                   IN THE COURT OF APPEALS OF IOWA

                                       No. 17-2085
                                 Filed October 24, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ERIC McINTOSH JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Washington County, Joel D. Yates,

Judge.



      Eric   McIntosh      Jr.    challenges   his   conviction   for   delivery   of

methamphetamine. AFFIRMED.




      Eric D. Tindal of Keegan & Farnsworth, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Kyle P. Hanson and Tyler J. Buller,

Assistant Attorneys General, for appellee.




      Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

      On November 15, 2017, Eric McIntosh Jr. was convicted by a jury of a class

“B” felony, delivery of methamphetamine, in violation of Iowa Code sections

124.401(1)(b)(7) (2017) and 124.413. McIntosh’s sole claim on appeal is his trial

counsel was ineffective for not asserting an affirmative defense of sentencing

entrapment.

      Sentencing entrapment is a federal defense where a defendant who would

otherwise have commited a lesser offense is entrapped into delivering a higher

quantity of drugs, resulting in an increased sentence. See United States v. Booker,

639 F.3d 1115, 1118 (8th Cir. 2011). McIntosh concedes Iowa courts have not

recognized sentencing entrapment as a valid affirmative defense and that counsel

cannot be held ineffective for not raising an issue not available under Iowa law.

See State v. Artzer, 609 N.W.2d 526, 532 (Iowa 2000); State v. Phillips, No. 99-

444, 2000 WL 328074, at *1–2 (Iowa Ct. App. Mar. 29, 2000). We agree, and

counsel therefore did not breach a duty by not asserting sentencing entrapment as

an affirmative defense.

      Even if sentencing entrapment were recognized by Iowa courts, it would fail

in McIntosh’s case. McIntosh offered to sell law enforcement four ounces of

methampthetamine, approximately 112 grams, and law enforcement then

requested five ounces, approximately 140 grams.               McIntosh delivered

approximately 125 grams of “ice” methamphetamine to law enforcement in a

controlled buy. The quantities of four ounces and five ounces both fall within the

class “B” felony for delivery of methamphetamine under Iowa law and carry the
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same sentence.1 The quantity increase requested by law enforcement had no

effect on McIntosh’s offense or sentence.

       We hold McIntosh’s counsel did not provide ineffective assistance by not

asserting sentencing entrapment as an affirmative defense.

       AFFIRMED.




1
  The class “B” felony quantity range for methamphetamine is five grams to five kilograms.
Iowa Code § 124.401(1)(b)(7).
