                                                                            FILED
                            NOT FOR PUBLICATION                                NOV 23 2011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. 10-10173

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00164-KJD-
                                                 GWF-2
  v.

LEONARD JACKSON,                                 MEMORANDUM *

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Nevada
                   George W. Foley, Magistrate Judge, Presiding

                     Argued and Submitted November 17, 2011
                             San Francisco, California

Before: THOMAS, GOULD, and BYBEE, Circuit Judges.

       The district court sentenced Leonard Jackson to 200 months’ imprisonment

based on a guilty jury verdict on the counts of conspiracy to interfere with

commerce by robbery and conspiracy to posses cocaine with intent to distribute.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         Jackson first contends that the district court erred in rejecting his request for

a below-guideline sentence based on sentencing entrapment and that, because of

this error, his sentence is substantively unreasonable.

         “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 (9th Cir.

2009). In United States v. Naranjo, this court recognized that “a downward

departure is warranted when sentencing entrapment occurs.” 52 F.3d 245, 250 (9th

Cir. 1995). The purpose of the sentencing entrapment departure is to ensure that

the sentence properly takes into account the defendant’s culpability and ability to

commit the crime. See United States v. Staufer, 38 F.3d 1103, 1107 (9th Cir.

1994).

         In the typical sentencing entrapment situation, a government agent

convinces a drug dealer to buy or sell more drugs than he would otherwise be

inclined to deal in. See United States v. Briggs, 623 F.3d 724, 729 (9th Cir. 2010).

To prove sentencing entrapment of this type, a defendant must show that the

government “engaged in outrageous official conduct which caused the individual

to commit a more significant crime for which a greater penalty attaches.” United

States v. Si, 343 F.3d 1116, 1128 (9th Cir. 2003). Thus, the defendant bears the


                                              2
burden of proving that he did not have the intent or the resources to complete the

transaction or operation, see Naranjo, 52 F.3d at 250, but that he was predisposed

to commit only a lesser crime, see Staufer, 38 F.3d at 1108.

      We have recognized that something similar to sentencing entrapment may

occur in another way, based on the dangers inherent in “fictional stash house

operations.” Briggs, 623 F.3d at 729. Because the government creates the

scenario, it is free to set the amount of drugs “at an arbitrarily high level” and

“minimize the obstacles that a defendant must overcome to obtain the drugs.” Id.

at 729–30. Therefore, courts should “take a hard look to ensure that the proposed

stash-house robbery was within the scope of [the defendant’s] ambition and

means.” Id. at 730.

      In this case, Jackson did not allege, nor offer any proof, that the government

engaged in outrageous conduct causing him to commit a more significant crime

than he was predisposed to commit. Jackson’s sole argument is that the fictional

stash-house scenario implicates sentencing entrapment because “the amount of

cocaine was huge, the amount of potential profit tremendous, and the operation,

from the defendants’ perspective, relatively hassle free.” The planned operation

included at least twenty-two to thirty-nine kilograms of cocaine, at a potential

value of over $1.2 million, and Jackson was told that the house would be guarded


                                            3
by two men (one armed), and that this would be a dangerous operation requiring

the use of weapons.

      Although in some future case the balance of equities may be such that

similar scenarios rise to the level of sentencing entrapment, Jackson fails to show

that the proposed stash house robbery was not within the scope of his ambition or

means. Therefore, the district court did not err in rejecting Jackson’s sentencing

entrapment defense.

      Jackson’s second claim is that the district court erred by failing to sua sponte

enter judgment of acquittal based on entrapment as a matter of law. The defense of

entrapment has two elements: (1) the government induced the defendant to commit

the crime, and (2) the defendant was not predisposed to commit the crime. See Si,

343 F.3d at 1125. The mere fact that the government provided the robbery target,

whether real or fictional, is not enough to prove inducement. See id. “The

principal element of entrapment is the defendant’s predisposition to commit the

crime.” Staufer, 38 F.3d at 1108 (internal quotation marks omitted). To show that

the district court should have found entrapment as a matter of law, a defendant

must show “undisputed evidence making it patently clear that an otherwise

innocent person was induced to commit the illegal act.” Id. (internal quotation

marks omitted).


                                          4
      Jackson claims that he is entitled to entrapment as a matter of law because he

had no felony criminal record. Jackson presented no other evidence that the

government induced him or that he was not predisposed to commit the crime, and

in fact, the evidence shows that Jackson was a willing participant in the proposed

robbery. Because Jackson has not provided undisputed evidence that he was

“otherwise innocent,” there was no error. See Staufer, 38 F.3d at 1108.

      AFFIRMED.




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