§135 Due Process
(including Sentencing Entrapment)
1st Circuit finds no sentencing manipulation where government conduct did not affect guidelines range. (135) Defendant was convicted of RICO and other offenses based on his participation in a gang. He claimed that the government had manipulated his sentence by insisting that the informant obtain protection from the gang when the informant transported narcotics. The First Circuit found that the gang’s protection of the informant did not contribute to defendant’s guideline range, so the question of sentencing entrapment or manipulation did not arise. U.S. v. Sandoval, __ F.3d __ (1st Cir. July 7, 2021) No. 18-1995.
9th Circuit says higher sentence at resentencing did not carry presumption of vindictiveness. (135) Defendant was convicted of multiple immigration offenses and of using or carrying a firearm during and in relation to a “crime of violence,” in violation of 18 U.S.C. § 924(c). He was sentenced to 240 months. Defendant then successfully moved under 28 U.S.C. § 2255 to vacate his § 924(c) sentence on the ground that intervening changes in the law invalidated his prior conviction for a “crime of violence.” The district court then re-sentenced him to 300 months. The Ninth Circuit held that no presumption of vindictiveness applied because the district court had granted defendant’s § 2255 motion, defendant was resentenced by a different judge, and the court gave valid reasons for its sentence. U.S. v. Valdez-Lopez, __ F.3d __ (9th Cir. July 16, 2021) No. 20-10004.
2d Circuit says “involving” in ACCA definition is not unconstitutionally vague. (135)(540) The Armed Career Criminal Act, 18 U.S.C. §924(e), requires a 15-year mandatory minimum sentence for a defendant convicted of possession of a firearm by a felon who has three prior convictions for a “serious drug offense.” A “serious drug offense” includes state law offenses “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a [federally recognized] controlled substance” punishable by ten years or more in prison. Defendant argued that the word “involving” was too vague to put a reasonable person on notice that the prior offenses were “serious drug offenses.” Applying precedent, the Second Circuit rejected this argument. U.S. v. Ojeda, __ F.3d __ (2d Cir. Feb. 24, 2020) No. 18-1770.
1st Circuit finds “felony drug offense” is not vague. (135)(245) Defendant was convicted of drug trafficking. A defendant with a conviction for a “felony drug offense” is subject in some cases to a 20-year mandatory minimum. Defendant argued that the term “felony drug offense” violated the Due Process Clause because it was unconstitutionally vague. The First Circuit held that “felony drug offense” is “neither vague nor standardless” and upheld the term. U.S. v. Gonzalez, __ F.3d __ (1st Cir. Jan. 31, 2020) No. 18-1957.
8th Circuit says supervised release condition requiring notification of risk is not vague. (135)(580) Defendant was convicted of assault and other offenses. As a condition of supervised release, the district court ordered that if the Probation officer determines that defendant poses a risk to any person, the defendant must inform that person of that risk. The Eighth Circuit held that this condition was not unconstitutionally vague because the Probation officer would determine whether defendant had to notify anyone of the risk. U.S. v. Robertson, __ F.3d __ (8th Cir. Jan. 23, 2020) No. 18-3375.
7th Circuit upholds mandatory life sentence against due process challenge. (135)(245) Defendant received a mandatory life sentence for drug trafficking. On appeal, he claimed that the sentence violated due process. The Seventh Circuit found that this argument was “merely an expression of his discontent with his mandatory life sentence” and that no due process violation occurred. U.S. v. Lopez, __ F.3d __ (7th Cir. Oct. 24, 2018) No. 17-1391.
9th Circuit says supervised release condition barring use of synthetic marijuana was not vague. (135)(580) At defendant’s sentencing for distributing methamphetamine, the district court noted that defendant’s long-term marijuana use had led to his conviction. To prevent defendant from evading a prohibition on marijuana by using a synthetic form of marijuana, the district court imposed a condition of supervised release barring use of a “synthetic cannaboid.” Defendant claimed that the condition failed to give him adequate notice of the substances he was prevented from using. The Ninth Circuit held that the synthetic marijuana condition was not unconstitutionally vague. U.S. v. Sims, __ F.3d __ (9th Cir. Mar. 7, 2017) No. 15-10450.
1st Circuit rejects sentencing manipulation claim. (135) Defendant acted as armed security for six sham drug deals that were part of an FBI sting operation, and was convicted of various drug and firearms crimes. He argued that the government engaged in improper sentencing manipulation by using unnecessarily high quantities of sham drugs during the deals, by requiring defendant to bring a firearm with him to each of the deals, and then by allowing him to participate in a “seemingly endless” number of those deals. The First Circuit rejected the claim, finding defendant did not meet his burden of showing that the government’s motivations were improper. FBI agents testified that the government used large quantities of sham cocaine for the purpose of ensuring that the staged deals looked realistic enough to warrant the need for armed security. Although it was feasible that the agents could have used some lesser quantity of drugs, the mere fact that they did not, without more, did not establish the kind of “extraordinary misconduct,” required of a successful sentencing manipulation claim. U.S. v. Rivera-Ruperto, __ F.3d __ (1st Cir. Jan. 13, 2017) No. 12-2364.
1st Circuit upholds warning defendant, before reopening record, of dangers of testifying falsely. (135) (461) In support of its request for an obstruction increase, the government presented evidence that defendant had assaulted another inmate to intimidate him from testifying. When the court announced its intent to apply the obstruction increase, defense counsel said that defendant wished to “reopen the evidence” on the assault and give his own testimony. Before ruling on the motion, the court warned defendant that if the court and found that defendant was not telling the truth, he “[would] receive a harsher sentence.” The court added that the evidence was so strong that it would have made the same finding “beyond a reasonable doubt.” Defendant then declined to testify. The First Circuit held that the district court did plainly err by “threatening” defendant with a harsher sentence if he testified untruthfully. Defendant had earlier declined to present evidence at the hearing without any form of dissuasion. The court’s admonition simply warned him about the risks of his gambit, and was not a threat designed to scare him into not testifying. U.S. v. Stile, 845 F.3d 425 (1st Cir. 2017).
D.C. Circuit holds that sentencing judge’s failure to explicitly address sentencing manipulation claim not plain error. (135)(855) Defendant pled guilty to distributing a mixture or substance containing phencyclidine (PCP). He argued on appeal that the trial judge ignored his “sentencing manipulation” argument. The D.C Circuit held that defendant failed to preserve this claim, and that the judge’s failure to expressly reject the claim at sentencing was not plain error. In an order denying defendant’s motion to dismiss the indictment, the judge rejected defendant’s claim that he had been “induced” by police officers to engage in unlawful conduct. When the judge rendered his sentencing decision, he did not explicitly address the issue of sentencing manipulation. However, after explaining the reasons for his sentencing decision, the judge asked defense counsel on two occasions whether there was any reason why the court should not impose the sentence on the terms indicated. Counsel said “no.” Thus, defendant’s failed to preserve his sentencing manipulation claim. In light of the district court’s decision denying defendant’s motion to dismiss the indictment, it was implausible to think that any error in not discussing the argument at sentencing impacted defendant’s sentence. U.S. v. Mack, 841 F.3d 514 (D.C. Cir. 2016).
7th Circuit does not require court to address sentencing manipulation claim. (135)(240)(740) Defendant, a ranking official of a Chicago street gang, pled guilty to distributing a controlled substance, based on his sale of 366.2 grams of crack cocaine to a confidential witness. He argued that the district court erred by failing to address his argument that the government engaged in sentencing manipulation by having its witness purchase, and continue to purchase, crack cocaine from defendant so as to drive up his guideline offense level. The Seventh Circuit noted that the sentencing manipulation argument was not one the district court was required to address, because the circuit does not recognize sentencing manipulation as a valid sentencing argument. See U.S. v. Garcia, 79 F.3d 74 (7th Cir.1996). U.S. v. Blackman, __ F.3d __ (7th Cir. July 29, 2016) No. 15-2003.
8th Circuit rejects challenges to prison sentences for corporate officers convicted of misdemeanor. (135) (140)(348) Defendants, corporate officers of an egg production company, pled guilty to the misdemeanor offense of introducing eggs adulterated with salmonella into interstate commerce. The Eighth Circuit rejected defendants’ claims that their three-month prison sentences for violating the Food Drug & Cosmetic Act (FDCA), 21 U.S.C. §333(a)(1), were unconstitutional under the due process clause and the Eighth Amendment. The prison sentences were relatively short. Defendants would not be branded as felons, and the record did not identify any additional civil sanctions they might be subject to beyond their sentences. The elimination of criminal intent under 21 U.S.C. §333(a) did not violate due process. The sentences also did not violate the Eighth Amendment – the sentences were not grossly disproportionate to the gravity of their misdemeanor offenses. The 2010 salmonella outbreak may have affected up to 56,000 victims, some of whom were hospitalized or suffered long term injuries. Judge Beam dissented. U.S. v. DeCoster, __ F.3d __ (8th Cir. July 6, 2016) No. 15-1890.
6th Circuit relies on Johnson to hold that guidelines’ residual clause is unconstitutionally vague. (135)(330) (340)(520) Defendant was convicted of firearms charges, and received an increase under §2K2.1(a)(1) for two prior convictions for crimes of violence. One conviction was an Ohio third-degree burglary, which the sentencing court had found was a crime of violence under the residual clause of guideline §4B1.2(a). However, in Johnson v. U.S., __ U.S. __, 135 S. Ct. 2551 (2015), the Supreme Court invalidated a textually identical residual clause in the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e). The Sixth Circuit held that Johnson’s reasoning applied equally to the guidelines, and that the residual clause in §4B1.2(a) was also unconstitutionally vague. Prior decisions shielding the guidelines from vagueness challenges were inconsistent with Johnson. Because the Ohio third-degree burglary was no longer a qualifying conviction, the case was remanded for resentencing. U.S. v. Pawlak, __ F.3d __ (6th Cir. May 13, 2016) No. 15-3566.
