Jеremy Holmes appeals his jury conviction and the trial court’s 1 120-month sentence for distribution of less than one gram of lysergic acid diethylamide (LSD) under 21 U.S.C. § 841(a)(1) (1988), conspiracy to distribute LSD under 21 U.S.C. § 846 (1988), and distribution of more than one gram of LSD within 100 feet of a video arcade facility under 21 U.S.C. § 860 (Supp. III 1991). Holmes argues that (1) the trial court imprоperly denied his motion for acquittal based on entrapment as a matter of law, (2) there was insufficient evidence for the jury to conclude that he was predisposed to distribute LSD, (3) the trial court improperly applied the Federal Sentencing Guidelines (Guidelines), and (4) the trial court failed to depart undеr the Guidelines. We affirm Holmes’ conviction and sentence, but remand so that the district court may consider whether to reduce Holmes’ sentence pursuant to a recent amendment to the Guidelines concerning the method for determining the weight of LSD and its carrier medium.
I. BACKGROUND
The facts in this case are disputed. Because Holmes’ first two claims
2
challenge the denial of a motion for acquittal and the sufficiency of the evidence, respectively, we necessarily must resolve the factual disputes in the government’s favor.
See United States v. Pardue,
Following this first sale of LSD, Holmes informed Brown that he had more LSD to sell if Brown could locate another buyer. Brown informed Deputy Ed Van Burén of the Douglas County Sheriffs Department that he was with an individual who had LSD to sell. Holmes spoke with Deputy Van Bu-rén over the telephone and negotiated a $600 sale price for a sheet of blotter paper with 200 hits of LSD. Holmes directed Deputy Van Burén to go to the Family Fun Center in Omaha, Nebraska, to complete the sale. Holmes discussed the quality of the LSD purchased by Van Burén, quotеd a price for a future sale of marijuana, completed the sale outside of the Family Fun Center, and told Deputy Van Burén to call him at home regarding any future narcotics transactions.
Lisa Barbato, the government’s chemist at trial, testified that she tested two separate sheets of blotter'paper corresponding to the two drug transactions. Both sheets were perforated and subdivided into individual squares with a rose imprint on each individual square. The first sample had 13 squares; the second sample had 200 squares. Each individual square represented one dose or “hit” of LSD. Barbato testified that she tested 3.5 individual squarеs from each sample and determined that each sample contained LSD. Barbato also spot tested an additional .5 squares from both the 13 and 200 square samples. These spot tests also indicated the presence of LSD. Barbato weighed the samples, including the weight of the blotter paper, аnd estimated the weight of the samples to be 84.5 milligrams for the 13-square sample and 1.2 grams for the 200-square sample. In response to the trial court’s inquiry whether she chose the individual test squares at random or from one side, Barbato testified that she chose the test squares from one side of the larger sheets.
II. DISCUSSION
Holmes raises several issues on appeal. First, he argues that the trial court erred in denying his motion for judgment of acquittal based on entrapment as a matter of law. Second, Holmes claims that there was insufficient evidence for a jury to conclude that he was predisposed to commit the crimes. Third, Holmes сhallenges the trial court’s application of the Guidelines as to the weight of the LSD. Finally, Holmes challenges the trial court’s failure to depart downward under the Guidelines because of the government’s outrageous conduct. We discuss these claims in turn.
A. Entrapment as a Matter of Law
Holmes argues that Brown, the government’s agent, enticed and urged him to sell LSD and implanted the disposition to commit the offense into his innocent mind. Holmes claims that he finally committed the crimes at Brown’s urging. Holmes concludes, therefore, that “[t]he defense presented sufficient evidence at trial to show entrapment as a matter of law,” Appellant’s Br. at 25, and the triаl court erred “[b]y relying only on the prosecution’s evidence and discounting the defense’s evidence,”
id.
Holmes also relies on the Supreme Court’s decision in
United States v. Jacobson
to support his “entrapment as a matter of law” claim.
See
— U.S. -,
*1220
“In reviewing the trial court’s ruling on the motion for acquittal, this court must view the evidence in the light most favorable to the government.”
Pardue,
Viewing the evidence in the light most favorable to the government, we conclude that the trial court properly denied Holmes’ motion because there was sufficient evidence for a jury to conclude that the government did not entrap Holmes.
See Pardue,
Further, Holmes’ reliance on
Jacobson
is misplaced. In
Jacobson,
the undisputed evidence demonstrated that the government had attempted to induce the defendant for ovеr twenty-six months to buy obscene literature through repeated mailings and contacts from government agents and fictitious organizations. — U.S. at -,
an agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell drugs, and, if the offer is accepted, make an arrest on the spot or later. In such a typical case ... the entrapment defense is of little use because the ready commission of the criminal act amply demonstrates the defendant’s predisposition.
Id. (emphasis added). The evidence in Holmes’ case is even more compelling than in the typical case discussed in Jacobson because the government presented evidenсe that Holmes, not the government, initiated the contact regarding the sale of the LSD. Cf. id.; tr. at 258. We conclude that the evidence, viewed in a light most favorable to the government, supports the trial court’s denial of Holmes’ motion for acquittal based on entrapment as a matter of law.
B. Insufficient Evidence of Predisposition
Holmes argues thаt there was insufficient evidence for a reasonable jury to conclude that he was predisposed to sell LSD. In reviewing the sufficiency of the evidence, we look at the evidence in the light most favorable to the verdict.
United States v. Madkins,
The affirmative defense of entrapment has two elements: government inducement of the crime and a defendant’s lack of predisposition to engage in the criminal conduct.
