                                                                               FILED
                            NOT FOR PUBLICATION                                APR 04 2012

                                                                            MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10154

              Plaintiff - Appellee,              D.C. No. 4:09-cr-00905-DCB-
                                                 JJM-1
  v.

DAVID ALEJO MARTINEZ-                            MEMORANDUM*
GRIJALVA,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                       Argued and Submitted March 14, 2012
                               Berkeley, California

Before: NOONAN, McKEOWN, and M. SMITH, Circuit Judges.

       David Alejo Martinez-Grijalva appeals his sentence based on his jury

conviction for conspiracy to possess with intent to distribute 100 kilograms of

cocaine and possession with intent to distribute one kilogram of cocaine. Because

the parties are familiar with the factual and procedural history of this case, we


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
repeat only those facts necessary to resolve the issues raised on appeal. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate his sentence and remand

to the district court for resentencing.

       Martinez-Grijalva raises a claim of sentencing entrapment, citing U.S.S.G.

§ 2D1.1 Application Note 12 (“Note 12”). Although he argued the substance of

Note 12 before the district court—i.e., that the quantities discussed were “puffing”

and that the issue of “capacity or ability to truly deliver on what they promised, is

something that the court ought to take into account in determining sentence”—he

failed to cite to or object under Note 12. The government claims that Martinez-

Grijalva’s arguments were insufficient to preserve this claim. Nonetheless, even if

it is forfeited, we review for plain error. Fed. R. Crim. P. 52(b); United States v.

Olano, 507 U.S. 725, 732 (1993) (plain error standard permits an appellate court to

reverse if there was (a) an error, (b) that was plain, and (c) that affected substantial

rights).

       “Sentencing entrapment or ‘sentence factor manipulation’ occurs when ‘a

defendant, although predisposed to commit a minor or lesser offense, is entrapped

in[to] committing a greater offense subject to greater punishment.” United States

v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994). When sentencing entrapment

occurs, “the amount of drugs used in calculating the defendant’s sentence should


                                           2
be reduced by the amount that ‘flows from the entrapment.’” United States v.

Briggs, 623 F.3d 724, 729 (9th Cir. 2010). Under Note 12, if a defendant makes a

proper showing that he “was not reasonably capable of providing . . . the

agreed-upon quantity,” the court must exclude the quantity that he establishes he

was not reasonably capable of providing. U.S.S.G. § 2D1.1 App. n.12. Finally,

under our circuit precedent, “Application Notes 12 and 17 [now incorporated into

Note 12] clearly require the district court to determine whether sentencing

entrapment has occurred. Under Note 12, the district court ‘shall exclude’ from the

calculation the amount of drugs which flow from sentencing entrapment.” United

States v. Naranjo, 52 F.3d 245, 250 (9th Cir. 1995).

      At sentencing, the district court rejected arguments relating to sentencing

entrapment because it concluded that any relief would require the court to

invalidate the jury’s verdict. That conclusion was erroneous, at odds with our

precedent, and affected Martinez-Grijalva’s substantial rights. The ultimate

determination of sentencing entrapment is within the province of the sentencing

judge, and the mere fact of conviction does not trump this obligation. Under

Naranjo, Martinez-Grijalva’s inability to produce 100 kilograms of

cocaine—instead producing two kilograms of cocaine and fifty-nine kilograms of

building plaster—raises a significant issue. We vacate Martinez-Grijalva’s


                                         3
sentence and remand for resentencing. We take no position on whether relief

should be granted, and, on remand, Grajeda-Encinas has the burden of proving

sentencing entrapment by a preponderance of the evidence. Naranjo, 52 F.3d at

250.

       REVERSED AND REMANDED.




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