                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         OCT 30 1998
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 97-5147
                                                 (D.C. No. 96-CR-149-BU)
 MYRAM LYDAY, also known as                            (N.D. Okla.)
 Monkey, named in Magistrates
 complaint as Myron Lyday and
 indicted as Myram Lyday,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges.


      Defendant appeals his conviction for possession of a firearm during a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1), and the sentence imposed.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm in part and

dismiss in part.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                                         I.

      The government initiated an undercover investigation in Tulsa, Oklahoma,

in the summer of 1996, in an attempt to expose violations of federal firearms and

controlled substances laws. In July 1996, a third party introduced Lyday to a

confidential government informant, who expressed interest in purchasing crack

cocaine. Lyday gave his pager number to the informant and the informant

contacted Lyday a few days later to set up a meeting at the informant’s apartment.

Lyday sold crack cocaine to the informant and arranged for his partner, who had

accompanied Lyday to the apartment, to sell the informant a .22 caliber revolver.

The informant told Lyday he would like to buy more crack cocaine but could

afford additional purchases only by buying and reselling guns at a profit. The

informant pointedly stated his position to Lyday by telling him, “No guns, no yay

(crack).” Record I, Doc. 51 at 2. Lyday agreed to help the informant locate guns

for resale. Lyday called the informant the following week and the informant

agreed to purchase a sawed-off rifle for resale. Lyday brought the rifle and crack

cocaine to the informant’s apartment on August 1, and the informant gave Lyday

$100 for the rifle and $40 for the cocaine. The transaction was captured on

videotape.

      The complaint filed on September 24, 1996, charged Lyday with,     inter alia ,

three counts of possession of a firearm during a drug trafficking crime, in


                                         -2-
violation of 18 U.S.C. § 924(c)(1). Lyday moved to dismiss the § 924(c)(1)

counts on the grounds the government had presented insufficient evidence to

establish the firearms had been used or carried in relation to drug trafficking

crimes. A magistrate judge dismissed those counts for lack of probable cause.

Lyday was indicted by grand jury on October 4, 1996, for the same offenses

charged in the original complaint. He again moved to dismiss the § 924(c)(1)

charges, claiming the undisputed evidence was legally insufficient to support a

conviction. The district court denied the motion.

      Lyday entered into a plea agreement, agreeing to plead guilty to one count

of distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), in return

for the government’s promise to allow him to file a new motion to dismiss the §

924(c)(1) charges and not to object to an evidentiary hearing. He further agreed

to enter a conditional plea of guilty to one count of violating § 924(c)(1) in the

event the court denied his motion to dismiss. The district court conducted an

evidentiary hearing and denied the motion on June 25, 1997. Lyday pleaded

guilty to the § 924(c)(1) charge on June 30.

      Lyday argued at sentencing that the district court should depart downward

because the government had engaged in “sentence entrapment.” The court

followed the presentence report recommendation and sentenced Lyday to

consecutive terms of 24 months’ imprisonment on the § 841(a)(1) count, and 120


                                          -3-
months’ imprisonment on the § 924(c)(1) count, followed by three years’

supervised release.

                                             II.

       Lyday contends the district court erred in denying his motion to dismiss the

§ 924(c)(1) count in the indictment. We review de novo a district court’s decision

to deny a motion to dismiss an indictment based on decisions of law.           See United

States v. McAleer , 138 F.3d 852, 855 (10th Cir. 1998) (double jeopardy question);

see also United States v. Valenzuela-Escalante      , 130 F.3d 944, 945 (10th Cir.

1997) (applying de novo standard to district court’s interpretation of federal

criminal statute). At issue here is whether the uncontroverted evidence could, as

a matter of law, establish a violation of § 924(c)(1).         See United States v.

Richardson , 86 F.3d 1537, 1546 (10th Cir. 1996) (setting forth necessary elements

of § 924(c)(1) violation).

       Lyday admits he committed the underlying drug crime and that he “carried”

a weapon during the drug transaction. He insists, however, that he did not use or

carry the weapon “in relation to” the drug crime.        1
                                                             Noting the separate purchase

prices, Lyday claims the sale of the rifle was independent and unrelated to the

sale of the cocaine. He further contends the two transactions were conducted at


       1
         Lyday also argues he did not “use” the rifle. Because § 924(c)(1)
punishes a defendant for using or carrying a gun in relation to a drug trafficking
crime, this argument is irrelevant.

                                             -4-
the same time and place through the government’s manipulation.            See Appellant’s

Br. at 13 (“In the case at bar it was      the informant , who demanded the gun, and

demanded it in such a way that 924(c) would surely apply.”)

       In Smith v. United States , 508 U.S. 223, 237-38 (1993), the Court stated

the phrase “in relation to” in § 924(c)(1), means, at a minimum, that the gun must

have facilitated, or have the potential of facilitating the drug trafficking offense.

The Court made clear that a gun is not related to a drug trafficking crime if its

presence is merely the result of an accident or a coincidence.         Id. at 238. The

facts of this case fit comfortably within the         Smith holding. The presence of

Lyday’s rifle at the August 1 meeting between Lyday and the informant was not

accidental. Lyday intended to bring the rifle to the drug transaction. Moreover,

the gun facilitated the drug transaction because the informant expressly told

Lyday he would not buy additional drugs unless Lyday also sold him guns.

       The application of the Smith test in United States v. Wilson , 115 F.3d 1185

(4th Cir. 1997), is also instructive. In      Wilson , a government informant went to

the defendant’s house to purchase drugs and was offered the opportunity to buy a

gun while he was there. The informant chose to purchase only the gun.

Nevertheless, the defendant was convicted of violating § 924(c)(1). The court

reversed the conviction based on lack of evidence establishing a nexus between

the firearm and the drug sale, explaining:


                                                -5-
             First, the tape-recorded conversations and [the informant’s]
      testimony reveal that Wilson neither bartered nor exchanged the rifle
      for drugs. Second, the same evidence establishes that Wilson
      attempted to sell both a rifle and marijuana to [the informant]. Third,
      the Government failed to elicit testimony from [the informant] that
      the presence of the firearm influenced his decision or intimidated
      him into purchasing marijuana from Wilson. And fourth, [the
      informant] freely elected to purchase the rifle instead of the
      marijuana. Given the facts before us, we are hardpressed to conclude
      that the sale of the rifle facilitated Wilson’s drug trafficking
      business. It was a completely independent, yet contemporaneous
      action.

Id. at 1191-92.

      The instant action is significantly different from   Wilson . Here, the firearm

in Lyday’s possession directly influenced the informant’s decision to purchase

drugs. Indeed, the informant told Lyday he would not buy additional drugs unless

he could also purchase guns. The primary reason Lyday took the rifle to the

informant’s apartment was to maintain the informant as a steady purchaser of

drugs. Under these facts, we conclude the evidence was sufficient, as a matter of

law, to sustain the § 924(c)(1) conviction.

                                           III.

      Lyday also contends the district court erred by failing to grant his motion

for a downward sentence departure based on sentencing entrapment. “[A]

discretionary decision not to depart downward is not reviewable unless the record

shows that the district court erroneously believed that the Guidelines did not

permit a departure.”   United States v. Banta , 127 F.3d 982, 983 n.1 (10th Cir.

                                            -6-
1997). Lyday claims the district court did not understand it had the ability to

grant a downward departure based on the alleged sentencing entrapment.

       During sentencing, the district court asked defense counsel whether he had

found case law indicating a court “has any authority to do a downward departure

on a 924(c)?” Record XIII at 25. Lyday insists this statement demonstrates the

court did not understand it could grant downward departure based on sentencing

entrapment. Viewed in isolation, Lyday’s characterization of the comment might

have some merit. However, an examination of the full sentencing transcript

belies such a conclusion. The court’s closing remarks underscore its recognition

that, although it had the power to grant a downward departure, Lyday was not

entitled to departure in this case.   2
                                          Specifically, the court observed:

              With regard to the issue of sentencing entrapment and whether
       this conduct amounts to sentencing entrapment, the Court finds that it
       does not apply. It appears from what you have said from the witness
       stand that you had dealt in drugs for some time, that you had plenty
       of contacts and this could have been--the drugs could have been sold
       anywhere; it was you who [chose] to sell to the informant and also

       get the guns involved. No one made you do that, that was your own
       choice, Mr. Lyday.

Id. at 28.



       2
         The government erroneously suggests in its brief that the district court
had no authority to grant a downward departure in the absence of a government-
filed motion pursuant to U.S.S.G. § 5K1.1. Had the requisite criteria been
satisfied, the court could have granted a downward departure pursuant to § 5K2.0.

                                               -7-
       We agree with the district court that Lyday has failed to present facts

sufficient to justify a departure based on sentencing entrapment. Claims of

sentencing entrapment are analyzed under the outrageous government conduct

standard. See United States v. Lacey , 86 F.3d 956, 963 (10th Cir. 1996). The

relevant inquiry is whether the government’s conduct is so shocking, outrageous,

and intolerable that it offends “the universal sense of justice.”     Id. at 964. This

court has condoned governmental actions that increase the severity of the

defendant’s punishment.      See , e.g. , id. at 962-66 (government informant did not

act outrageously by selling defendant additional quantities of drugs after he

possessed enough evidence to secure arrest and conviction). While it is somewhat

troubling that the government did not explain why it insisted on buying guns from

Lyday, Lyday has not established the government’s conduct was so shocking,

outrageous and intolerable that it offends “the universal sense of justice.”    3



       We AFFIRM Lyday’s conviction and DISMISS for lack of jurisdiction that

portion of the appeal challenging the district court’s refusal to grant a downward



       3
         Lyday relies on United States v. Parrilla , 114 F.3d 124 (9th Cir. 1997), to
support his sentencing entrapment claim.    Parrilla is both factually and legally
distinguishable. Unlike this circuit, the Ninth Circuit apparently does not analyze
claims of sentencing entrapment as outrageous government conduct claims.
Moreover, the Parrilla court remanded the case based on failure to make factual
findings concerning defendant’s predisposition toward selling guns. In contrast,
the district court here specifically determined Lyday was predisposed to selling
guns.

                                             -8-
departure at sentencing.

                           Entered for the Court

                           Mary Beck Briscoe
                           Circuit Judge




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