United States v. Victor Bermudez-Chavez

MEMORANDUM

Victor Manuel Bermudez-Chavez appeals his jury conviction and sentence for conspiracy to possess with intent to distribute 100 kilograms of cocaine and possession with intent to distribute one kilogram of cocaine. Because the parties are familiar with the factual and procedural history of this case, we repeat only those facts necessary to resolve the issues raised on appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291 .

Bermudez-Chavez raises a claim of sentencing entrapment, citing U.S.S.G. § 2D1.1 Application Note 12 (“Note 12”). Although Bermudez-Chavez argued the substance of Note 12 before the district court—i.e., that the district court should consider his inability to procure 100 kilograms of cocaine when it determined the weight of cocaine for sentencing purposes—he failed to cite to or object under Note 12. The government claims that Bermudez-Chavez’s arguments were insufficient to preserve this claim. Nonetheless, even if it is forfeited, we review for plain error. Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 732 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) (plain error standard permits an appellate court to reverse if there was (a) an…