not reviewable on appeal.                   United

States v. Edwards, 188 F.3d 230, 238-39 (4th Cir. 1999).

           Accordingly, we affirm Way’s convictions and sentence.

We   dispense   with   oral   argument   because   the   facts     and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                    AFFIRMED




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