                                                                              FILED
                           NOT FOR PUBLICATION                                APR 25 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 10-50577

              Plaintiff - Appellant,             D.C. No. 3:02-cr-03171-IEG-1

  v.
                                                 MEMORANDUM*
DAVID DWIGHT WILLIAMS,

              Defendant - Appellee.



UNITED STATES OF AMERICA,                        No. 10-50578

              Plaintiff - Appellee,              D.C. No. 3:02-cr-03171-IEG-1

  v.

DAVID DWIGHT WILLIAMS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                 Irma E. Gonzalez, Chief District Judge, Presiding

                       Argued and Submitted April 11, 2012
                              Pasadena, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                         -2-

Before: FERNANDEZ and SILVERMAN, Circuit Judges, and BLOCK, Senior
District Judge.**

      Defendant David Williams was charged with, inter alia, conspiracy to

possess with intent to distribute five kilograms or more of cocaine in violation of

21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. He requested a jury instruction on

sentencing entrapment, but the district court declined to give his requested

instruction, holding that sentencing entrapment was a question for the sentencing

judge, not the jury. Williams then entered a conditional guilty plea in which, inter

alia, Williams: (1) pled guilty to a drug trafficking conspiracy involving one

hundred kilograms of cocaine; (2) reserved his right to present his sentencing

entrapment defense to the district court at sentencing; and (3) reserved his right to

appeal the denial of his requested jury instruction. At sentencing, the district court

found that Williams had been the victim of sentencing entrapment, justifying a

sentence below the ten-year statutory mandatory minimum for a § 841 violation

involving five kilograms or more of cocaine. See 21 U.S.C. § 841(b)(1)(A)(ii).

The district court sentenced Williams to five years on the § 841 count, for a total

sentence of ten years. The government now appeals Williams’s sentence which




       **
             The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
                                         -3-

was below the mandatory minimum, and Williams conditionally cross-appeals the

refusal to give a jury instruction on sentencing entrapment.

      We affirm. In his written plea agreement and in the plea colloquy, Williams

reserved his right to assert sentencing entrapment at sentencing. We see no reason

why the parties could not agree that Williams’s guilty plea would be contingent on

his ability to raise sentencing entrapment at sentencing. The district court accepted

the agreement with that reservation and, ultimately, acted upon it. Moreover, the

government’s agreements should be enforced. See Santobello v. New York, 404

U.S. 257, 262 (1971); United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir.

2002); cf. United States v. Briggs, 623 F.3d 724, 727, 730 (9th Cir. 2010).

      We cannot now disregard that principle and declare that for purposes of his

plea Williams agreed to the one hundred kilograms of cocaine, if he could argue at

sentencing that it was due to sentencing entrapment, but he is bound to the first

part of the agreement and is not entitled to enforce the second part. That result

would be anoetic.

      The government also challenges the district court’s finding that Williams

was in fact subjected to sentencing entrapment. We disagree. The district court

did not clearly err in finding that the government structured the sting operation in

such a way as to maximize the sentence imposed upon Williams without regard for
                                        -4-

his culpability or ability to commit the crime on his own. See United States

Schafer, 625 F.3d 629, 639–640 (9th Cir. 2010).

      Because we affirm Williams’s sentence in the government’s appeal, we need

not, and do not, reach Williams’s conditional cross appeal.

      AFFIRMED.
                                                                             FILED
USA v Willams 10-50577+                                                       APR 25 2012

                                                                         MOLLY C. DWYER, CLERK
SILVERMAN, Circuit Judge, dissenting:                                      U.S. COURT OF APPEALS




      As I see it, Williams’s guilty plea — in which he specifically admitted that

his crime involved more than five kilograms of cocaine — triggered the ten-year

statutory mandatory minimum without further ado. See 21 U.S.C.

§ 841(b)(1)(A)(ii). Since such a sentence is, indeed, mandatory, the parties could

not legally stipulate to a procedure allowing the sentencing judge to go below the

mandatory minimum. See United States v. Haynes, 216 F.3d 789, 799 & n.8 (9th

Cir. 2000). If Williams wanted to preserve his argument that he had been

entrapped as far as the quantity of drugs was concerned, he should not have pled

guilty to the drug quantity charged in the indictment. Once he did so, his goose

was cooked. See United States v. Briggs, 623 F.3d 724, 730 (9th Cir. 2010).



      If Williams was misled to enter his plea under the mistaken impression that

he could both plead guilty to a crime involving one hundred kilograms of cocaine

and also claim sentencing entrapment before the sentencing judge, his remedy

would be to withdraw his plea. But that’s not what he seeks to do.



      Turning to Williams’s conditional cross appeal of the denial of his requested
                                          -2-

jury instruction, we have held that drug types and quantities triggering higher

statutory maximum sentences under 21 U.S.C. § 841(b) are jury questions under

Apprendi v. New Jersey, 530 U.S. 466 (2000). See United States v. Buckland, 289

F.3d 558, 568 (9th Cir. 2002) (en banc). So too are defenses to those drug types

and quantities. See United States v. Escobar de Bright, 742 F.2d 1196, 1201–02

(9th Cir. 1984); Jacobson v. United States, 503 U.S. 540, 548–49 (1992). Thus,

the district court erred in holding that Williams could not try to a jury his defense

that he was entrapped as to the drug quantity.



         I would reverse Williams’s conviction and sentence and remand the case for

trial.
