                                                                            FILED
                           NOT FOR PUBLICATION                               OCT 27 2011

                                                                         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. 10-10401

              Plaintiff - Appellee,              D.C. No. 2:09-cr-784-PHX-FJM

  v.                                             MEMORANDUM *

JUAN VICTOR MUNOZ,

              Defendant- Appellant.



                    Appeal from the United States District Court
                         for the District Court for Arizona
                   Frederick J. Martone, District Judge, Presiding

                      Argued and Submitted October 11, 2011
                            San Francisco, California

Before: WALLACE and THOMAS, Circuit Judges, and ALBRITTON, Senior
District Judge.**

       Juan Munoz (“Munoz”) appeals his jury conviction and 180 month sentence

for conspiracy to possess with intent to distribute 500 grams or more of cocaine, in

violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(ii); possession of a

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
              The Honorable William H. Albritton, III, Senior District Judge for the
U.S. District Court for Middle Alabama, sitting by designation.
firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924

(c); and being a felon in possession of a firearm, in violation of 18 U.S.C. §§

922(g)(1) and 924 (a)(2).

         Munoz argues that the district court should have ordered specific

performance of his plea agreement, the district court erred in giving an aiding and

abetting jury instruction which Munoz contends allowed the jury to find Munoz

guilty of possession of a firearm even if the government failed to show that Munoz

committed or aided and abetted the offense, and the district court erred in failing to

find sentencing entrapment. Because the history and facts of the case are familiar

to the parties, we need not recount them here.

         Munoz relies on principles of contract law to argue that he entered into a

valid plea agreement with the government which should have been enforced by the

district court. Munoz contends that the plea agreement, although not accepted by

the district court, must be enforced under an exception to the general rule that

“neither the defendant nor the government is bound by a plea agreement until it is

approved by the court.” United States v. Savage, 978 F.2d 1136, 1138 (9th Cir.

1992).

         We review de novo whether the district court is required to enforce a plea

agreement. United States v. Fagan, 996 F.2d 1009, 1013 (9th Cir. 1992). Munoz


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argues that specific enforcement is available because he detrimentally relied on the

plea agreement. See Savage, 978 F.2d at 1138. Munoz has not established

detrimental reliance. Munoz did not plead guilty, but instead proceeded to trial,

and there is no evidence in the record that Munoz provided information or any

other benefit to the government based on the plea agreement. See id.

      We also reject Munoz’s challenge to the aiding and abetting jury charge in

this case. Generally, in reviewing jury charges, we consider whether the

instructions as a whole are misleading or inadequate to guide the jury’s

deliberations. See United States v. Chang Da Liu, 538 F.3d 1078, 1088 (9th Cir.

2008). Because Munoz did not object at trial to the jury charge he now

challenges, we review the instruction for plain error. United States v. Alghazouli,

517 F.3d 1179, 1188 (9th Cir.), cert. denied, _ U.S. _, 129 S. Ct. 237 (2008). A

finding of plain error requires a defendant to show (1) that there was error, (2) that

the error was plain, and (3) that the error affected his substantial rights. Id. Even if

all three elements are shown, a conviction should be reversed “only if the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (citation omitted).

      The jury in this case was instructed that it could find the defendant guilty of

the crime of possession of a firearm in furtherance of a drug trafficking offense


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even if the defendant did not personally commit the acts constituting the crime, if a

person possessed firearms in furtherance of the crime of possession with intent to

distribute cocaine, and the defendant knowingly and intentionally aided, counseled,

commanded, induced, or procured that person to commit possession of a firearm in

furtherance of a drug-trafficking crime. Therefore, when taken in the context of

the entire charge, there was no plain error in the aiding and abetting charge

challenged by Munoz.

      Finally, we reject Munoz’s argument based on sentencing entrapment.

      We review de novo a district court's interpretation and application of the

Sentencing Guidelines, and review sentencing phase factual findings for clear

error. United States v. Naranjo, 52 F.3d 245, 248 (9th Cir. 1995).

      To establish sentencing entrapment, a defendant must prove that he had

neither the intent nor the resources to complete the transaction for the amount

involved. See Naranjo, 52 F.3d at 250 & n.13.

      During the sentencing hearing, the district court found, based on Munoz’s

role in the offense and criminal history, that Munoz had the intent to commit the

offense in the amount involved. There is no clear error in that factual finding. The

district court’s rejection of sentencing entrapment was, therefore, a correct

application of the advisory Sentencing Guidelines.


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     Accordingly, the district court’s denial of specific performance of the plea

agreement, and Munoz’s conviction and sentence are AFFIRMED.

     Appellant’s motion to strike Rule 28 (j) Letter is denied as moot.




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