7th Circuit holds crime of violence in 18 U.S.C. § 16(b) is unconstitutionally vague. (135)(340) Under 8 U.S.C. § 1326(b)(2), the maximum sentence for reentry after deportation is raised to 20 years if the defendant had been convicted of an “aggravated felony” prior to removal. The definition of “aggravated felony” is based on the definition of “crime of violence” in 18 U.S.C. § 16(b), which includes “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The Seventh Circuit found this language materially indistinguishable from the “residual clause” of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), which was held unconstitutionally vague by the Supreme Court in Johnson v. U.S., __U.S. __, 135 S.Ct. 2551 (2015). Accordingly, it reversed the district court’s finding that defendant’s Wisconsin conviction for fleeing an officer was a crime of violence under § 16(b). U.S. v. Vivas-Ceja, __ F.3d __ (7th Cir. Dec. 22, 2015) No. 15-1770.
8th Circuit says Johnson puts in doubt prior opinion that guidelines cannot be unconstitutionally vague. (135)(340)(520)(540) Defendant’s prior conviction was found to be a crime of violence under the “residual clause” of the career offender guideline, § 4B1.2(a)(2), because it involved “conduct that presents a serious potential risk of physical injury to another.” He argued that this clause was unconstitutionally vague under Johnson v. U.S., 576 U.S. __, 135 S. Ct. 2551 (2015), which struck down identical language in the Armed Career Criminal Act, 18 U.S.C. §924(e), as unconstitutionally vague. However, in U.S. v. Wivell, 893 F.2d 156 (8th Cir. 1990), an Eighth Circuit panel concluded that the sentencing guidelines are “not susceptible to a vagueness attack.” The Eighth Circuit found that the reasoning in Wivell that the guidelines could not be unconstitutionally vague was doubtful after Johnson. The panel remanded the case to the district court to decide whether the residual clause of the career offender guideline was unconstitutional. U.S. v. Taylor, __ F.3d __ (8th Cir. Oct. 9, 2015) No. 14-2635.
Supreme Court holds ACCA residual clause void for vagueness. (135)(540) The Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), provides that a person convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. §922(g), is subject to a mandatory 15-year sentence if the defendant has three prior convictions for a “violent felony.” The term “violent felony” is defined in the residual clause of §924(e) as any felony that “involves conduct that presents a serious potential risk of physical injury to another.” Although the Supreme Court had twice rejected arguments that the residual clause was void, the Court, in a decision written by Justice Scalia, held that §924(e)’s residual clause was void for vagueness, in violation of the Due Process Clause. The Court held that the statute creates “grave uncertainty” about how to estimate the risk caused by a crime or whether a crime qualifies as a violent felony. The Court held that its prior rejection of vagueness challenges to §924(e) had not been after full briefing of vagueness. Justices Kennedy and Thomas filed opinions concurring in the judgment; Justice Alito dissented. Johnson v. U.S., 576 U.S. __, 135 S. Ct. __ (June 26, 2015).
8th Circuit rejects sentencing entrapment claim. (135) An undercover ATF agent recruited defendant and two other men to rob a home in St. Louis reportedly being used to store cocaine. The Eighth Circuit upheld the denial of defendant’s sentencing entrapment claim. The evidence at trial showed that defendant had expected to steal at least 15 kilograms of cocaine and that he had the ability to distribute that amount. After defendant learned that the targeted location contained 20 to 22 kilograms of cocaine, an undercover agent asked defendant whether there would be any problems “unloading” the drugs. Defendant replied, “nah, nah, man we good.” Given this unequivocal statement, defendant could not show that he had neither the intent nor the ability to distribute at least 15 kilograms of cocaine. Nor could he show that he was predisposed to deal only in small quantities of cocaine. Defendant was a convicted drug dealer who was released from prison only five years before the conduct at issue here. U.S. v. Warren, __ F.3d __ (8th Cir. June 5, 2015) No. 14-2681.
D.C. Circuit remands for failure to consider sentencing manipulation argument. (135) Defendant traveled to another state to have sex with a fictitious 12-year old girl. At sentencing, the district court applied the cross-reference in §2G1.3(c)(1) based on defendant’s possession of a camera to take pictures of the minor. Defendant requested a variance based on sentencing manipulation, claiming the undercover officer purposely introduced the camera into their conversations to increase defendant’s sentence. The district court did not address defendant’s sentencing manipulation argument. The D.C. Circuit held that the district court committed procedural error by failing to address defendant’s non-frivolous sentencing manipulation argument. When a district court confronts a non-frivolous argument for a sentence below the relevant guideline range, it must consider it. The government’s claim that sentencing manipulation can never be a basis for a reduced sentence was incompatible with the Supreme Court’s Booker decision. U.S. v. Bigley, __ F.3d __ (D.C. Cir. May 15, 2015) No. 12-3022.
8th Circuit says increase based on agent’s cover identity was not sentencing manipulation. (135)(330) Defendant sold firearms to undercover agents. The district court added enhancements under §§2K2.1(b)(1), (5), and (6) for selling the firearms to someone defendant knew should not have them and for selling firearms that defendant knew would be taken out of the country. An agent had represented to defendant that he had previously served more than a year in prison, that he belonged to an outlaw motorcycle gang, and that the firearms would be transported to Mexico. The Eighth Circuit rejected defendant’s claim that basing the enhancements on fictitious facts made up by the agents constituted sentencing manipulation. The agent gave specific and legitimate law enforcement reasons for providing this cover identity. A recent prison release would explain the agent’s newness to the neighborhood and why nobody knew him. This would also mesh with telling defendant that he belonged to an outlaw biker gang. The agent also testified that telling defendant that the firearms would be transported to Mexico or to an outlaw biker gang gave him an avenue to buy as many firearms as defendant was willing to sell. U.S. v. Sacus, __ F.3d __ (8th Cir. Apr. 30, 2015) No. 14-1361.
1st Circuit finds defendant had notice of information court relied on to find criminal predisposition. (135) Defendant was arrested in a reverse government sting in which he and several co-conspirators planned to break into an apartment of two drug dealers, and steal cocaine and cash. The district court rejected defendant’s claim of improper sentencing factor manipulation, rely¬ing on recorded conversations between defendant and an ATF informant to establish defendant’s predisposition. Defen¬dant argued that the district court failed to provide him with sufficient notice of these conversations. The First Circuit disagreed. The PSR and other documents in the record showed that the information upon which the district court relied had long been available to defendant. The recorded conversations, which convinced the district court that defendant was the “ringleader” and “master-mind” of the planned heist, were mentioned in a 2011 affidavit by an ATF special agent attached to the criminal complaint. Both the pre-plea and final PSRs drew upon this affidavit, and the government also cited these con¬versations in summarizing its evidence at defendant’s change-of-plea hearing. This information therefore could hardly have taken defendant by surprise at sentencing. U.S. v. Kenney, __ F.3d __ (1st Cir. June 25, 2014) No. 12-2451.
1st Circuit finds no sentencing factor manipulation. (135) Defendant and a crooked police officer were involved in a number of illegal activities, including co-hosting parties that involved an unlicensed strip club, the unlicensed sale of alcohol, prostitutes, and drug trafficking. A cooperating witness befriended defendant and asked him to procure “party favors” for the witness’s cousins, who planned to attend one of the parties. Defendant initially thought the witness was requesting prostitutes, but when the witness stated “the other favors,” defendant responded “Powders?” Defendant then offered to network the request, and eventually sold the witness cocaine on two occasions. The Eighth Circuit held that defendant failed to establish sentencing factor manipulation. The government’s actions in this case were not intolerable or indicative of extraordinary misconduct. Rather, the mere suggestion of the procurement of illegal drugs set defendant on his course. The informant had not yet asked defendant whether he could provide the drugs before defendant offered, of his own initiative, to “network” the drug procurement. At most, the government afforded defendant the opportunity to commit the crime. U.S. v. West, 631 F.3d 563 (1st Cir. 2011).
1st Circuit rejects sentencing manipulation claim where defendant offered crack in first conversation. (135) After selling drugs on two occasions to a government informant, defendant was tried and convicted of distributing powder cocaine and crack cocaine. He argued that the government engaged in sentencing factor manipulation, but the First Circuit disagreed. The trial judge believed the confidential informant’s statement that defendant himself offered crack in the first conversation. In any case, the evidence showed that the informant exerted no real pressure, let along undue pressure, to secure the sale of crack, which defendant showed no hesitation in providing. U.S. v. DePierre, 599 F.3d 25 (1st Cir. 2010).
1st Circuit rejects sentencing entrapment claim. (135) Defendant was convicted of drug charges for smuggling bags of cocaine through a network of accomplices at a Puerto Rico airport to ensure that they were put on airplanes bound for the mainland United States. Investigators arranged for a 20-kilo shipment of sham cocaine to be “lost,” creating more urgency for subsequent shipments. The informant told defendant that she feared for her life, and at one point defendant said he was losing sleep over the situation. The district court rejected defendant’s claim of sentencing entrapment, and the First Circuit affirmed. Defendant was not improperly induced to commit more, or more serious crimes, than those to which he was already predisposed. Sentencing entrapment does not occur unless “law enforcement agents venture outside the scope of legitimate investigation and engage in extraordinary misconduct that improperly enlarges the scope or scale of the crime.” Defendant showed no reluctance to arrange the additional shipments. U.S. v. Jaca-Nazario, 521 F.3d 50 (1st Cir. 2008).
