United States v. Juan Munoz , 455 F. App'x 772 ( 2011 )


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  •                                                                             FILED
    NOT FOR PUBLICATION                               OCT 27 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 10-10401
    Plaintiff - Appellee,              D.C. No. 2:09-cr-784-PHX-FJM
    v.                                             MEMORANDUM *
    JUAN VICTOR MUNOZ,
    Defendant- Appellant.
    Appeal from the United States District Court
    for the District Court for Arizona
    Frederick J. Martone, District Judge, Presiding
    Argued and Submitted October 11, 2011
    San Francisco, California
    Before: WALLACE and THOMAS, Circuit Judges, and ALBRITTON, Senior
    District Judge.**
    Juan Munoz (“Munoz”) appeals his jury conviction and 180 month sentence
    for conspiracy to possess with intent to distribute 500 grams or more of cocaine, in
    violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(ii); possession of a
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable William H. Albritton, III, Senior District Judge for the
    U.S. District Court for Middle Alabama, sitting by designation.
    firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924
    (c); and being a felon in possession of a firearm, in violation of 18 U.S.C. §§
    922(g)(1) and 924 (a)(2).
    Munoz argues that the district court should have ordered specific
    performance of his plea agreement, the district court erred in giving an aiding and
    abetting jury instruction which Munoz contends allowed the jury to find Munoz
    guilty of possession of a firearm even if the government failed to show that Munoz
    committed or aided and abetted the offense, and the district court erred in failing to
    find sentencing entrapment. Because the history and facts of the case are familiar
    to the parties, we need not recount them here.
    Munoz relies on principles of contract law to argue that he entered into a
    valid plea agreement with the government which should have been enforced by the
    district court. Munoz contends that the plea agreement, although not accepted by
    the district court, must be enforced under an exception to the general rule that
    “neither the defendant nor the government is bound by a plea agreement until it is
    approved by the court.” United States v. Savage, 
    978 F.2d 1136
    , 1138 (9th Cir.
    1992).
    We review de novo whether the district court is required to enforce a plea
    agreement. United States v. Fagan, 
    996 F.2d 1009
    , 1013 (9th Cir. 1992). Munoz
    -2-
    argues that specific enforcement is available because he detrimentally relied on the
    plea agreement. See 
    Savage, 978 F.2d at 1138
    . Munoz has not established
    detrimental reliance. Munoz did not plead guilty, but instead proceeded to trial,
    and there is no evidence in the record that Munoz provided information or any
    other benefit to the government based on the plea agreement. See 
    id. We also
    reject Munoz’s challenge to the aiding and abetting jury charge in
    this case. Generally, in reviewing jury charges, we consider whether the
    instructions as a whole are misleading or inadequate to guide the jury’s
    deliberations. See United States v. Chang Da Liu, 
    538 F.3d 1078
    , 1088 (9th Cir.
    2008). Because Munoz did not object at trial to the jury charge he now
    challenges, we review the instruction for plain error. United States v. Alghazouli,
    
    517 F.3d 1179
    , 1188 (9th Cir.), cert. denied, _ U.S. _, 
    129 S. Ct. 237
    (2008). A
    finding of plain error requires a defendant to show (1) that there was error, (2) that
    the error was plain, and (3) that the error affected his substantial rights. 
    Id. Even if
    all three elements are shown, a conviction should be reversed “only if the error
    seriously affects the fairness, integrity, or public reputation of judicial
    proceedings.” 
    Id. (citation omitted).
    The jury in this case was instructed that it could find the defendant guilty of
    the crime of possession of a firearm in furtherance of a drug trafficking offense
    -3-
    even if the defendant did not personally commit the acts constituting the crime, if a
    person possessed firearms in furtherance of the crime of possession with intent to
    distribute cocaine, and the defendant knowingly and intentionally aided, counseled,
    commanded, induced, or procured that person to commit possession of a firearm in
    furtherance of a drug-trafficking crime. Therefore, when taken in the context of
    the entire charge, there was no plain error in the aiding and abetting charge
    challenged by Munoz.
    Finally, we reject Munoz’s argument based on sentencing entrapment.
    We review de novo a district court's interpretation and application of the
    Sentencing Guidelines, and review sentencing phase factual findings for clear
    error. United States v. Naranjo, 
    52 F.3d 245
    , 248 (9th Cir. 1995).
    To establish sentencing entrapment, a defendant must prove that he had
    neither the intent nor the resources to complete the transaction for the amount
    involved. See 
    Naranjo, 52 F.3d at 250
    & n.13.
    During the sentencing hearing, the district court found, based on Munoz’s
    role in the offense and criminal history, that Munoz had the intent to commit the
    offense in the amount involved. There is no clear error in that factual finding. The
    district court’s rejection of sentencing entrapment was, therefore, a correct
    application of the advisory Sentencing Guidelines.
    -4-
    Accordingly, the district court’s denial of specific performance of the plea
    agreement, and Munoz’s conviction and sentence are AFFIRMED.
    Appellant’s motion to strike Rule 28 (j) Letter is denied as moot.
    -5-
    

Document Info

Docket Number: 10-10401

Citation Numbers: 455 F. App'x 772

Judges: Wallace, Thomas, Albritton

Filed Date: 10/27/2011

Precedential Status: Non-Precedential

Modified Date: 10/19/2024