FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 08-10167
v. D.C. No.
DALE SCHAFER, 2:05-cr-00238-FCD
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 08-10169
Plaintiff-Appellee,
v. D.C. No.
2:05-cr-00238-FCD
MARION P. FRY,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Argued and Submitted
August 31, 2010—San Francisco, California
Filed November 8, 2010
Before: Betty B. Fletcher, Richard C. Tallman, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Tallman
18321
UNITED STATES v. SCHAFER, 18325
COUNSEL
Brenda Grantland, Esquire, Mill Valley, California; Barry L.
Morris (argued), Esquire, Walnut Creek, California, for
defendants-appellants Dale Schafer and Marion Fry.
Anne Pings (argued), Assistant United States Attorney; Sean
C. Flynn, Assistant United States Attorney; Benjamin B.
Wagner, United States Attorney, Sacramento, California, for
plaintiff-appellee United States of America.
OPINION
TALLMAN, Circuit Judge:
Defendants-Appellants Dale Schafer and Marion Fry chal-
lenge federal convictions that arise from their operation of a
medical marijuana growing operation and dispensary in the
Sierra Nevada community of Cool, California. A jury found
Appellants guilty of conspiring to manufacture and distribute
at least 100 marijuana plants. The jury specifically convicted
Schafer of manufacturing at least 100 marijuana plants and
found Fry guilty of manufacturing fewer than 100 marijuana
plants. Appellants raise three claims on appeal: (1) the district
court improperly denied their motion to dismiss the indict-
ment on a theory of entrapment by estoppel without conduct-
ing an evidentiary hearing; (2) the district court erred when it
precluded Appellants from presenting an entrapment by
estoppel defense and a medical necessity defense at trial; and
(3) the district court should have reduced their sentences on
a theory of sentencing entrapment. We have jurisdiction over
their appeal under 28 U.S.C. § 1291, and we affirm.
I
Fry, a medical doctor, was diagnosed with breast cancer in
18326 UNITED STATES v. SCHAFER,
December 1997. She received a recommendation to use mari-
juana in early 1998 to help alleviate the side effects of the
chemotherapy treatments she was undergoing. Consequently,
Schafer, her husband and a practicing attorney, began culti-
vating marijuana plants for Fry’s use. In July 1999, Fry con-
tacted Detective Robert Ashworth, an officer with the El
Dorado County Sheriff’s Office, to inform deputies of the
marijuana grow operation.1 Detective Ashworth and Sergeant
Timothy McNulty visited Appellants’ residence and inspected
their marijuana plants.
In late 1999, Schafer’s cultivation of marijuana for his wife
developed into a much larger marijuana recommendation and
sales business, extending well beyond personal use amounts
of marijuana. During the time that Schafer and Fry were oper-
ating their marijuana business, Ashworth and McNulty repeat-
edly visited their residence and office. On one particular
occasion, Ashworth and McNulty visited Appellants to dis-
cuss the unrelated investigation and arrest of two of their for-
mer employees. The employees had been involved in a major
marijuana growing operation on a rural ranch elsewhere in El
Dorado County that was not affiliated with Appellants’ busi-
ness. That separate police raid and investigation involved law
enforcement personnel from both local and federal narcotics
units who cooperated with one another in a joint interagency
task force.
Federal authorities with the Drug Enforcement Administra-
tion (“DEA”) separately began investigating Appellants in
late 2000 after a shipping company reported intercepting sev-
eral packages containing marijuana sent from “Dale.” This
investigation included receiving reports from numerous
undercover visits by local law enforcement operatives to
Appellants’ place of business for the purpose of obtaining
1
Under California law, it was, and still is, legal to grow marijuana or to
possess for personal use small amounts of marijuana as a palliative for ill-
ness. Cal. Health & Safety Code § 11362.5.
