                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0134n.06
                           Filed: February 21, 2006

                                     Nos. 04-5091, 04-5093

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
RICHARD NANEZ and                                )    MIDDLE DISTRICT OF TENNESSEE
KEVIN C. NEAL,                                   )
                                                 )
       Defendants-Appellants.                    )


Before: BOGGS, Chief Judge, GIBBONS, Circuit Judge and ROSE, District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. Richard Nanez and Kevin Neal were convicted

of violating 21 U.S.C. §§ 841 and 846 and each was sentenced to 240 months in prison. On direct

appeal, Neal challenges his conspiracy conviction, claiming that (A) insufficient evidence supported

his conviction; (B) the jury improperly rejected his entrapment defense; and (C) prosecutorial

misconduct tainted his conviction. Neal also challenges his sentence. Nanez challenges only his

sentence. For the following reasons, we AFFIRM Neal’s conviction and his sentence but VACATE

Nanez’s sentence and REMAND his case to the district court for resentencing.



       *
         The Honorable Thomas M. Rose, United States District Judge for the Southern District of
Ohio, sitting by designation.

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                                                I.

       Richard Nanez sold bags containing a half-gram of cocaine or less from his Houston, Texas

bar. At his bar, Nanez met Rafael “Angel” Benavides around January 15, 2002 and discussed an

ongoing drug sale in which Nanez would supply Benavides with three-to-five kilograms of cocaine

per week. Because Nanez had never dealt in such large quantities, he had to locate a source before

finalizing the deal. Nanez secured a source and quoted Benavides a price of $24,000 per kilogram.

Benavides balked at the price, and Nanez cut it to $21,000 per kilogram. Benavides considered the

counteroffer and told Nanez he would get back to Nanez about the deal.

       Before Benavides could make a decision about the deal with Nanez, Benavides was arrested

by Nashville Police and began cooperating with the government. Nashville Police joined its efforts

with the United States Attorney for the Middle District of Tennessee. Benavides informed the police

of his pending deal in Houston with Nanez, and the government began investigating Nanez.

       Benavides called Nanez under the pretext of consummating the deal. He agreed to purchase

three kilograms of cocaine from Nanez for $21,000 per kilogram if Nanez delivered the drugs to

Nashville. The deal stalled when Nanez could not locate his usual courier. He assured Benavides

that there would be no further delays and told him he was traveling to Nashville to insure that the

deal would be completed. The logistics of delivery were worked out by Benavides and Nanez during

several telephone calls, all of which were monitored by the government.

       Nanez recruited two people for the Nashville drug deal: Mike Avila and Kevin Neal. Nanez

hired Mike Avila to transport the cocaine to Nashville, concealed in the gas tank of his car. Nanez

agreed to pay Avila $1,000 for every kilogram of cocaine he delivered and told him to anticipate



                                                -2-
delivering five kilograms per week. Nanez hired Neal for $500 to share the driving responsibilities

on Nanez’s trip to Nashville.

       Nanez and Neal arrived in Nashville before the cocaine was delivered. Neal met Benavides

and an undercover police detective, Jesse Burchwell in a McDonald’s parking lot. Benavides was

wearing a body wire, and he and Burchwell were communicating with Assistant United States

Attorney (“AUSA”) Sunny Koshy. Neal waited at his hotel room at the Shoney’s Inn. By this time,

he had discerned the purpose of the Nashville trip, and both he and Nanez were upset that the

delivery was late.

       The following day, Nanez and Neal arranged another meeting with Benavides and Burchwell

at a Longhorn Steakhouse. The cocaine still had not arrived. Nanez told Benavides and Burchwell

that his driver was running late because he had made other drug drops en route from Houston.

Burchwell began to question whether the deal would be completed, and Neal assured him that it

would. Neal and Nanez also began discussing future deals with Benavides and Burchwell. Nanez

told them that they would have to order at least five kilograms of cocaine in the future to get better

prices. Both Nanez and Neal quoted prices in the range of $17,000 to $19,000 per kilogram. Neal

also discussed marijuana dealing and plans to get his drug-dealing business with Nanez off the

ground. He indicated to Burchwell that he was going to buy a GMC Yukon Denali as soon as he and

Nanez got the business up and running.

