Opinion
No. 06-30491.
Argued and Submitted June 7, 2007.
Filed June 13, 2007.
James E. Seykora, Esq., USBI — Office of the U.S. Attorney, Billings, MT, for Plaintiff-Appellee.
Bryan Norcross, Esq., Helena, MT, for Defendant-Appellant.
Appeal from the United States District Court for the District of Montana, Richard F. Cebull, District Judge, Presiding. D.C. No. CR-05-00133-RFC.
Before: B. FLETCHER, PREGERSON, and IKUTA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appellant Willie Allen asserts that the district court erred in determining that the government did not engage in sentencing entrapment when it made multiple drug purchases from him, thereby increasing his sentence. We find that the district court did not err and now affirm.
"Sentencing entrapment or `sentence factor manipulation' occurs when `a defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment.'" United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994) (quoting United States v. Stuart, 923 F.2d 607, 614 (8th Cir. 1991)). Criminal defendants bear the burden of proving that they were predisposed only to commit a lesser crime. United States v. Ramirez-Rangel, 103 F.3d 1501, 1508 (9th Cir. 1997). In the instant case, appellant never argues, much less proves, that he was not predisposed to sell the quantity of drugs for which he was convicted. This, alone, is sufficient to defeat his claim.
Appellant argues only that the government intended to increase his sentence by making multiple drug purchases instead of immediately arresting him. However, the government maintains, and the district court agreed, that the continued purchases were motivated by a desire to locate appellant's out-of-state supplier. Appellant concedes that we must review this finding for clear error, but fails to direct the court towards any evidence that would undermine the district court's decision. Consequently, appellant has failed to show that the district court clearly erred in finding that the government acted appropriately. For the reasons articulated herein, we