FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 08-10167

v.  D.C. No.

DALE SCHAFER, 2:05-cr-00238-FCD

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

No. 08-10169 Plaintiff-Appellee,

D.C. No.

v.  2:05-cr-00238-FCD

MARION P. FRY,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, Senior District Judge, Presiding

Argued and Submitted

August 31, 2010—San Francisco, California

Filed November 8, 2010

Before: Betty B. Fletcher, Richard C. Tallman, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Tallman

18321
COUNSEL

Brenda Grantland, Esquire, Mill Valley, California; Barry L.

Morris (argued), Esquire, Walnut Creek, California, for

defendants-appellants Dale Schafer and Marion Fry.

Anne Pings (argued), Assistant United States Attorney; Sean

C. Flynn, Assistant United States Attorney; Benjamin B.

Wagner, United States Attorney, Sacramento, California, for

plaintiff-appellee United States of America.

OPINION

TALLMAN, Circuit Judge:

Defendants-Appellants Dale Schafer and Marion Fry challenge federal convictions that arise from their operation of a

medical marijuana growing operation and dispensary in the

Sierra Nevada community of Cool, California. A jury found

Appellants guilty of conspiring to manufacture and distribute

at least 100 marijuana plants. The jury specifically convicted

Schafer of manufacturing at least 100 marijuana plants and

found Fry guilty of manufacturing fewer than 100 marijuana

plants. Appellants raise three claims on appeal: (1) the district

court improperly denied their motion to dismiss the indictment on a theory of entrapment by estoppel without conducting an evidentiary hearing; (2) the district court erred when it

precluded Appellants from presenting an entrapment by

estoppel defense and a medical necessity defense at trial; and

(3) the district court should have reduced their sentences on

a theory of sentencing entrapment. We have jurisdiction over

their appeal under 28 U.S.C. § 1291, and we affirm.

I

Fry, a medical doctor, was diagnosed with breast cancer in

UNITED STATES v. SCHAFER, 18325
December 1997. She received a recommendation to use marijuana in early 1998 to help alleviate the side effects of the

chemotherapy treatments she was undergoing. Consequently,

Schafer, her husband and a practicing attorney, began cultivating marijuana plants for Fry’s use. In July 1999, Fry contacted Detective Robert Ashworth, an officer with the El

Dorado County Sheriff’s Office, to inform deputies of the

marijuana grow operation.1 Detective Ashworth and Sergeant

Timothy McNulty visited Appellants’ residence and inspected

their marijuana plants.

In late 1999, Schafer’s cultivation of marijuana for his wife

developed into a much larger marijuana recommendation and

sales business, extending well beyond personal use amounts

of marijuana. During the time that Schafer and Fry were operating their marijuana business, Ashworth and McNulty repeatedly visited their residence and office. On one particular

occasion, Ashworth and McNulty visited Appellants to discuss the unrelated investigation and arrest of two of their former employees. The employees had been involved in a major

marijuana growing operation on a rural ranch elsewhere in El

Dorado County that was not affiliated with Appellants’ business. That separate police raid and investigation involved law

enforcement personnel from both local and federal narcotics

units who cooperated with one another in a joint interagency

task force.

Federal authorities with the Drug Enforcement Administration (“DEA”) separately began investigating Appellants in

late 2000 after a shipping company reported intercepting several packages containing marijuana sent from “Dale.” This

investigation included receiving reports from numerous

undercover visits by local law enforcement operatives to

Appellants’ place of business for the purpose of obtaining

1Under California law, it was, and still is, legal to grow marijuana or to

possess for personal use small amounts of marijuana as a palliative for illness. Cal. Health & Safety Code § 11362.5. 

18326 UNITED STATES v. SCHAFER,
marijuana recommendations. The information gathered

through these undercover investigations was then given to

federal agents. Local and federal agents ultimately executed

a federal search warrant at Appellants’ business and home on

September 28, 2001.

A federal grand jury returned an indictment against Appellants on June 15, 2005, charging them with one count of conspiring to manufacture and distribute marijuana plants, and

one count of manufacturing at least 100 plants. Appellants

filed a motion to dismiss the indictment, arguing that the

United States could not prosecute them because of their

defense of entrapment by estoppel. In support of their motion

to dismiss, they filed a memorandum from the Office of

National Drug Control Policy and a letter from the Attorneys

General of Arizona and California. The attachments emphasized that local law enforcement officers would support federal attempts to enforce the federal laws criminalizing

marijuana. In their motion to dismiss, Appellants alleged that

both McNulty and Ashworth admitted that they were working

on behalf of the federal government and further claimed that

Officer McNulty had said Appellants’ conduct was legal.

