                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           DEC 2 1997

                                 TENTH CIRCUIT                       PATRICK FISHER
                                                                              Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 96-2268
 v.                                               (D.C. No. CR-95-632-JP)
                                                        (D.C.N.M.)
 KONGXAY SOUMPHONPHANKDY,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO and BRORBY, Circuit Judges.



      Kongxay Soumphonphankdy was convicted after a jury trial on one count of

possession with intent to distribute more than 500 grams of cocaine in violation of

21 U.S.C. § 841(a)(1). On appeal, defendant contends (1) the trial court erred in

denying his motion for acquittal based on entrapment per se; (2) there was

insufficient evidence to support the jury’s rejection of his entrapment defense;


      *
       This order and judgment is not binding precedent, except under the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.
and (3) the trial court erred in failing to grant a downward departure under the

Sentencing Guidelines. We affirm as to the first two issues and lack jurisdiction

to review the third.

      The facts are largely undisputed. A confidential informant working with

the Albuquerque Police Department successfully contacted defendant and made

arrangements for an undercover detective to purchase half a kilogram of cocaine

from him for $12,000. Defendant met the informant and the detective at a local

motel where defendant called his drug supplier and arranged to pick up the

cocaine at a different location. The detective and informant followed defendant

to the designated location. Defendant disappeared down an alley and returned

with the cocaine. He told the detective that it needed to be weighed since it was

more than half a kilogram, and that he had a triple beam scale at his home.

Defendant was arrested when he handed the cocaine to the detective. A pager and

$1400 were found on his person.

      Defendant’s case was transferred to the FBI, which offered to recruit him

as a confidential informant to capture the supplier. Defendant refused and was

subsequently tried in federal court on one count of possession with intent to

distribute more than 500 grams of cocaine. At the close of the prosecution’s case,

the district court denied defendant’s motion for acquittal under Fed. R. Crim. P.

29(a). The jury returned a verdict of guilty. At sentencing, the district court


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characterized defendant’s various objections to the presentence report as a motion

for downward departure under U.S.S.G. § 5K2.0, and denied the motion.

       Defendant contends the district court erred in denying his motion for

acquittal on the ground that he was entrapped as a matter of law. He further

contends that even if the denial was proper, there was insufficient evidence for

the jury to reject his entrapment defense. We review a “denial of a motion for

judgment of acquittal de novo, viewing all the evidence and drawing all

reasonable inferences in a light most favorable to the government.” United States

v. Lampley, No. 96-7074, 1997 WL 644459, at *9 (10th Cir. Oct. 20, 1997). We

review the sufficiency of the evidence under the same standard. Id. at *6.

      There are two elements of the entrapment defense: first, defendant must

have been induced to commit the offense by government agents; second,

defendant must not have been otherwise predisposed to do so when presented with

the opportunity. See United States v. Madrigal, 43 F.3d 1367, 1369 (10th Cir.

1994). “Once a credible entrapment defense is raised, the prosecution has the

burden of proving, beyond a reasonable doubt, that a defendant was not

entrapped.” United States v. Young, 954 F.2d 614, 616 (10th Cir. 1992).

“Because the purpose of the defense is to protect an otherwise unpredisposed

individual from government coercion, the defendant’s predisposition to commit

the offense is the central inquiry.” Madrigal, 43 F.3d at 1369.


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      We may find entrapment as a matter of law “only if all the elements of

entrapment are uncontradicted.” Young, 954 F.2d at 616. Thus, any “conflicting

evidence as to [defendant’s] predisposition to commit the crime precludes” such a

finding. Madrigal, 43 F.3d at 1369-70. Our review of the record persuades us

that the evidence here was not merely conflicting, but rather the jury had ample

evidence to conclude that defendant was predisposed to commit the charged

offense. Defendant not only knew who to contact to get 500 grams of cocaine on

short notice, but was also able to assure the confidential informant that he could

provide it for $12,000 without first verifying the amount or price with his

supplier. At trial, the undercover detective testified that before defendant

retrieved the cocaine from his supplier, he demanded that the detective provide

the money in advance. When the detective refused, defendant responded “I know

this guy good and I deal more than that, bro.” Rec., vol. III, at 28. When

defendant returned with the cocaine, he told the detective that it was more than

500 grams and needed to be weighed, and that he had a triple beam scale at his

home. Presumably the amount over 500 grams would be defendant’s profit in the

transaction. Moreover, at the time of arrest $1400 and a pager were found on his

person. Finally, defendant testified that he knew who to contact to get a half kilo

of cocaine; that he had contacted this supplier previously; and that he had

obtained cocaine for the informant on prior occasions. The district court did not


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err in denying defendant’s motion for acquittal, and a reasonable jury could have

found beyond a reasonable doubt that defendant was not entrapped. See United

States v. Hoenscheidt, 7 F.3d 1528, 1531 (10th Cir. 1993).

      Defendant also contends he qualifies for a downward departure because of

(1) duress and coercion by government officials; and (2) the hardships he faced in

Laos, his life as a refugee, and his illiteracy in English. Defendant bases our

authority to review the district court’s decision to deny a downward departure on

18 U.S.C. § 3742(a), arguing that the district court’s denial is an incorrect

application of the Guidelines. “However, it is settled law in this circuit that

section 3742 does not grant appellate jurisdiction over a trial court’s discretionary

refusal to depart downward from the guidelines,” United States v. Soto, 918 F.2d

882, 883 (10th Cir. 1990), so long as the court does not erroneously fail to

exercise its discretion,” id. at 884. Here the court clearly recognized its authority

to depart downward and in its discretion chose not to do so. We therefore lack

jurisdiction to review this decision.

      We AFFIRM the judgment of the district court with regard to the

entrapment issues, and DISMISS the sentencing issue for lack of jurisdiction.


                                               ENTERED FOR THE COURT

                                               Stephanie K. Seymour
                                               Chief Judge


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