United States v. Van Slyke,
We assume, arguendo, that Holmes presented sufficient evidence of inducement to require the governmеnt to prove predisposition. 3 We conclude, however, that there was sufficient evidence for a jury to conclude beyond a reasonable doubt that Holmes was predisposed to sell LSD before any government agent contacted him. The government presented evidence that Holmes (1) initiаted the plan to sell drugs and secured the help of Brown to locate customers, tr. at 258, (2) negotiated the price for the first sale of LSD, id. at 107-08, (3) demonstrated knowledge of the jargon involved in sale of LSD and marijuana, id. at 63-65, and (4) used LSD once a month and used marijuana regularly, id. at 520. We conclude that the jury had sufficiеnt evidence to conclude beyond a reasonable doubt that Holmes was predisposed to seh LSD.
C. Application of Sentencing Guidelines to Weight of LSD
Holmes argues that the trial court twice erred in applying the Guidelines to determine the weight of the LSD seized. First, Holmes argues that the trial court improperly included the weight of the blotter paper in dеtermining the total weight of the LSD seized, and second, the trial court had insufficient evidence to support a finding that all of the 213 “hits” recovered contained LSD.
Holmes’ argument regarding exclusion of the weight of the blotter paper is without merit. In
Chapman v. United States,
the Supreme Court held that 21 U.S.C. § 841 “requires the weight of the carrier medium to be inсluded when determining the appropriate sentence for trafficking in LSD.”
Holmes also argues that there was insufficient evidence regarding the weight of the LSD because Barbato, the government’s chemist, did not test all 213 squares. Holmes argues that, as to the remaining 205 untested squares, there was insufficient evidence to conclude that they also contained LSD. Holmes bolsters his argument by noting that Barbato testified that she piсked the test squares from one side. Tr. at 251. 4
At sentencing, “[t]he court must determine, by a preponderance of the evidence, the quantity of drugs involved.”
United States v. Johnson,
The trial court concluded at sentencing that the government had produced sufficient evidence to conclude that all of the squares contained LSD. 5 Although Barbato declined *1222 to characterize her selection as random, we fail to see any meaningful distinction between choosing test squares at random and choosing test squares from “one end” or “another end.” The evidence indicated that Barbato tested 3.5 squares of the 13 sold to Agent Freyermuth, and 3.5 squares of the 200 sold to Deputy Van Burén. The two batches of test squares were torn from thе larger perforated sheets and each of the test squares tested positive for LSD. The test squares were imprinted with a rose design and were identical in appearance to the untested squares. Barbato’s spot testing of an additional .5 squares from each sample also indicated the presence of LSD. We cannot say that the trial court’s factual conclusion that all of the test squares contained LSD was clearly erroneous.
Effective November 1, 1993, after the district court sentenced Holmes, U.S.S.G. § 2Dl.l(c) now provides that the district court should treat each dose of LSD as weighing 0.4 milligrams.
See id.
App. C, Amendmеnt 488. Applying this newly-adopted provision to Holmes’ 213 doses would result in a total weight of .0852 grams. This lower weight would make him eligible for a shorter prison term. The district court has discretion to apply Amendment 488 retroactively. Therefore, we remand the case to the district court in order to allow that court to consider, in the exercise of its discretion, whether it should apply Amendment 488 retroactively to reduce Holmes’ sentence.
See United States v. Coohey,
D. Failure to Depart Downward
Holmes argues that the trial court improperly failed to depart downward because of the government’s outrageous eon-duct of selecting a protected locatiоn as the site of the second drug transaction.
6
See
18 U.S.C. § 3553(b) (1988); U.S.S.G. § 5K2.0. The trial court was aware that he could depart downward,
7
and therefore, we cannot review his refusal to depart downward.
See United States v. Evidente,
III. CONCLUSION
Accordingly, we affirm the conviction and sentence, but we remand to the district court to consider whether Amendment 488 should apply retroactively to reduce Holmes’ sentence.
Notes
. The Honorable Lyle E. Strom, Chief Judge, United States District Court for the District of Nebraska.
. The factual disputеs do not effect the resolution of Holmes’ other claims.
. Holmes presented evidence that Brown, the government’s agent, had initiated the sales of LSD and had induced Holmes to participate. Tr. at 503-06.
. The trial court questioned Barbato as follows:
THE COURT: ... When you test, for example, for LSD, like this, the squares that you use, do you pick those at random from the full 200 or thе 13, or do you pick three at one end or three at another end?
[BARBATO]: I pick three at one end.
THE COURT: That was true with respect to both instances?
[BARBATO]: That’s correct.
Tr. at 250-51.
.At the sentencing hearing, the trial court stated:
They were all part of one sheet of paper, and one or two were tested, as I recall, on each sheet of paper, and it seems to me that it's very fair to presume under those circumstances that by a preрonderance of the evidence it’s established that all of it was LSD.
Tr. at 629.
. Section 2D 1.2(a)(1) provides that the trial court add two levels to the base offense level if the sale of narcotics "involv[es] a protected location.” It is undisputed that § 2D 1.2(a)(1) applies to the second drug transaction because the Family Fun Center is a protected location. See 21 U.S.C. § 860(a). Holmes apparently abandoned his claim that the trial court improperly applied § 2D 1.2(a)(1). See Appellant’s Reply Br. at 14 ("Although Holmes was not aware that the Family Fun Center was a protected location, that is not the argument being presented by Hоlmes.”). Nevertheless, the trial court properly applied § 2D 1.2(a)(1).
. At the sentencing hearing, the trial court stated: "I have carefully reviewed the brief submitted by [Holmes'] counsel in support of your motion for downward departure. Having considered the factors in there, and having in mind the evidence that was adduced at trial, the court finds that there are no valid reasons in this case for downward departure." Tr. at 649.