       After the meeting at the Longhorn ended, Nanez and Neal returned to their hotel room. There

they met Avila, who had transported the cocaine, but he was short one kilogram. Nevertheless,

Nanez contacted Benavides and Burchwell to proceed with the deal. Nanez explained the shortage



                                                 -3-
and promised to deliver the additional kilogram to Nashville three days later. The group proceeded

to an apartment with a garage so the cocaine could be extracted from the gas tank. The group

traveled to the apartment in separate cars. Avila drove Neal in the car that contained the drugs, and

Benavides and Burchwell drove Nanez.

       In the car, Benavides, Burchwell, and Nanez discussed future cocaine deals. Burchwell

knew that he had to get Nanez to agree to a sale of at least five kilograms of cocaine because he had

asked AUSA Sonny Koshy over his wire what was needed for a conviction. In response to

Burchwell’s “tell me what Sonny needs,” Koshy had advised Burchwell that it did not matter

whether the sale was for five or ten kilograms. Nevertheless, Burchwell got Nanez to commit to a

ten-kilogram, $180,000 sale. The sale was to take place the following Thursday in Houston with

Benavides and Burchwell picking up the drugs. Upon arriving at the apartment, Nanez told Neal

about the deal he had made. At that time, Neal held himself out as Nanez’s “fifty-fifty partner” in

the drug trade.

       Avila fished the cocaine out of his gas tank, and Burchwell cut open the food-saver bags to

test it and learned that gasoline had soaked through the sealed package. Despite the gas saturation,

the deal went forward. Benavides and Burchwell paid $42,000, $21,000 for each of the two

kilograms supplied. Nanez counted the money, and Neal recounted it after Nanez thought Benavides

and Burchwell had overpaid. Once the transaction was complete, Burchwell signaled for the arrests

of Nanez, Neal, and Avila.

       Nanez and Neal were charged with violations of 21 U.S.C. § 841, possession of 500 or more

grams of cocaine with the intent to distribute, and 21 U.S.C. § 846, conspiracy to distribute five or



                                                -4-
more kilograms of cocaine. Nanez and Neal proceeded to trial after trying unsuccessfully to plead

guilty. Both were convicted after raising entrapment defenses and claiming that AUSA Koshy had

taken an inappropriate role in their investigation and arrests. They were sentenced to 240 months

in prison after the sentencing court considered presentence reports and applied the United States

Sentencing Guidelines (“Guidelines”) and statutory minima. Nanez and Neal appeal their sentences,

and Neal challenges his conviction.

                                                  II.

       To challenge his conviction, Neal claims that (A) his conspiracy conviction is supported by

insufficient evidence; (B) the conspiracy conviction must be reversed because the government

entrapped him; and (C) the prosecutor engaged in misconduct. Neal’s challenges to his conviction

are discussed seriatim.

                                                  A.

       In reviewing a conviction for sufficiency of the evidence, this court must determine “whether

the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 318 (1979) (footnote omitted). In making this determination, “we do not

weigh the evidence, assess the credibility of the witnesses, or substitute our judgment for that of the

jury.” United States v. Salgado, 250 F.3d 438, 446 (6th Cir. 2001) (internal quotation and citation

omitted). Rather, we view “the evidence in the light most favorable to the prosecution” and

determine whether “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson, 443 U.S. at 319. The essential elements of drug conspiracy

are: “(1) an agreement to violate drug laws; (2) knowledge and intent to join the conspiracy; and (3)



                                                 -5-
participation in the conspiracy.” United States v. Layne, 192 F.3d 556, 567 (6th Cir. 1999). When

determining whether any rational trier of fact could have found these elements established beyond

a reasonable doubt, we draw “all available inferences and resolve all issues of credibility in favor

of the jury’s verdict.” Salgado, 250 F.3d at 446.