1st Circuit holds that sentencing manipulation did not require sentence below statutory minimum. (135) The district court found that the government had engaged in sentencing factor manipulation by ordering the informant to purchase crack cocaine (rather than powder) with the intent of securing a higher sentence. However, the court concluded that, in light of defendant’s predisposition to sell crack, the government’s conduct was not “extreme and outrageous” enough to warrant a sentence below the mandatory minimum. The First Circuit held that the district court did not clearly err, declining to adopt a per se rule that sentencing manipulation requires a sentence below the statutory minimum. After finding the government’s conduct was “wrong and troubling” and that it would take the conduct “into account,” the district court properly inquired further to determine if the government’s misconduct was sufficiently egregious to warrant a sentence below the statutory minimum. Based on what it found to be “very strong evidence” that defendant was ready, willing, and able to accommodate the informant’s need to purchase crack upon request, the court found that the government, while motivated in part by an improper desire to increase defendant’s sentence, did not exert undue pressure or coercion on defendant to get him to sell crack. U.S. v. Fontes, 415 F.3d 174 (1st Cir. 2005).
1st Circuit rejects sentencing entrapment claim. (135) Defendant requested a downward departure based on the government’s sentencing entrapment, asserting that the government “arranged” to have him sell drugs on eight separate occasions rather than simply arresting him after the first sale. The First Circuit disagreed, since defendant failed to introduce sufficient evidence to demonstrate that the government improperly extended the duration of its investigation in an effort to extend his sentence. While the government could have arrested defendant after the first sale, it did not appear that its failure to do so was motivated by malice or bad faith. Since defendant used multiple sources of drugs, the government’s extension of the investigation allowed it to identify more dealers. U.S. v. Capelton, 350 F.3d 231 (1st Cir. 2003).
1st Circuit upholds court’s drug quantity finding. (135) Defendant was convicted by a jury of conspiracy to distribute more than 50 grams of crack cocaine. The sentencing judge found by a preponderance of the evidence that 150 grams of crack was attributable to defendant. Defendant argued that his sentence should be vacated because the court erred as a matter of law by failing to “exercise independent judgment” in its consideration of evidence by summarily disregarding both the memo submitted by defendant on drug quantity and Hogan’s testimony at sentencing regarding the extent of defendant’s involvement in the conspiracy. The First Circuit disagreed. The district court carefully read defendant’s memo and considered the evidence before making an independent determination that defendant’s arguments were without merit. The court not only allowed defendant’s testimony was also questioned Hogan on the inconsistencies between the testimony offered and the confession that he made during his own sentencing. Based on these inconsistencies, the court found Hogan to be an unreliable witness and did not credit his testimony. These are precisely the determinations of fact that the sentencing court has discretion to make. U.S. v. Newton, 327 F.3d 17 (1st Cir. 2003).
1st Circuit holds that 14-month delay between conviction and sentencing was not unconstitutional. (135) Over 14 months passed between the date of defendant’s conviction and the date of sentencing. He argued that his right to a fair trial was violated because of excessive delay in his sentencing. Assuming that the right to a speedy trial extended to sentencing, the First Circuit ruled that any right to speedy sentencing was not violated. Although a 14-month delay is long enough to trigger an inquiry into the factors set out in Barker v. Wingo, 407 U.S. 514 (1972), defendant could not make a persuasive showing on any of the other factors. It took seven months for the probation officer to complete the PSR and for the parties to submit their objections. Much of the later delay could be attributed to defendant’s own motions to continue his sentencing. Most importantly, defendant did not show he suffered any prejudice as a result of the 14-month delay. U.S. v. Nelson-Rodriguez, 319 F.3d 12 (1st Cir. 2003).
1st Circuit rejects sentencing manipulation claim. (135) Defendant argued that the court should have reduced the amount of cocaine attributed to him because of the intensive involvement of confidential informants Hernandez and Diaz in the conspiracy. This was a type of improper sentencing manipulation argument, for which defendant had the burden. However, “garden-variety manipulations claims are largely a waste of time.” It is insufficient to say that the idea of the conspiracy originated with undercover agents, or that the crime exceeded in degree or kind what the defendant had done before. Instead, the defendant must show that elements like these were so extensive that “the government conduct must be viewed as extraordinary misconduct.” The First Circuit found that defendant fell short of this standard. He offered nothing more than conclusory allegations. Further, Hernandez testified that the Colombians, not he or Diaz, set the amount involved in the cocaine importation. Defendant also bragged to Diaz that he and his team had been drug trafficking for years. Thus, it was unlikely that government agents encouraged defendant or his co-conspirators to engage in conduct in which they would otherwise have been unwilling to participate. U.S. v. Nelson-Rodriguez, 319 F.3d 12 (1st Cir. 2003).
1st Circuit rejects sentencing entrapment claim. (135) Defendant argued that the government engaged in sentencing manipulation by enticing him to sell crack cocaine rather than powder cocaine to a government informant. He also claimed that the DEA strung out the investigation in order to have a larger amount of drugs to attribute to him. The First Circuit rejected the sentencing entrapment claim, finding no evidence of government misconduct. A co-conspirator testified that he and defendant had sold both crack and powder cocaine since January 1996, and that defendant regularly received large quantities of crack. In his discussions with the informants, defendant had a ready facility with the street prices of both crack and powder cocaine and quoted kilogram prices for both. The government, when investigating the business of a drug dealer who by reputation sells both crack and powder cocaine, is under no obligation to buy only that product or quantity which would produce the smallest sentence for the defendant. As for the duration of the investigation, the government claimed it was trying to trace other individuals involved in the drug network, to establish that defendant was a dealer in both substances, and to remove drugs from the streets — all permissible purposes. U.S. v. Terry, 240 F.3d 65 (1st Cir. 2001).
1st Circuit holds that government did not engage in sentencing manipulation. (135) Undercover agents agreed to sell defendant cocaine for $15,000 per kilogram, which was under the then-market price of $24,000. The agents said they had five kilos available. Defendant agreed to buy two kilograms of cocaine in cash and receive two kilograms on credit. At the arrest, defendant’s partner was in possession of $30,000. Defendant argued that the government’s “bargain basement pricing and generous consignment policy” constituted sentencing factor manipulation, and thus his sentence should be based only on the two kilograms that he originally intended to purchase. The First Circuit found no sentencing manipulation. This case involved a single transaction, not a string of crimes prolonged by the government; the price was within the market range; defendant by his own admission was a well-established drug dealer who had previously handled substantial quantities. Further, defendant and his partner expressed their intent to regularly buy five kilograms from the agent because they had the customer base. There was no evidence that the credit arrangement was devised to increase defendant’s sentence. U.S. v. Woods, 210 F.3d 70 (1st Cir. 2000).
1st Circuit denies evidentiary hearing on government’s alleged use of perjured testimony. (135) The government filed a complaint alleging that defendant’s attorney had made baseless allegations that a government agent had lied to the grand jury. Defendant’s attorney moved for an evidentiary hearing to explore these issues, contending that proof of government misconduct would entitle his client to a downward departure. The First Circuit held that defendant’s conclusory allegations did not require an evidentiary hearing. FBI agent Egan testified before the grand jury that defendant had transferred his house to his ex-wife after learning that his activities were under investigation. Egan admitted at trial that this testimony was in error. He explained that he had mistakenly relied on erroneous information that he had received from defendant’s previous attorney. Defendant failed to rebut this explanation. The prosecutor’s decision to file an ethical complaint against defendant’s attorney was not improper, even though the complaint was eventually dismissed, because the government had a threshold basis for believing that defendant’s allegations of perjury were made in bad faith. Thus, defendant’s claim of government misconduct was belied by the record and was simply too conclusory to warrant further investigation. U.S. v. Rowe, 202 F.3d 37 (1st Cir. 2000).
1st Circuit holds that huge sentencing disparity between co-conspirators is constitutional. (135) Defendants argued that they should be resentenced because their sentences were significantly higher than those of their co-conspirators who pled guilty rather than going to trial. They claimed that the disparity in sentences (life sentence, 260 and 235 months, compared with 17 and 60 months) was an impermissible burden on their Sixth Amendment right to a jury trial and violated the Due Process and Equal Protection clauses. The disparity was caused by the fact that the conspirators who pled guilty were only held responsible for the drugs that each had personally handled, while defendants were held accountable for all 5000 grams of crack involved in the conspiracy. The First Circuit held that the huge sentencing disparity was not unconstitutional. The fact that those who plead generally receive more lenient treatment than co-defendants who go to trial does not in and of itself constitute an unconstitutional burden on one’s right to go to trial. The government has the discretion to charge similarly situated defendants differently, unless the prosecutor discriminates on the basis of impermissible factors. Disparity between co-defendants’ sentences is not a proper ground for departure. U.S. v. Rodriguez, 162 F.3d 135 (1st Cir. 1998).
1st Circuit upholds validity of armed career criminal guideline. (135) Defendant argued that § 4B1.4, the armed career criminal guideline, violated due process and equal protection because a defendant who already is in an elevated criminal history category will not receive any further enhancement, while a person with a lesser record will be catapulted upward. The First Circuit upheld the validity of § 4B1.4. Fixed ceilings necessarily involved increasing diminution of enhancement as one approaches the ceiling, and increasing disparity among those subject to the ceiling. The guidelines allow a court in a proper case to depart upward if a criminal history category proves inadequate. U.S. v. Caron, 64 F.3d 713 (1st Cir. 1995), reinstated on reh. en banc, 77 F.3d 1 (1st Cir. 1996) (en banc).
