[T][U] United States v. Molina

MEMORANDUM* This direct appeal returns to this court for the third time. In our most recent decision in this case, we affirmed the convictions and sentences of both defendants on all issues except for a claim of sentence enhancement made by both Simpson and Molina. At the time defendants were sentenced, the district court believed that it was without power to grant a downward departure for sentence enhancement. After sentencing, however, we decided United States v. Staufer, 38 F.3d 1103 (9th Cir. 1994), which established that sentencing entrapment is a legitimate basis for a downward departure. We then explained: Because Staufer was decided after sentencing in the present case, the district court Judge could not have known of his authority to depart at the time he sentenced Simpson. We therefore remand for the district court to determine whether in light of Staufer Simpson is eligible for a sentencing entrapment departure. On remand, Simpson should be given the opportunity to present evidence on this question, in accordance with U.S.S.G. § 6A1.3. If the district court finds that Simpson was induced to sell an amount larger than that which he was predisposed to sell, then the district court has discretion to depart downward.