Opinion
This panel unanimously finds this case suitable for decision without oral argument. See FED. R.APP. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
James P. Hagarty, Esq., Office of the U.S. Attorney, Yakima, WA, for Plaintiff-Appellee.
Michael W. Lynch, Esq., Yakima, WA, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Washington, Wm. Fremming Nielsen, Senior Judge, Presiding. D.C. No. CR-03-02116-WFN.
Before: NOONAN, T.G. NELSON, and WARDLAW, Circuit Judges.
Page 634.
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.
William Gene Scribner appeals his conviction and sentence for possession of a listed chemical with intent to manufacture a controlled substance in violation of 21 U.S.C. § 841(c)(1). We have jurisdiction under 28 U.S. C.§ 1291, and we affirm his conviction. We remand his sentence under United States v. Ameline. Because the parties are familiar with the facts, we do not recount them here.
409 F.3d 1073 (9th Cir.2005).
The district court properly denied Scribner's motion to dismiss based on outrageous government conduct. The Government's conduct was not outrageous because the Government did not "initiate the criminal activity," but merely worked in concert with Scribner and his co-defendant.
United States v. Bridges, 344 F.3d 1010, 1014 (9th Cir.2003) (stating that the panel reviews a district court's denial of a motion to dismiss an indictment based on outrageous government conduct de novo).
United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.2003).
The district court properly denied Scribner's request for a jury instruction on entrapment. An entrapment instruction was not warranted because no evidence indicated that the Government induced Scribner to participate in criminal activity. Accordingly, we affirm Scribner's conviction.
See United States v. McGeshick, 41 F.3d 419, 421 (9th Cir.1994) (stating that the panel reviews the district court's failure to give a requested instruction de novo).
See Gurolla, 333 F.3d at 957.
We review Scribner's unpreserved Booker claim for plain error. We cannot determine from the record whether the district court would have imposed a materially different sentence if it had known that the Guidelines were advisory, as the Supreme Court held in United States v. Booker. Therefore, under Ameline, we remand for the limited purpose of making that determination. In fulfilling this mandate, the district court may hold such hearings and enter such orders as it determines to be necessary, including, without limitation, modifying or vacating its previous sentence.
Ameline, 409 F.3d at 1078.
--- U.S. ----, 125 S.Ct. 738, 764-65, 160 L.Ed.2d 621 (2005).
See Ameline, 409 F.3d at 1084.
Conviction AFFIRMED; Sentence REMANDED.