                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         February 6, 2006
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                       ))))))))))))))))))))))))))                Clerk

                             No. 04-20120

                       ))))))))))))))))))))))))))

                      UNITED STATES OF AMERICA,

                         Plaintiff–Appellee,

                                  v.

                           DAVID GONZALEZ,

                        Defendant–Appellant.


             Appeal from the United States District Court
                  for the Southern District of Texas
                     Criminal No. 4:02-CR-288-ALL



Before KING, BARKSDALE, and PRADO, Circuit Judges.

Edward C. Prado, Circuit Judge:*

     A jury convicted David Gonzalez of drug offenses.      Gonzalez

claims that the trial judge abused his discretion in denying his

request for a jury instruction that a Government agent cannot be

a co-conspirator.    Gonzalez also contends he was entitled to an

entrapment instruction, raises a sufficiency of the evidence

claim, and argues his sentence is in violation of the Sixth

Amendment.    For the reasons that follow, we AFFIRM Gonzalez’s


     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
jury conviction and sentence.

I. Background

       This case involves a Bureau of Immigration Customs

Enforcement (“BICE”) operation to apprehend persons trafficking

in narcotics.    BICE Special Agent James Hearne approached Bruce

Hawley Jager and asked him to cooperate in the operation.     Jager

had previously pled to drug charges, including possession with

intent to distribute 600 kilos of cocaine, and was allowed to

remain on bond to work for the Government in order to facilitate

other arrests.

       The facts of this case are disputed.   The parties agree that

in late 2001 or early 2002 Jager befriended David Gonzalez.

According to the Government, Jager reported to Hearne that he had

heard Gonzalez was involved in narcotics.     Hearne asked Jager to

talk to Gonzalez and see if Gonzalez would sell Jager drugs.

Gonzalez denies that he was involved in narcotics.    According to

Gonzalez, from January 2002 to March 2002, Jager repeatedly asked

Gonzalez to sell him drugs, and Gonzalez continuously rejected

these offers, insisting that he had no knowledge of the drug

business.    However, the Government claims that when Jager

approached Gonzalez in January or February 2002, Gonzalez said he

needed to make a telephone call and agreed to meet Jager later

that day.    The Government contends that Gonzalez needed to call a

man named “Lionel.”    Jager and Gonzalez did not make a deal that

day.

                                  2
       In March 2002, Jager again began talking with Gonzalez about

buying drugs.    According to Gonzalez, on March 2, Jager tricked

Gonzalez into loaning him money to bet on a game of pool.      Jager

lost that game of pool and Gonzalez lost $900.      Gonzalez contends

that Jager approached him and told him he was sorry about losing

his money.    Gonzalez asserts that Jager told him he need not

worry, as long as Gonzalez was able to find some crack cocaine.

       The Government’s account is that Jager and Gonzalez met at a

billiards hall on March 12 and were monitored by Billy Jones, a

Harris County Sheriff’s Officer.       Jager did not wear a microphone

during the meeting.    The Government asserts that because Jager

sensed that Gonzalez was uncomfortable during the meeting, he

suggested that they strip in the bathroom so that Gonzalez could

see there was no microphone.    At this meeting Gonzalez gave Jager

a price for four ounces of crack cocaine.      Jager could not commit

to the price at that time.    After this meeting with Jager,

Gonzalez went home where Officer Jones observed Lionel Fitzgerald

visit Gonzalez.

       On March 25, Jager called Gonzalez and asked him if he was

ready to make the exchange.    They set up a meeting the following

day.    Although the timing is unclear, according to Jager, at one

point during the operation Gonzalez returned from a conversation

with Fitzgerald with a price for drugs written on a napkin.

Jager wore a recording device to the March 25 meeting, and an


                                   3
agent had given Jager money to purchase the cocaine.    The deal

went forward as planned.   During the meeting, Gonzalez made

statements indicating he was familiar with the process of cooking

cocaine.   According to Gonzalez, after the first sale of crack

cocaine, he considered the matter closed but continued to meet

with Jager on a casual basis at local pool halls.

