United States v. Miguel Machuca ( 2011 )

Case: 10-31273 Document: 00511578745 Page: 1 Date Filed: 08/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 22, 2011
No. 10-31273
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MIGUEL MACHUCA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:09-CR-321-1
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Miguel Machuca appeals the sentence imposed following his guilty plea
conviction for conspiracy to possess with intent to distribute 50 grams or more
of methamphetamine in violation of 21 U.S.C. § 846. He contends that the
district court plainly erred in failing to recognize that he was a victim of
sentencing entrapment. Because Machuca did not raise this issue in the district
court, we review for plain error. See United States v. Villegas, 404 F.3d 355, 358
(5th Cir. 2005).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 10-31273 Document: 00511578745 Page: 2 Date Filed: 08/22/2011
No. 10-31273
We have yet to decide whether sentencing entrapment is a viable defense.
United States v. Snow, 309 F.3d 294, 295 (5th Cir. 2002) (citing United States v.
Washington, 44 F.3d 1271, 1280 & n.28 (5th Cir. 1995)). Because the viability
of a sentencing entrapment defense remains unresolved in this circuit and other
circuits have reached divergent conclusions on this issue, Machuca cannot
demonstrate that the district court was derelict in failing to raise it sua sponte.
See United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010); United States v.
Salinas, 480 F.3d 750, 759 (5th Cir. 2007). Therefore, the alleged error is
neither clear nor obvious, and Machuca has failed to show plain error. See
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). Accordingly, the district
court’s judgment is AFFIRMED.
2