The United States opposed the motion, arguing that Appellants were not entitled to invoke an entrapment by estoppel

defense because they had not relied on the representations of

a federal official or an authorized agent of the federal government. The opposition included a declaration from McNulty

denying that he ever represented himself as a federal official

or that he encouraged Appellants to continue growing marijuana. Alternatively, the government contended that Appellants had not reasonably relied on any of the alleged

misrepresentations. To prove lack of reliance, the government

submitted copies of written recommendations distributed to

“patients” by Appellants’ business. These recommendations

included a disclaimer that unequivocally stated that marijuana

remained illegal under federal law.

UNITED STATES v. SCHAFER, 18327
At a hearing conducted to address the motion to dismiss,

Appellants requested an evidentiary hearing for the purpose of

resolving the conflict between the factual allegations in their

pleadings and those in McNulty’s sworn declaration. The district court denied Appellants’ request and assumed for purposes of deciding the legal issue that McNulty was a federal

official. Notwithstanding that assumption, the district court

refused to dismiss the case because Appellants had not adequately shown that they relied on any alleged misinformation.

Before trial, the government filed a motion in limine seeking to prevent Appellants from asserting either a medical

necessity defense or an entrapment by estoppel defense. The

government argued that the Supreme Court’s decision in

United States v. Oakland Cannabis Buyers’ Cooperative, 532

U.S. 483 (2001) [hereinafter OCBC II], precluded any entitlement by a defendant to rely on the claimed medicinal value

of marijuana and prohibited Appellants from asserting a cognizable medical necessity defense. The government also

sought exclusion of an entrapment by estoppel defense for the

reasons stated in their opposition to Appellants’ motion to

dismiss—that McNulty and Ashworth were not federal officials or authorized agents of the federal government and

Appellants did not reasonably rely on any of their alleged

misrepresentations.

Appellants contested the applicability of OCBC II and

argued that a retroactive application of the Supreme Court’s

decision would be a violation of the ex post facto clause.

Although the district court had previously rejected Appellants’ entrapment by estoppel defense, they asked that the district court “keep an open mind as to the characterization of the

evidence.” To further support their argument that McNulty

and Ashworth were federal officials, Appellants submitted an

affidavit from their attorney attesting to the fact that an agent

with the DEA directed the investigations conducted by local

law enforcement officers. Appellants incorporated excerpts of

the police reports chronicling the investigation of Appellants’

18328 UNITED STATES v. SCHAFER,
business. These reports established that officers from local

law enforcement agencies collaborated with federal agents to

conduct undercover investigations of Appellants.

The district court granted the government’s motion in

limine. It reasoned that OCBC II applied retroactively because

the decision “was foreseeable in light of a circuit split on the

issue,” and because marijuana had been illegal under federal

law to use or possess since at least 1970. In the alternative, the

district court found that the medical necessity defense was

viable for only a limited time, and Appellants’ illegal conduct

began prior to the application of the defense and continued

until after the Supreme Court rejected the defense. The district

court affirmed its earlier denial of the entrapment by estoppel

defense because Appellants “could not identify an authorized

federal government official who erroneously told them it was

permissible to sell marijuana.”

After the federal jury returned a guilty verdict,2 Appellants

sought mitigation of their sentences on a theory of sentencing

entrapment. They claimed that Ashworth encouraged them to

continue growing medical marijuana, that he induced them

into expanding the amount of marijuana they were growing,

and that they were not predisposed to illegally grow marijuana. Again, Appellants requested an evidentiary hearing.

The district court denied the request after concluding that

Appellants had not shown that a federal official either bought

or sold any marijuana or engaged in any transactions to make

Appellants manufacture a higher number of marijuana plants.

Appellants re-asserted their sentencing entrapment claim at

sentencing. The district court interpreted our precedent to

require active participation by a law enforcement officer in

the purchase or sale of controlled substances, and it rejected

2As stated earlier, the jury found Schafer guilty of both the conspiracy

and manufacturing at least 100 marijuana plants. It convicted Fry of the

conspiracy and of manufacturing plants, but concluded that Fry had manufactured fewer than 100 plants.

