FILED
NOT FOR PUBLICATION APR 04 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10154
Plaintiff - Appellee, D.C. No. 4:09-cr-00905-DCB-
JJM-1
v.
DAVID ALEJO MARTINEZ- MEMORANDUM*
GRIJALVA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted March 14, 2012
Berkeley, California
Before: NOONAN, McKEOWN, and M. SMITH, Circuit Judges.
David Alejo Martinez-Grijalva appeals his sentence based on his jury
conviction for conspiracy to possess with intent to distribute 100 kilograms of
cocaine and possession with intent to distribute one kilogram of cocaine. Because
the parties are familiar with the factual and procedural history of this case, we
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
repeat only those facts necessary to resolve the issues raised on appeal. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate his sentence and remand
to the district court for resentencing.
Martinez-Grijalva raises a claim of sentencing entrapment, citing U.S.S.G.
§ 2D1.1 Application Note 12 (“Note 12”). Although he argued the substance of
Note 12 before the district court—i.e., that the quantities discussed were “puffing”
and that the issue of “capacity or ability to truly deliver on what they promised, is
something that the court ought to take into account in determining sentence”—he
failed to cite to or object under Note 12. The government claims that Martinez-
Grijalva’s arguments were insufficient to preserve this claim. Nonetheless, even if
it is forfeited, we review for plain error. Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 732 (1993) (plain error standard permits an appellate court to
reverse if there was (a) an error, (b) that was plain, and (c) that affected substantial
rights).
“Sentencing entrapment or ‘sentence factor manipulation’ occurs when ‘a
defendant, although predisposed to commit a minor or lesser offense, is entrapped
in[to] committing a greater offense subject to greater punishment.” United States
v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994). When sentencing entrapment
occurs, “the amount of drugs used in calculating the defendant’s sentence should
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be reduced by the amount that ‘flows from the entrapment.’” United States v.
Briggs, 623 F.3d 724, 729 (9th Cir. 2010). Under Note 12, if a defendant makes a
proper showing that he “was not reasonably capable of providing . . . the
agreed-upon quantity,” the court must exclude the quantity that he establishes he
was not reasonably capable of providing. U.S.S.G. § 2D1.1 App. n.12. Finally,
under our circuit precedent, “Application Notes 12 and 17 [now incorporated into
Note 12] clearly require the district court to determine whether sentencing
entrapment has occurred. Under Note 12, the district court ‘shall exclude’ from the
calculation the amount of drugs which flow from sentencing entrapment.” United
States v. Naranjo, 52 F.3d 245, 250 (9th Cir. 1995).
At sentencing, the district court rejected arguments relating to sentencing
entrapment because it concluded that any relief would require the court to
invalidate the jury’s verdict. That conclusion was erroneous, at odds with our
precedent, and affected Martinez-Grijalva’s substantial rights. The ultimate
determination of sentencing entrapment is within the province of the sentencing
judge, and the mere fact of conviction does not trump this obligation. Under
Naranjo, Martinez-Grijalva’s inability to produce 100 kilograms of
cocaine—instead producing two kilograms of cocaine and fifty-nine kilograms of
building plaster—raises a significant issue. We vacate Martinez-Grijalva’s
3
sentence and remand for resentencing. We take no position on whether relief
should be granted, and, on remand, Grajeda-Encinas has the burden of proving
sentencing entrapment by a preponderance of the evidence. Naranjo, 52 F.3d at
250.
REVERSED AND REMANDED.
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