       Viewing the evidence in the light most favorable to the government and giving due deference

to the jury’s verdict compels the conclusion that sufficient evidence supports Neal’s conspiracy

conviction. The record evidence permits a rational trier of fact to conclude that Neal entered into an

agreement to violate the drug laws. An agreement could be inferred from Neal’s description of

himself as Nanez’s “fifty-fifty partner” and his indication that he would purchase a Yukon Denali

once he got the drug business up and running. Similarly, ample record evidence permits the

conclusion that Neal knew about and had the intent to join the conspiracy. His knowledge of the

conspiracy is undisputed; he knew that Nanez, Benavides, and Burchwell were discussing future

drug deals at the Longhorn Steakhouse meeting, and Nanez informed him of the ten-kilogram deal

he made in the car as soon as they arrived at the apartment to extract the drugs. His intent to join

the conspiracy also could be inferred from the Longhorn Steakhouse meeting. Neal actively

participated in that meeting, discussing drug sources and quoting drug prices for future deals. His

identification of Nanez as his partner also indicates that he intended to join and, indeed, had joined

the conspiracy. Finally, the record evidence supports the conclusion that Neal participated in the

conspiracy. As noted, he identified sources for future drug deals and quoted prices to Benavides and

Burchwell. Viewing all the record evidence in the light most favorable to the government reveals




                                                 -6-
sufficient evidence to sustain Neal’s conspiracy conviction.2



                                                 B.

       “A valid entrapment defense requires proof of two elements: (1) government inducement of

the crime, and (2) lack of predisposition on the part of the defendant to engage in the criminal

activity.” United States v. Khalil, 279 F.3d 358, 364 (6th Cir. 2002). Predisposition to engage in the

criminal activity is gauged by considering:

       1) the character or reputation of the defendant, including any prior criminal record;
       2) whether the suggestion of the criminal activity was initially made by the Government;
       3) whether the defendant was engaged in the criminal activity for profit;
       4) whether the defendant evidenced reluctance to commit the offense, overcome only by
           repeated government inducement or persuasion; and
       5) the nature of the inducement or persuasion supplied by the government.

United States v. McMahan, No. 03-6271, 129 F. App’x 924, 931 (6th Cir. Apr. 26, 2005) (citing

Khalil, 279 F.3d at 365). When reviewing a jury’s rejection of an entrapment defense, this court can

overturn the jury’s verdict only if we conclude “that no reasonable juror could have concluded

beyond a reasonable doubt that the defendant was predisposed to violate the narcotics laws.” United

States v. Jennings, 945 F.2d 129, 133 (6th Cir. 1991).

       We cannot conclude that no reasonable juror would find Neal predisposed to participate in

a drug conspiracy because the record contains strong evidence of his predisposition. He had a

significant criminal history, including a felony drug charge. Rather than evidencing reluctance to



       2
         Neal does not challenge the sufficiency of the evidence to support his conviction for
possession with intent to distribute. Although the title of this portion of his brief refers to
“convictions,” the text only mentions the conspiracy conviction.

                                                 -7-
participate in further criminal activity, Neal escalated his participation in the business dealings

among Benavides, Burchwell, and Nanez after he learned that they were engaged in a drug

transaction. Neal discussed future drug deals, assured Burchwell that the transaction would be

completed, identified sources, quoted drug prices, and counted drug money after learning that

Nanez hired him to go on a drug-related trip. He participated in the trip for profit initially and did

not disavow the profits after learning that they were criminally derived. Instead, Neal intended to

participate in future drug deals for profit; he planned to use those profits to buy a luxury sports

utility vehicle.

        This substantial evidence of predisposition is coupled with correspondingly weak evidence

of government inducement. Although the government did suggest the ten-kilogram deal, Nanez and

Neal had already discussed future deals with Benavides and Burchwell at the Longhorn Steakhouse

meeting. More significantly, Nanez and Benavides had negotiated installment drug deals long before

Benavides began cooperating with the government. This conspiracy was not induced by the

government, and the record supports an inference that this was the conspiracy that Neal joined. In

light of the weak evidence of inducement and the significant evidence of predisposition, we cannot

conclude that no reasonable juror could find Neal predisposed to participate in a drug conspiracy.

Therefore, we uphold the jury’s rejection of Neal’s entrapment defense.

