                IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                                   No. 00-41095
                                 Summary Calendar


UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                       versus

ARMANDO NIETO ZEPEDA,

                                                                Defendant-Appellant.



                    Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. B-00-CR-121-1

                                   May 16, 2002

Before POLITZ, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

      Armando Nieto Zepeda appeals his conviction and sentence for possession with

intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. §§


      *
          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should not be published and is not precedent except under the limited circumstances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.
841(a)(1), (b)(1)(B) and 18 U.S.C. § 2. He asserts that he was entrapped as a matter

of law and that the district court erred at sentencing because it did not realize that it had

the authority to depart from the guidelines based upon his incomplete entrapment

defense.

       At trial, Nieto presented an entrapment defense but it was rejected by the jury.

We therefore review his claim that the defense should have been allowed for

sufficiency of the evidence.1 We will only reverse “if no rational jury could have found

beyond a reasonable doubt either (1) lack of government inducement or (2)

predisposition to commit the charged crime.”2 Our careful review of the record reveals

that Nieto was predisposed to commit the crime in question.3 Accordingly, he was not

entrapped as a matter of law and we affirm his conviction.

       Nieto also contents that the district court misconstrued his motion for downward

departure and did not realize that it had the authority to depart based on his incomplete

entrapment defense.       While the government concedes that the district court

misconstrued Nieto’s motion, this confusion was caused by defense counsel who then



       1
           United States v. Rodriguez, 43 F.3d 117, 126 (5th Cir. 1995).
       2
        United States v. Reyes, 239 F.3d 722, 739 (5th Cir. 2001), cert. denied, 533
U.S. 961 (2001), and 122 S.Ct. 156 (2001).
       3
           United States v. Chavez, 119 F.3d 342, 346 (5th Cir. 1997).
                                             2
failed to either clarify his request or object to the district court’s ruling. We therefore

review Nieto’s claim for plain error.4 Nieto has failed to demonstrate that his

substantial rights have been affected by the district court’s error and has, therefore,

failed to show plain error.5

       Accordingly, the judgment and sentence of the district court are AFFIRMED.




       4
           United States v. Anderson, 174 F.3d 515, 525 (5th Cir. 1999).
       5
           United States v. Calverly, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).


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