United States v. Fabel Roque

NOT FOR PUBLICATION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-

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…

MEMORANDUM **

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). Ro-que challenges the district court’s denial of his request for a sentencing entrapment jury instruction and his motion for acquit *626 tal 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 .

Evidence presented at trial showed that…

dissenting:

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 *627 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…