United States v. Way , 103 F. App'x 716 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4845
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALAN LAVERTE WAY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CR-
02-210-DKC)
Submitted: June 30, 2004 Decided: July 14, 2004
Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher M. Davis, Mary E. Davis, DAVIS AND DAVIS, Washington,
D.C., for Appellant. Thomas M. DiBiagio, United States Attorney,
James M. Trusty, Donna C. Sanger, Assistant United States
Attorneys, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Alan Laverte Way appeals his jury convictions and 360-
month sentence for conspiring to murder (18 U.S.C. § 1117 (2000));
attempt to kill an officer of the United States government (18
U.S.C. § 1114 (2000)) and solicitation to commit a crime of
violence (18 U.S.C. § 373 (2000)). Way first contends that the
district court erred in denying his request for a jury instruction
on entrapment. We review a district court’s refusal to give an
entrapment instruction de novo. United States v. Phan, 121 F.3d
149, 154 (4th Cir. 1997). Way argues that the Government
excessively pressured him into the criminal endeavor because a
Government agent offered him money and a Government informant
provided him with the intended victim’s “home” address.
To be entitled to a requested jury instruction, the
defendant must establish a sufficient evidentiary foundation to
support the instruction. United States v. Lewis, 53 F.3d 29, 33
n.8 (4th Cir. 1995). “Entrapment is an affirmative defense, and
the defendant has the initial burden to ‘produce more than a
scintilla of evidence that the government induced him to commit the
charged offense’ before the burden shifts to the government to
prove beyond a reasonable doubt that the defendant was predisposed
to commit the crime.” United States v. Sligh, 142 F.3d 761, 762-63
(4th Cir. 1988) (internal citations omitted). “‘Inducement’ . . .
involves elements of governmental overreaching and conduct
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sufficiently excessive to implant a criminal design in the mind of
an otherwise innocent party. Solicitation, by contrast, is the
provision of an opportunity to commit a criminal act.” United
States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993).
We have reviewed the record and conclude that the
district court did not err in denying the request to instruct the
jury on entrapment because Way failed to show Government inducement
or his lack of predisposition to the crime based on his actions of
initiating the cellblock conversation that led to the conspiracy
and repeatedly contacting an undercover officer about implementing
the object of the conspiracy. See Lewis, 53 F.3d at 33 n.8.
Next, Way argues that the district court erroneously
denied his motion for downward departure based on the “imperfect
entrapment” theory. Where, as here, the district court was aware
of its authority to depart and declined to do so, the district
court’s refusal to depart is not reviewable on appeal. United
States v. Edwards, 188 F.3d 230, 238-39 (4th Cir. 1999).
Accordingly, we affirm Way’s convictions and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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