                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 30 2015

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

UNITED STATES OF AMERICA,                        Nos. 12-10603, 12-10604

              Plaintiff - Appellee,              D.C Nos.4:09-cr-50152-RCC-JR-
                                                 1,      4:11-cr-02322-RCC-JR-1
 v.

GEORGE RAMIREZ, JR., aka George                  MEMORANDUM*
Ramirez,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-10006

              Plaintiff - Appellee,              D.C. No. 4:11-cr-02322-RCC-JR-2

 v.

DAVID ANTHONY FIGUEROA,

              Defendant - Appellant.


                  Appeals from the United States District Court
                           for the District of Arizona
                 Raner C. Collins, Chief District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                              Page 2 of 7

                         Argued and Submitted July 7, 2015
                             San Francisco, California

Before: GRABER and WATFORD, Circuit Judges, and FRIEDMAN,** District
Judge.

      1.      Even assuming that Defendant sufficiently raised the issue before the

district court, the district court did not abuse its discretion by declining to instruct

the jury on entrapment at the close of George Ramirez’s trial. A defendant is

entitled to a theory-of-defense instruction only if it has some foundation in the

evidence and is supported by law. United States v. Johnson, 459 F.3d 990, 992

(9th Cir. 2006). Ramirez’s proposed entrapment defense lacked a foundation in the

evidence because he failed to show that he was not otherwise predisposed to

participate in the offense. See United States v. Spentz, 653 F.3d 815, 818 (9th Cir.

2011).

      2.      In determining Ramirez’s offense level, the district court did not

commit clear error by applying the two-level enhancement for use of a firearm

under U.S.S.G. § 2D1.1(b)(1). See United States v. Ortiz, 362 F.3d 1274, 1277–78

(9th Cir. 2004). The government provided sufficient evidence for the district court



         **  The Honorable Paul L. Friedman, District Judge for the U.S. District
Court for the District of Columbia, sitting by designation.
                                                                              Page 3 of 7

to conclude that co-defendant David Figueroa’s use of a firearm was both

reasonably foreseeable to Ramirez and in furtherance of their jointly undertaken

criminal activity. Several times in the record, Ramirez mentioned the use of

firearms in similar drug trafficking offenses. Thus, the district court did not

commit clear error in concluding that Ramirez could reasonably foresee that

Figueroa would be armed, even if he and Figueroa never discussed the need for

protection beforehand.

      3.     We must, however, vacate Ramirez’s sentence and remand for

resentencing. The district court committed three errors in sentencing Ramirez.

      First, the district court improperly calculated the drug quantities involved in

the conspiracy. The Pre-Sentence Report (PSR) concluded that Ramirez’s offense

level should be based on 10 kilograms of cocaine from the May 13, 2011,

transaction, plus an additional 10 kilograms of cocaine from the June 2, 2011,

transaction, totaling 20 kilograms of cocaine. However, Ramirez agreed to engage

in only one transaction, not two. The May 13 transaction was unsuccessful solely

because the government chose to leave the storage unit with “wrappings” and

“drug paraphernalia,” rather than the actual drugs, in order to surveil the

defendants’ activities in preparation for their arrest at a later time. When Figueroa
                                                                          Page 4 of 7

returned on June 2 to complete the transaction initially planned for May 13, the

defendants were not conspiring to obtain additional quantities of cocaine. Instead,

they were attempting to carry out the one transaction originally planned for May

13. There is no indication in the record that the defendants would have agreed to

participate in a second transaction on June 2 for additional quantities if the May 13

transaction had been successful. The district court therefore erred in adopting the

PSR’s drug quantity calculations. On remand, Ramirez’s offense level should be

calculated based on 10 kilograms of cocaine, if the district court, as addressed

below, makes express factual findings and rejects Ramirez’s sentencing entrapment

argument.

      Second, the district court failed to make “express factual findings” when it

rejected Ramirez’s sentencing entrapment argument, as our case law requires.

United States v. Riewe, 165 F.3d 727, 729 (9th Cir. 1999) (per curiam). Although

the district court adopted the PSR’s findings, the PSR did not make any express

factual findings regarding sentencing entrapment. In fact, the PSR took “no

position regarding the legal argument for sentencing entrapment” and left the

matter to the court’s discretion. Because the PSR declined to address sentencing

entrapment and the district court adopted the PSR’s statements without any
                                                                           Page 5 of 7

supplemental commentary, we must remand for the district court to make express

factual findings regarding sentencing entrapment.

      Third, when imposing Ramirez’s sentence, the district court orally

announced that the counts of conviction consisted of: (1) conspiracy to possess

with intent to distribute marijuana and cocaine, (2) attempt to possess with intent to

distribute marijuana (2 counts), and (3) conspiracy to possess with intent to

distribute cocaine. However, as reflected correctly in the written judgment,

Ramirez was actually convicted of only one conspiracy count; he was actually

indicted for and convicted of: (1) conspiracy to possess with intent to distribute

marijuana and cocaine, (2) attempt to possess with intent to distribute marijuana,

(3) attempt to possess with intent to distribute cocaine, and (4) possession with

intent to distribute marijuana. Because the orally pronounced sentence is the

official “imposition of sentence,” United States v. Aguirre, 214 F.3d 1122, 1125

(9th Cir. 2000), we must remand for the district court to reimpose sentence on the

correct counts of conviction. Whether doing so will affect the length of the

sentence ultimately imposed is a matter the district court should address in the first

instance.
                                                                         Page 6 of 7

      4.    Ramirez’s counsel filed an Anders brief in the separate appeal from

the district court’s judgment revoking supervised release. Ramirez submitted a pro

se supplemental opening brief, but did not present any relevant legal challenges to

the district court’s revocation of supervised release. Our independent review of the

record confirms that there are no arguable issues on appeal. See Anders v.

California, 386 U.S. 738, 744 (1967).

      5.    Finally, we must also vacate Figueroa’s sentence and remand for

resentencing. Two adjustments must be made in calculating his offense level on

remand.

      First, as with Ramirez, we conclude that Figueroa’s PSR improperly

calculated the drug quantities involved in the conspiracy by essentially doubling

the quantity of cocaine the defendants had agreed to acquire. On remand,

Figueroa’s offense level should be calculated based on 10 kilograms of cocaine.

      Second, the district court must grant Figueroa an additional one-level

reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b). At the time

of Figueroa’s sentence, the government chose not to award the additional level

because Figueroa retained his right to appeal. After Figueroa’s sentence, however,

the Sentencing Commission amended § 3E1.1(b) to clarify that the government
                                                                         Page 7 of 7

may not refuse a reduction merely because a defendant declines to waive his

appellate rights. U.S.S.G. § 3E1.1(b) cmt. n.6 (effective Nov. 1, 2013). We

recently held that the Commission’s amendment to § 3E1.1(b) is retroactive.

United States v. Cabrera-Guiterrez, 756 F.3d 1125, 1127 n.1 (9th Cir. 2014). On

remand, the district court should calculate Figueroa’s offense level based on a

three-level reduction for acceptance of responsibility.

      CONVICTIONS AFFIRMED; SENTENCES VACATED AND

REMANDED.
