FILED
NOT FOR PUBLICATION NOV 27 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50279
Plaintiff - Appellee, D.C. No. 3:10-cr-03173-H-1
v.
MEMORANDUM*
JULIAN MONDRAGON-HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted November 6, 2013**
Pasadena, California
Before: McKEOWN, GOULD, and BYBEE, Circuit Judges.
Julian Mondragon-Hernandez appeals his conviction and sentence for
conspiracy to possess with the intent to distribute cocaine in violation of, 21 U.S.C.
§§ 841(a)(1), 846, conspiracy to affect commerce by robbery or extortion, 18
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1951(a), possession of a firearm in furtherance of a crime of violence or
drug trafficking offense, id. § 924(c)(1)(A)(i), and possession of a firearm by an
illegal alien. Id. §§ 922(g)(5)(A), 924(a)(2). We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
Mondragon-Hernandez argues that the district court erred by failing to
address his pre-trial motion to suppress. Mondragon-Hernandez concedes that this
argument is reviewed for plain error because he did not raise it in the district court.
See Johnson v. United States, 520 U.S. 461, 464 (1997). The district court did not
commit plain error because Mondragon-Hernandez did not move to suppress his
statements; rather, Mondragon-Hernandez joined in one of his co-defendant's
motions to suppress, which sought to suppress the statements of the co-defendant,
not any of Mondragon-Hernandez's statements. Additionally, Mondragon-
Hernandez waived his argument by assuring the district court that all pretrial issues
had been resolved. See United States v. Wright, 215 F.3d 1020, 1026 (9th Cir.
2000).
Mondragon-Hernandez next contends that he did not receive a trial within
seventy days of arraignment, as required by the Speedy Trial Act, 18 U.S.C.
§ 3161(c)(1). Because Mondragon-Hernandez did not raise this claim prior to trial
in the district court, it is waived. 18 U.S.C. § 3162(a)(2).
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Mondragon-Hernandez’s third argument is that the district court incorrectly
denied his motion for a finding of sentencing entrapment. Specifically, he
maintains that the government’s conduct during the reverse sting operation was so
outrageous that he is entitled to a lesser sentence. We review the district court’s
decision to reject a sentencing entrapment argument for abuse of discretion, United
States v. Yuman-Hernandez, 712 F.3d 471, 473 (9th Cir. 2013), keeping in mind
the risk of law enforcement inflating the amount of fictitious drugs in a stash house
sting to obtain higher mandatory sentences. United States v. Briggs, 623 F.3d 724,
729-30 (9th Cir. 2010).
To establish sentencing entrapment in a stash house case, the defendant must
prove, by a preponderance of the evidence, that he either lacked the intent or
lacked the capability to “conspire with others to take the amount of cocaine
involved by force.” Yuman-Hernandez, 712 F.3d at 473-75. Mondragon-
Hernandez does not meet his burden of proof because video and audio evidence
showed that he enthusiastically assisted with the plan to rob the fictitious cocaine
stash house without further inducement from the government. See Black v. United
States, 733 F.3d 294, 311 (9th Cir. 2013) (“[I]n this case, the existence of tape and
video recordings to prove what was actually said and done has weighed heavily in
our review of the record.”). Furthermore, Mondragon-Hernandez was capable of
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conspiring to obtain thirty kilograms of cocaine. His theory of defense was that he
did not want any cocaine, not some lesser amount of cocaine, and the jury rejected
this defense. Thus, the district court did not abuse its discretion by denying the
motion for sentencing entrapment.
Finally, Mondragon-Hernandez argues that his sentence was disparately
longer than his co-conspirators. The district court properly considered
Mondragon-Hernandez’s role in the underlying offenses, his aggravating and
mitigating circumstances, and all of the 18 U.S.C. § 3553(a) factors, including
§ 3553(a)(6). See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008).
Furthermore, Mondragon-Hernandez had a higher criminal history score than his
co-conspirators, and § 3553(a)(6) articulates “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct.” 18 U.S.C. § 3553(a)(6) (emphasis added).
Accordingly, the district court did not abuse its discretion by giving Mondragon-
Hernandez a longer sentence than his co-conspirators.
AFFIRMED.
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