     The following day, Jager again called Gonzalez and told him

the buyers liked the crack cocaine.   He told Gonzalez he wanted

to make another deal, which the Government contends eventually

took place on April 30, 2002, when officers arrested Gonzalez.

However Gonzalez recounts the events immediately leading to his

arrest differently.   He argues that on April 30, Jager invited

Gonzalez to lunch.    Gonzalez brought special pool tournament t-

shirts to the meeting to show Jager. Once in Jager’s vehicle,

officers arrested Gonzalez.

     The agents found four cookies of crack cocaine in Jager’s

car and a small amount of powder cocaine on Gonzalez.    Gonzalez

contends that Jager brought the cocaine with him to the April 30

meeting.   The Government states that agents searched Jager and

his vehicle prior to the April 30 meeting and that there were no

drugs in Jager’s car at that time.

II. Procedural History

     A jury convicted Gonzalez of conspiring to possess with

intent to distribute 50 or more grams of cocaine, possessing with



                                  4
intent to distribute 50 or more grams of crack cocaine,

possessing with intent to distribute five or more grams of crack

cocaine, and aiding and abetting the distribution of crack

cocaine.   The district court sentenced him to 240 months in

prison, followed by 10 years supervised release.      Gonzalez filed

a timely notice of appeal.

III. Discussion

                  A. Sears Jury Instruction Request

     Gonzalez claims the trial judge abused his discretion in

denying his request for a jury instruction that a Government

agent cannot be a co-conspirator.1

     We review a district court’s refusal to provide a requested

jury instruction for abuse of discretion.     United States v.

McClatchy, 249 F.3d 348, 356 (5th Cir. 2001); United States v.

Morales, 272 F.3d 284, 289 (5th Cir. 2001).    We will reverse only

if the requested instruction “(1) was a substantially correct

statement of the law, (2) was not substantially covered in the

charge as a whole, and (3) concerned an important point in the

trial such that the failure to instruct the jury on the issue

seriously impaired the defendant’s ability to present a given


     1
       The circumstances under which a jury instruction that a
Government agent cannot be a co-conspirator is appropriate was
articulated in Sears v. United States, 343 F.2d 139 (5th Cir.
1965). In Sears, we explained that such an instruction is
pertinent when the jury may erroneously believe it can find a
defendant guilty of conspiracy for agreeing to criminal activity
with a Government agent or informant.

                                  5
defense.”   McClatchy, 249 F.3d at 356 (internal quotations

omitted).

     The trial judge, in rejecting Gonzalez’s request, explained

that he had found, as a matter of law, that the possibility of a

"true" conspiracy existed, and because there was some evidence of

third-party involvement–evidence that a person other than the

defendant and the Government informant was involved in the

illegal activity–no additional instruction was warranted.     Thus,

the court concluded that the only question for the jury was

whether or not the conduct of the parties constituted a

conspiracy.2

     Gonzalez’s requested instruction that a Government agent


     2
       The court’s jury instruction on the elements of conspiracy
was as follows:

     Now, Title 21, that section I just gave you, makes it a
crime to anyone to conspire with someone else to commit an
offense against the laws of the United States.
     A conspiracy, then, is an agreement between two or more
persons to join together to accomplish some unlawful purpose. It
is a kind of partnership in crime in which each person becomes
the agent for every other person or every other member.
     For you to find the defendant guilty of this crime, you must
be convinced that the government has proved each of the following
beyond a reasonable doubt, that two or more persons directly or
indirectly reached an agreement to distribute a controlled
substance.
     Second, that the defendant knew of the unlawful purpose of
the agreement.
     Third, that the defendant joined in the agreement willfully;
that is, with the intent to further its unlawful purpose.
     And, fourth, that the overall scope of the conspiracy
involved at least 50 grams or more of a mixture or substance
which contain cocaine base, commonly called crack, a Schedule Two
controlled substance.

