US v. Joel Chaparro, No. 08-5249 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5249 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOEL CHAPARRO, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:08-cr-00012-JPB-DJJ-2) Submitted: June 1, 2009 Decided: June 29, 2009 Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Sherman L. Lambert, Sr., SHERMAN L. LAMBERT, SR., PLLC, Shepherdstown, West Virginia, for Appellant. Sharon L. Potter, United States Attorney, Thomas O. Mucklow, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Joel Chaparro appeals his conviction and thirty-three month sentence for aiding and abetting the distribution of cocaine, in violation of 18 U.S.C. § 2 (2006) and 21 U.S.C. § 841(a)(1), (b)(1)(C) (2006). Chaparro s attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), concluding that there are no meritorious issues for appeal but challenging the district court s instruction on entrapment. refusal to provide a jury Although informed of his right to do so, Chaparro has not filed a pro se supplemental brief. We affirm. We review de novo a district court s decision to deny a defendant s States v. requested Ramos, 462 instruction F.3d 329, on 334 entrapment. (4th Cir. United 2006). An entrapment defense has two elements: (1) government inducement of the crime and (2) the defendant s lack of predisposition to engage in the criminal conduct. Id. Before giving an entrapment instruction, the district court must make a threshold inquiry as reasonable Mere to jury whether to solicitation sufficient determine of a there crime is evidence was exists entrapment. insufficient to for a See id. merit an entrapment instruction, as solicitation alone would not persuade an otherwise innocent person to commit a criminal act. See id. When government agents merely offer an opportunity to commit 2 the of that opportunity, an entrapment instruction is not warranted. Id. at crime 335 and the (internal defendant quotation promptly marks, avails himself citation and alteration omitted). In this instance, it is clear that any inducement by the Government s confidential informant was mere solicitation, and did not rise to the level of entrapment. The record shows that, at the informant s request, Chaparro immediately sought to aid an undercover agent, whom Chaparro believed to informant s brother, in the procurement of cocaine. be the Though the informant was undoubtedly friendly toward Chaparro, this fact had no bearing on Chaparro s distribution of cocaine. willingness to aid in the This conclusion is underscored by the fact that, even without the informant s involvement, Chaparro repeatedly organized deals between the undercover agent and a local drug dealer. could lead anything a Indeed, there was no evidence presented that reasonable other than a jury ready to determine and willing that Chaparro participant in was the crime, and that the informant and the undercover agent merely offered him Accordingly, the as opportunity Chaparro to failed engage to in criminal demonstrate any conduct. lack of predisposition to engage in the criminal conduct, Ramos, 462 F.3d at 334, we find that the district court did not err in refusing to give an entrapment instruction to the jury. 3 In accordance with Anders, we have examined the entire record in this case and found no meritorious issues for review. Accordingly, we affirm the district court s judgment. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further filed, review. but If counsel the client believes requests that such that a a petition petition would be be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on the client. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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