                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 21 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-10322

              Plaintiff - Appellee,              D.C. No. 2:07-CR-00014-JCM-
                                                 RJJ-1
  v.

RENE OSWALD COBAR,                               MEMORANDUM *

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-10545

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00014-JCM-RJJ-
                                                 1
  v.

RENE OSWALD COBAR,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-10551

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00014-JCM-RJJ-
                                                 2
  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
LUIS ANGEL GONZALEZ-LARGO,
AKA Lucho,

              Defendant - Appellant.



                    Appeals from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                      Argued and Submitted February 13, 2012
                             San Francisco, California

Before: GRABER, BERZON, and TALLMAN, Circuit Judges.


      Defendant-Appellant Rene Oswald Cobar appeals the district court’s denial

of his claim of sentencing entrapment, as well as its denial of his motion for a new

trial. Defendant-Appellant Luis Angel Gonzalez-Largo joins in Cobar’s appeal of

the district court’s denial of the motion for a new trial. We affirm.

1.    We review a district court’s application of the Sentencing Guidelines “for

abuse of discretion, and the district court’s factual findings for clear error.” United

States v. Garro, 517 F.3d 1163, 1167 (9th Cir. 2008).

      As a preliminary matter, Cobar argues that the district court failed to make

sufficient factual findings supporting its denial of his sentencing entrapment claim.

We disagree. Upon reviewing the record, we have no difficulty “ascertain[ing]

what facts [the district court] relied upon in finding that [Cobar] did not adequately

                                          -2-
prove sentencing entrapment.” United States v. Naranjo, 52 F.3d 245, 251 (9th Cir.

1995).

         On the merits, the district court did not abuse its discretion in denying

Cobar’s sentencing entrapment claim. To succeed on such a claim, a defendant

must show “by a preponderance of the evidence: 1) the lack of intent to produce

the quantity of drugs; and 2) the lack of capability to produce the quantity of

drugs.” United States v. Mejia, 559 F.3d 1113, 1118 (9th Cir. 2009). Cobar failed

to do either.

         The record reveals substantial evidence that Cobar had both the “intent” and

the “capability” to produce the quantity of drugs for which he was convicted. For

example, there were more than twenty phone calls between Cobar and those

involved in drug trafficking, demonstrating what the district court judge

characterized as a “remarkable affinity and connection to various people who were

involved in drug trafficking.” Over the course of his dealings with an undercover

police officer, Cobar revealed himself to be in contact with at least three drug

suppliers, with whom he tried to orchestrate drug transactions.

         In addition, when the undercover officer suggested that he and Cobar

negotiate for 400 kilograms of cocaine, Cobar responded by stating that he had “up

to 1,000 kilos of cocaine available.” It was the officer who told Cobar to “slow


                                            -3-
down” and limited the deal to 400 kilograms. If anything, the record suggests not

that the Government induced Cobar to sell a larger quantity of drugs than he

otherwise would have but, to the contrary, that it reduced the scale of the

transaction from that which Cobar was prepared to undertake. That circumstance

does not make for a plausible claim of sentencing entrapment.

2.     “A district court must adequately explain its decision-making process so an

appellate court can engage in meaningful review.” Am. Broad. Cos. v. Miller, 550

F.3d 786, 788 (9th Cir. 2008) (per curiam). Cobar argues that the district court

failed to do so in denying his motion for a new trial based on the deactivation of

confidential informant Carlos Aguilar-Alvarez. We disagree.

      Although the district court’s order denying Cobar’s motion was terse, the

judge’s extensive comments during the hearing make clear his reasons for the

denial. The judge, who was the finder of fact at Cobar’s bench trial, explained at

the hearing that Aguilar-Alvarez’s credibility was deeply suspect and that his role

in Cobar’s trial was minor. Furthermore, in his written order, the judge found “no

relationship and no parallels between the case for which the confidential informant

was deactivated and” Cobar’s case. Evidence of Aguilar-Alvarez’s deactivation

was thus not material to the trial, nor would it have affected the judge’s assessment

of Aguilar-Alvarez’s credibility. The denial of Cobar’s motion for a new trial was


                                         -4-
therefore not an abuse of discretion. See United States v. Harrington, 410 F.3d

598, 601 (9th Cir. 2005).

      Aguilar-Alvarez played even less of a role in the prosecution of Gonzalez-

Largo than he did in Cobar’s trial. Therefore, the district court did not abuse its

discretion in denying Gonzalez-Largo’s motion for a new trial.

      AFFIRMED.




                                          -5-