1st Circuit permits departure where acquitted conduct resulted in mandatory life sentence. (135) Defendants were acquitted in state court of murdering two men. They were then indicted in federal court on firearms charges arising out of the murders. The district court found that defendants used the firearms in connection with the murders, and applied the cross references in § 2K2.1(c)(2) and § 2X1.1 to first degree murder. As a result, one defendant received a mandatory term of life imprisonment. The First Circuit found that this was a case where the sentencing enhancement was “the tail which wags the dog” of the offense of conviction. The murders were not used just to fix the defendant’s sentence at some higher point within the statutory range for the firearms offense. Instead, the absence of a statutory maximum required the court to sentence as if the offense of conviction was first degree murder. This came too close to punishing defendant for the murders rather than the firearms offense. Given these constitutional concerns, the district court had authority under § 5K2.0 to depart downward from the life sentence. This was an “unusual and perhaps singular case” and should not be construed as an invitation to litigate the usual sentence enhancement based on uncharged or acquitted conduct. U.S. v. Lombard, 72 F.3d 170 (1st Cir. 1995).
1st Circuit finds no sentencing manipulation even though agents partially by previous lenient treatment. (135) On four occasions, defendant purchased credit cards from an undercover agent. In the first three transactions, the agent sold a total of 11 cards in exchange for a share of the proceeds. Before the fourth transaction, the agent proposed a price of $200 per card. Defendant replied that he would not buy one card, but ten. At the final sale, the agent carried a bag full of cards and asked whether defendant knew of another buyer. Defendant said he could handle all of the cards. He gave the agent $2000, with a promise of $6000 more later, for 40 cards. The First Circuit rejected defendant’s claim that the fourth transaction amounted to sentencing manipulation, even though the government may have been motivated in part by earlier lenient treatment defendant had received from the courts. Although the fourth sale was much larger than the earlier ones, the agent did not force the 40 cards on defendant. Government agents are not limited to replicating a suspect’s largest unsolicited crime. The fourth transaction provided evidence for trial that defendant was a significant dealer and not a petty swindler. Nothing suggested government misconduct, let alone “extraordinary” misconduct. The fact that the government considered defendant’s past criminal conduct in targeting him for a sting was not improper. U.S. v. Egemonye, 62 F.3d 425 (1st Cir. 1995).
1st Circuit says agent’s agreement to reduce down payment for drugs was not sentencing manipulation. (135) An undercover agent offered to sell defendants 10 kilograms of cocaine. Although defendants originally agreed to pay a $50,000 down payment, several months later, they pled a shortage of cash, and the agent reduced the down payment to a $5,000 advance for expenses and a $20,000 initial payment on delivery. Defendants argued that the government engaged in sentencing manipulation. The government argued that the appellate court lacked jurisdiction because defendants’ claim was that the district court should have departed downward. The First Circuit upheld its jurisdiction over the claim, but nonetheless rejected it on the merits. Where government agents have improperly enlarged the scope of the crime, the sentencing court has the power to either exclude the tainted transaction from the computation of relevant conduct or depart from the guidelines. Thus, the decision is reviewable. However, the reduction of the down payment here did not amount to sentencing manipulation. The case involved a single transaction, not a string of crimes prolonged by the government; the price was within the market range; and defendants were well-established drug dealers. Sentencing manipulation claims are limited to “extreme and unusual cases,” and “garden variety manipulation claims are largely a waste of time.” U.S. v. Montoya, 62 F.3d 1 (1st Cir. 1995).
1st Circuit rejects claim that government manipulated sentence claim by additional sales. (135) During six transactions over the spring and summer of 1992, undercover agents sold defendant food stamps with an aggregate face value of $12,895. The agents stopped the sales in July 1992. Four months later, the agents renewed contact with defendant, and sold him food stamps with a total face value of $8100. Defendant claimed the government revived the investigation solely to increase the total face value of the food stamps to $20,000, thus increasing his offense level under section 2F1.1. The government claimed that other agency business necessitated a temporary suspension of the investigation. The “hiatus” ended four months later because the agency’s workload had eased and the government needed proof of defendant’s conspiratorial intent. The government was also hoping to “land a bigger fish.” The 1st Circuit found no sentencing manipulation, as the government’s explanation of events was as plausible as defendant’s. U.S. v. Gibbens, 25 F.3d 28 (1st Cir. 1994).
1st Circuit rejects sentencing manipulation claim. (135) Defendant sold a gun to an undercover agent. He received an enhancement under §2K2.1(b)(5) because the agent told defendant he intended to use the gun in a drug trafficking operation. Defendant argued that the government engaged in sentencing manipulation, since the agent did not speak of the gun’s intended use until the time of the sale, when it was too late to retreat from the deal. The 1st Circuit found the facts did not support this claim. The agent’s testimony made it clear that defendant knew of his customer’s proposed use for the weapon from the outset of their negotiations. When an offense level enhancement results from a matter that formed part and parcel of the original negotiations between a government agent and his target, and the criminal venture proceeds on that basis, a claim of sentencing manipulation will not lie. U.S. v. Brewster, 1 F.3d 51 (1st Cir. 1993).
1st Circuit affirms enhancement despite “sentencing entrapment” claim. (135) Defendant was caught laundering money in a government sting operation. He contended that the government engaged in “sentencing entrapment” by having an undercover agent advise him that the money was drug proceeds, for the sole purpose of increasing his sentence under 2S1.3(b)(1). Defendant had already conducted three laundering transactions when the agent told him the supposed origin of the funds. The 1st Circuit found that even if under certain extreme circumstances the government’s manipulation in a sting operation must be filtered out of the sentencing process, this was not such a case. Defendant was clearly on notice after the undercover agent advised him that the money was criminally derived, yet he continued to launder money for the agent. There was no evidence that the agent threatened defendant into continuing with the operation. U.S. v. Connell, 960 F.2d 191 (1st Cir. 1992).
1st Circuit upholds guidelines against due process challenge. (135) Defendants argued that the sentencing guidelines violate due process by permitting the sentencing court to consider evidence not established beyond a reasonable doubt. The 1st Circuit rejected this claim, finding that due process only requires defendants be given a reasonable opportunity to rebut disputed facts. Defendants also argued that the district court applied the guidelines too mechanically and did not take adequate account of their individual circumstances. The 1st Circuit rejected this argument as well, finding that the guidelines impose no unconstitutional constraint on individualized sentencing, given the broad range of variables cognizable by the sentencing court and the court’s discretion to depart in appropriate circumstances. U.S. v. Sanchez, 917 F.2d 607 (1st Cir. 1990).
1st Circuit holds that guideline sentences do not violate due process. (135) The 1st Circuit held that guideline sentences do not violate due process because a defendant has no right to individualized sentences. U.S. v. Fox, 889 F.2d 357 (1st Cir. 1989).
2nd Circuit says parsimony clause in § 3553(a) does not bar mandatory sentence under § 841(b). (135) The parsimony clause in 18 U.S.C. § 3553(a) directs the district court to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” Defendant argued that this conflicts with the mandatory sentencing provisions in § 841(b), because the balancing required by § 3553(a) is incompatible with a mandatory sentencing scheme. The Second Circuit disagreed, finding that § 3553(a) is not inconsistent with a sentencing floor. The introductory language in 18 U.S.C. § 3551(A) is qualified with the phrase “[e]xcept as otherwise specifically provided,” and § 841(b)(A) specifically provides for a mandatory minimum sentence of 20 years. Further, § 3553(e) and (f) provide limited circumstances in which a court may depart from a statutory minimum sentence. These provisions would be surplusage under defendant’s interpretation of § 3553(a). U.S. v. Samas, 561 F.3d 108 (2d Cir. 2009).
2nd Circuit reaffirms that crack/powder disparity does not violate equal protection. (135) Defendant argued that the mandatory sentencing scheme in 21 U.S.C. § 841(b) violates equal protection because there is no rational basis for the disparity between the sentences for powder and crack cocaine. The Second Circuit noted that it has repeatedly rejected this argument. Nothing in Kimbrough v. U.S., 552 U.S. 85, 128 S.Ct. 558 (2007), suggests that the powder to crack cocaine disparity in § 841(b) is unconstitutional. Kimbrough bears upon the discretion of district judges to sentence within the maximum and minimum sentence “brackets,” it does not disturb precedent rejecting challenges to the constitutionality of the mandatory sentencing scheme in § 841(b). U.S. v. Samas, 561 F.3d 108 (2d Cir. 2009).
2nd Circuit rejects sentencing entrapment claim where district court rejected defendant’s version of events. (135) Defendant was arrested when he delivered 100.9 grams of crack to an undercover officer. Defendant raised a sentencing manipulation and sentencing entrapment claim, testifying that he originally had agreed to sell only powder cocaine to Perez. Perez claimed that defendant had agreed to sell him crack. At the end of the hearing, the judge ruled that she credited the testimony of Perez over that of defendant. Since the judge credited Perez’s version over defendant’s version, and this finding was not clearly erroneous, the Second Circuit rejected the sentencing manipulation or entrapment claim on appeal. Under Perez’s version of events, defendant was knowingly involved in a crack deal the whole time, and therefore was not induced to commit an offense that he was not otherwise predisposed to commit. U.S. v. Duverge Perez, 295 F.3d 249 (2d Cir. 2002).
