                                                                           FILED
                           NOT FOR PUBLICATION                              APR 05 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-10426

              Plaintiff - Appellee,              D.C. No. 1:06-cr-00214-SOM-4

  v.
                                                 MEMORANDUM *
JEROME VIERRA,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Hawaii
                Susan Oµi Mollway, Chief District Judge, Presiding

                     Argued and Submitted February 16, 2011
                                Honolulu, Hawaii


Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.

       Jerome Vierra appeals his 90-month sentence following convictions on six

counts of distributing methamphetamine in violation of 21 U.S.C. yy 841(a)(1),

(b)(1)(A), and (b)(1)(B). We have jurisdiction pursuant to 28 U.S.C. y 1291. We


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
review the district court's factual findings on Vierra's claim of sentencing

entrapment for clear error. United States v. Ross, 372 F.3d 1097, 1113-14 (9th Cir.

2004). We vacate Vierra's sentence and remand for resentencing.

      Reviewing the district court's analysis of the five factors set forth in United

States v. McClelland, 72 F.3d 717, 722 (9th Cir. 1995), we conclude that Vierra

has established sentencing entrapment as a matter of law.1 Vierra has shown that he

was predisposed to distribute only half-gram quantities of methamphetamine prior

to the government's inducement and 'did not originally intend to . . . sell the larger

amount, but manipulation by government agents led the defendant eventually to

agree to the larger amount.' Ramirez-Rangel, 103 F.3d at 1507 (emphasis deleted).

      With respect to the first factor, 'the character and reputation of the

defendant,' McClelland, 72 F.3d at 722, Vierra testified and the government did


      1
         McClelland described these five factors not as a test for sentencing
entrapment, but as a test for the predisposition element of the complete defense of
legal entrapment. Id. at 722. The district court nonetheless applied the McClelland
factors in conformance with this Court's instructions on remand. See United States
v. Vierra, No. 07-10393, 2009 WL 1385976, at *1 (9th Cir. May 19, 2009)
(unpub.). It is not apparent that the McClelland factors will invariably supply the
correct frameworµ within which to assess a claim of sentencing entrapment. In this
case, however, our review of the district court's McClelland analysis permits us to
determine that sentencing entrapment has occurred because 'the government
induced a target to sell far more of a controlled substance than had formerly been
within his practice or resources.' United States v. Ramirez-Rangel, 103 F.3d 1501,
1506 (9th Cir. 1997) (emphasis deleted), rev'd on other grounds by Watson v.
United States, 552 U.S. 74, 78 (2007).

                                           2
not dispute that prior to the informant's inducement, Vierra only provided half-

gram, personal-use quantities of methamphetamine to friends, transactions from

which he realized no profit. See United States v. Staufer, 38 F.3d 1103, 1108 (9th

Cir. 1994); see also United States v. Thomas, 134 F.3d 975, 977 & n.2, 980 (9th

Cir. 1998). It maµes no difference that Vierra participated in six methamphetamine

transactions, because all six were the product of government inducement. See

Sherman v. United States, 356 U.S. 369, 374 (1958).

      With respect to the second factor, the parties agree that 'the government

made the initial suggestion of criminal activity.' McClelland, 72 F.3d at 722.

      With respect to the third factor, the district court did not clearly err by

concluding that Vierra 'engaged in the activity for profit.' Id. Several witnesses

testified that Vierra received methamphetamine sµimmed from sales as

compensation for facilitating those sales.

      With respect to the fourth and 'most important' factor, Vierra's

'reluctance,' id., Vierra and the informant both testified that Vierra refused the

informant's daily requests to arrange large-scale methamphetamine transactions

over the course of three weeµs. Vierra's reticence was only 'overcome by repeated

government inducement or persuasion.' United States v. Williams, 547 F.3d 1187,

1198 (9th Cir. 2008) (quoting United States v. Smith, 802 F.2d 1119, 1125 (9th Cir.


                                             3
1986)). The government's informant 'was the one who would initiate [drug

discussions] all the time , . . . and . . . asµed [the defendant] repeatedly to help him

in drug transactions.' United States v. Martinez, 122 F.3d 1161, 1164 (9th Cir.

1997) (first alteration in original). See also, e.g., United States v. Sµarie, 971 F.2d

317, 321 (9th Cir. 1992).

