                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             NOV 14 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                         No.   14-50513

              Plaintiff-Appellee,                 D.C. No. 2:13-cr-00829-PA-1

 v.
                                                  MEMORANDUM*
FABEL ROQUE,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                       Argued and Submitted October 3, 2016
                               Pasadena, California

Before: D.W. NELSON and PAEZ, Circuit Judges, and BUCKLO,** District
Judge.

      Fabel Roque (“Roque”) appeals his conviction of distribution of more than

fifty grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(viii). Roque challenges the district court’s denial of his request for a

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Elaine E. Bucklo, United States District Judge for the
Northern District of Illinois, sitting by designation.
sentencing entrapment jury instruction and his motion for acquittal on the basis of

sentencing entrapment. We have jurisdiction under 28 U.S.C. § 1291 and we

REVERSE and REMAND.

1.    We review de novo the district court’s denial of a jury instruction when there

is a question of whether the instruction adequately presented the defendant’s theory

of the case and for abuse of discretion when there is a question of adequate factual

basis. United States v. Cortes, 757 F.3d 850, 857 (9th Cir. 2013).

2.    Sentencing entrapment is an element of the crime and therefore a question

for the jury. Id. A defendant is entitled to a sentencing entrapment jury instruction

if there is “some foundation in the evidence” or “evidence from which the jury

could find” that he “would be subject to a lesser statutory minimum or maximum

sentence if his sentencing entrapment defense were to succeed.” Id. at 863-64.1

      Evidence presented at trial showed that Roque earlier offered to sell an

unspecified quantity of methamphetamine but the informant rejected the

transaction because it was too small. Roque also offered to connect the informant



      1
       Unlike in Cortes, a reverse sting “stash house” case where the jury would
be required to find only that the defendant lacked the capability or intent to deal
the charged drug quantity, Roque’s case is an ordinary sting case, so the jury will
have to determine that he lacked both the capability and intent to deal the charged
drug quantity. 757 F.3d at 861 (citing United States v. Yuman-Hernandez, 712
F.3d 471, 475 (9th Cir. 2013).
                                          2
with a distributor rather than distribute the drugs directly. Roque would be subject

to a lower minimum and maximum sentence if successful on his sentencing

entrapment defense.2 There is “some foundation” in the evidence from which a

jury could find sentencing entrapment because the jury could conclude that the

government set the drug quantity at a higher amount to maximize punishment

when the informant rejected a quantity that was too small. The district court erred

in denying Roque’s request for a jury instruction on sentencing entrapment.

3.    When a district court errs in denying a criminal jury instruction, we reverse

“unless there is no reasonable possibility that this error materially affected the

verdict.” Id. at 857. There is a reasonable possibility that the district court’s error

materially affected the verdict because the jury could have found that Roque

showed sentencing entrapment and therefore was responsible for a smaller drug

quantity.




      2
         Roque was sentenced to 121 months imprisonment under
§ 841(a)(1),(b)(1)(A)(viii) for distributing at least fifty grams of
methamphetamine. He was subject to a mandatory minimum sentence of ten years
and a maximum of life imprisonment. If the jury found that Roque distributed five
to fifty grams of methamphetamine, he would be subject to a mandatory minimum
of five years and a maximum of forty years in prison. § 841(b)(1)(B)(viii). If the
amount was less than five grams or an unspecified amount of methamphetamine,
he would be subject to a maximum of twenty years in prison and no mandatory
minimum. § 841(b)(1)(C).
                                            3
      4. In light of this disposition, we need not address Roque’s challenge to the

denial of his motion for acquittal.

             REVERSED AND REMANDED.




                                         4
                                                                             FILED
U.S. v. Roque, No. 14-50513
                                                                             NOV 14 2016
Bucklo, District Judge, dissenting:
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
      I respectfully dissent. The majority notes that unlike in stash house cases

such as United States v. Cortes, 757 F.3d 850 (9th Cir. 2013), a defendant in a

straightforward purchase-and-sale case such as this must show that he lacked both

the intent and the capacity to deal in the amount of drugs charged. See, e.g., United

States v. Mejia, 559 F.3d 1113, 1118 (9th Cir. 2009). Because, in my view, there is

no evidence in the record to suggest that Roque lacked the capacity to supply the

quantity of drugs with which he was charged, I would uphold his conviction.

      This case is unlike United States v. Naranjo, 52 F.3d 245 (9th Cir. 1995), a

purchase-and-sale case in which the record contained evidence that but for the

government’s involvement, the defendant would have lacked the resources to

consummate the charged transaction. In Naranjo, after the defendant told an

undercover DEA agent that he lacked the money to buy the five kilograms of

cocaine the agent wanted to sell, the DEA “structur[ed] the transaction on

unusually favorable financial terms,” fronting the defendant four of the five

kilograms and offering to buy back three or four of them. Id. at 251. This evidence,

the court concluded, “strongly suggest[ed]” that the defendant lacked the resources

to engage in a five-kilogram cocaine transaction. Id. In this case, by contrast, there

was no evidence that the government artificially enhanced Roque’s capacity to deal

in the charged quantity of drugs. To the contrary, there is some evidence that
Roque had the capacity to supply an even greater amount than was charged.

      It is true that the evidentiary standard governing whether a jury instruction

must be given is lenient. Still, it requires Roque to present “some

evidence”–however meager–to satisfy each element of the sentencing entrapment

defense. While I agree that the evidence to which the majority refers could

arguably persuade a jury that Roque lacked the intent to supply the charged

quantity of drugs, I do not view it as raising any inference that he lacked the

capacity to do so.
