* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1 21 U.S.C. § 841(a)(1) makes it “unlawful for any pe rson knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with the intent to dispense a controlled substance.” And § 841(b)(1)(B) provides for a (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### December 21, 2005
Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES of AMERICA, Plaintiff-Appellee, v. TERRY L. CORBER, Defendant-Appellant. No. 05-3190 (D.C. No. 04-CR-40003-01-SAC)

(D. Kan.)

ORDER AND JUDGMENT *

Before EBEL , McKAYand HENRY , Circuit Judges. In this direct criminal appeal, Defendant-AppellantTerry L. Corber appeals his conviction on one count of possessing crack coc aine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). 1 Corber argues1 (...continued)

sentence of not less than five or more than forty y ears for such an offense involving five grams or more of cocaine base. - 2 - only that the district court erred when it refused to instruct the jury on Corber’s entrapment defense. Having jurisdiction to conside r this appeal under 28 U.S.C. § 1291, we AFFIRM. I. STANDARD OF REVIEW “A defendant is entitled to an entrapment instructi on whenever there is sufficient evidence from which a reasonable jury co uld find entrapment.” United States v. Scull , 321 F.3d 1270, 1274 (10th Cir. 2003) (quotation o mitted). Because Corber raised entrapment as a defense at tr ial and requested the trial court instruct on that defense, we review de novo the district court determination that there was insufficient evidence of entrapment in this case to instruct the jury on that defense. See id. “For the purpose of determining the sufficiency o f the evidence to raise the jury issue, the testimony mos t favorable to the defendant should be accepted.” Id. at 1275 (quotation omitted). II. ANALYSIS “To obtain an entrapment instruction, a defendant m ust establish two elements: first, government agents must have induc ed the defendant to commit the offense; and second, the defendant must not hav e been predisposed to commit the offense, given the opportunity.” United States v. Nguyen , 413 F.3d 1170,- 3 -

1178 (10th Cir. 2005) (quotation, emphasis omitted) , petition for cert. filed , (U.S. Nov. 22, 2005) (No. 05-7929). Because in this case there was insufficient evidence that the Government induced Corber to comm it the offense to require submitting that issue to the jury, we need not addr ess whether Corber was predisposed to commit the crime.

Inducement is government conduct which creates a su bstantial risk that an undisposed person or otherwise law-abi ding citizen would commit the offense. Simple evidence that a governm ent agent solicited, requested, or approached the defendant to engage incriminal conduct, standing alone, is insufficient to constitute induc ement. Inducement also will not be shown by evidence that the governm ent agent initiated the contact with the defendant or proposed the crim e. Id. (citation, quotation, alteration omitted). In this case, viewing the evidence in the light mos t favorable to Corber, see Scull , 321 F.3d at 1275, the evidence at trial establish ed the following: In February 2003, Corber was living with his grandmoth er, his father Alvin and his uncle George. Corber’s Uncle Bobby would also frequently be at the home. On February 13, 2003, Edward Radford was released f rom jail. Radford and his wife Laura were paid government informants. After he got out of prison, Radford began to call the Corber household, seeking to buy drugs. Radford would purchase drugs from both Bobby and Alvin Corb er. Although Radford usually called the Corber househol d seeking to talk to Bobby Corber, Radford also spoke to Terry Corber “afew times” between2 Corber later testified, however, that he instead to ld Radford “no”

when Radford asked to buy crack. - 4 - February 13 and 20. On those occasions, Radford so ught to buy crack or methamphetamine from Terry Corber, but Corber told Radford “that I couldn’t.” After 8:00 p.m. on February 20, 2003, Radford calle d Corber again seeking to buy crack. Although Corber did not have any cra ck, Corber told Radford that Corber would bring some over to Radford’s apartment

. 2Corber then told his friend, Larry White, that Radford wanted to buy dru gs. White had drugs to sell Radford, but White did not know where the Radfords lived. So Corber rode with White to the Radfords’ apartment. When Corber and White arrived, within an hour of Edward Radford’s call, White asked Corber t o take the crack up to the Radfords’ apartment and make the sale. In exchange for Corber’s conducting the transaction, White gave Corber some methamphetamine . White gave Corber the crack and then waited in the car while Corber went inside the Radfords’ apartment and sold Edward Radford the crack, as wel l as Corber’s methamphetamine. According to Corber, White had al ready prearranged this sale with Radford. At the end of his conversation with Radford, Corber told Radford “there’s more where that came from.” Radford’s calls to Corber soliciting crack were ins ufficient, alone, to establish that the Government induced Corber to sel l crack to Radford. See- 5 -

Nguyen , 413 F.3d at 1178; Scull , 321 F.3d at 1275. Further, Corber’s own testimony established that he agreed to conduct the drug sale in exchange for White’s giving Corber methamphetamine. There was, then, no evidence at trial suggesting that the Government induced Corber to se ll crack cocaine. The trial court, therefore, did not err in refusing to instru ct the jury on Corber’s entrapment defense. For these reasons, we AFFIRM Corber’s conviction.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge