                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA ,                            No. 11-50219
                 Plaintiff-Appellee,
                                                         D.C. No.
                       v.                             2:08-cr-00701-
                                                           RT-4
 HORACIO ANTONIO YUMAN -
 HERNANDEZ, AKA Oracio Antonio
 Yuman-Hernandez,                                        OPINION
             Defendant-Appellant.


        Appeal from the United States District Court
            for the Central District of California
      Robert J. Timlin, Senior District Judge, Presiding

                     Argued and Submitted
             January 9, 2013—Pasadena, California

                         Filed April 8, 2013

    Before: Alfred T. Goodwin and William A. Fletcher,
   Circuit Judges, and Edward R. Korman, Senior District
                          Judge.*

                    Opinion by Judge Goodwin


 *
   The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
2          UNITED STATES V . YUMAN -HERNANDEZ

                           SUMMARY**


                           Criminal Law

    Affirming a sentence imposed following a conviction on
charges arising from a conspiracy to rob a cocaine stash
house, the panel held that in order to establish lack of
predisposition to support a finding of sentencing entrapment
in the case of a fictitious stash house robbery, a defendant
need only show either a lack of intent or a lack of capability
to deal in the quantity of drugs charged.

    The panel clarified that outrageousness is not itself an
independent prong of sentencing entrapment, and concluded
that the district court did not abuse its discretion in finding
that the defendant failed to carry his burden.


                             COUNSEL

Timothy A. Scott, San Diego, California, for Defendant-
Appellant.

Rodrigo A. Castro-Silva, Assistant United States Attorney,
Los Angeles, California, for Plaintiff-Appellee.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
          UNITED STATES V . YUMAN -HERNANDEZ                3

                         OPINION

GOODWIN, Senior Circuit Judge:

    Horacio Antonio Yuman-Hernandez appeals his 180-
month statutory mandatory-minimum sentence, assigning
error to the district court’s rejection of his sentencing
entrapment argument. He argued a lack of predisposition to
commit an offense involving the amount of cocaine charged,
and was thus entrapped. The sentence is affirmed.

                    I. BACKGROUND

    After a bench trial, Yuman-Hernandez was convicted of
charges arising from a conspiracy to rob a cocaine stash
house and the use of a firearm. As part of a reverse sting
operation targeting home-invasion crews, an Alcohol,
Tobacco, and Firearms (“ATF”) special agent made contact
with the lead defendant in this case, Roberto Ramirez-
Ramirez. The agent presented himself as a drug courier that
serviced a Los Angeles stash house containing twenty to
twenty-five kilograms of cocaine. The night before the
invented robbery, Ramirez brought his crew, including
Yuman-Hernandez, to meet the agent. The agent essentially
repeated the information he had originally presented to
Ramirez, and offered the participants, including Yuman-
Hernandez, an opportunity to withdraw. The next day,
Yuman-Hernandez and the others arrived to meet with the
agent prior to the robbery, prepared to proceed. The crew
then traveled to a parking lot where they were arrested. At no
point during his involvement did Yuman-Hernandez indicate
any unwillingness to participate. In fact, a co-defendant’s
testimony showed that Yuman-Hernandez, after his initial
recruitment, helped advance the conspiracy by specifically
4         UNITED STATES V . YUMAN -HERNANDEZ

recruiting the co-defendant, as well as by driving a vehicle
with Ramirez and others to obtain an additional firearm.
Upon arriving at the location of the firearm transaction,
Ramirez requested that Yuman-Hernandez drive to retrieve
marijuana from Ramirez’s home. He did so and returned.
Ramirez then traded the drugs for an assault rifle and
ammunition magazines for use in the hold-up.

    The co-defendant further testified that Ramirez told
Yuman-Hernandez and others that Ramirez would pay them
after he had sold the cocaine. The co-defendant also testified
that Yuman-Hernandez and Ramirez had previously
approached him to help transport marijuana between Arizona
and California.

    According to a government expert at trial, twenty to
twenty-five kilograms of cocaine is a common amount found
in a stash house. Further, the ATF special agent testified that
he chose his role as a drug courier for such a stash house
because it would be believable given Los Angeles’s position
as a trafficking hub.

    At the sentencing hearing, the district court noted these
facts, concluding that the amount of cocaine chosen for the
sting was “not really an arbitrary decision . . . to create the
weight and quantity . . . such as to put the people involved in
the operation subject to a very severe penalty,” but was rather
a product of creating a believable sting. In addressing the
issue of sentencing entrapment, the district court stated that
Yuman-Hernandez had failed to present any evidence to
support his claim and had therefore failed to carry his burden.
The court then noted a lack of evidence that the government
engaged in outrageous conduct where the special agent
provided numerous opportunities to withdraw, and that
          UNITED STATES V . YUMAN -HERNANDEZ                  5

Yuman-Hernandez had not only failed to withdraw, but went
so far as to recruit others and help retrieve marijuana that was
traded for a rifle. Accordingly, the district court rejected the
entrapment argument and declined to impose a sentence
below the statutory mandatory minimum.

                     II. DISCUSSION

    We review for abuse of discretion the district court’s
decision to reject Yuman-Hernandez’s sentencing entrapment
argument. See United States v. Mejia, 559 F.3d 1113, 1118
(9th Cir. 2009); United States v. Lopez, 106 F.3d 309, 311
(9th Cir. 1997). The defendant asserts that analysis of
whether a mandatory minimum applies is reviewed de novo,
United States v. Castaneda, 94 F.3d 592, 594 (9th Cir. 1996),
but that standard applies only where this court reviews a
district court’s analysis of whether it has the authority to
depart, United States v. Vilchez, 967 F.2d 1351, 1353 (9th
Cir. 1992) (authority to depart from mandatory minimum
“involves questions of statutory construction and
constitutional law”). Yuman-Hernandez does not argue that
the district court improperly construed its authority, but that
the facts mandate a departure from the mandatory minimum.
The defendant bears the burden of establishing sentencing
entrapment by a preponderance of the evidence. Mejia,
559 F.3d at 1118.

    Sentencing entrapment occurs where “a defendant,
although predisposed to commit a minor or lesser offense, is
entrapped in committing a greater offense subject to greater
punishment.” United States v. Staufer, 38 F.3d 1103, 1106
(9th Cir. 1994) (quoting United States v. Stuart, 923 F.2d
607, 614 (8th Cir. 1991)). The common example in drug
cases involves a defendant acting as supplier to an undercover
6          UNITED STATES V . YUMAN -HERNANDEZ

government agent. See, e.g., Staufer, 38 F.3d at 1104–05;
Mejia, 559 F.3d at 1115; see also United States v. Naranjo,
52 F.3d 245, 246, 249–50 (9th Cir. 1995) (defendant as
purchaser). In this context, we have articulated the
defendant’s burden as having to show both a lack of intent
and lack of capability to supply or purchase more drugs than
he or she might otherwise be predisposed to deal. See Mejia,
559 F.3d at 1118; Naranjo, 52 F.3d at 250; Staufer, 38 F.3d
at 1107.

     But a case where the defendant is fooled into conspiring
and attempting to steal fictitious drugs is a different beast.
Fictitious stash house robberies allow “the government [the]
virtually unfettered ability to inflate the amount of drugs
supposedly in the house and thereby obtain a greater sentence
for the defendant . . . [The government] can also minimize the
obstacles that a defendant must overcome to obtain the
drugs.” United States v. Briggs, 623 F.3d 724, 729–30 (9th
Cir. 2010).

    The capability to sell a certain quantity of drugs has
concrete contours: the defendant either can or cannot procure
or produce the amount in question. Similarly, the capability
to purchase a given amount often turns on the defendant’s
financial resources.1




    1
    Though this too is open to manipulation where the government sets a
selling price below market value. See Staufer, 38 F.3d at 1107 (quoting
amended sentencing guidelines permitting downward departure where
government sets price substantially below market value resulting in
purchase of significantly greater quantity than available resources would
otherwise allow).
            UNITED STATES V . YUMAN -HERNANDEZ                             7

     On the other hand, the capability to steal a particular
quantity of drugs is an amorphous concept. Theoretically,
nearly any person is capable of theft. And once a thief gains
access to the drugs, he or she is just as capable of carrying off
one kilogram as ten. Thus, the quantity of drugs has little
relation to capability; in general, the only meaningfully
measurable capability is typically the capability to perform
the robbery. But the capability to commit the robbery has
little relevance to determining a defendant’s predisposition to
deal in a given quantity of drugs. In the context of theft, the
chosen quantity of drugs is divorced from capability,
allowing the government to effectively offer an inordinate
amount for free. In essence, the government can easily
manipulate the capability element in cases of fictitious
robbery.2