UNITED STATES v. SCHAFER, 18329
Appellants’ request for sentence mitigation because they

could not show that Ashworth was actively involved in their

production or distribution of marijuana. Consequently, Appellants were sentenced to the statutory minimum term of sixty

months imprisonment. Appellants timely appeal their convictions and sentences.

II

A

Appellants’ first challenge focuses on the district court’s

denial of their request for an evidentiary hearing on their

motion to dismiss. They argue that they were entitled to an

evidentiary hearing because the filings submitted in support of

and in opposition to the motion to dismiss presented significant factual disputes. We review a district court’s denial of an

evidentiary hearing for an abuse of discretion. United States

v. Hagege, 437 F.3d 943, 951 (9th Cir. 2006).

[1] Federal Rule of Criminal Procedure 12 allows a defendant to assert a defense in a pretrial motion if the merits of the

defense can be determined “without a trial of the general

issue.” Fed. R. Crim. P. 12(b)(2). However, if the pretrial

motion raises factual questions associated with the validity of

the defense, the district court cannot make those determinations. United States v. Shortt Accountancy Corp., 785 F.2d

1448, 1452 (9th Cir. 1986) [hereinafter Shortt]. Doing so

would “invade the province of the ultimate finder of fact.” Id.

(quoting United States v. Jones, 542 F.2d 661, 664 (6th Cir.

1976)).

[2] Appellants requested an evidentiary hearing to resolve

two factual disputes presented by the motion to dismiss: (1)

whether McNulty and Ashworth were federal officials or

authorized agents of the federal government; and (2) whether

McNulty and Ashworth erroneously informed Appellants that

18330 UNITED STATES v. SCHAFER,
their marijuana grow was legal under federal law.3

 These two

factual disputes directly impacted the validity of Appellants’

defense because to establish the defense Appellants were

required to prove “reliance either on a federal government

official empowered to render the claimed erroneous advice”

or on “an authorized agent of the federal government” and

“affirmative misleading” by a government official. United

States v. Brebner, 951 F.2d 1017, 1026-27 (9th Cir. 1991).

Thus, the factual disputes raised by the pretrial motion to dismiss were intertwined with the “general issue” to be decided

at trial. The district court would have usurped the role of the

jury had it conducted an evidentiary hearing and answered

these factual questions. Shortt, 785 F.2d at 1452.

[3] Appellants’ reliance on cases discussing the propriety

of evidentiary hearings to resolve factual disputes raised by

motions to suppress is misplaced. Generally, any factual differences highlighted by a motion to suppress do not impact

the ultimate issue of guilt. Evidence must be suppressed when

it is obtained in violation of a defendant’s constitutional

rights. Mapp v. Ohio, 367 U.S. 643, 655-56 (1961). A district

court may make factual findings with regard to whether evi3We note a procedural defect in Appellants’ attempt to create a factual

dispute before trial. None of the averments were set forth in sworn declarations that would be competent evidence for consideration of pretrial

motions. Eastern District of California Local Rule 230(h) provides: “Factual contentions involved in pretrial motions shall be initially presented

and heard upon affidavits, except that the Court may in its discretion

require or allow oral examination of witnesses.” See also E.D. Cal. Rule

430.1(b) (“Motions and accompanying documents shall conform to the

requirements of . . . these Rules.”). Appellants’ factual statements were

raised as unsworn arguments of defense counsel in their pleadings. The

district court would have been well within its rights to reject the request

for an evidentiary hearing on this ground alone. Cf. Cohen v. United

States, 378 F.2d 751, 761 (9th Cir. 1967). Given our conclusion that the

issue was otherwise inextricably intertwined with the contested evidence

the jury had to resolve at trial, we will overlook the procedural defect in

the case before us. Trial counsel, however, would be well advised to follow the rules. 

UNITED STATES v. SCHAFER, 18331
dence was unconstitutionally obtained because such issues are

“entirely segregable” from the issue of guilt. See generally

Shortt, 785 F.2d at 1452 (discussing the types of factual findings a district court can make to resolve pretrial motions). In

this case, however, the questions raised by Appellants’ motion

to dismiss establish the viability of Appellants’ defense; the

factual disputes were not segregable from the issue that was

to be decided at trial—Appellants’ guilt. Pursuant to Rule 12,

the district court could not resolve these disputes before trial,

and therefore it did not abuse its discretion when it denied

Appellants’ request for an evidentiary hearing.

B

In addition to challenging the district court’s denial of an

evidentiary hearing, Appellants argue that the district court

further erred in denying their motion to dismiss on the merits.

