United States v. Miguel Anthony Molina

550 F. App'x 790
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 20, 2013
Docket18-13321
StatusUnpublished
Cited by1 cases

This text of 550 F. App'x 790 (United States v. Miguel Anthony Molina) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Miguel Anthony Molina, 550 F. App'x 790 (11th Cir. 2013).

Opinion

PER CURIAM:

Miguel Anthony Molina appeals his convictions and sentences for possessing a firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), and distributing heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). On appeal, he argues that: (1) the government failed to present sufficient evidence to rebut beyond a reasonable doubt his defense of entrapment; and (2) the court erred in setting his offense level as an armed career criminal at 34, under U.S.S.G. § 4B1.4(b)(3)(A), based on its conclusion that he possessed a gun in connection with a drug offense. After careful review, we affirm.

We review challenges to the sufficiency of the evidence to rebut an entrapment defense de novo. United States v. Francis, 131 F.3d 1452, 1456 (11th Cir.1997). We are limited to determining whether the government presented sufficient evidence for a reasonable jury to conclude that the defendant was predisposed to take part in the crime. Id. A jury’s verdict cannot be overturned if any reasonable construction of the evidence would allow the jury to find the defendant guilty beyond a reasonable doubt. United States v. Brown, 43 F.3d 618, 622 (11th Cir.1995). On sufficiency review, we view all evidence and make all inferences in favor of the government and cannot overturn the verdict if any reasonable construction of the evidence would allow for a guilty verdict. Francis, 131 F.3d at 1456. As for Molina’s challenge to the court’s Sentencing Guidelines determination, we review the argument for plain error, because he did not object to this issue below. United States v. Barrington, 648 F.3d 1178, 1195 (11th Cir.2011), cert. denied, — U.S. —, 132 S.Ct. 1066, 181 L.Ed.2d 781 (2012). To establish plain error, a defendant must show: (1) there is error; (2) that is plain; and (3) affected his substantial rights; and if those three prongs are met, we have discretion to correct an error (4) that seriously affected the fairness, integrity or public reputation of judicial proceedings. United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005).

First, we are unpersuaded by Molina’s claim that the government presented insufficient evidence to rebut his entrapment defense. The elements of the affirmative defense of entrapment are: (1) government inducement of the crime; and (2) the defendant’s lack of predisposition to commit the crime before the inducement. United States v. Orisnord, 483 F.3d 1169, 1178 (11th Cir.2007). The defendant bears the initial burden of production on the first element and may meet this burden “by producing any evidence sufficient to raise a jury issue that the government’s conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it.” Id. (quotation omitted). Once the defendant meets this burden, the government must then prove beyond a reasonable doubt that the defendant was predisposed to commit the offense. Id.

The defendant’s burden of production to show government inducement is “light.” *792 Brown, 43 F.3d at 623. However, “the government’s mere suggestion of a crime or initiation of contact is not enough.” Id. Rather, inducement requires “an element of persuasion or mild coercion.” Id. We have also explained that “inducement consists of opportunity plus something like excessive pressure or manipulation of a non-criminal motive.” Id. The Supreme Court has said that, where a government agent simply provides a defendant with the opportunity to commit a crime and the defendant accepts, the entrapment defense “is of little use because the ready commission of the criminal act amply demonstrates the defendant’s predisposition.” Jacobson v. United States, 503 U.S. 540, 549-50, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992). It went on to note that, in a case like that, “it is unlikely that [an] entrapment defense would [] warrant[] a jury instruction.” Id. at 550, 112 S.Ct. 1535.

In Orisnord, the defendants argued that there was insufficient evidence of their predisposition to commit the charged offenses. 483 F.3d at 1177-78. We, however, did not reach the issue of predisposition because we determined that the defendants failed to meet their burden of production on the inducement element. Id. at 1178. Because nothing in the record demonstrated that the government had to “push” the scheme on the defendants or that any of the defendants expressed a refusal to participate, the defendants failed to meet their burden. Id.

Here, Molina failed to meet his burden of production that the government induced him to commit a criminal offense. The evidence of entrapment comes solely from Molina’s testimony. In support of the defense, he testified that he sold the undercover officer the gun only because the government’s confidential informant (“Cl”) wanted him to sell the gun. He also testified that the Cl explained that Molina had to sell the gun because the undercover would not purchase it from the Cl, who owed money to the undercover. However, beyond that explanation, Molina put forth no evidence that the Cl had to do anything more than ask him to sell the gun. While Molina put forth testimony that he had no interest in handling or dealing in guns, his claimed lack of a predisposition to deal in guns is irrelevant if he failed to meet his burden of production that the government induced him to sell the gun. See Orisnord, 483 F.3d at 1178. Thus, just as in Orisnord, because nothing in the record demonstrates that the government had to “push” or otherwise encourage Molina to possess the gun, albeit temporarily and for the sole purpose of selling it, and Molina put forth no evidence that he initially refused or was reluctant to sell the gun for the Cl, Molina failed to meet his burden of production even if we take his testimony at face value.

We are also unconvinced by Molina’s claim that the court plainly erred in setting his offense level as an armed career criminal at 34, based on its conclusion that he possessed a gun in connection with a drug offense. Under the Guidelines, a defendant considered to be an armed career criminal receives an offense level of “(A) 34, if the defendant used or possessed the firearm or ammunition in connection with ... a controlled substance offense, as defined in § 4B1.2(b), ... or (B) 33, otherwise.” U.S.S.G. § 4B1.4(b)(3). In United States v. Young,

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Related

Molina v. United States
134 S. Ct. 1913 (Supreme Court, 2014)

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Bluebook (online)
550 F. App'x 790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-miguel-anthony-molina-ca11-2013.