                                 6
cannot be a co-conspirator was a substantially correct statement

of the law, see United States v. Goff, 847 F.2d 149, 173 (5th

Cir. 1988)(“A government agent or informer cannot be a

co-conspirator.”), and was not substantially covered in the

charge as a whole.   The issue then is whether the requested

instruction concerned an important point in the trial such that

the failure to instruct the jury seriously impaired the

defendant’s ability to effectively present a defense.

     A defendant may be entitled to a cautionary instruction even

if there is sufficient evidence that the defendant conspired with

a non-Government agent.   In Sears v. United States, the

defendant, a county sheriff, agreed to offer protection to Davis,

a Government agent who was operating an illegal whiskey business.

The Government presented weak evidence that persons other than

Sears and Davis were involved in the illegal whiskey business.

This Court stated:

     Although the evidence was sufficient to support the
     conspiracy charged, it was not the province of the jury
     to convict Sears merely upon finding that he had
     accepted money from [the Government agent] and
     furnished protection. This would establish only that
     Sears had combined with [the Government agent,] Davis,
     and it takes two to conspire[;] there can be no
     indictable conspiracy with a government informer who
     secretly intends to frustrate the conspiracy. . . . In
     view of the posture of the evidence and the charge
     actually given by the court, the jury may well have
     believed that it could convict Sears simply by
     believing that he agreed with Davis and accepted bribes
     from him. Consequently, the court should have given a
     cautionary instruction to the effect that even if the
     jury believed Sears had done these things, it could

                                 7
     convict only if it further believed that he did so with
     knowledge that [some other persons] were also involved
     in the illegal enterprise.

Sears, 343 F.2d at 142 (emphasis added).

     Thus, a jury instruction that a Government agent cannot

be a co-conspirator (“Sears instruction”) is appropriate

when there is some foundation in the evidence to support the

defendant’s theory that he only “conspired” with a

Government agent, and “the jury could have followed [its]

instructions and convicted the defendant of conspiracy even

if it concluded that [the defendant] had conspired only with

the government agent.”     United States v. Escobar de Bright,

742 F.2d 1196, 1201 (9th Cir. 1984).

     In Gonzalez’s case, there is no foundation in the

evidence to support a Sears instruction; both Gonzalez’s and

the Government’s version of the facts support the conclusion

that Gonzalez acted with a “true” co-conspirator.    The

Government presented evidence that Gonzalez received the

cocaine from Fitzgerald.    The Government informant observed

Gonzalez negotiating a price for the cocaine with

Fitzgerald, and Jager identified Fitzgerald in a photo

spread as the man who provided Gonzalez with the drugs.

     Although Gonzalez contends that he did not conspire

with Fitzgerald, he admitted to having a drug supplier.

Gonzalez discussed obtaining the cocaine from a third party


                                   8
in a taped conversation.3   At trial, Gonzalez also testified

that he obtained crack cocaine from a man named “T” whom he

knew from the pool hall.    In addition, after his arrest,

Gonzalez told agents that his source of crack cocaine was a

man named “Lionel” [Fitzgerald].

     Therefore, the trial judge did not abuse his discretion

in denying Gonzalez’s request for a Sears instruction.       See

United States v. Nelson-Rodriguez, 319 F.3d 12, 39 (1st Cir.

2003)(“[The legal point] that a conspiracy conviction is not

possible if the defendant conspired only with government

agents . . . is inapplicable to the case against [the

defendant].   When there are at least two “true”

conspirators, the involvement of a government agent or


     3
       At the March 26, 2002 meeting, the following conversation
transpired:

Jager: Hey . . when . . huh . . if [the buyer] likes this stuff
and . . (inaudible) . . . what were we talking about earlier.

Gonzalez: He [the supplier] says he doesn’t do keys but he will
do four cookies . . . four cookies at a time.

Jager: Oh yeah

Gonzalez: Uh huh

Jager: That’s just four ounces at a time. That’s all he’ll do?