We review the denial of a motion to dismiss de novo. United

States v. Holler, 411 F.3d 1061, 1065 (9th Cir. 2005).

[4] In order to succeed on their motion to dismiss, Appellants would have had to show that they were entitled to an

entrapment by estoppel defense as a matter of law. In Sherman v. United States, 356 U.S. 369, 373 (1958), the Supreme

Court found that the defendant had established entrapment as

a matter of law because it did not need to “choos[e] between

witnesses, nor judg[e] credibility” in order to determine the

merits of the defense. Conversely, we have held that a defendant is not entitled to a defense of entrapment as a matter of

law when there are “definite conflicts in the testimony on the

issue of how [the defendant] began selling heroin.” United

States v. Griffin, 434 F.2d 978, 981 (9th Cir. 1970). When

such conflicts arise, the issue of whether the defendant was

entrapped “is a credibility question for the jury.” Id.

[5] Whether Appellants were lulled into believing their

marijuana operation was legal and done on the express authorization of agents who could bind the federal government

18332 UNITED STATES v. SCHAFER,
necessitated a credibility determination that fell within the

province of the jury. See id.; cf. Mathews v. United States, 485

U.S. 58, 63 (1988) (“The question of entrapment is generally

one for the jury, rather than for the court.”). As such, the district court was precluded from holding that Appellants were

entitled to an entrapment by estoppel defense as a matter of

law until the jury resolved the truth of the factual dispute. It

did not err when it denied Appellants’ motion to dismiss on

the merits.

III

Appellants’ next set of arguments contend that the district

court improperly granted the government’s motion in limine

and prohibited Appellants from presenting entrapment by

estoppel and medical necessity defenses. A district court’s

decision to exclude evidence of a particular defense is

reviewed de novo. Brebner, 951 F.2d at 1024. A district court

may preclude a defense if the defendant fails to make a prima

facie showing that he is eligible for the defense. See United

States v. Moreno, 102 F.3d 994, 997-98 (9th Cir. 1996).

A

[6] Entrapment by estoppel is the “unintentional entrapment by an official who mistakenly misleads a person into a

violation of the law,” and it is a theory derived from the due

process clause. United States v. Batterjee, 361 F.3d 1210,

1216 (9th Cir. 2004) (internal quotation and citation omitted).

To establish this defense, a defendant “must show that (1) an

authorized government official, empowered to render the

claimed erroneous advice, (2) who has been made aware of all

the relevant historical facts, (3) affirmatively told [the defendant] the proscribed conduct was permissible, (4) that [the

defendant] relied on the false information, and (5) that [the]

reliance was reasonable.” Id. (internal quotations and citations

omitted). 

UNITED STATES v. SCHAFER, 18333
[7] An entrapment by estoppel defense is “available only

when [the] defendant can demonstrate a reasonable belief that

his conduct was sanctioned by the government.” United States

v. Burrows, 36 F.3d 875, 882 (9th Cir. 1994). Even assuming

what is ascribed to McNulty and Ashworth was true, Appellants failed to present evidence to the district court that they

relied on the alleged erroneous statements. During pretrial

proceedings, the government filed examples of the written

marijuana recommendation forms issued to “patients” by

Appellants’ business and excerpts of prior sworn expert testimony given by Fry in an unrelated judicial proceeding. Each

of the recommendations, dated from October 1999 to September 2001, contained a patient declaration that clearly stated

that “cannabis remains illegal under Federal Law” and that

Appellants had not represented otherwise. Fry’s expert testimony, given on July 11, 2001, unequivocally established that

Fry knew that marijuana remained a Schedule I controlled

substance under federal law and that federal law prohibited

her from prescribing it since any drug listed on Schedule I is

deemed without medical efficacy. Appellants submitted no

admissible evidence that refuted the recommendations and

testimony or that supported an inference that they relied on

any of the alleged misrepresentations of McNulty and Ashworth. 

[8] Instead, the government’s uncontradicted evidence

established that Appellants were aware that marijuana was

illegal under federal law during the time that McNulty and

Ashworth allegedly stated that it was legal under federal law

—Appellants were not misled into believing that their conduct

was permissible under federal law. “The defense of entrapment by estoppel is inapplicable if the defendant is not misled.” United States v. Tallmadge, 829 F.2d 767, 775 n.1 (9th

Cir. 1987). Because Appellants failed to present prima facie

evidence that they relied on representations made by either

McNulty or Ashworth, they were not entitled to present an

entrapment by estoppel defense to the jury. 