    As a result, it makes little sense to require that a
defendant establish both a lack of intent and lack of capability
in the context of a fictitious stash house robbery. This
distinction is supported in Briggs, and we make it explicit
here. “The ease with which the government can manipulate
these factors makes us wary of such operations in general,
and inclined to take a hard look to ensure that the proposed
stash-house robbery was within the scope of [the defendant’s]
ambition and means.” Briggs, 623 F.3d at 730 (emphasis
added). Not only does Briggs phrase the test in a way that
allows a defendant to show either a lack of intent or
capability in order to meet his or her burden, but that
formulation is consistent with the hard look we must give
such sting operations. Thus, in the case of fictitious stash
house robberies, the defendant need only show a lack of

  2
    W e also note that government control over the level of protection in the
stash house similarly opens the intent element to manipulation.
8          UNITED STATES V . YUMAN -HERNANDEZ

intent or lack of capability to deal in the quantity of drugs
charged.

    We also take this opportunity to clarify that while we
have referred to “outrageous” government conduct, United
States v. Schafer, 625 F.3d 629, 639–40 (9th Cir. 2010),
outrageousness is not itself an independent prong of
sentencing entrapment. Its origin can be traced to the Eighth
Circuit, which described the doctrine of sentencing
entrapment as “outrageous official conduct [which]
overcomes the will of an individual predisposed only to
dealing in small quantities for the purpose of increasing the
amount of drugs . . . and the resulting sentence.” United
States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993) (internal
quotation marks omitted) (alteration and omission in
original); see Schafer, 625 F.3d at 639–40 (using
“outrageous,” citing United States v. Si, 343 F.3d 1116, 1128
(9th Cir. 2003), citing United States v. Davis, 36 F.3d 1424,
1433 (9th Cir. 1994), citing Barth). Barth intimated that
establishing either outrageous conduct or a lack of
predisposition might show sentencing entrapment, but it did
not require both. 990 F.2d at 425. In Schafer, we observed
only that we have not found sentencing entrapment unless
commission of the greater crime “involve[d] active
inducement by government officials.” 625 F.3d at 640.
While outrageousness and active inducement are helpful
concepts in characterizing police activity as reviewable, these
concepts add little to the proof of predisposition. A defendant
who is not predisposed to commit a more serious crime will
usually have done so only because of government
inducement,3 and the act of inducing a defendant to commit

  3
    One exception might be where a defendant is induced to commit the
greater crime by some third party.
          UNITED STATES V . YUMAN -HERNANDEZ                 9

a crime he or she is not predisposed to commit is necessarily
outrageous. Thus, we can safely focus on analyzing whether
Yuman-Hernandez established a lack of predisposition,
through either a lack of intent or lack of capability, and be
satisfied that this subsumes the concepts of outrageousness
and active inducement in this case.

    Here, Yuman-Hernandez takes issue with what he
perceives to be a lack of evidence showing an affirmative
predisposition to commit a crime involving twenty to twenty-
five kilograms of cocaine. But Yuman-Hernandez ignores
the fact that it was his burden to show a lack of
predisposition. The district court’s finding was reasonable in
light of this burden.

    Yuman-Hernandez complains most forcefully that he was
not financially capable of purchasing the amount of cocaine
at issue. But his ability to purchase any given amount of
cocaine is not relevant. Instead, the predisposition-capability
concerned here is that to conspire with others to take the
amount of cocaine involved by force. His argument fails
even if the question is construed as whether he lacked
predisposition to handle a large amount of cocaine. He was
involved as a member of a stick-up crew; there is no
indication he would have been expected to deal or otherwise
offload the cocaine by himself after the robbery. Testimony
showed Ramirez intended to sell the cocaine himself and
distribute the proceeds—Yuman-Hernandez needed only
provide muscle. While the question of his capability to steal
twenty to twenty-five kilograms as opposed to some smaller
amount is less enlightening in this context, the cumulative
evidence tended to not only rebut any argument that he lacked
intent, but in fact show the affirmative existence of intent.
Further, Yuman-Hernandez offered no evidence to suggest
10       UNITED STATES V . YUMAN -HERNANDEZ

otherwise—a fatal error in light of his burden. Thus, the
district court did not abuse its discretion in rejecting the
sentencing entrapment argument.

                   III. CONCLUSION

    Because the capability prong of the predisposition
analysis is both less relevant and more easily manipulated in
the context of a fictitious stash house robbery, a defendant
need only show a lack of intent or a lack of capability to
establish sentencing entrapment. However, the district court
did not abuse its discretion in finding Yuman-Hernandez
failed to carry his burden.

     AFFIRMED.
