                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            OCT 24 2016
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    15-30235

               Plaintiff-Appellee,               D.C. No.
                                                 2:14-cr-00096-JCC-1
          v.

STEVEN ASIR THOMAS,                              MEMORANDUM*

               Defendant-Appellant.

                     Appeal from the United States District Court
                       for the Western District of Washington
                    John C. Coughenour, District Judge, Presiding

                            Submitted October 6, 2016**
                               Seattle, Washington

Before: W. FLETCHER, FISHER and N.R. SMITH, Circuit Judges.

      Steven Asir Thomas appeals his convictions and sentences for conspiracy to

distribute methamphetamine, cocaine and marijuana, 21 U.S.C. § 841(a)(1),

841(b)(1)(A) & 846; money laundering, 18 U.S.C. § 1956(a)(3) & 1956(b)(1); and



      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
         The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
conspiracy to possess firearms in furtherance of a drug trafficking crime, 18 U.S.C.

§ 924(o). We have jurisdiction under 18 U.S.C. § 1291, and we affirm.

      1. The entrapment defense has two elements: first, the defendant was

induced to commit the crime by a government agent, and second, he was not

otherwise predisposed to commit the crime. See United States v. Jones, 231 F.3d

508, 516 (9th Cir. 2000). Here, viewing the evidence in the light most favorable to

the government, a reasonable jury could have concluded the government proved

beyond any reasonable doubt that Thomas was not induced and that he was

predisposed to commit the crimes of which he was convicted. See id.

      With respect to the first element, Thomas contends he was induced to

commit his crimes because the government promised him investments in his

nightclub at a time when he was desperate for funds and because the government

gave him large sums of a money at low risk. Large monetary rewards, however,

are the prototypical criminal motivation for drug dealing and money laundering

and do not provide a basis for establishing inducement. See United States v.

Spentz, 653 F.3d 815, 820 n.4 (9th Cir. 2011) (“[T]he reward promised cannot be

the criminal reward but must be some other, non-criminal reward that the

individual receives for committing the crime.”). A reasonable jury also could have

rejected Thomas’ contention that he committed these crimes because he feared


                                         2
Agent Hunt due to an outstanding debt. Hunt testified he never threatened

Thomas. More importantly, Thomas engaged in money laundering and drug

transactions with Hunt before he owed him money. Thomas incurred his debt only

after willingly accepting money to launder.

      As to the second element, Thomas contends he was reluctant to engage in

kilogram-level methamphetamine deals, to possess firearms and to launder money

through his nightclub. See Jones, 231 F.3d at 518 (reluctance to engage in criminal

activity is the most important consideration in a predisposition inquiry). But the

government presented evidence showing Thomas engaged in kilogram-level

cocaine deals before Armstrong became a government agent. A recorded

conversation revealed that (unrelated to his dealings with Hunt) Thomas purchased

a handgun to provide as a gift to one of his cartel contacts in order to further his

drug activities. Thomas also said he went into the nightclub business to “take care

of [his] other activities,” an apparent reference to the alleged conduct. On this

record, a reasonable jury could have concluded beyond any reasonable doubt

Thomas was predisposed to commit his crimes.

      2. Sentencing entrapment occurs when a defendant is “predisposed to

commit a lesser crime, but is entrapped by the government into committing a crime

subject to more severe punishment.” United States v. Mejia, 559 F.3d 1113, 1118


                                           3
(9th Cir. 2009). The defendant has the burden to show by a preponderance of the

evidence he lacked the intent and the capability to produce the quantity of drugs.

See id. We review for abuse of discretion the district court’s decision to reject

Thomas’ sentencing entrapment argument. See id.1

      The district court does not appear to have addressed this argument on the

record, which would constitute procedural error. See United States v. Carty, 520

F.3d 984, 992-93 (9th Cir. 2008) (en banc). Thomas, however, does not raise that

argument, so it is waived. The district court’s rejection of the sentencing

entrapment argument was not “illogical,” “implausible” or “without support in

inferences that may be drawn from the facts in the record.” United States v.

Hinkson, 585 F.3d 1247, 1262 (2009) (en banc) (internal quotation marks omitted).

Thomas produced no evidence to show a reluctance to participate in the proposed

drug deals because of the quantity of drugs involved. The district court did not

abuse its discretion.

      AFFIRMED.

                                         ***




      1
        Because Thomas did not request a sentencing entrapment instruction, we
do not consider whether the jury should have been instructed on this issue. See
United States v. Cortes, 757 F.3d 850, 863-64 (9th Cir. 2013).

                                          4
      Thomas’ pro se motion to stay direct appeal (Dkt. 42) is MOOT in light of

his subsequent decision to withdraw the motion (Dkt. 49).




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