United States v. Fabel Roque
670 F. App'x 625
| 9th Cir. | 2016Background
- Roque was convicted of distributing more than 50 grams of methamphetamine under 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii) and sentenced to 121 months (mandatory minimum 10 years).
- At trial evidence showed Roque earlier offered a smaller, unspecified quantity that the informant rejected and also offered to connect the informant with a distributor rather than directly supply the drugs.
- Roque requested a jury instruction on sentencing entrapment and moved for acquittal on the basis of sentencing entrapment; the district court denied both.
- Roque appealed the denial of the jury instruction and the acquittal motion; the Ninth Circuit reviewed the instruction de novo (and for abuse of discretion as to factual basis).
- The majority concluded there was “some foundation” in the evidence that the government set the charged quantity higher to increase punishment and that sentencing entrapment was therefore a jury question. The court reversed and remanded.
- A dissent argued the record lacked evidence that Roque lacked the capacity to supply the charged quantity, distinguishing prior purchase-and-sale entrapment precedents.
Issues
| Issue | Plaintiff's Argument (Roque) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Roque was entitled to a sentencing-entrapment jury instruction | Some evidence showed government pushed a larger quantity after a smaller offer was rejected; jury could find entrapment that would reduce statutory range | No adequate evidence that government increased quantity to manufacture a higher sentence or that Roque lacked capacity/intent for lesser quantity | Reversed: instruction should have been given because there was some foundation in the evidence |
| Whether Roque should have been acquitted for sentencing entrapment | Entaplement could negate responsibility for the charged quantity, warranting acquittal | Trial evidence showed capacity/intent for charged amount; no acquittal warranted | Not reached on merits because reversal on instruction requires remand |
Key Cases Cited
- United States v. Cortes, 757 F.3d 850 (9th Cir. 2013) (explains sentencing-entrapment as jury question and standard for instruction)
- United States v. Yuman-Hernandez, 712 F.3d 471 (9th Cir. 2013) (discusses intent/capacity distinctions in entrapment contexts)
- United States v. Mejia, 559 F.3d 1113 (9th Cir. 2009) (purchase-and-sale cases require proof defendant lacked intent and capacity for charged quantity)
- United States v. Naranjo, 52 F.3d 245 (9th Cir. 1995) (purchase-and-sale sentencing entrapment where government materially enhanced defendant’s ability to complete transaction)