United States v. Jesus Velasquez-Lopez

FILED
NOT FOR PUBLICATION DEC 10 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10125
Plaintiff - Appellee, D.C. No. 2:09-cr-01145-GMS-2
v.
MEMORANDUM*
JESUS VELASQUEZ-LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted December 8, 2014**
San Francisco, California
Before: O’SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges.
Jesus Velasquez-Lopez was convicted of conspiring to possess with intent to
distribute five kilograms or more of cocaine and possession of a firearm in furtherance
of a drug trafficking offense. Velasquez-Lopez timely appealed, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1. Because the government’s alleged conduct in the reverse sting operation was
not “so grossly shocking as to violate the universal sense of justice,” Velasquez-Lopez
failed to meet the extremely high standard required to secure the dismissal of his
indictment. United States v. Bonanno, 852 F.2d 434, 437 (9th Cir. 1988); see United
States v. Black, 733 F.3d 294, 310 (9th Cir. 2013), cert. denied sub nom. Mahon v.
United States, 135 S. Ct. 266 (2014). The government did not recruit Velasquez-
Lopez, nor did the government engineer and direct the criminal enterprise from start
to finish. See Black, 733 F.3d at 306-07; United States v. Fernandez, 388 F.3d 1199,
1238-40 (9th Cir. 2004).
2. The district court did not plainly err in declining to exercise its supervisory
powers to dismiss the indictment. See Black, 733 F.3d at 310 n.12.
3. Velasquez-Lopez was not entrapped as a matter of law. Given the evidence in
the record, it is not “patently clear that [Velasquez-Lopez was] an otherwise innocent
person [who] was induced to commit the illegal act by trickery, persuasion, or fraud
of a government agent.” United States v. Smith, 802 F.2d 1119, 1124 (9th Cir. 1986).
Additionally, viewing the evidence in the light most favorable to the government,
there was sufficient evidence presented to support the jury’s verdict. See Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
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4. The district court did not commit clear error in finding that Velasquez-Lopez
failed to prove sentencing entrapment. See United States v. Schafer, 625 F.3d 629,
639-40 (9th Cir. 2010). “Sentencing entrapment occurs when a defendant is
predisposed to commit a lesser crime, but is entrapped by the government into
committing a crime subject to more severe punishment.” United States v. Mejia, 559
F.3d 1113, 1118 (9th Cir. 2009). In this case, the amount of drugs purported to be in
the stash house never changed, and Velasquez-Lopez voluntarily participated in the
crime for the purpose of making a profit. Further, upon a recommendation from the
government, the district court twice departed downward when sentencing
Velasquez-Lopez to avoid the potential argument of sentencing entrapment. See
United States v. Parrilla, 114 F.3d 124, 127 (9th Cir. 1997).
AFFIRMED.
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