FILED
NOT FOR PUBLICATION APR 25 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50577
Plaintiff - Appellant, D.C. No. 3:02-cr-03171-IEG-1
v.
MEMORANDUM*
DAVID DWIGHT WILLIAMS,
Defendant - Appellee.
UNITED STATES OF AMERICA, No. 10-50578
Plaintiff - Appellee, D.C. No. 3:02-cr-03171-IEG-1
v.
DAVID DWIGHT WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Argued and Submitted April 11, 2012
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
-2-
Before: FERNANDEZ and SILVERMAN, Circuit Judges, and BLOCK, Senior
District Judge.**
Defendant David Williams was charged with, inter alia, conspiracy to
possess with intent to distribute five kilograms or more of cocaine in violation of
21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. He requested a jury instruction on
sentencing entrapment, but the district court declined to give his requested
instruction, holding that sentencing entrapment was a question for the sentencing
judge, not the jury. Williams then entered a conditional guilty plea in which, inter
alia, Williams: (1) pled guilty to a drug trafficking conspiracy involving one
hundred kilograms of cocaine; (2) reserved his right to present his sentencing
entrapment defense to the district court at sentencing; and (3) reserved his right to
appeal the denial of his requested jury instruction. At sentencing, the district court
found that Williams had been the victim of sentencing entrapment, justifying a
sentence below the ten-year statutory mandatory minimum for a § 841 violation
involving five kilograms or more of cocaine. See 21 U.S.C. § 841(b)(1)(A)(ii).
The district court sentenced Williams to five years on the § 841 count, for a total
sentence of ten years. The government now appeals Williams’s sentence which
**
The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
-3-
was below the mandatory minimum, and Williams conditionally cross-appeals the
refusal to give a jury instruction on sentencing entrapment.
We affirm. In his written plea agreement and in the plea colloquy, Williams
reserved his right to assert sentencing entrapment at sentencing. We see no reason
why the parties could not agree that Williams’s guilty plea would be contingent on
his ability to raise sentencing entrapment at sentencing. The district court accepted
the agreement with that reservation and, ultimately, acted upon it. Moreover, the
government’s agreements should be enforced. See Santobello v. New York, 404
U.S. 257, 262 (1971); United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir.
2002); cf. United States v. Briggs, 623 F.3d 724, 727, 730 (9th Cir. 2010).
We cannot now disregard that principle and declare that for purposes of his
plea Williams agreed to the one hundred kilograms of cocaine, if he could argue at
sentencing that it was due to sentencing entrapment, but he is bound to the first
part of the agreement and is not entitled to enforce the second part. That result
would be anoetic.
The government also challenges the district court’s finding that Williams
was in fact subjected to sentencing entrapment. We disagree. The district court
did not clearly err in finding that the government structured the sting operation in
such a way as to maximize the sentence imposed upon Williams without regard for
-4-
his culpability or ability to commit the crime on his own. See United States
Schafer, 625 F.3d 629, 639–640 (9th Cir. 2010).
Because we affirm Williams’s sentence in the government’s appeal, we need
not, and do not, reach Williams’s conditional cross appeal.
AFFIRMED.
FILED
USA v Willams 10-50577+ APR 25 2012
MOLLY C. DWYER, CLERK
SILVERMAN, Circuit Judge, dissenting: U.S. COURT OF APPEALS
As I see it, Williams’s guilty plea — in which he specifically admitted that
his crime involved more than five kilograms of cocaine — triggered the ten-year
statutory mandatory minimum without further ado. See 21 U.S.C.
§ 841(b)(1)(A)(ii). Since such a sentence is, indeed, mandatory, the parties could
not legally stipulate to a procedure allowing the sentencing judge to go below the
mandatory minimum. See United States v. Haynes, 216 F.3d 789, 799 & n.8 (9th
Cir. 2000). If Williams wanted to preserve his argument that he had been
entrapped as far as the quantity of drugs was concerned, he should not have pled
guilty to the drug quantity charged in the indictment. Once he did so, his goose
was cooked. See United States v. Briggs, 623 F.3d 724, 730 (9th Cir. 2010).
If Williams was misled to enter his plea under the mistaken impression that
he could both plead guilty to a crime involving one hundred kilograms of cocaine
and also claim sentencing entrapment before the sentencing judge, his remedy
would be to withdraw his plea. But that’s not what he seeks to do.
Turning to Williams’s conditional cross appeal of the denial of his requested
-2-
jury instruction, we have held that drug types and quantities triggering higher
statutory maximum sentences under 21 U.S.C. § 841(b) are jury questions under
Apprendi v. New Jersey, 530 U.S. 466 (2000). See United States v. Buckland, 289
F.3d 558, 568 (9th Cir. 2002) (en banc). So too are defenses to those drug types
and quantities. See United States v. Escobar de Bright, 742 F.2d 1196, 1201–02
(9th Cir. 1984); Jacobson v. United States, 503 U.S. 540, 548–49 (1992). Thus,
the district court erred in holding that Williams could not try to a jury his defense
that he was entrapped as to the drug quantity.
I would reverse Williams’s conviction and sentence and remand the case for
trial.