                                                                              FILED
                           NOT FOR PUBLICATION                                 NOV 27 2013

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50279

              Plaintiff - Appellee,              D.C. No. 3:10-cr-03173-H-1

  v.
                                                 MEMORANDUM*
JULIAN MONDRAGON-HERNANDEZ,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Southern District of California
                    Marilyn L. Huff, District Judge, Presiding

                          Submitted November 6, 2013**
                              Pasadena, California

Before: McKEOWN, GOULD, and BYBEE, Circuit Judges.

       Julian Mondragon-Hernandez appeals his conviction and sentence for

conspiracy to possess with the intent to distribute cocaine in violation of, 21 U.S.C.

§§ 841(a)(1), 846, conspiracy to affect commerce by robbery or extortion, 18


        *
             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).
U.S.C. § 1951(a), possession of a firearm in furtherance of a crime of violence or

drug trafficking offense, id. § 924(c)(1)(A)(i), and possession of a firearm by an

illegal alien. Id. §§ 922(g)(5)(A), 924(a)(2). We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

      Mondragon-Hernandez argues that the district court erred by failing to

address his pre-trial motion to suppress. Mondragon-Hernandez concedes that this

argument is reviewed for plain error because he did not raise it in the district court.

See Johnson v. United States, 520 U.S. 461, 464 (1997). The district court did not

commit plain error because Mondragon-Hernandez did not move to suppress his

statements; rather, Mondragon-Hernandez joined in one of his co-defendant's

motions to suppress, which sought to suppress the statements of the co-defendant,

not any of Mondragon-Hernandez's statements. Additionally, Mondragon-

Hernandez waived his argument by assuring the district court that all pretrial issues

had been resolved. See United States v. Wright, 215 F.3d 1020, 1026 (9th Cir.

2000).

      Mondragon-Hernandez next contends that he did not receive a trial within

seventy days of arraignment, as required by the Speedy Trial Act, 18 U.S.C.

§ 3161(c)(1). Because Mondragon-Hernandez did not raise this claim prior to trial

in the district court, it is waived. 18 U.S.C. § 3162(a)(2).


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      Mondragon-Hernandez’s third argument is that the district court incorrectly

denied his motion for a finding of sentencing entrapment. Specifically, he

maintains that the government’s conduct during the reverse sting operation was so

outrageous that he is entitled to a lesser sentence. We review the district court’s

decision to reject a sentencing entrapment argument for abuse of discretion, United

States v. Yuman-Hernandez, 712 F.3d 471, 473 (9th Cir. 2013), keeping in mind

the risk of law enforcement inflating the amount of fictitious drugs in a stash house

sting to obtain higher mandatory sentences. United States v. Briggs, 623 F.3d 724,

729-30 (9th Cir. 2010).

      To establish sentencing entrapment in a stash house case, the defendant must

prove, by a preponderance of the evidence, that he either lacked the intent or

lacked the capability to “conspire with others to take the amount of cocaine

involved by force.” Yuman-Hernandez, 712 F.3d at 473-75. Mondragon-

Hernandez does not meet his burden of proof because video and audio evidence

showed that he enthusiastically assisted with the plan to rob the fictitious cocaine

stash house without further inducement from the government. See Black v. United

States, 733 F.3d 294, 311 (9th Cir. 2013) (“[I]n this case, the existence of tape and

video recordings to prove what was actually said and done has weighed heavily in

our review of the record.”). Furthermore, Mondragon-Hernandez was capable of


                                          3
conspiring to obtain thirty kilograms of cocaine. His theory of defense was that he

did not want any cocaine, not some lesser amount of cocaine, and the jury rejected

this defense. Thus, the district court did not abuse its discretion by denying the

motion for sentencing entrapment.

      Finally, Mondragon-Hernandez argues that his sentence was disparately

longer than his co-conspirators. The district court properly considered

Mondragon-Hernandez’s role in the underlying offenses, his aggravating and

mitigating circumstances, and all of the 18 U.S.C. § 3553(a) factors, including

§ 3553(a)(6). See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008).

Furthermore, Mondragon-Hernandez had a higher criminal history score than his

co-conspirators, and § 3553(a)(6) articulates “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found

guilty of similar conduct.” 18 U.S.C. § 3553(a)(6) (emphasis added).

Accordingly, the district court did not abuse its discretion by giving Mondragon-

Hernandez a longer sentence than his co-conspirators.

      AFFIRMED.




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