      With respect to the fifth factor, 'the nature of the government's

inducement,' McClelland, 72 F.3d at 722, Vierra and the informant both testified

that the informant employed 'friendship, sympathy, and psychological pressure' to

persuade Vierra. United States v. Poehlman, 217 F.3d 692, 698 (9th Cir. 2000). See

also United States v. Davis, 36 F.3d 1424, 1430 (9th Cir. 1994). The informant,

who was Vierra's marijuana dealer, exploited Vierra's marijuana dependence and

his 'vulnerable emotional state.' McClelland, 72 F.3d at 726 n.6. See also

Sherman, 356 U.S. at 373, 376. The informant earned approximately ü50,000

during the five years that he worµed for the government, a financial motive that

created 'a strong incentive to overcome a reluctant contact's resistance.' Martinez,

122 F.3d at 1165.

      Because four of the five McClelland factors weigh in Vierra's favor, he has

established sentencing entrapment as a matter of law. Vierra's offense level under

the Sentencing Guidelines must therefore be recalculated to reflect only the amount


                                            4
of methamphetamine that he was predisposed to distribute prior to the

government's inducement. See United States v. Briggs, 623 F.3d 724, 729 (9th Cir.

2010) ('In those cases where sentencing entrapment occurs, the amount of drugs

used in calculating the defendant's sentence should be reduced by the amount that

'flow[s] from [the] entrapment.'' (quoting United States v. Naranjo, 52 F.3d 245,

250 (9th Cir. 1995))); United States v. Castaneda, 94 F.3d 592, 595 (9th Cir.

1996); Naranjo, 52 F.3d at 251 n.14. See also U.S.S.G. y 2D1.1 cmt. n.12 ('If . . .

the defendant establishes that the defendant did not intend to provide . . . the

agreed-upon quantity of the controlled substance, the court shall exclude from the

offense level determination the amount of controlled substance that the defendant

establishes that the defendant did not intend to provide . . . .').

       By counting methamphetamine that the government entrapped Vierra into

distributing, the district court sentenced Vierra pursuant to an erroneous offense

level and Guidelines range. We must therefore remand for resentencing. See

United States v. Garcia-Guerrero, --- F.3d ---, No. 09-50614, 2011 WL 563859, at

*3 (9th Cir. Feb. 23, 2011). Vierra was predisposed to distribute only half-gram

quantities of methamphetamine, but he participated in six transactions.

Accordingly, on remand, the district court should attribute to Vierra three grams of

methamphetamine in computing his offense level. See U.S.S.G. y 2D1.1 cmt. n.6.


                                            5
VACATED AND REMANDED FOR RESENTENCING.




                     6
                                                                             FILED
United States v.. Vierra, No. 09-10426                                        APR 05 2011

                                                                         MOLLY C. DWYER, CLERK
TASHIMA, Circuit Judge, concurring:                                        U.S . CO U RT OF AP PE A LS




      I concur in this disposition, but do so reluctantly under compulsion of the

law of the case.

      This is the second appeal in this case. In the first appeal, we reversed and

remanded for resentencing. United States v. Vierra, 2009 WL 1385976 (9th Cir.

2009). As the majority's disposition indicates, the prior panel thought that the

sentencing consideration at issue in this case - sentencing entrapment - was

controlled by United States v. McClelland, 72 F.3d 717, 722 (9th Cir. 1995). See

Maj. Dispo. at 3 n.1. The McClelland factors, however, are not to be applied at

sentencing, but in evaluating the defense of entrapment at the guilt phase of trial.

See 72 F.3d at 722. Vierra, in fact, asserted such a defense, but the jury found

against him on that defense. In such a context, where the jury has rejected an

entrapment defense, it is not at all clear to me that the five McClelland factors

should, again, be reapplied at the sentencing phase. Nonetheless, we are bound by

Vierra as the law of the case to apply the McClelland factors, wholesale, at

sentencing.

      Were the correct sentencing entrapment test to be applied, see, e.g., United

States v. Ramirez-Rangel, 103 F.3d 1501, 1506-08 (9th Cir. 1997), it is not clear to

me that the district court's findings upon which the sentence was based were
clearly erroneous or that the district court made a mistaµe of law in rejecting

Vierra's sentencing entrapment argument. I recognize, however, that our mandate

in the prior appeal expressly directed the district court to apply the McClelland five

factor test in considering Vierra's sentencing entrapment contention. See Vierra,

2009 WL 1385976, at *1. And this is the test the majority disposition faithfully

applies on this second appeal. Thus, bound as I am by the law of the case, I

reluctantly concur in this disposition.




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