concluding that undercover narcotics agent’s contribution to defendants of an essential and difficult-to-obtain ingredient for drug manufacture did not constitute outrageous government conduct
How later courts described this case
- concluding that undercover narcotics agent’s contribution to defendants of an essential and difficult-to-obtain ingredient for drug manufacture did not constitute outrageous government conduct
Written by the judges who cited it.
The opinion
MEMORANDUM **
California state prisoner Jorge Valencia appeals the district court’s denial of his 28 U.S.C. § 2254 petition, challenging his conviction and sentence for conspiracy to commit robbery, transportation of cocaine, and possession of cocaine for sale. We have jurisdiction pursuant to 28 U.S.C. § 2253 . We review the denial of a § 2254 petition *270 de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we affirm.
Valencia contends that an undercover police agent engaged in sentencing entrapment and sentencing manipulation by suggesting to Valencia’s co-conspirator an increase in the amount of cocaine involved, and that the agent’s action constitutes outrageous government conduct in violation of Valencia’s due process rights. His claim is unpersuasive.
Assuming arguendo that Valencia can assert a claim of sentencing entrapment based on conversations between a government agent and Valencia’s co-conspirator, the record shows that the co-conspirator readily agreed to the suggestion of an increase in the amount of cocaine involved. See United States v. Naranjo, 52 F.3d 245, 250 (9th Cir.1995) (holding that a defendant must demonstrate both lack of intent and lack of capability to provide the quantity of drugs at issue to sustain a claim of sentencing entrapment). Furthermore, the agent’s suggestion does not qualify as outrageous conduct. Cf. United States v. Russell, 411 U.S. 423, 431-32 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 (1973) (concluding that undercover narcotics agent’s contribution to defendants of an essential and difficult-to-obtain ingredient for drug manufacture did not constitute outrageous government conduct).
Because the state court’s decision was neither contrary to nor an unreasonable application of clearly established Federal law, nor was it based on an unreasonable determination of the facts, the district court properly dismissed Valencia’s habeas petition. See 28 U.S.C. § 2254 (d); Van Tran v. Lindsey, 212 F.3d 1143, 1149 (9th Cir.2000).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.