United States v. Juan Velasquez-Lopez

FILED
NOT FOR PUBLICATION FEB 22 2013
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. 11-10130
Plaintiff - Appellee, D.C. No. 2:09-cr-01145-GMS-8
v.
MEMORANDUM *
JUAN JOSE VELASQUEZ-LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted February 13, 2013 **
San Francisco, California
Before: FARRIS, THOMAS, and N.R. SMITH, Circuit Judges.
Juan Jose Velasquez-Lopez appeals his convictions for Conspiracy to
Possess with Intent to Distribute five kilograms or more of cocaine in violation of
21 U.S.C. §§ 846 , 841(a)(1), and 841(b)(1)(A)(ii) and Possession of a Firearm in
*
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).
Furtherance of a Drug Trafficking Offense in violation of 18 U.S.C. § 924(c).
Velasquez-Lopez was arrested during a sting operation intended to catch criminals
involved in home invasion robberies in which he and others were recruited to steal
large quantities of cocaine from a fictional stash house.
Prior to trial, Velasquez-Lopez joined in his codefendant’s motion to dismiss
his indictment because of outrageous government conduct. The district court
denied the motion. A jury convicted Velasquez-Lopez of both counts as charged.
At sentencing, the court accepted the government’s recommendation to reduce the
base offense level recommended by the United States Probation Office’s
presentence report for Velasquez-Lopez to reflect a cocaine amount of five-to-
fifteen kilograms. The court denied Velasquez-Lopez’s sentencing entrapment
claim and sentenced him to 120 months’ imprisonment for Conspiracy to Possess
with Intent to Distribute cocaine with a consecutive sixty-month sentence for
Possession of a Firearm in Furtherance of a Drug Trafficking Offense. The court
also ordered concurrent terms of five-years’ supervised release for each count and
forfeited his interest in his handguns. We have jurisdiction pursuant to 28 U.S.C. §
1291. We affirm.
We review de novo the district court’s denial of a motion to dismiss for
outrageous government conduct. United States v. Gurolla, 333 F.3d 944, 950 (9th
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Cir. 2003). “[W]e view the evidence in the light most favorable to the government
and we accept the district court's factual findings unless they are clearly
erroneous.” Id. The district court correctly found that the government’s conduct
was not outrageous. The government did not concoct, direct, and supervise
Velasquez-Lopez’s crime from start to finish. See id. The government knew that
there was an epidemic of violent home invasions occurring in the Phoenix area.
Responding to that epidemic, the government formulated the instant scheme to
ferret out criminals involved in such invasions. Pursuant to that scheme, a
confidential informant introduced a government agent to two individuals who, the
agent was told, were involved in home invasion robberies.
Those two individuals, not the agent, then recruited others (including
Velasquez-Lopez) to execute a home invasion robbery. Based on representations
made to him by and about the individuals recruited to conduct the robbery, the
agent had a reasonable basis for concluding that he was dealing with persons who
had robbed homes before. Thus, even without the government agent,
Velasquez-Lopez and other recruits could have carried out the proposed home
robbery. That the government agent provided an opportunity for such individuals
to engage in criminal activity similar to what he believed they had done before
does not shock "the universal sense of justice mandated by the Due Process Clause
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of the Fifth Amendment." Id. at 950; see also United States v. Bonanno, 852 F.2d
434, 437-38 (9th Cir. 1988).
Velasquez-Lopez also argues that the district court should have dismissed
the indictment on the basis of outrageous government conduct pursuant to its
inherent supervisory powers. See United States v. Ramirez, 710 F.2d 535, 541 (9th
Cir. 1983). We review the district court’s decision not to use this power for an
abuse of discretion. Id. However, he did not raise this issue before the district
court. United States v. Oregon, 769 F.2d 1410, 1414 (9th Cir. 1985) ("The rule is
well-established that absent exceptional circumstances, an issue not raised below
will not be considered on appeal."). Therefore, we will not consider it on appeal.
Velasquez-Lopez also argues that his sentence was impermissibly
lengthened through sentencing entrapment. “We review de novo a district court's
interpretation and application of the Sentencing Guidelines, and we review its
sentencing phase factual findings for clear error.” United States v. Schafer, 625
F.3d 629, 639 (9th Cir. 2010). The district court’s determination that the
government did not engage in “sentencing entrapment” was not error. “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
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making a sentencing entrapment claim, the burden is on the defendant to
demonstrate both the lack of intent . . . and the lack of the capability to [engage in a
criminal transaction involving] the quantity of drugs at issue.” United States v.
Naranjo, 52 F.3d 245, 250 n.13 (9th Cir. 1995). The district court did not err in
finding that Velasquez-Lopez did not meet his burden of proving that he lacked the
intent or means to conspire to rob a stash house. Additionally, the district court
already departed downward from the sentencing range, giving Velasquez-Lopez
the equivalent of the sentencing entrapment remedy, so any error that may have
occurred in the district court’s sentencing entrapment analysis was harmless. See
United States v. Parilla, 114 F.3d 124, 127 (9th Cir. 1997).
AFFIRMED.
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