UNITED STATES v. SCHAFER, 18327
marijuana recommendations. The information gathered
through these undercover investigations was then given to
federal agents. Local and federal agents ultimately executed
a federal search warrant at Appellants’ business and home on
September 28, 2001.
A federal grand jury returned an indictment against Appel-
lants on June 15, 2005, charging them with one count of con-
spiring to manufacture and distribute marijuana plants, and
one count of manufacturing at least 100 plants. Appellants
filed a motion to dismiss the indictment, arguing that the
United States could not prosecute them because of their
defense of entrapment by estoppel. In support of their motion
to dismiss, they filed a memorandum from the Office of
National Drug Control Policy and a letter from the Attorneys
General of Arizona and California. The attachments empha-
sized that local law enforcement officers would support fed-
eral attempts to enforce the federal laws criminalizing
marijuana. In their motion to dismiss, Appellants alleged that
both McNulty and Ashworth admitted that they were working
on behalf of the federal government and further claimed that
Officer McNulty had said Appellants’ conduct was legal.
The United States opposed the motion, arguing that Appel-
lants were not entitled to invoke an entrapment by estoppel
defense because they had not relied on the representations of
a federal official or an authorized agent of the federal govern-
ment. The opposition included a declaration from McNulty
denying that he ever represented himself as a federal official
or that he encouraged Appellants to continue growing mari-
juana. Alternatively, the government contended that Appel-
lants had not reasonably relied on any of the alleged
misrepresentations. To prove lack of reliance, the government
submitted copies of written recommendations distributed to
“patients” by Appellants’ business. These recommendations
included a disclaimer that unequivocally stated that marijuana
remained illegal under federal law.
18328 UNITED STATES v. SCHAFER,
At a hearing conducted to address the motion to dismiss,
Appellants requested an evidentiary hearing for the purpose of
resolving the conflict between the factual allegations in their
pleadings and those in McNulty’s sworn declaration. The dis-
trict court denied Appellants’ request and assumed for pur-
poses of deciding the legal issue that McNulty was a federal
official. Notwithstanding that assumption, the district court
refused to dismiss the case because Appellants had not ade-
quately shown that they relied on any alleged misinformation.
Before trial, the government filed a motion in limine seek-
ing to prevent Appellants from asserting either a medical
necessity defense or an entrapment by estoppel defense. The
government argued that the Supreme Court’s decision in
United States v. Oakland Cannabis Buyers’ Cooperative, 532
U.S. 483 (2001) [hereinafter OCBC II], precluded any entitle-
ment by a defendant to rely on the claimed medicinal value
of marijuana and prohibited Appellants from asserting a cog-
nizable medical necessity defense. The government also
sought exclusion of an entrapment by estoppel defense for the
reasons stated in their opposition to Appellants’ motion to
dismiss—that McNulty and Ashworth were not federal offi-
cials or authorized agents of the federal government and
Appellants did not reasonably rely on any of their alleged
misrepresentations.
Appellants contested the applicability of OCBC II and
argued that a retroactive application of the Supreme Court’s
decision would be a violation of the ex post facto clause.
Although the district court had previously rejected Appel-
lants’ entrapment by estoppel defense, they asked that the dis-
trict court “keep an open mind as to the characterization of the
evidence.” To further support their argument that McNulty
and Ashworth were federal officials, Appellants submitted an
affidavit from their attorney attesting to the fact that an agent
with the DEA directed the investigations conducted by local
law enforcement officers. Appellants incorporated excerpts of
the police reports chronicling the investigation of Appellants’
UNITED STATES v. SCHAFER, 18329
business. These reports established that officers from local
law enforcement agencies collaborated with federal agents to
conduct undercover investigations of Appellants.
