Irby

MEMORANDUM ***

Wonel Irby appeals his sentence after a guilty plea for selling 53.7 grams of cocaine base, in violation of 21 U.S.C. §§ 841 (a)(1) & (b)(1)(B)(iii).

*652 First, Irby argues that the Government committed entrapment or sentence factor manipulation by inducing Irby to deal in larger quantities of drugs than he was otherwise predisposed to deal in. 2 The burden of proof is on the defendant to demonstrate that he was not predisposed to commit a greater offense. United States v. Naranjo, 52 F.3d 245, 250 (9th Cir.1995). Irby has not met his burden. None of the five factors that we consider when assessing predisposition suggest that Irby was not predisposed to deal in large amounts of cocaine base.

Second, Irby argues that U.S.S.G. § 3El.l(b) is unconstitutional under the Fifth and Sixth Amendments. Irby did not argue to the district court that § 3El.l(b) is unconstitutional, and arguments not made to the district court are generally waived. See United States v. Smith, 424 F.3d 992, 1015 (9th Cir.2005). We decline to exercise our discretion to consider Irby’s argument because, even if we were to agree with Irby, it could not possibly affect his sentence because he…