2nd Circuit rejects sentencing entrapment claim because no outrageous government conduct. (135) Defendant contended that he was subjected to sentencing entrapment or sentencing manipulation, because his punishment, which was directly related to the value of the funds at issue, increased because IRS agents arranged an additional transaction with a co-conspirator after a grand jury had already indicted defendant and the co-conspirator. The Second Circuit has not ruled on whether sentencing entrapment or sentencing manipulation is a valid ground for departure. Previous cases have found no sentencing entrapment where a defendant’s principal contention concerned the timing of his arrest after entering a sting transaction. See U.S. v. Rosa, 17 F.3d 1531 (2d Cir. 1994). Other cases have suggested that, if a sentencing entrapment or sentencing manipulation departure was valid, it would likely require a showing of “outrageous” government conduct. See U.S. v. Knecht, 55 F.3d 54 (2d Cir. 1995); U.S. v. Gomez, 103 F.3d 249 (2d Cir. 1997). Although the status of either concept as a departure ground remains unclear, the Second Circuit found that these concepts were unavailable to defendant, for the present record provided no basis for finding outrageous government conduct. U.S. v. Bala, 236 F.3d 87 (2d Cir. 2000).
2nd Circuit rejects cross-appeal to avoid appearance of prosecutorial vindictiveness. (135) Defendant’s first PSR combined all of his counts into a single group. Defendant filed objections to the PSR; the government did not. The second PSR contained the same sentencing recommendations as the first, including the same grouping, and stated that government “has no objections to the factual content or guideline computations … in the revised report.” In a sentencing memorandum, the government responded to defendant’s objections and expressly stated that the “grouping determination is not challenged.” However, about a month later, the government withdrew its recommendation for a § 2G2.2(b)(3) enhancement after a defense expert and his agent alleged prosecutorial misconduct. The government then argued for the first time that defendant’s counts should be grouped into five separate groups. The district court ultimately placed defendant’s counts into four different groups. Defendant appealed, and the government cross-appealed the grouping. To avoid the appearance of prosecutorial vindictiveness, the Second Circuit declined to entertain the cross-appeal. “[W]e cannot cleanse this record of the appearance of a radical and belated change in the government’s position as to grouping as a result of a vigorous defense effort to minimize the sentence that appeared to be on the verge of success with regard to the [§ 2G2.2(b)(3)] enhancement. Whether or not the government’s change in position was the result of actual vindictiveness … entertaining the cross-appeal would expose [defendant] to a much greater sentence than would have been imposed had he simply acquiesced in—instead of contesting—PSR #1.” U.S. v. Johnson, 221 F.3d 83 (2d Cir. 2000).
2nd Circuit says defendant not entitled to pre-trial notice of ACCA enhancement. (135) Defendant argued that he was unaware before trial that, if convicted, he would be subject to sentencing under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and USSG § 4B1.4(b) (3)(B). Prior to trial, the government provided defendant with a copy of a computer-generated criminal history that listed a drug felony conviction and an assault conviction, but omitted a second assault conviction. The assault conviction did not come to light until the PSR was prepared. The Second Circuit held that there is no constitutional requirement that a defendant be given notice before trial that a sentencing enhancement under the ACCA may be sought after conviction. See U.S. v. O’Neal, 180 F.3d 115 (4th Cir. 1999); U.S. v. Craveiro, 907 F.2d 260 (1st Cir. 1990). Due process requires that a defendant have notice and an opportunity to contest the validity or applicability of the prior convictions upon which a statutory sentencing enhancement is based. However, there is no requirement that a defendant be notified before trial that such an enhancement may be sought, because “the determination of whether one is an habitual criminal is ‘essentially independent’ of the underlying substantive offense.” U.S. v. Moore, 208 F.3d 411 (2d Cir. 2000).
2nd Circuit rejects sentencing manipulation claim where no government misconduct. (135) Defendant argued that the government engaged in sentencing manipulation. First, he claimed the undercover agent set the weight of the heroin at 125 grams even after defendant said he did not have enough money to buy that amount. Second, he claimed the agent “gratuitously interjected” into his conversations the suggestion that he would use the guns he purchased from defendant to defend his drug “spots.” The Second Circuit rejected the sentencing manipulation claim since there was no outrageous government conduct under either a subjective or an objective standard. The transcripts showed no more than the government’s offer to sell a specified amount of heroin and defendant’s willing acquiescence to buy. With respect to the guns, the undercover agent made his vulnerable drug operations a feature of his cover story to enhance his credibility. In response to the agent’s representations, defendant expressed neither surprise nor reluctance to continue the deal. Instead, he eagerly advised the agent which guns were best suited for his stated purpose. U.S. v. Gomez, 103 F.3d 249 (2d Cir. 1997).
2nd Circuit remands to new judge where judge said he would impose same sentence even absent mistake. (135) In sentencing defendant to the maximum 6-month prison term, the district court incorrectly said defendant was on probation when he committed the instant offense. When defendant tried to address the error, the judge silenced him. At a hearing on whether to stay the execution of sentence pending appeal, the judge acknowledged his error, but said he would have imposed the maximum 6-month sentence anyway. The Second Circuit found that the judge’s mistaken belief as to defendant’s probationary status was plainly material, and given this due process violation, remand was necessary. However, since the judge made it clear that remand to him would be “an empty gesture,” the appellate court remanded to a new judge. U.S. v. McDavid, 41 F.3d 841 (2d Cir. 1994).
2nd Circuit holds defendants accountable for stolen goods they intended to purchase. (135) Defendants were convicted of conspiracy to receive and resell stolen goods, primarily silver and gold. The district court included in its offense calculation under section 2B1.1(b)(1) the value of a planned purchase of 5600 pounds of silver from a government agent. The 2nd Circuit affirmed. Agreement for the purchase had been reached, and there were extensive negotiations concerning the method and timing of delivery. Defendants were not entitled to a reduction under § 2X1.1(b)(2) for a conspiracy where the substantive offense is not committed. The reduction is appropriate only where the arrest occurs well before any of the acts necessary for the substantive offense are completed. These defendants undoubtedly had completed all the acts they believed necessary to receive the goods. Finally, even if sentencing entrapment is a valid claim, that defense was inapplicable here, since defendants were predisposed to engage in further transactions. U.S. v. Rosa, 11 F.3d 315 (2nd Cir. 1993).
2nd Circuit refuses to consider whether buyer in reverse sting was able to complete purchase. (135) Defendant negotiated to purchase one and one-quarter kilograms of heroin from an undercover agent for $75,000. The heroin was purchased with a promissory note secured by defendant’s business. Defendants argued that they should not be accountable for the full quantity, since they were unable to purchase the heroin, and the transaction was only made possible by a government agent who was willing to accept less than market value for the heroin. The 2nd Circuit held that in a “reverse buy,” the putative buyer cannot contest his ability to pay the sales price for the negotiated quantity. Where a seller neither intends nor is able to produce the negotiated quantity of narcotics, application note 1 to section 2D1.4 recognizes that the crime could not have been committed as planned. Where the defendant is the buyer, however, and negotiates for a particular quantity, he or she fully intends to commit the crime as planned and can be held accountable for that quantity. U.S. v. Alaga, 995 F.2d 380 (2nd Cir. 1993).
2nd Circuit applies same enhancements to conspirators as to those convicted of the substantive offense. (135) Defendant was convicted of conspiracy to counterfeit, and his base offense level was enhanced 15 levels because his offense involved more than $10 million. The 2nd Circuit rejected defendant’s argument that the Sentencing Commission acted irrationally or in excess of its power in applying the same enhancements to conspirators under 2X1.1(a) as would apply to those convicted of the target offense. U.S. v. Boothe, 994 F.2d 63 (2nd Cir. 1993).
2nd Circuit rejects youthful lack of guidance, harsher federal penalties, as basis for departure. (135) The 2nd Circuit affirmed the refusal to depart downward based on defendant’s youthful lack of guidance, the prosecution’s choice of federal jurisdiction, and the enhanced penalties for crack-related crimes. Although the 9th Circuit upheld youthful lack of guidance as a basis for a downward departure, the Sentencing Commission amended section 5H1.12 to reject this as a ground for a downward departure. A departure based on a prosecutor’s choice of federal rather than state jurisdiction is not permissible, because choice of forum is an exclusive function of a prosecutor’s discretion. Finally, a departure based upon the enhanced penalties for crack is not permitted because the harsher penalties reflect a rational aim of deterring drug transactions involving crack. Crack is the most addictive and destructive form of cocaine. U.S. v. Haynes, 985 F.2d 65 (2nd Cir. 1993).
2nd Circuit rejects due process argument that guidelines allow prosecutor to manipulate sentence. (135) Defendant argued that the guidelines violate due process by improperly giving the prosecutor power to manipulate a sentence by deciding which criminal statutes to enforce. The 2nd Circuit rejected this argument. That a particular penalty may be a factor in the prosecutor’s charging calculus is not, by itself, a due process violation. There is no procedural due process right to an individualized sentence. In the absence of a prosecutor’s bad faith or discrimination, the guidelines do not vest undue sentencing authority in the prosecutor. U.S. v. Delibac, 925 F.2d 610 (2nd Cir. 1991).
2nd Circuit holds that guidelines do not deny due process. (135) The Second Circuit reaffirmed its previous holding that guideline sentences do not deny a defendant due process. The ability of district courts to depart from the guidelines provides adequate room for the exercise of articulated discretion by courts in fashioning sentences. This discretion is especially relevant where the “real offense” system adopted by the guidelines tends to skew the benefits of plea bargaining. Here, there was no abuse of discretion in the district court’s decision to refuse to depart from the guidelines to reflect the lower amount of cocaine specified in the count of conviction. U.S. v. Fernandez, 877 F.2d 1138 (2nd Cir. 1989).
