NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
NOV 14 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-50513
Plaintiff-Appellee, D.C. No. 2:13-cr-00829-PA-1
v.
MEMORANDUM*
FABEL ROQUE,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted October 3, 2016
Pasadena, California
Before: D.W. NELSON and PAEZ, Circuit Judges, and BUCKLO,** District
Judge.
Fabel Roque (“Roque”) appeals his conviction of distribution of more than
fifty grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(viii). Roque challenges the district court’s denial of his request for a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Elaine E. Bucklo, United States District Judge for the
Northern District of Illinois, sitting by designation.
sentencing entrapment jury instruction and his motion for acquittal on the basis of
sentencing entrapment. We have jurisdiction under 28 U.S.C. § 1291 and we
REVERSE and REMAND.
1. We review de novo the district court’s denial of a jury instruction when there
is a question of whether the instruction adequately presented the defendant’s theory
of the case and for abuse of discretion when there is a question of adequate factual
basis. United States v. Cortes, 757 F.3d 850, 857 (9th Cir. 2013).
2. Sentencing entrapment is an element of the crime and therefore a question
for the jury. Id. A defendant is entitled to a sentencing entrapment jury instruction
if there is “some foundation in the evidence” or “evidence from which the jury
could find” that he “would be subject to a lesser statutory minimum or maximum
sentence if his sentencing entrapment defense were to succeed.” Id. at 863-64.1
Evidence presented at trial showed that Roque earlier offered to sell an
unspecified quantity of methamphetamine but the informant rejected the
transaction because it was too small. Roque also offered to connect the informant
1
Unlike in Cortes, a reverse sting “stash house” case where the jury would
be required to find only that the defendant lacked the capability or intent to deal
the charged drug quantity, Roque’s case is an ordinary sting case, so the jury will
have to determine that he lacked both the capability and intent to deal the charged
drug quantity. 757 F.3d at 861 (citing United States v. Yuman-Hernandez, 712
F.3d 471, 475 (9th Cir. 2013).
2
with a distributor rather than distribute the drugs directly. Roque would be subject
to a lower minimum and maximum sentence if successful on his sentencing
entrapment defense.2 There is “some foundation” in the evidence from which a
jury could find sentencing entrapment because the jury could conclude that the
government set the drug quantity at a higher amount to maximize punishment
when the informant rejected a quantity that was too small. The district court erred
in denying Roque’s request for a jury instruction on sentencing entrapment.
3. When a district court errs in denying a criminal jury instruction, we reverse
“unless there is no reasonable possibility that this error materially affected the
verdict.” Id. at 857. There is a reasonable possibility that the district court’s error
materially affected the verdict because the jury could have found that Roque
showed sentencing entrapment and therefore was responsible for a smaller drug
quantity.
2
Roque was sentenced to 121 months imprisonment under
§ 841(a)(1),(b)(1)(A)(viii) for distributing at least fifty grams of
methamphetamine. He was subject to a mandatory minimum sentence of ten years
and a maximum of life imprisonment. If the jury found that Roque distributed five
to fifty grams of methamphetamine, he would be subject to a mandatory minimum
of five years and a maximum of forty years in prison. § 841(b)(1)(B)(viii). If the
amount was less than five grams or an unspecified amount of methamphetamine,
he would be subject to a maximum of twenty years in prison and no mandatory
minimum. § 841(b)(1)(C).
3
4. In light of this disposition, we need not address Roque’s challenge to the
denial of his motion for acquittal.
REVERSED AND REMANDED.
4
FILED
U.S. v. Roque, No. 14-50513
NOV 14 2016
Bucklo, District Judge, dissenting:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent. The majority notes that unlike in stash house cases
such as United States v. Cortes, 757 F.3d 850 (9th Cir. 2013), a defendant in a
straightforward purchase-and-sale case such as this must show that he lacked both
the intent and the capacity to deal in the amount of drugs charged. See, e.g., United
States v. Mejia, 559 F.3d 1113, 1118 (9th Cir. 2009). Because, in my view, there is
no evidence in the record to suggest that Roque lacked the capacity to supply the
quantity of drugs with which he was charged, I would uphold his conviction.
This case is unlike United States v. Naranjo, 52 F.3d 245 (9th Cir. 1995), a
purchase-and-sale case in which the record contained evidence that but for the
government’s involvement, the defendant would have lacked the resources to
consummate the charged transaction. In Naranjo, after the defendant told an
undercover DEA agent that he lacked the money to buy the five kilograms of
cocaine the agent wanted to sell, the DEA “structur[ed] the transaction on
unusually favorable financial terms,” fronting the defendant four of the five
kilograms and offering to buy back three or four of them. Id. at 251. This evidence,
the court concluded, “strongly suggest[ed]” that the defendant lacked the resources
to engage in a five-kilogram cocaine transaction. Id. In this case, by contrast, there
was no evidence that the government artificially enhanced Roque’s capacity to deal
in the charged quantity of drugs. To the contrary, there is some evidence that
Roque had the capacity to supply an even greater amount than was charged.
It is true that the evidentiary standard governing whether a jury instruction
must be given is lenient. Still, it requires Roque to present “some
evidence”–however meager–to satisfy each element of the sentencing entrapment
defense. While I agree that the evidence to which the majority refers could
arguably persuade a jury that Roque lacked the intent to supply the charged
quantity of drugs, I do not view it as raising any inference that he lacked the
capacity to do so.