Herrera

MEMORANDUM **

Jose Antonio Herrera (“Herrera”) was convicted, after a three-day jury trial, of one count of conspiracy “to possess with intent to distribute and to distribute” methamphetamine and five counts of distribution of methamphetamine. Herrera now appeals his conviction and sentence. This court has jurisdiction pursuant to 28 U.S.C. § 1291 (appeal of a final decision of a district court); and 18 U.S.C. § 3742 (a) (appeal of a final decision regarding a sentence). For the following reasons the conviction is affirmed.

Familiarity with the facts is assumed.

I. Entrapment Instruction

Herrera claims that the district court did not adequately instruct the jury on his theory of the case, namely sentencing entrapment. Sentencing entrapment “occurs when ‘a defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment.’ ” United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir.1994) (holding that sentencing entrapment was a valid reason to downwardly depart under the Guidelines) (quoting United States v. Stuart, 923 F.2d 607, 614 (8th Cir.1991)). Herrera argues that the district court’s instruction…