2nd Circuit holds that no due process violation occurs by reason of the sentencing commission’s structure. (135) The fact that the President has the power to appoint Sentencing Commissioners does not give the prosecutorial branch excessive sentencing authority. Even if it were fundamentally unfair to give the executive branch the power to control sentencing by placing the Commission in the executive branch, the advice and consent power of the Senate and the presence of lifetime Article III judges on the Commission prevents the exercise of an unlawful degree of control over sentencing by the executive branch. U.S. v. Vizciano, 870 F.2d 52 (2nd Cir. 1989).
2nd Circuit holds that sentencing guidelines do not violate substantive due process. (135) Following the Third Circuit’s holding in U.S. v. Frank, 864 F.2d 992 (3d Cir. 1989), the Second Circuit held that imposition of guideline sentences do not deprive a defendant of substantive due process. There is no constitutional right to have a trial court exercise discretion to fashion an individualized sentence. Such a right would be inconsistent with the deterrent and retributive functions of sentencing. Individualized sentences are matters of policy, not constitutional dictates. The only liberty interest at stake is avoiding future incarceration, and this is not protected by the due process clause. U.S. v. Vizciano, 870 F.2d 52 (2nd Cir. 1989).
2nd Circuit rules that guideline sentences do not deny procedural due process. (135) The sentencing guidelines do not deprive a defendant of the articulated exercise of discretion by a trial court because no such right exists. Procedural due process is ensured by such provisions as explicit sentencing formulation factors, mandatory explanations in the event of a departure, the right to appear and offer evidence, the right to contest the government’s evidence, and expanded appellate review. Nothing more is required. U.S. v. Vizciano, 870 F.2d 52 (2nd Cir. 1989).
3rd Circuit rejects sentencing entrapment and sentencing factor manipulation claims. (135) Defendant argued that police entrapped him into selling drugs in amounts beyond what he was predisposed to sell (sentencing entrapment) and that they unfairly strung out their investigation solely to increase the quantity of drugs he sold (sentencing factor manipulation). The Third Circuit has not adopted or rejected the doctrines of sentencing entrapment and sentencing factor manipulation. The panel found it was unnecessary to do so here because defendant could not establish the requisite factual predicates for either sentencing entrapment or sentencing factor manipulation. The district court found that defendant perjured himself when he testified regarding his lack of predisposition to sell cocaine. Similarly, defendant could not show sentencing factor manipulation because the police were not required to arrest defendant after the first controlled buy. It is not a violation of due process for the police to intentionally delay a sting operation in an effort to subject a suspect to a greater penalty. It also does not offend due process for the police to “persist in ascertaining what quantity [of drugs a defendant is] willing and able to deal.” U.S. v. Sed, 601 F.3d 224 (3d Cir. 2010).
3rd Circuit rejects constitutional challenges to mandatory consecutive sentencing scheme for use of gun during crime of violence. (135) Defendant was convicted of numerous firearms, robbery and drug charges, and received consecutive mandatory minimum sentences totaling 55 years of imprisonment for three violations of 18 U.S.C. § 924(c). The Third Circuit affirmed the 55-year sentence, rejecting defendant’s claim that it violated Due Process or constituted cruel and unusual punishment. Congress had a rational basis for treating second or subsequent offenses under § 924(c)(1) more harshly than first offenses and for imposing severe mandatory punishments for such offenses. The 55-year sentence did not violate our evolving standards of decency, but rather, represented Congress’s attempt to address the serious societal problem of the use of firearms in connection with violent crimes and in connection with drug trafficking. U.S. v. Walker, 473 F.3d 71 (3d Cir. 2007).
3rd Circuit permits sentencing court to find objects of multi‑object conspiracy. (135) Guideline section 1B1.2(d) and note 5 requires a sentencing court to determine beyond a reasonable doubt the objects of a multi‑object conspiracy after a jury returns a general guilty verdict on a conspiracy charge which does not specify the objectives of the conspiracy. The Third Circuit rejected defendant’s claim that this provision violated his Sixth Amendment right to a jury trial. Section 1B1.2(d) is a “sentencing consideration.” Under Supreme Court precedent it is permissible to treat the object of a multi-object conspiracy indictment as a sentencing factor rather than as an element of the crime. The provision also does not violate due process. By determining the objects of the conspiracy beyond a reasonable doubt, the sentencing court will meet whatever procedural standards might be required. U.S. v. Conley, 92 F.3d 157 (3d Cir. 1996).
3rd Circuit rejects “cheap price” departure because defendant stipulated to drug quantity. (135) Defendant argued that a downward departure was required under note 17 to § 2D1.1, because the government’s confidential informant offered to sell him cocaine at price substantially below market price, thereby leading him to purchase significantly more than he would otherwise have been able to purchase. He maintained that his $12,500 would have purchased less than a kilogram of cocaine on the open market, instead of the more than 50 kilograms attributed to him by the district court. The Third Circuit found no error since defendant stipulated in his plea agreement that he was responsible for between 50 and 150 kilograms of cocaine. U.S. v. Melendez, 55 F.3d 130 (3d Cir. 1995), aff’d on other grounds, Melendez v. U.S., 518 U.S. 120, 116 S.Ct. 2057 (1996).
3rd Circuit upholds refusal to depart based on sentencing entrapment. (135) Defendant argued that the district court should have departed downward based on “sentencing entrapment.” The 3rd Circuit refused to determine whether sentencing entrapment was a valid ground for departure, since it did not exist in this case. The government suggested that the conspirators import three to four kilograms of heroin, instead of some smaller amount, because it was not feasible for suppliers in Thailand or importers in the U.S. to set up such a big trip just to bring back one or two kilograms. Defendant was an experienced drug courier who demonstrated a “yeoman’s attitude” towards the venture. He indicated that he was willing to transport whatever quantity of heroin was available. U.S. v. Raven, 39 F.3d 428 (3rd Cir. 1994).
3rd Circuit holds that firearm enhancement does not require knowledge that gun was stolen. (135) Defendant was convicted of being a felon in possession of a firearm, and received a two level enhancement under guideline section 2K2.1(b)(2) because the gun was stolen. The 3rd Circuit rejected defendant’s claim that an enhancement under section 2K2.1(b)(2) is proper only if defendant knew the weapon was stolen. The language of section 2K2.1(b)(2) is unambiguous, and it is clear that Congress intentionally imposed strict liability. The lack of a scienter requirement does not violate due process by punishing a defendant for conduct for which he was not found guilty. Judge Mansmann dissented, believing that section 2K2.1(b)(2) as applied in this case violated substantive due process by relieving the government from proving criminal intent and meeting a sufficient standard of proof. U.S. v. Mobley, 956 F.2d 450 (3rd Cir. 1992).
3rd Circuit upholds guidelines against due process challenge. (135) Defendant contended that the sentencing guidelines on their face violate the due process clause because they transfer sentencing responsibility and discretion from the judiciary to the prosecution. The 3rd Circuit rejected this argument, noting that the district court case relied upon by defendant, U.S. v. Roberts, 726 F.2d 1359 (D.D.C. 1989), has not been well-received by any of the Circuits, including the District of Columbia Circuit. The enhanced role of the prosecutors does not lack a rational basis and thus does not violate due process. U.S. v. Santos, 932 F.2d 244 (3rd Cir. 1991).
3rd Circuit rejects due process challenge to substantial assistance provisions. (135) The 3rd Circuit rejected defendant’s claim that the substantial assistance provision of the guidelines violates due process by requiring a government motion to depart downward for substantial assistance. Eight courts of appeals have rejected the same argument. Moreover, the 3rd Circuit recently decided that Pennsylvania’s Mandatory Minimum Sentencing Act did not violate due process by giving state prosecutor’s discretion to depart below the statutory mandatory minimum sentence. The reasoning in that case was applicable here. U.S. v. Santos, 932 F.2d 244 (3rd Cir. 1991).
3rd Circuit rules that the guidelines do not deprive a defendant of substantive due process of law. (135) The 3rd Circuit reversed the district court’s invalidation of the guidelines on substantive due process, as well as separation of powers and delegation grounds. The imposition of a guidelines sentence represents an attempt to move toward, rather than away from, proportionality in sentencing. Furthermore, there is no right to individualized treatment in sentencing because the existence of such a right is incompatible with the notion that sentencing serves a retributive and deterrent function in society. U.S. v. Frank, 864 F.2d 992 (3rd Cir. 1988).
4th Circuit finds no sentencing entrapment where defendant was predisposed to commit offense. (135) Defendant sold controlled substances from his drugstore without a prescription. Among other drugs, defendant sold 10 units of Tylox to an undercover agent. Defendant argued that he was “entrapped” into distributing the Tylox because on several other occasions he had refused to fill improper Tylox orders, and on one occasion had called local police to report the customer. The Fourth Circuit found no sentencing entrapment since defendant was predisposed to commit the offense. There was voluminous evidence that defendant was dispensing a wide variety of controlled drugs with either forged or nonexistent prescriptions. The agents who approached defendant always gave him several different improper drug orders, and defendant himself chose which orders to fill. The fact that the amount of Tylox he sold was small compared to the huge quantities of other substances he distributed, or that he refused to sell Tylox on other occasions, did not negate the fact that defendant sold the Tylox with no more “inducement” than existed in other undercover deals. U.S. v. Tanner, 61 F.3d 231 (4th Cir. 1995).
4th Circuit distinguishes sentencing entrapment from sentencing manipulation. (110) Defendants argued that they were denied due process where police made purchases for the purpose of manipulating their base offense levels, and that this was a ground for departure. In rejecting this claim, the 4th Circuit distinguished between sentencing entrapment and sentencing manipulation. Sentencing entrapment involves overcoming the will of an individual predisposed only to dealing small quantities of drugs. A necessary element of sentencing entrapment, missing here, is the defendant’s lack of predisposition. Under sentencing manipulation, the defendant’s predisposition is irrelevant; the focus is on the motives of law enforcement. It is not outrageous for the government to continue to purchase narcotics from a willing seller. The government requires no motive other than its responsibility to enforce the criminal laws, to justify an extended investigation. Moreover, the district court is not required to speculate as to the motives of police. U.S. v. Penn, 17 F.3d 70 (4th Cir. 1994).
4th Circuit relies on state convictions before defendant was 18 for career offender status. (135) Defendant argued that his career offender status violated equal protection because his predicate offenses included state convictions obtained before he was 18 years old. The 4th Circuit rejected this argument, since defendant was proceeded against as an adult under state law. Congress is not required to prescribe a uniform age at which to consider criminals adults for federal sentencing purposes. U.S. v. Fonville, 5 F.3d 781 (4th Cir. 1993).
4th Circuit relies on juvenile record even though state did not seal it or send it to court. (135) Despite repeated requests, the state of Ohio never released copies of defendant’s juvenile record. Instead, a probation officer in Ohio relayed its contents to defendant’s federal probation officer. The 4th Circuit upheld consideration of the juvenile record. There was no due process violation even if Ohio failed to perform a statutory duty to seal the juvenile record or to notify defendant of his right to have it sealed. A mere violation of state law, standing alone, does not violate the constitution. Although due process may be violated at sentencing by the use of inaccurate information, no inaccuracy was shown here. Defendant had a fair opportunity to challenge the accuracy of the information, even though his counsel never received copies of the record. Section 4A1.2(d) does not violate equal protection by discriminating against defendants who live in states that do not seal juvenile records. U.S. v. Inglesi, 988 F.2d 500 (4th Cir. 1993).
4th Circuit holds that guidelines do not violate due process clause or Eighth Amendment. (135) The 4th Circuit held that a sentence of 188 months following a conviction for drug dealing violated neither the due process clause nor the 8th Amendment prohibition against disproportionate sentences. The sentence was within the statutory maximum and was not disproportionate to the offense committed. U.S. v. Francois, 889 F.2d 1341 (4th Cir. 1989).
4th Circuit rules that guidelines do not violate due process. (135) The 4th Circuit held that because Congress can enact mandatory and determine sentencing laws it has power to circumscribe sentencing discretion. The court found the guidelines do not violate the Fifth Amendment due process clause. U.S. v. Bolding, 876 F.2d 21 (4th Cir. 1989).
5th Circuit rejects sentencing entrapment where co-conspirator, not government, suggested increasing amount of robbery. (135) Defendant was convicted of conspiracy to rob an armored car, and the court found the intended loss was greater than $250,000. Defendant argued that he and his co-conspirators originally sought a far lesser amount of money, but were entrapped by the government into pursuing an amount over $250,000. The Fifth Circuit has never recognized sentencing entrapment as a defense, and the panel said that if the circuit were to accept it, it would apply only to “true entrapment” cases. Here, there was neither evidence that defendant lacked predisposition nor any evidence of overbearing or outrageous conduct by the government. It was a co-conspirator who suggested increasing the targeted amount of money to over $250,000, and the government’s conduct amounted to only passive encouragement. There was no evidence that defendant resisted the increase. Thus, defendant would not be entitled to a sentencing entrapment defense even if it were available in this circuit. U.S. v. Stephens, 717 F.3d 440 (5th Cir. 2013).
5th Circuit says failure to warn that conduct was illegal did not result in sentencing entrapment. (135) Defendants’ company used unauthorized personnel to perform physical rehabilitation on Medicare patients, and then billed Medicare at an inflated rate for those treatments. They argued that their sentence was greater because Cabana, Medicare’s regional fiscal carrier who oversaw claims submitted by defendants’ company, failed to inform them of their illegal practices when it decided the practices were irregular in December 2010. The Fifth Circuit rejected defendants’ claim that this constituted sentencing entrapment. There was no proof that Cabana did anything besides follow routine practice of referring determinations of “potential fraud” for investigation. This was not the type of “overbearing and outrageous conduct” that is a potential basis for a finding of sentencing entrapment. U.S. v. Jones, 664 F.3d 966 (5th Cir. 2011).
5th Circuit upholds constitutionality of guideline provision for consecutive sentences. (135) Section 5G1.2 provides that in multi-count cases, if the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment provided for in the guidelines, then the district court shall impose consecutive sentences “to the extent necessary to produce a combined sentence equal to the total punishment.” Defendant’s offense level for possession of child pornography was 33, and his offense level for possession of stolen property was eight. His combined offense level of 33 resulted in a guideline range of 108-135 months. Defendant argued that because his child pornography offense level wholly determined his sentence, his sentence should not exceed the five-year statutory maximum for the child pornography offense. Relying on U.S. v. King, 981 F.2d 790 (5th Cir. 1993), the Fifth Circuit found no due process violation. Defendant’s 92-month sentence was in accordance with the guidelines, and did not exceed the 15-year aggregate statutory maximum sentence for the combined offenses (five years for child pornography and ten years for possession of stolen property). U.S. v. Stewart, 190 F.3d 389 (5th Cir. 1999).
5th Circuit will not review refusal to depart for sentencing entrapment. (135) On multiple occasions, defendant sold heroin to an undercover agent. He claimed that the government should have arrested him after the first transaction, thus cutting short his criminal liability. He argued that the district court erred in refusing to depart downward for sentencing entrapment. The Fifth Circuit held that it lacked jurisdiction to address this argument. When a defendant makes a motion for a downward departure based on the defense of sentence entrapment, appellate courts lack jurisdiction to review the district court’s disposition of the motion. U.S. v. Ogbonna, 184 F.3d 447 (5th Cir. 1999).
5th Circuit says aggravated felony definition not unconstitutionally vague despite missing word. (135) Section 2L1.2(b)(1)(A) authorizes a 16-level enhancement for unlawfully entering or remaining in the U.S. when the defendant previously was deported after a conviction for an “aggravated felony.” The commentary defines “aggravated felony” by reference to 8 U.S.C. § 1101(a)(43), which in turn defines “aggravated felony” to include “a crime of violence … for which the term of imprisonment [sic] at least one year.” The Fifth Circuit held that the missing word did not make the definition of aggravated felony unconstitutionally vague. The United States Code Annotated indicates that the missing verb is probably “is,” see 8 U.S.C.A. § 1101 at 73 (1999), and the legislative history confirms this suggestion. A missing word is not a fatal ambiguity, particularly when the word is readily deducible. U.S. v. Banda-Zamora, 178 F.3d 728 (5th Cir. 1999).
5th Circuit has no jurisdiction to review refusal to depart for government manipulation. (135) Defendant, a church pastor, was caught in a government sting operation after agreeing to launder what he believed to be drug money to help his church through some financial difficulties. He argued that he should have received a downward departure because the government intentionally manipulated his sentence by inducing him to launder three “test” amounts ($100,000, $100,000 and $150,000) as a precondition to receiving the $10 million that he was really seeking. These amounts mirror the sentence increases in § 2S1.1(b)(2). The Fifth Circuit held that it lacked jurisdiction to review the claim. Defendant did not contend that the denial of the departure was based on the court’s mistaken conclusion that the guidelines did not permit such departure. U.S. v. Brace, 145 F.3d 247 (5th Cir. 1998).
5th Circuit finds no manipulation of drug quantity to justify downward departure. (135) Defendant, a suspended police officer, was involved in a conspiracy to steal drugs and money from drug dealers. He was caught in a government sting operation in which he was led to believe that Colombian drug dealers had stored 114 kilograms of cocaine in a truck. Defendant argued that he deserved a downward departure because the government manipulated drug quantity, greatly overstating his criminal involvement. The Fifth Circuit found no impermissible manipulation. When told of the 114 kilograms of cocaine, defendant rushed to its location to prepare to steal it. Although he claimed he could not have transported or sold that much cocaine, he told a cooperating witness that he knew someone who could sell it for him. U.S. v. Musquiz, 45 F.3d 927 (5th Cir. 1995).
5th Circuit rejects sentencing entrapment claim where defendant was predisposed. (135) Defendant argued that the police delayed arrest and ordered more crack purchases for the purpose of exposing defendant to a longer term of incarceration. The Fifth Circuit declined to consider whether sentencing entrapment claims are valid, since defendant’s claim was clearly meritless. Two witnesses testified that defendant actually supplied crack in far greater quantities than the amount the government continued to purchase to allegedly increase his sentence. Such testimony refuted any claim that defendant was predisposed to deal only in small quantities. U.S. v. Washington, 44 F.3d 1271 (5th Cir. 1995).
