United States v. Edward Levine

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 26, 2018
• Docket: 18-10110
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 26 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10110

Plaintiff-Appellee, D.C. No. 2:14-cr-00127-GMN-VCF-1 v.

EDWARD N. LEVINE, AKA Edward MEMORANDUM* Nathan Levine,

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, Chief Judge, Presiding

Argued and Submitted November 13, 2018 San Francisco, California

Before: THOMAS, Chief Judge, GRABER, Circuit Judge, and KOBAYASHI,** District Judge.

Defendant Edward Levine appeals his conviction and sentence for violating

the Lacey Act and conspiring to violate the Lacey Act and the Endangered Species

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Leslie E. Kobayashi, United States District Judge for the District of Hawaii, sitting by designation. Act. Because the parties are familiar with the facts, we will not recount them here.

We have jurisdiction pursuant to 18 U.S.C. § 1291 and 18 U.S.C. § 3742, and we

affirm.

I

The district court properly concluded that Levine was not entitled to a

judgment of acquittal as a matter of law on the basis of entrapment. To prove

entrapment as a matter of law, “the defendant must point to undisputed evidence

making it patently clear that an otherwise innocent person 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). A jury’s finding that a

defendant was not entrapped will not be disturbed “unless, viewing the evidence in

the light most favorable to the government, no reasonable jury could have

concluded that the defendant was predisposed to commit the charged offenses.”

United States v. Mohamud, 843 F.3d 420, 432 (9th Cir. 2016) (internal quotation

marks and brackets omitted), cert. denied, 138 S. Ct. 636 (2018).

A careful review of the record establishes that a reasonable jury could

conclude Levine was either predisposed or not induced by the government to

commit the charged offense, and that the district court did not err in denying the

motion to acquit as a matter of law. Quan and Levine initially contacted the

2 government informant with an offer to purchase the rhinoceros horns and proposed

to meet the agent out of state. Quan and Levine were not reluctant sellers induced

by the government into committing a crime; on the contrary, they were motivated

to sell the horns, had opportunities to back out of the sale, and proposed various

alternatives that involved crossing state lines while negotiating the logistics of the

sale.

II

The district court did not abuse its discretion in imposing a ten-level

sentence enhancement based on the estimated value of the horns. See United

States v. Grissom, 525 F.3d 691, 696 (9th Cir. 2008) (reviewing the “application of

the Sentencing Guidelines to the facts of a case for abuse of discretion” (internal

quotation marks omitted)). The Guidelines instruct that “market value” is based on

the “fair-market retail price.” U.S.S.G. § 2Q2.1 cmt. n.4 (2018). “Where the fair-

market retail price is difficult to ascertain, the court may make a reasonable

estimate using any reliable information . . . .” Id.

The district court found that it was reasonable to use the Asian retail market

price of $20,000 to $29,000 per pound, based on the government’s evidence

including “various documentation provided by other well-known publications, as

well as the agent’s testimony.” In doing so, the district court was not limited to the

3 United States’ auction market, as Levine contends, but could reasonably rely on

evidence showing a relevant Asian market.

The district court reasonably estimated the weight and value of the horns,

using reliable information, and thus did not abuse its discretion in enhancing

Levine’s sentence. Although the government could have, and perhaps should have,

removed the horns from the mount for the purposes of weighing the horns, it was

not obligated to do so. The district court did not abuse its discretion in sentencing.

AFFIRMED.