United States v. Bell

concurring.

I concur in the result. I do not believe that the majority’s discussion of Apprendi v. New Jersey, 1 Blakley v. Washington, 2 and United States v. Booker 3 is correct, but my disagreement does not affect the result.

. Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000).

. Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004).

. United States v. Booker, — U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005).

*667 MEMORANDUM **

Ralph Douglas Bell was convicted by a jury of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922 (g)(1). He appeals his conviction asserting that the government’s use of the confidential informant was so shocking and outrageous as to violate Bell’s due process rights and that there was insufficient evidence to show that he was predisposed to possess firearms. After initial briefing, Bell also challenged his sentence on Sixth Amendment grounds under Blakely v. Washington, 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004). We affirm Bell’s conviction and vacate and remand on the sentencing issue.

Outrageous Government Conduct

The defense of outrageous government conduct is limited to extreme cases in which the government’s conduct is “shocking to the universal sense of justice mandated by the Due Process Clause of the Fifth Amendment” and violates fundamental fairness. United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.2003), cert. denied, 540 U.S. 995 , 124 S.Ct. 496 , 157 L.Ed.2d 395 (2003). Outrageous government conduct is a narrow category into which falls only the most intolerable government conduct. See United…