                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 24 2010

                                                                        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. 09-10000

              Plaintiff - Appellee,              D.C. No. 3:05-CR-00085-1

  v.
                                                 MEMORANDUM *
JAMES WILLIAM LONDO,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Edward C. Reed, District Judge, Presiding

                            Submitted February 8, 2010 **
                              San Francisco, California

Before: HALL and McKEOWN, Circuit Judges, and CAMPBELL, *** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable David G. Campbell, United States District Judge for
the District of Arizona, sitting by designation.
      James Londo (“Londo”) timely appeals from a judgment of conviction of

one count of conspiracy to possess with intent to distribute and to distribute more

than 50 grams of methamphetamine (“Count One”), and one count of possession

with intent to distribute more than 50 grams of methamphetamine (“Count Two”),

in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. Londo contends

that the district court: (1) abused its discretion by granting his third motion to

withdraw a 2005 guilty plea as to Count One only, for which he would have been

sentenced to 10 years in prison, so that he could present a “sentencing entrapment”

defense to a jury; and (2) committed an error of law when it submitted his theory of

“sentencing entrapment” to the jury for decision. After the jury rejected his

defense and found him guilty of both Count One and Count Two, Londo was

sentenced to the statutory minimum term of 20 years prescribed by 21 U.S.C.

§ 841(b)(1)(viii), in light of a prior state felony drug conviction and the

government’s filing of an information pursuant to 21 U.S.C. § 851. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

                                           I.

      The large body of evidence presented during a five-day jury trial, the

procedural events of the case, and the applicable law are well known to the parties.

Thus, we will recite such information only as necessary to our disposition of the


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claims of error raised in this appeal.

                                          II.

      An error caused by actions of the complaining party will provide grounds for

reversal only in an “exceptional situation.” United States v. Schaff, 948 F.2d 501,

506 (9th Cir. 1991); see also United States v. Perez, 116 F.3d 840, 844-46 (9th Cir.

1997) (en banc). Such an “invited error” will be cause for reversal only when

correction “is necessary to preserve the integrity of the judicial process or to

prevent a miscarriage of justice.” Schaff, 948 F.2d at 506.

      Upon review of the record on appeal, we are convinced that Londo

knowingly and voluntarily waived the rights afforded by his 2005 plea agreement

because he wanted to have a jury decide whether, as he adamantly claimed for over

two years, the government had improperly induced him to arrange a drug deal

involving a much larger amount of methamphetamine than he, an admitted small-

time drug dealer, customarily dealt—i.e., whether he was subjected to “sentencing

entrapment.” Indeed, the district court advised Londo, during the hearing on his

third motion to withdraw his guilty plea in January 2008, that there were no

reported cases specifically authorizing a substantive defense of “sentencing

entrapment,” but that the amount of drugs alleged in the indictment was, after

Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny, a question for the


                                           3
jury, not the court, to decide. Thus, the court explained that it seemed only

“logical and sensible” that Londo should be allowed to try to prove he was not

predisposed to deal in the relatively large amounts alleged and that he would not

have done so but for government inducements that “upped the ante” well above the

levels at which he usually dealt. In these circumstances, if there was any error in

the district court’s decision to grant Londo’s third motion to withdraw his guilty

plea to allow him to pursue a “sentencing entrapment” defense, it was “invited

error” for which appellate review is unavailable when combined with

relinquishment of a known right. See Perez, 116 F.3d at 845 (“If the defendant has

both invited the error, and relinquished a known right, then the error is waived and

therefore unreviewable.”).

                                          III.

      After finally convincing the district court to allow him to withdraw his guilty

plea so that he could assert a defense of “sentencing entrapment,” and building

virtually his entire defense around that issue, Londo now contends—for the first

time on appeal—that “sentencing entrapment” is not a permissible substantive

defense to a federal drug charge, and that the district court erred as a matter of law

by allowing him to present that defense to the jury. We reject this argument.

      When a party fails to raise or preserve an objection or claim of error as to a


                                           4
decision of the district court, we review that decision only for plain error. United

States v. Sanchez, 176 F.3d 1214, 1218 (9th Cir. 1999); Fed. R. Crim. P. 52(b).

The district court commits plain error when there is “(1) error, (2) that is plain, and

(3) that affect[s] substantial rights.” Johnson v. United States, 520 U.S. 461,

466-67 (1997). “[A]n error is not plain unless it is ‘clear’ or ‘obvious.’” United

States v. Smith, 424 F.3d 992, 1002 (9th Cir. 2005) (quoting United States v.

Olano, 507 U.S. 725, 734 (1993)). “Plain error is so clear-cut, so obvious, a

competent district judge should be able to avoid it without benefit of objection.”

United States v. Turman, 122 F.3d 1167, 1170 (9th Cir. 1997). “At a minimum,

the Court of Appeals cannot correct an error pursuant to Rule 52(b) unless the error

is clear under current law.” Olano, 507 U.S. at 734.

      Both before and after the Supreme Court decided Apprendi, Ninth Circuit

case law has recognized the theory of “sentencing entrapment,” but only as a

matter to be considered at sentencing. See United States v. Mejia, 559 F.3d 1113,

1118 (9th Cir. 2009); United States v. Staufer, 38 F.3d 1103, 1106-08 (9th Cir.

1994). The issue whether the “sentencing entrapment” theory can be invoked as a

substantive defense to a drug offense after Apprendi has been discussed in the case

law, but has never been specifically approved or disapproved by any federal

appellate court. See United States v. Gunn, 369 F.3d 1229, 1236-37 (11th Cir.


                                           5
2004); United States v. Ryan, 289 F.3d 1339, 1342-43 (11th Cir. 2002). As the law

was unsettled at the time Londo moved to withdraw his guilty plea, the district

court’s decision to allow him to present evidence and argument to the jury under a

“sentencing entrapment” theory was neither clear nor obvious error.

       Even if the district court committed a “clear” or “obvious” error of law,

however, we would not reverse Londo’s conviction. The evidence of his guilt of

both charged offenses was overwhelming and crystal clear, and the fact of his prior

felony conviction for possession of a controlled substance—which doubled the

sentence he was slated to receive under the terms of his 2005 plea agreement—was

indisputable. If he had not been allowed to present a defense of “sentencing

entrapment,” it appears he would have had no defense at all, and there is no reason

to believe the verdict, or his sentence, would have been any different. Thus, any

error in the district court’s decision to submit the “sentencing entrapment” defense

to the jury did not affect his substantial rights.

                                            IV.

       For all the foregoing reasons, the judgment of conviction, including the

sentence imposed, is AFFIRMED.




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