The district court granted the government’s motion in
limine. It reasoned that OCBC II applied retroactively because
the decision “was foreseeable in light of a circuit split on the
issue,” and because marijuana had been illegal under federal
law to use or possess since at least 1970. In the alternative, the
district court found that the medical necessity defense was
viable for only a limited time, and Appellants’ illegal conduct
began prior to the application of the defense and continued
until after the Supreme Court rejected the defense. The district
court affirmed its earlier denial of the entrapment by estoppel
defense because Appellants “could not identify an authorized
federal government official who erroneously told them it was
permissible to sell marijuana.”
After the federal jury returned a guilty verdict,2 Appellants
sought mitigation of their sentences on a theory of sentencing
entrapment. They claimed that Ashworth encouraged them to
continue growing medical marijuana, that he induced them
into expanding the amount of marijuana they were growing,
and that they were not predisposed to illegally grow mari-
juana. Again, Appellants requested an evidentiary hearing.
The district court denied the request after concluding that
Appellants had not shown that a federal official either bought
or sold any marijuana or engaged in any transactions to make
Appellants manufacture a higher number of marijuana plants.
Appellants re-asserted their sentencing entrapment claim at
sentencing. The district court interpreted our precedent to
require active participation by a law enforcement officer in
the purchase or sale of controlled substances, and it rejected
2
As stated earlier, the jury found Schafer guilty of both the conspiracy
and manufacturing at least 100 marijuana plants. It convicted Fry of the
conspiracy and of manufacturing plants, but concluded that Fry had manu-
factured fewer than 100 plants.
18330 UNITED STATES v. SCHAFER,
Appellants’ request for sentence mitigation because they
could not show that Ashworth was actively involved in their
production or distribution of marijuana. Consequently, Appel-
lants were sentenced to the statutory minimum term of sixty
months imprisonment. Appellants timely appeal their convic-
tions and sentences.
II
A
Appellants’ first challenge focuses on the district court’s
denial of their request for an evidentiary hearing on their
motion to dismiss. They argue that they were entitled to an
evidentiary hearing because the filings submitted in support of
and in opposition to the motion to dismiss presented signifi-
cant factual disputes. We review a district court’s denial of an
evidentiary hearing for an abuse of discretion. United States
v. Hagege, 437 F.3d 943, 951 (9th Cir. 2006).
[1] Federal Rule of Criminal Procedure 12 allows a defen-
dant to assert a defense in a pretrial motion if the merits of the
defense can be determined “without a trial of the general
issue.” Fed. R. Crim. P. 12(b)(2). However, if the pretrial
motion raises factual questions associated with the validity of
the defense, the district court cannot make those determina-
tions. United States v. Shortt Accountancy Corp., 785 F.2d
1448, 1452 (9th Cir. 1986) [hereinafter Shortt]. Doing so
would “invade the province of the ultimate finder of fact.” Id.
(quoting United States v. Jones, 542 F.2d 661, 664 (6th Cir.
1976)).
[2] Appellants requested an evidentiary hearing to resolve
two factual disputes presented by the motion to dismiss: (1)
whether McNulty and Ashworth were federal officials or
authorized agents of the federal government; and (2) whether
McNulty and Ashworth erroneously informed Appellants that
UNITED STATES v. SCHAFER, 18331
their marijuana grow was legal under federal law.3 These two
factual disputes directly impacted the validity of Appellants’
defense because to establish the defense Appellants were
required to prove “reliance either on a federal government
official empowered to render the claimed erroneous advice”
or on “an authorized agent of the federal government” and
“affirmative misleading” by a government official. United
States v. Brebner, 951 F.2d 1017, 1026-27 (9th Cir. 1991).
Thus, the factual disputes raised by the pretrial motion to dis-
miss were intertwined with the “general issue” to be decided
at trial. The district court would have usurped the role of the
jury had it conducted an evidentiary hearing and answered
these factual questions. Shortt, 785 F.2d at 1452.
