                                                                            FILED
                           NOT FOR PUBLICATION                              FEB 20 2013

                                                                        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. 09-10234

              Plaintiff - Appellee,              D.C. No. 1:08-CR-00022-1

  v.
                                                 MEMORANDUM *
YONG MING SONG,

              Defendant - Appellant.



                   Appeal from the United States District Court
                         for the Northern Mariana Islands
                  Alex R. Munson, Chief District Judge, Presiding

                     Argued and Submitted February 11, 2013
                               Honolulu, Hawaii

Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.

       Yong Ming Song was convicted of Possession of a Controlled Substance

within 1000 Feet of a School with Intent to Distribute under 21 U.S.C. §§

841(a)(1) and 860(a), and appeals his conviction and sentence. 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.
      Defendant argues that the sentencing penalties under 21 U.S.C. § 860(a)

should not apply. Even assuming that lack of voluntary presence is a defense to §

860(a), the factual record in this case does not support such a defense.

      Defendant argues that he has a defense of sentencing entrapment or

manipulation. Even assuming he has not waived this argument, Defendant’s

sentencing entrapment and manipulation claims fail. Defendant’s decision as to the

route he took was not influenced by law enforcement. See Sherman v. United

States, 356 U.S. 369, 372 (1958); see also United States v. Riewe, 165 F.3d 727,

729 (9th Cir. 1999) (per curiam). Moreover, since Defendant committed a traffic

violation, the officer’s motives for pulling him over are irrelevant. See Whren v.

United States, 517 U.S. 806, 813 (1996).

      AFFIRMED.