18334 UNITED STATES v. SCHAFER,
[9] In light of Appellants’ inability to establish reliance,

we need not address their arguments regarding whether

McNulty and Ashworth were de facto federal officials or

authorized agents of the federal government. See Moreno, 102

F.3d at 998 (declining to address all of the elements of the

defense of duress because the defendant presented no evidence of a lack of a reasonable opportunity to escape the

threatened harm). The district court properly granted the government’s motion in limine with regard to Appellants’

asserted entrapment by estoppel defense.

B

[10] “[M]edical necessity is not a defense to manufacturing and distributing marijuana.” OCBC II, 532 U.S. at 494.

Appellants attempt to circumvent this clear holding of the

United States Supreme Court by arguing that the exclusion of

a medical necessity defense at their trial violated their due

process rights4 because we recognized the viability of such a

defense for a portion of the time Appellants operated their

marijuana business. See United States v. Oakland Cannabis

Buyers’ Coop., 190 F.3d 1109, 1114-15 (9th Cir. 1999), overruled by OCBC II, 532 U.S. 483 (2001) [hereinafter OCBC I].

They contend that any change in the viability of a medical

necessity defense occasioned by the Supreme Court’s decision was unforeseeable and therefore could not apply retroactively.

“[J]udicial alteration of a common law doctrine of criminal

law violates the principle of fair warning, and hence must not

be given retroactive effect, only where it is unexpected and

indefensible by reference to the law which had been

4Appellants framed their challenge by relying on the ex post facto

clause. However, the ex post facto clause applies only to the legislature

and “does not of its own force apply to the Judicial Branch of government.” Rogers v. Tennessee, 532 U.S. 451, 456 (2001). These limitations

also apply to judicial decisionmaking through the due process clause. Id.

UNITED STATES v. SCHAFER, 18335
expressed prior to the conduct in issue.” Rogers v. Tennessee,

532 U.S. 451, 462 (2001) (internal quotation marks omitted);

see also United States v. Qualls, 172 F.3d 1136, 1139 n.1 (9th

Cir. 1999) (“Due process bars retroactive application of a

judicial expansion of a law only if the change in the law is

unforeseeable.”). In Rogers, the Supreme Court held that the

Tennessee Supreme Court’s abolition of the “year and a day

rule” did not constitute the “sort of unfair and arbitrary judicial action against which the Due Process Clause aims to protect.” 532 U.S. at 466-67. Although the “year and a day rule”

had been recognized in Tennessee for almost 100 years, it

“was a principle in name only, having never once been

enforced.” Id. at 465-66. The state supreme court’s decision

to invalidate the doctrine was thus “a routine exercise of common law decisionmaking in which the court brought the law

into conformity with reason and common sense.” Id. at 467.

[11] The Supreme Court’s OCBC II decision is analogous

to the Tennessee Supreme Court’s decision. Notwithstanding

our temporary indication that a medical necessity defense was

legally cognizable, OCBC I, 190 F.3d at 1114, it was not “unforeseeable” that the Supreme Court would reject the implementation of a defense that had not theretofore been applied.

In fact, it was “an open question whether federal courts ever

have authority to recognize a necessity defense not provided

by statute.” OCBC II, 532 U.S. at 490. Despite the opinion

held in some medical and scientific circles that marijuana can

be effectively used for medicinal purposes, such a defense

would directly contradict congressional findings dating back

to 1970 that marijuana, as a Schedule I drug, has no medicinal

use. Comprehensive Drug Abuse Prevention and Control Act

of 1970, Pub. L. No. 91-513, 84 Stat. 1236, 1247-49.

[12] Furthermore, Appellants’ reliance on OCBC I was

unfounded. Our decision recognizing a medical necessity

defense did not occur until almost six weeks after the alleged

beginning of Appellants’ conspiracy. When conducting a due

process foreseeability analysis, we must “look only to cases

18336 UNITED STATES v. SCHAFER,
decided before the crime was committed” because the focus

is on notice to the defendant. Clark v. Brown, 450 F.3d 898,

912 (9th Cir. 2006). Appellants cited no federal precedent

prior to the initiation of their conduct that allowed a defendant

to successfully assert a medical necessity defense. The

Supreme Court’s refusal to accept such a defense—when it

had not been recognized by Congress and which undermined

congressional findings—is not the typical “unpredictable

departure from prior precedent” that warrants holding the

Court’s final decision cannot be retroactively applied. Rogers,

532 U.S. at 467. The district court did not err when it prohibited Appellants from presenting a medical necessity defense.