[3] Appellants’ reliance on cases discussing the propriety
of evidentiary hearings to resolve factual disputes raised by
motions to suppress is misplaced. Generally, any factual dif-
ferences highlighted by a motion to suppress do not impact
the ultimate issue of guilt. Evidence must be suppressed when
it is obtained in violation of a defendant’s constitutional
rights. Mapp v. Ohio, 367 U.S. 643, 655-56 (1961). A district
court may make factual findings with regard to whether evi-
3
We note a procedural defect in Appellants’ attempt to create a factual
dispute before trial. None of the averments were set forth in sworn decla-
rations that would be competent evidence for consideration of pretrial
motions. Eastern District of California Local Rule 230(h) provides: “Fac-
tual contentions involved in pretrial motions shall be initially presented
and heard upon affidavits, except that the Court may in its discretion
require or allow oral examination of witnesses.” See also E.D. Cal. Rule
430.1(b) (“Motions and accompanying documents shall conform to the
requirements of . . . these Rules.”). Appellants’ factual statements were
raised as unsworn arguments of defense counsel in their pleadings. The
district court would have been well within its rights to reject the request
for an evidentiary hearing on this ground alone. Cf. Cohen v. United
States, 378 F.2d 751, 761 (9th Cir. 1967). Given our conclusion that the
issue was otherwise inextricably intertwined with the contested evidence
the jury had to resolve at trial, we will overlook the procedural defect in
the case before us. Trial counsel, however, would be well advised to fol-
low the rules.
18332 UNITED STATES v. SCHAFER,
dence was unconstitutionally obtained because such issues are
“entirely segregable” from the issue of guilt. See generally
Shortt, 785 F.2d at 1452 (discussing the types of factual find-
ings a district court can make to resolve pretrial motions). In
this case, however, the questions raised by Appellants’ motion
to dismiss establish the viability of Appellants’ defense; the
factual disputes were not segregable from the issue that was
to be decided at trial—Appellants’ guilt. Pursuant to Rule 12,
the district court could not resolve these disputes before trial,
and therefore it did not abuse its discretion when it denied
Appellants’ request for an evidentiary hearing.
B
In addition to challenging the district court’s denial of an
evidentiary hearing, Appellants argue that the district court
further erred in denying their motion to dismiss on the merits.
We review the denial of a motion to dismiss de novo. United
States v. Holler, 411 F.3d 1061, 1065 (9th Cir. 2005).
[4] In order to succeed on their motion to dismiss, Appel-
lants would have had to show that they were entitled to an
entrapment by estoppel defense as a matter of law. In Sher-
man v. United States, 356 U.S. 369, 373 (1958), the Supreme
Court found that the defendant had established entrapment as
a matter of law because it did not need to “choos[e] between
witnesses, nor judg[e] credibility” in order to determine the
merits of the defense. Conversely, we have held that a defen-
dant is not entitled to a defense of entrapment as a matter of
law when there are “definite conflicts in the testimony on the
issue of how [the defendant] began selling heroin.” United
States v. Griffin, 434 F.2d 978, 981 (9th Cir. 1970). When
such conflicts arise, the issue of whether the defendant was
entrapped “is a credibility question for the jury.” Id.
[5] Whether Appellants were lulled into believing their
marijuana operation was legal and done on the express autho-
rization of agents who could bind the federal government
UNITED STATES v. SCHAFER, 18333
necessitated a credibility determination that fell within the
province of the jury. See id.; cf. Mathews v. United States, 485
U.S. 58, 63 (1988) (“The question of entrapment is generally
one for the jury, rather than for the court.”). As such, the dis-
trict court was precluded from holding that Appellants were
entitled to an entrapment by estoppel defense as a matter of
law until the jury resolved the truth of the factual dispute. It
did not err when it denied Appellants’ motion to dismiss on
the merits.
III
Appellants’ next set of arguments contend that the district
court improperly granted the government’s motion in limine
and prohibited Appellants from presenting entrapment by
estoppel and medical necessity defenses. A district court’s
decision to exclude evidence of a particular defense is
reviewed de novo. Brebner, 951 F.2d at 1024. A district court
may preclude a defense if the defendant fails to make a prima
facie showing that he is eligible for the defense. See United
States v. Moreno, 102 F.3d 994, 997-98 (9th Cir. 1996).
