     Case: 10-31273     Document: 00511578745         Page: 1     Date Filed: 08/22/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 22, 2011
                                     No. 10-31273
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MIGUEL MACHUCA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:09-CR-321-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Miguel Machuca appeals the sentence imposed following his guilty plea
conviction for conspiracy to possess with intent to distribute 50 grams or more
of methamphetamine in violation of 21 U.S.C. § 846. He contends that the
district court plainly erred in failing to recognize that he was a victim of
sentencing entrapment. Because Machuca did not raise this issue in the district
court, we review for plain error. See United States v. Villegas, 404 F.3d 355, 358
(5th Cir. 2005).

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 10-31273    Document: 00511578745      Page: 2   Date Filed: 08/22/2011

                                  No. 10-31273

      We have yet to decide whether sentencing entrapment is a viable defense.
United States v. Snow, 309 F.3d 294, 295 (5th Cir. 2002) (citing United States v.
Washington, 44 F.3d 1271, 1280 & n.28 (5th Cir. 1995)). Because the viability
of a sentencing entrapment defense remains unresolved in this circuit and other
circuits have reached divergent conclusions on this issue, Machuca cannot
demonstrate that the district court was derelict in failing to raise it sua sponte.
See United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010); United States v.
Salinas, 480 F.3d 750, 759 (5th Cir. 2007). Therefore, the alleged error is
neither clear nor obvious, and Machuca has failed to show plain error. See
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). Accordingly, the district
court’s judgment is AFFIRMED.




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