          Neal also claims sentencing entrapment, arguing that he was predisposed to deal only in

small quantities of drugs and that the government induced him to deal in larger quantities to increase

his sentence. Sentencing entrapment is a legal theory that has been recognized by neither this court

nor the United States Supreme Court. See generally Sorrells v. United States, 287 U.S. 435 (1932)



                                                 -8-
(outlining two theories of entrapment, objective and subjective, neither of which applies to

sentencing); see also Sosa v. Jones, 389 F.3d 644, 649 (6th Cir. 2004) (“[T]he theory of ‘sentencing

entrapment’ would have to be recognized and applied in this case. . . . [The defendant] has pointed

to no Supreme Court precedent that [establishes] a federal prohibition of sentencing entrapment.”);

United States v. Jones, 102 F.3d 804, 809 (6th Cir. 1996) (“While other circuits have recognized

sentencing entrapment, this circuit has never acknowledged sentencing entrapment . . . . [W]e need

not address whether this circuit should adopt the defense.”). We decline Neal’s invitation to

recognize sentencing entrapment. The record does not indicate that Neal’s will was overcome or that

he was inclined only to deal in small quantities. He certainly anticipated large profits, which

correspond to dealing in large quantities. Thus, there is no occasion for us to consider adopting a

doctrine of sentencing entrapment.

                                                    C.

        A claim of prosecutorial misconduct is reviewed for plain error when the defendant failed

to object to the prosecutor’s actions or statements at trial. Plain error requires a defendant to show:

“(1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious or clear; (3)

that the error affected [the] defendant’s substantial rights; and (4) that this adverse impact seriously

affected the fairness, integrity or public reputation of the judicial proceedings.” United States v.

Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998) (citing Johnson v. United States, 520 U.S. 461, 467

(1997)). Plain error results from prosecutorial misconduct when the prosecutor makes improper

comments that are so flagrant in context that they “undermine the fundamental fairness of the trial

and contribute to a miscarriage of justice.” United States v. Young, 470 U.S. 1, 16 (1985). This court



                                                    -9-
has developed four factors to determine if the prosecutor’s comments are so flagrant that they

threaten fundamental fairness: “(1) whether the conduct and remarks of the prosecutor tended to

mislead the jury or prejudice the defendant; (2) whether the conduct or remarks were isolated or

extensive; (3) whether the remarks were deliberately or accidentally made; and (4) whether the

evidence against the defendant was strong.” United States v. Modena, 302 F.3d 626, 635 (6th Cir.

2002) (internal quotation marks and citation omitted).

       Neal’s prosecutorial misconduct claim fails the plain error test; he cannot establish that

prosecutorial misconduct caused a clear and obvious error in his trial. Neal cannot even establish

prosecutorial misconduct, as he fails to demonstrate impropriety by AUSA Sunny Koshy. Neal

claims that Koshy, by trying a case he helped investigate, impermissibly vouched for the case and

witnesses against Neal. Impermissible vouching occurs when the prosecutor evidences his personal

belief in any witness’s credibility or implies personal knowledge of material facts unknown to the

jury. United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999). Koshy did not imply that he had

personal knowledge of the facts beyond the jury’s reach, and he did not express a personal belief in

any witness’s credibility. Contrary to Neal’s argument, a prosecutor does not commit misconduct

by coordinating with police during a criminal investigation and then taking the case to trial. Because

Neal cannot demonstrate improper conduct by Koshy, we reject his prosecutorial misconduct claim

without further application of the plain error test.

                                                 III.

       Neal and Nanez challenge their 240-month sentences. They formulated their challenges

before the United States Supreme Court rendered its decision in United States v. Booker, 543 U.S.

                                                 -10-
220, 125 S. Ct. 738, 756 (2005) (holding that fact-finding by judges, who were sentencing

defendants by mandatory application of the Guidelines, violates the Sixth Amendment).

Nevertheless, their sentences must comport with Booker’s holdings because their appeals were

pending when the case was decided. Id. at 769 (“[W]e must apply today’s holdings—both the Sixth

Amendment holding and our remedial interpretation of the Sentencing Act—to all cases on direct

review.”).