A
[6] Entrapment by estoppel is the “unintentional entrap-
ment by an official who mistakenly misleads a person into a
violation of the law,” and it is a theory derived from the due
process clause. United States v. Batterjee, 361 F.3d 1210,
1216 (9th Cir. 2004) (internal quotation and citation omitted).
To establish this defense, a defendant “must show that (1) an
authorized government official, empowered to render the
claimed erroneous advice, (2) who has been made aware of all
the relevant historical facts, (3) affirmatively told [the defen-
dant] the proscribed conduct was permissible, (4) that [the
defendant] relied on the false information, and (5) that [the]
reliance was reasonable.” Id. (internal quotations and citations
omitted).
18334 UNITED STATES v. SCHAFER,
[7] An entrapment by estoppel defense is “available only
when [the] defendant can demonstrate a reasonable belief that
his conduct was sanctioned by the government.” United States
v. Burrows, 36 F.3d 875, 882 (9th Cir. 1994). Even assuming
what is ascribed to McNulty and Ashworth was true, Appel-
lants failed to present evidence to the district court that they
relied on the alleged erroneous statements. During pretrial
proceedings, the government filed examples of the written
marijuana recommendation forms issued to “patients” by
Appellants’ business and excerpts of prior sworn expert testi-
mony given by Fry in an unrelated judicial proceeding. Each
of the recommendations, dated from October 1999 to Septem-
ber 2001, contained a patient declaration that clearly stated
that “cannabis remains illegal under Federal Law” and that
Appellants had not represented otherwise. Fry’s expert testi-
mony, given on July 11, 2001, unequivocally established that
Fry knew that marijuana remained a Schedule I controlled
substance under federal law and that federal law prohibited
her from prescribing it since any drug listed on Schedule I is
deemed without medical efficacy. Appellants submitted no
admissible evidence that refuted the recommendations and
testimony or that supported an inference that they relied on
any of the alleged misrepresentations of McNulty and Ash-
worth.
[8] Instead, the government’s uncontradicted evidence
established that Appellants were aware that marijuana was
illegal under federal law during the time that McNulty and
Ashworth allegedly stated that it was legal under federal law
—Appellants were not misled into believing that their conduct
was permissible under federal law. “The defense of entrap-
ment by estoppel is inapplicable if the defendant is not mis-
led.” United States v. Tallmadge, 829 F.2d 767, 775 n.1 (9th
Cir. 1987). Because Appellants failed to present prima facie
evidence that they relied on representations made by either
McNulty or Ashworth, they were not entitled to present an
entrapment by estoppel defense to the jury.
UNITED STATES v. SCHAFER, 18335
[9] In light of Appellants’ inability to establish reliance,
we need not address their arguments regarding whether
McNulty and Ashworth were de facto federal officials or
authorized agents of the federal government. See Moreno, 102
F.3d at 998 (declining to address all of the elements of the
defense of duress because the defendant presented no evi-
dence of a lack of a reasonable opportunity to escape the
threatened harm). The district court properly granted the gov-
ernment’s motion in limine with regard to Appellants’
asserted entrapment by estoppel defense.
B
[10] “[M]edical necessity is not a defense to manufactur-
ing and distributing marijuana.” OCBC II, 532 U.S. at 494.
Appellants attempt to circumvent this clear holding of the
United States Supreme Court by arguing that the exclusion of
a medical necessity defense at their trial violated their due
process rights4 because we recognized the viability of such a
defense for a portion of the time Appellants operated their
marijuana business. See United States v. Oakland Cannabis
Buyers’ Coop., 190 F.3d 1109, 1114-15 (9th Cir. 1999), over-
ruled by OCBC II, 532 U.S. 483 (2001) [hereinafter OCBC I].