IV

Appellants’ last argument contests the district court’s

denial of their request for an evidentiary hearing on their

claim for mitigation of sentence on a theory of sentencing

entrapment. The district court rejected Appellants’ request

because they had not established a factual basis supporting

their allegation that a government official actively induced

them to manufacture and distribute more marijuana than they

were otherwise predisposed to manufacture. We review de

novo a district court’s interpretation and application of the

Sentencing Guidelines, and we review its sentencing phase

factual findings for clear error. United States v. Naranjo, 52

F.3d 245, 248 (9th Cir. 1995).

[13] “Sentencing entrapment occurs when a defendant is

predisposed to commit a lesser crime, but is entrapped by the

government into committing a crime subject to more severe

punishment.” United States v. Mejia, 559 F.3d 1113, 1118

(9th Cir. 2009). The defendant must show that the government participated in “outrageous official conduct which

caused the individual to commit a more significant crime for

which a greater penalty attaches.” United States v. Si, 343

F.3d 1116, 1128 (9th Cir. 2003). The underlying principle is

that it is impermissible for the government to “structure sting

UNITED STATES v. SCHAFER, 18337
operations in such a way as to maximize the sentences

imposed on defendants” without regard for the defendant’s

culpability or ability to commit the crime on his own. United

States v. Staufer, 38 F.3d 1103, 1107 (9th Cir. 1994).

[14] We have never found sentencing entrapment unless it

involves active inducement by government officials. For

example, in Staufer, the defendant maintained that he wanted

to sell only 5,000 doses of LSD (lysergic acid diethylamide)

to the confidential informant and undercover agent. 38 F.3d

at 1105. However, the informant and agent insisted that the

defendant provide 10,000 doses. Id. The district court sentenced the defendant using the higher quantity of drugs, and

we reversed. Id. at 1105, 1108. We held that the defendant

was entitled to a lesser sentence because it was the government’s involvement that led him to engage in a transaction of

a greater magnitude. Id. at 1107-08. We recognized the “unfairness and arbitrariness of allowing drug enforcement agents

to put unwarranted pressure on a defendant in order to

increase his or her sentence.” Id. at 1107. 

Subsequent precedent affirms the necessity of more than

passive government involvement. See, e.g., United States v.

Haynes, 216 F.3d 789, 799-800 n.9 (9th Cir. 2000) (finding

sentencing entrapment inapplicable because the police officers “in no way led [the defendants] to create or enhance” the

marijuana grown); United States v. Riewe, 165 F.3d 727, 729

(9th Cir. 1999) (remanding for resentencing due to a lack of

factual findings on sentencing entrapment claim where the

defendant argued that the amount of the second sale of drugs

was larger due to the undercover officer’s request for a higher

amount); United States v. Parrilla, 114 F.3d 124, 127-28 (9th

Cir. 1997) (remanding for a factual determination on whether

the defendant was entrapped into trading cocaine for a gun

and stating that such entrapment would preclude the application of a two-level enhancement for possessing a firearm in

connection with drugs).

18338 UNITED STATES v. SCHAFER,
[15] In support of Appellants’ sentencing entrapment

claim, Schafer later submitted affidavits that alleged that

McNulty and Ashworth told Appellants that their conduct

complied with the law. Even if we accept Schafer’s allegations as true, there is no evidence that either McNulty or Ashworth directed Appellants to grow more marijuana or offered

them something in exchange for the production of higher

amount of plants. There is simply no allegation of active government involvement. We decline to hold that Appellants are

entitled to lesser sentences because government officials

failed to inform them that their conduct was illegal.

[16] Consequently, Appellants’ affidavits are insufficient

to establish a prima facie showing of sentencing entrapment,

and it was not an abuse of discretion for the district court to

deny their request for an evidentiary hearing. See United

States v. Irwin, 612 F.2d 1182, 1187 (9th Cir. 1980) (“[I]f the

affidavits show as a matter of law that appellant was or was

not entitled to relief, no [evidentiary] hearing was required.”).

There is simply no basis for sentence mitigation on this issue.

V

For the reasons outlined above, the judgments and sentences entered against Schafer and Fry by the district court are

AFFIRMED.

UNITED STATES v. SCHAFER, 18339