Gonzalez: Yeah, for right now, you know, it’s a start. you know
you got to think about it that way.

     In addition, in reference to Jager’s request for larger
quantities of drugs, Gonzalez stated, “I’ll check into that cause
I got a couple of boys on the North side that I could call back.”

                                   9
informant does not defeat the true conspirators’

culpability.”).   The trial court’s refusal to instruct the

jury on this issue did not impair Gonzalez’s ability to

present his defense.

                  B. Entrapment Instruction

     We review a district court’s refusal to provide a

requested jury instruction on the issue of entrapment de

novo.   United States v. Gutierrez, 343 F.3d 415, 419 (5th

Cir. 2003).   “[T]o be entitled to an entrapment instruction,

a defendant bears the burden of presenting evidence of (1)

his lack of predisposition to commit the offense and (2)

some governmental involvement and inducement more

substantial than simply providing an opportunity or

facilities to commit the offense.” Id.   Gonzalez has the

burden of providing a basis for reasonable doubt on the

ultimate issue of whether criminal intent originated with

the government.   United States v. Bradfield, 113 F.3d 515,

521 (5th Cir. 1997).

     The evidence at trial did not raise a reasonable doubt

regarding entrapment.   While Gonzalez’s testimony suggested

he was persistently harassed into discussing drugs with the

confidential informant, the informant’s testimony, which was

corroborated by the testimony of agents involved in the

case, indicated that Gonzalez showed an interest in dealing


                                10
drugs.   Gonzalez also had a previous drug offense and had

knowledge of the details of drug-trafficking.     The district

court did not err by rejecting the entrapment instruction.

                        C. Other Claims

     Gonzalez also contends that the Government failed to

prove the existence of a co-conspirator, claiming the

evidence was insufficient to show any agreement with

Fitzgerald to deal in drugs. We will affirm a jury verdict

so long as there is sufficient evidence to allow a

reasonable jury to find the defendant guilty beyond a

reasonable doubt.    In doing so, we view the evidence in the

light most favorable to the verdict.      United States v. Bell,

678 F.2d 547, 549 (5th Cir. 1982) (en banc), aff’d, 462 U.S.

356 (1983).   As discussed in Part III.A above, the evidence

indicates that Gonzalez agreed with Fitzgerald to sell crack

cocaine, and Gonzalez’s challenge to the sufficiency of the

evidence is unavailing.    United States v. Ayala, 887 F.2d

62, 67-68 (5th Cir. 1989)(holding that evidence linking the

defendant to a marihuana conspiracy was sufficient to

support the defendant’s conviction).

     Gonzalez also argues his sentence, made pursuant to the

then-mandatory guideline sentencing scheme, violated the

Sixth Amendment.    He further contends that the district

court should have departed downward from the guideline


                                 11
sentencing range since the government entrapped him into

dealing drugs.    Gonzalez raises his Booker4 claim for the

first time on appeal, and therefore our review is for plain

error.    See United States v. Mares, 402 F.3d 511, 520 (5th

Cir. 2005), cert. denied, 126 S. Ct. 43 (2005), rehearing

denied, 126 S. Ct. 718 (2005).    Gonzalez’s sentence was

based on an amount of crack cocaine alleged in the

indictment and presented to the jury and on a statutory

enhancement due to his previous conviction.    His sentence

did not violate Booker.

     We lack jurisdiction to review the denial of Gonzalez’s

downward departure request.    See United States v. Rodriguez-

Montelongo, 263 F.3d 429, 431 (5th Cir. 2001)( “A court of

appeals is generally without jurisdiction to review a

sentencing court’s refusal to grant a downward departure

when its decision is based upon a determination that [a]

departure was not warranted on the facts of the case before

it.”) (internal quotations omitted).

IV. Conclusion

     For the reasons above, we affirm the judgment of the

district court.

     AFFIRMED.




     4
         See United States v. Booker, 543 U.S. 220 (2005).

                                  12