       We review their sentences for plain error, however, because neither Neal nor Nanez raised

express Sixth Amendment challenges before the sentencing judge.3 United States v. Oliver, 397 F.3d


       3
         Before the sentencing judge, Neal and Nanez challenged various sentencing enhancements
recommended by their Presentence Reports. They challenged the application of the sentencing
enhancements in light of the evidence.
        Neither Neal nor Nanez made an explicit Sixth Amendment objection. Neal made no
constitutional argument against the sentencing enhancements recommended by his Presentence
Report. Therefore, he forfeited his Booker claim. See United States v. Olano, 507 U.S. 725, 731
(1993) (holding that failure to identify errors before the district court forfeits claims based upon
those errors). Nanez, however, made a passing reference to “the rights under” a United States
Supreme Court case. Whether this reference preserved Nanez’s Sixth Amendment claim is a close
question. Compare United States v. Davis, 397 F.3d 340, 350 (6th Cir. 2005) (finding that the
defendant forfeited his Booker claim “[a]lthough [he] vehemently objected to the amount of loss
before the district court[] [because] he failed to do so on Sixth Amendment grounds”), and United
States v. Strayhorn, 250 F.3d 462, 467 (6th Cir. 2001) (finding that the defendant preserved his
Apprendi claim by repeatedly objecting to the drug quantity determination and the calculation of his
base offense level), overruled on other grounds by United States v. Leachman, 309 F.3d 377 (6th
Cir. 2002).
        Fortunately, this is a close question which this case does not compel us to resolve. Whether
Nanez preserved his Sixth Amendment claim only determines whether we review his sentence de
novo or for plain error. See United States v. Oliver, 397 F.3d 369, 377 (6th Cir. 2005) (reviewing
sentence for plain error after concluding that Booker claim was forfeited); Strayhorn, 250 F.3d at
467 (reviewing sentence de novo after concluding that Apprendi claim was preserved). The standard
under which we review Nanez’s sentence is not outcome-determinative because Nanez’s sentence
must be vacated even under the more stringent plain error review. See United States v. McDaniel,
398 F.3d 540, 547 (6th Cir. 2005) (“We need not resolve this issue in this case, however, because
we conclude that, even under plain-error review, we must vacate [the sentences].”). Therefore, we

                                               -11-
369, 375 (6th Cir. 2005). We find plain error whenever judge-found facts support a mandatory

Guidelines sentence longer than that supported by the jury verdict and the defendant’s admissions.

See Oliver, 397 F.3d at 380-81 (“We therefore conclude that the district court plainly erred by

applying the federal sentencing guidelines as mandatory rather than advisory and thereby sentencing

Oliver beyond the sentencing range which the jury verdict and Oliver’s criminal history

supported.”); see also United States v. Davis, 430 F.3d 345, 361 (6th Cir. 2005) (“[The defendants’]

sentences were increased based upon facts not found by the jury . . . . Such a use of judge-found

facts to impose sentence enhancements under the then-mandatory United States Sentencing

Guidelines is in direct contravention of the Supreme Court’s holding in Booker. We found this type

of error to satisfy the plain-error standard . . . .” (citations omitted)).

        We find plain error in Nanez’s sentence because the sentencing judge found facts not proven

to the jury and relied on those facts to enhance Nanez’s sentence under the mandatory Guidelines.

Specifically, the sentencing judge found a drug quantity of fifteen kilograms and that Nanez led the

drug conspiracy. The sentencing judge used those facts to enhance Nanez’s sentence beyond the ten-

year mandatory minimum justified by his conviction alone. Because Nanez’s sentence violates the

Sixth Amendment and contravenes the holdings in Booker, his sentence must be vacated and his

case remanded for resentencing.

        Neal, however, will not be resentenced; we affirm his sentence because it is unaffected by

the holding in Booker. See generally 125 S.Ct. at 756. Neal was not sentenced by mandatory

application of the Guidelines. Instead, Neal was sentenced to the mandatory minimum imposed by


need not determine whether Nanez’s sentencing objections preserved his Sixth Amendment claim.

                                                   -12-
21 U.S.C. § 841(b)(1)(A), which was enhanced by statute because of his prior felony drug

conviction. Because the Guidelines played no role in Neal’s sentence, we have no ground for

vacating it.

                                             III.

        For the foregoing reasons, we AFFIRM Neal’s conspiracy conviction and his sentence.

Nanez’s sentence, however, we VACATE and REMAND his case to the district court for

resentencing in accordance with the principles of the Sixth Amendment and Booker.




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