They contend that any change in the viability of a medical
necessity defense occasioned by the Supreme Court’s deci-
sion was unforeseeable and therefore could not apply retroac-
tively.
“[J]udicial alteration of a common law doctrine of criminal
law violates the principle of fair warning, and hence must not
be given retroactive effect, only where it is unexpected and
indefensible by reference to the law which had been
4
Appellants framed their challenge by relying on the ex post facto
clause. However, the ex post facto clause applies only to the legislature
and “does not of its own force apply to the Judicial Branch of govern-
ment.” Rogers v. Tennessee, 532 U.S. 451, 456 (2001). These limitations
also apply to judicial decisionmaking through the due process clause. Id.
18336 UNITED STATES v. SCHAFER,
expressed prior to the conduct in issue.” Rogers v. Tennessee,
532 U.S. 451, 462 (2001) (internal quotation marks omitted);
see also United States v. Qualls, 172 F.3d 1136, 1139 n.1 (9th
Cir. 1999) (“Due process bars retroactive application of a
judicial expansion of a law only if the change in the law is
unforeseeable.”). In Rogers, the Supreme Court held that the
Tennessee Supreme Court’s abolition of the “year and a day
rule” did not constitute the “sort of unfair and arbitrary judi-
cial action against which the Due Process Clause aims to pro-
tect.” 532 U.S. at 466-67. Although the “year and a day rule”
had been recognized in Tennessee for almost 100 years, it
“was a principle in name only, having never once been
enforced.” Id. at 465-66. The state supreme court’s decision
to invalidate the doctrine was thus “a routine exercise of com-
mon law decisionmaking in which the court brought the law
into conformity with reason and common sense.” Id. at 467.
[11] The Supreme Court’s OCBC II decision is analogous
to the Tennessee Supreme Court’s decision. Notwithstanding
our temporary indication that a medical necessity defense was
legally cognizable, OCBC I, 190 F.3d at 1114, it was not “un-
foreseeable” that the Supreme Court would reject the imple-
mentation of a defense that had not theretofore been applied.
In fact, it was “an open question whether federal courts ever
have authority to recognize a necessity defense not provided
by statute.” OCBC II, 532 U.S. at 490. Despite the opinion
held in some medical and scientific circles that marijuana can
be effectively used for medicinal purposes, such a defense
would directly contradict congressional findings dating back
to 1970 that marijuana, as a Schedule I drug, has no medicinal
use. Comprehensive Drug Abuse Prevention and Control Act
of 1970, Pub. L. No. 91-513, 84 Stat. 1236, 1247-49.
[12] Furthermore, Appellants’ reliance on OCBC I was
unfounded. Our decision recognizing a medical necessity
defense did not occur until almost six weeks after the alleged
beginning of Appellants’ conspiracy. When conducting a due
process foreseeability analysis, we must “look only to cases
UNITED STATES v. SCHAFER, 18337
decided before the crime was committed” because the focus
is on notice to the defendant. Clark v. Brown, 450 F.3d 898,
912 (9th Cir. 2006). Appellants cited no federal precedent
prior to the initiation of their conduct that allowed a defendant
to successfully assert a medical necessity defense. The
Supreme Court’s refusal to accept such a defense—when it
had not been recognized by Congress and which undermined
congressional findings—is not the typical “unpredictable
departure from prior precedent” that warrants holding the
Court’s final decision cannot be retroactively applied. Rogers,
532 U.S. at 467. The district court did not err when it prohib-
ited Appellants from presenting a medical necessity defense.
IV
Appellants’ last argument contests the district court’s
denial of their request for an evidentiary hearing on their
claim for mitigation of sentence on a theory of sentencing
entrapment. The district court rejected Appellants’ request
because they had not established a factual basis supporting
their allegation that a government official actively induced
them to manufacture and distribute more marijuana than they
were otherwise predisposed to manufacture. We review de
novo a district court’s interpretation and application of the
Sentencing Guidelines, and we review its sentencing phase
factual findings for clear error. United States v. Naranjo, 52
F.3d 245, 248 (9th Cir. 1995).
