United States v. Jerome Vierra

MEMORANDUM *

Jerome Vierra appeals his 90-month sentence following convictions on six counts of distributing methamphetamine in violation of 21 U.S.C. § 841 (a)(1), (b)(1)(A), and (b)(1)(B). We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review the district court’s factual findings on Vierra’s claim of sentencing entrapment for clear error. United States v. Ross, 372 F.3d 1097, 1113-14 (9th Cir.2004). We vacate Vierra’s sentence and remand for resentencing.

Reviewing the district court’s analysis of the five factors set forth in United States v. McClelland, 72 F.3d 717, 722 (9th Cir.1995), we conclude that Vierra has established sentencing entrapment as a matter of law. 1 Vierra has shown that he was predisposed to distribute only half-gram quantities of methamphetamine prior to the government’s inducement and “did not originally intend to ... sell the larger amount, but manipulation by government agents led the defendant eventually to agree to the larger amount.” RamirezRangel, 103 F.3d at 1507 (emphasis deleted).

With respect to the first factor, “the character and reputation of the defendant,” McClelland, 72 F.3d at 722 , Vierra testified and the government did not…

concurring:

I concur in this disposition, but do so reluctantly under compulsion of the law of the case.

*487 This is the second appeal in this case. In the first appeal, we reversed and remanded for resentencing. United States v. Vierra, 2009 WL 1385976 (9th Cir.2009). As the majority’s disposition indicates, the prior panel thought that the sentencing consideration at issue in this case—sentencing entrapment—was controlled by United States v. McClelland,, 72 F.3d 717, 722 (9th Cir.1995). See Maj. Dispo. at 485 n. 1. The McClelland factors, however, are not to be applied at sentencing, but in evaluating the defense of entrapment at the guilt phase of trial. See 72 F.3d at 722 . Vierra, in fact, asserted such a defense, but the jury found against him on that defense. In such a context, where the jury has rejected an entrapment defense, it is not at all clear to me that the five McClelland factors should, again, be reapplied at the sentencing phase. Nonetheless, we are bound by Vierra as the law of the case to apply the McClelland factors, wholesale, at sentencing.

Were the correct sentencing entrapment test to be applied, see, e.g., United States v. Ramirez-Rangel, 103 F.3d…

FILED

NOT FOR PUBLICATION APR 05 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-10426

Plaintiff - Appellee, D.C. No. 1:06-cr-00214-SOM-

v.

MEMORANDUM *

JEROME VIERRA,

Defendant - Appellant.

Appeal from the United States District Court for the District of Hawaii Susan Oµi Mollway, Chief District Judge, Presiding

Argued and Submitted February 16, 2011 Honolulu, Hawaii

Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.

Jerome Vierra appeals his 90-month sentence following convictions on six

counts of distributing methamphetamine in violation of 21 U.S.C. yy 841(a)(1),

(b)(1)(A), and (b)(1)(B). We have jurisdiction pursuant to 28 U.S.C. y 1291. We

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. review the district court's factual findings on Vierra's claim of sentencing

entrapment for clear error. United States v. Ross, 372 F.3d 1097, 1113-14 (9th Cir.

2004). We vacate Vierra's sentence and remand…