[13] “Sentencing entrapment occurs when a defendant is
predisposed to commit a lesser crime, but is entrapped by the
government into committing a crime subject to more severe
punishment.” United States v. Mejia, 559 F.3d 1113, 1118
(9th Cir. 2009). The defendant must show that the govern-
ment participated in “outrageous official conduct which
caused the individual to commit a more significant crime for
which a greater penalty attaches.” United States v. Si, 343
F.3d 1116, 1128 (9th Cir. 2003). The underlying principle is
that it is impermissible for the government to “structure sting
18338 UNITED STATES v. SCHAFER,
operations in such a way as to maximize the sentences
imposed on defendants” without regard for the defendant’s
culpability or ability to commit the crime on his own. United
States v. Staufer, 38 F.3d 1103, 1107 (9th Cir. 1994).
[14] We have never found sentencing entrapment unless it
involves active inducement by government officials. For
example, in Staufer, the defendant maintained that he wanted
to sell only 5,000 doses of LSD (lysergic acid diethylamide)
to the confidential informant and undercover agent. 38 F.3d
at 1105. However, the informant and agent insisted that the
defendant provide 10,000 doses. Id. The district court sen-
tenced the defendant using the higher quantity of drugs, and
we reversed. Id. at 1105, 1108. We held that the defendant
was entitled to a lesser sentence because it was the govern-
ment’s involvement that led him to engage in a transaction of
a greater magnitude. Id. at 1107-08. We recognized the “un-
fairness and arbitrariness of allowing drug enforcement agents
to put unwarranted pressure on a defendant in order to
increase his or her sentence.” Id. at 1107.
Subsequent precedent affirms the necessity of more than
passive government involvement. See, e.g., United States v.
Haynes, 216 F.3d 789, 799-800 n.9 (9th Cir. 2000) (finding
sentencing entrapment inapplicable because the police offi-
cers “in no way led [the defendants] to create or enhance” the
marijuana grown); United States v. Riewe, 165 F.3d 727, 729
(9th Cir. 1999) (remanding for resentencing due to a lack of
factual findings on sentencing entrapment claim where the
defendant argued that the amount of the second sale of drugs
was larger due to the undercover officer’s request for a higher
amount); United States v. Parrilla, 114 F.3d 124, 127-28 (9th
Cir. 1997) (remanding for a factual determination on whether
the defendant was entrapped into trading cocaine for a gun
and stating that such entrapment would preclude the applica-
tion of a two-level enhancement for possessing a firearm in
connection with drugs).
UNITED STATES v. SCHAFER, 18339
[15] In support of Appellants’ sentencing entrapment
claim, Schafer later submitted affidavits that alleged that
McNulty and Ashworth told Appellants that their conduct
complied with the law. Even if we accept Schafer’s allega-
tions as true, there is no evidence that either McNulty or Ash-
worth directed Appellants to grow more marijuana or offered
them something in exchange for the production of higher
amount of plants. There is simply no allegation of active gov-
ernment involvement. We decline to hold that Appellants are
entitled to lesser sentences because government officials
failed to inform them that their conduct was illegal.
[16] Consequently, Appellants’ affidavits are insufficient
to establish a prima facie showing of sentencing entrapment,
and it was not an abuse of discretion for the district court to
deny their request for an evidentiary hearing. See United
States v. Irwin, 612 F.2d 1182, 1187 (9th Cir. 1980) (“[I]f the
affidavits show as a matter of law that appellant was or was
not entitled to relief, no [evidentiary] hearing was required.”).
There is simply no basis for sentence mitigation on this issue.
V
For the reasons outlined above, the judgments and sen-
tences entered against Schafer and Fry by the district court are
AFFIRMED.