5th Circuit finds no sentencing manipulation despite government’s “fronting” more marijuana to defendant. (135) Defendant told undercover agents he had a buyer for 150 pounds of marijuana. The agents brought 240.5 pounds of marijuana to the meeting. The buyer agreed to purchase 175 pounds, and defendant said he would take the remaining 65 pounds “on the front.” Defendant argued that the government engaged in sentencing manipulation by bringing 240 pounds of marijuana to the meeting and agreeing to “front” the extra marijuana in order to increase the drugs involved to over 100 kilograms. He argued that no reasonable drug dealer would give him the marijuana without payment. The Fifth Circuit found the entire amount of marijuana was part of defendant’s relevant conduct, noting that “fronting” is a recognized practice among drug dealers. Even if the government’s bringing the extra marijuana to the meeting was suspicious, it did not constitute sentencing manipulation. U.S. v. Tremelling, 43 F.3d 148 (5th Cir. 1995).
5th Circuit upholds basing escapee’s eligibility for reduction on maximum possible sentence for crime. (135) Section 2P1.1(b)(3) provides for an offense level reduction for a defendant who escapes from a non-secure halfway house. However, this reduction is not available if the defendant, while away, commits an offense punishable by imprisonment for a year or more. After escaping from a halfway house, defendant was convicted in Texas for driving while intoxicated. He argued that § 2P1.1(b)(3) violated equal protection because the maximum penalty for drunk driving in Texas is two years but the maximum penalty in other states is less than one year. The Fifth Circuit rejected the claim, holding that focusing on the maximum possible sentence (rather than the sentence actually received) is a rational method for determining the seriousness of a crime. And an offense committed after an escape is a legitimate factor to consider in imposing a sentence for that escape. U.S. v. Mendiola, 42 F.3d 259 (5th Cir. 1994).
5th Circuit upholds constitutionality of “relevant conduct” section, 1B1.3. (135) Defendant argued that the “relevant conduct” section of the guidelines, § 1B1.3, is unconstitutional because it permits a district court to consider uncharged conduct in determining the base offense level. The Fifth Circuit, without an extended discussion, held that it was not unconstitutional to permit a sentencer to consider uncharged conduct at sentencing. U.S. v. Patten, 40 F.3d 774 (5th Cir. 1994).
5th Circuit holds that defendant did not show court punished him for unextradicted crimes. (135) Defendant was in Spain when he was indicted for mail fraud and money laundering. Spain extradited defendant but limited prosecution to the mail fraud counts because the charge for money laundering did not state an offense under Spanish law. Defendant argued for the first time on appeal that the district court imposed a greater sentence because the government could not prosecute him for money laundering. The 5th Circuit found no plain error. The PSR did not recommend that the court take into account as relevant conduct the unextradicted counts. The court’s comments at sentencing simply showed that the court was unsympathetic toward a fugitive. The court plainly had the discretion to impose consecutive sentences for guidelines and pre-guidelines counts. U.S. v. Miro, 29 F.3d 194 (5th Cir. 1994).
5th Circuit says increase in sentence after remand does not violate due process. (135) Defendant originally pled guilty to one count of receiving child pornography and was sentenced to 39 months. On appeal, the 5th Circuit vacated the sentence for being inconsistent with the statutory minimum of 60-months. After a superseding indictment, defendant pled guilty to four different charges, and received a 60-month concurrent sentence on each count. Defendant argued that the increase in his sentence after remand chilled his due process right to appeal. The 5th Circuit upheld the increased sentence. Even if a presumption of vindictiveness applied, objective information justifying the increase rebutted the presumption. Consideration of the new convictions was “manifestly legitimate.” In addition, before the second sentencing, the probation officer brought to the court’s attention a four level enhancement applicable to defendant under §2G2.2(b)(3) for material portraying sadism, masochism, or violence. U.S. v. Schmeltzer, 20 F.3d 610 (5th Cir. 1994).
5th Circuit upholds enhanced penalty despite misinformation from INS about sentence. (135) Defendant was convicted of reentering the U.S. after deportation, and received a five-year sentence. The district court enhanced his sentence because he had been convicted of an aggravated felony prior to his deportation. The 5th Circuit upheld the enhanced sentence, even though at the time he was deported, the INS incorrectly informed him that the maximum sentence he could receive for reentry was two years. In all of the cases cited by defendant, the government misled the defendant about the legality of certain conduct. Here, defendant had fair warning that reentry was a felony. Defendant’s estoppel argument failed, since the willful and knowing commission of a felony cannot be reasonable reliance on the misrepresentation. U.S. v. Perez-Torres, 15 F.3d 403 (5th Cir. 1994).
5th Circuit upholds 288-month sentence mandated by armed career criminal status. (135) Defendant was convicted of being a felon in possession of a firearm. He challenged his 288-month sentence, contending that he should have been given a downward departure. The 5th Circuit affirmed. A district court’s refusal to depart is reviewed only for an error of law or a constitutional defect, and there was none here. The severity of defendant’s sentence was a result of his three prior violent felonies. They required a 15-year mandatory minimum sentence under 18 U.S.C. Section 924(e) and placed him at offense level 33 under section 4B1.4. Sentence enhancement passes equal protection and due process scrutiny. U.S. v. Prudhome, 13 F.3d 147 (5th Cir. 1994).
5th Circuit says referral of case for federal prosecution did not violate due process. (135) The 5th Circuit affirmed that the decision to refer defendant’s case for federal prosecution did not violate his due process rights even though it adversely affected his sentence and was made without any reviewable guideline. The ultimate decision of whether or not to charge a defendant presumably rests with the federal prosecutor, who has complete discretion in deciding whether or not to prosecute or what charge to file. Moreover, a defendant may be prosecuted and convicted under a federal statute even after having been convicted in a state prosecution based upon the same conduct. U.S. v. Satterwhite, 980 F.2d 317 (5th Cir. 1992).
5th Circuit upholds cost of imprisonment fine against constitutional and statutory challenges. (135) The 5th Circuit rejected defendant’s claim that the cost of imprisonment fine imposed under guideline section 5E1.2(i) was inconsistent with the purposes of sentencing under 18 U.S.C. section 3553(a)(2) and that it violated the due process clause. The court disagreed with defendant’s argument that the sentencing purposes set forth in section 3553(a)(2) were wholly realized by the fine table and that the additional fine under section 5E1.2(i) rendered defendant’s overall fine excessive. The fact that the fine is calculated by reference to the cost of imprisonment but the money collected is actually spent on unrelated functions did not render the fine irrational. U.S. v. Hagmann, 950 F.2d 175 (5th Cir. 1991).
5th Circuit rejects due process claim based upon late receipt of affidavit supporting loss calculation. (135) The presentence report calculated the loss at $37 million. Three days prior to sentencing, defendant submitted an objection to the presentence report contending that the loss was only $41,900. The prosecution responded by filing, less than 24 hours before the sentencing hearing, an affidavit from an FBI agent which explained in detail the government’s calculation. The 5th Circuit rejected defendant’s due process claim based upon his late receipt of the affidavit. The only reason the government’s submission was at the “11th hour” was because defendant failed to submit his objections to the presentence report in a timely fashion. Defendant’s attorney had the original presentence report for approximately five weeks prior to the sentencing hearing, and failed to respond until three days prior to sentencing. U.S. v. Bachynsky, 949 F.2d 722 (5th Cir. 1991).
5th Circuit holds that defendant need not know gun was stolen for enhancement under section 2K2.1(b)(1). (135) Defendant was convicted of being a felon in possession of a firearm and received a one point enhancement under guideline section 2K2.1(b)(1) because the firearm was stolen. Following the 8th, 9th and D.C. Circuits, the 5th Circuit rejected defendant’s claim that the guideline requires a defendant to have knowledge that the weapon was stolen. The guidelines are explicit when they wish to impose a mens rea requirement. The rule of lenity was not applicable because the statute was not ambiguous. The court also rejected defendant’s claim that the lack of a mens rea requirement violated due process. The enhancement was not an independent crime but was part of the sentencing court’s quest to formulate a proper sentence. Intent need not be proven for each element a judge considers at sentencing. U.S. v. Singleton, 946 F.2d 23 (5th Cir. 1991).
5th Circuit rejects due process challenge to guidelines. (135) Defendant argued that the guidelines violated due process by depriving her of the right to have all available information considered by the district court. The 5th Circuit summarily rejected this argument, noting that the due process clause does not mandate that the sentencing court have complete discretion to consider mitigating factors. U.S. v. Vela, 927 F.2d 197 (5th Cir. 1991).
5th Circuit upholds requirement of government motion for substantial assistance departure against due process challenge. (135) Defendant contended that guideline § 5K1.1’s requirement of a government motion before a judge may depart downward for substantial assistance limits the judge’s discretion in a way that violates due process. The 5th Circuit rejected the argument noting that it has been rejected by every circuit that has considered it. Because defendants have no constitutional right to a “substantial assistance” departure provision in the guidelines, a government motion requirement does not unconstitutionally limit the discretion of the sentencing judge. U.S. v. Harrison, 918 F.2d 30 (5th Cir. 1990).
5th Circuit holds there is no due process right to an individualized sentence. (135) The 5th Circuit rejected defendant’s claim that the guidelines’ denial of individualized sentences deprives defendants of due process. The court held there is no right to individualized sentencing under the Constitution and that “Congress has the power to completely divest the courts of their sentencing discretion “in order to establish” exact mandatory sentences for all offenses. U.S. v. Woolford, 896 F.2d 99 (5th Cir. 1990).
5th Circuit holds that guidelines do not violate due process. (135) Relying upon its earlier decision in U.S. v. White, 869 F.2d 822 (5th Cir. 1989), the 5th Circuit held that the guidelines do not deprive a defendant of the opportunity to meaningfully present mitigating factors prior to sentencing; nor do they deny a defendant the right to an individualized sentence, because the Constitution confers no such right. U.S. v. Molinar-Apodaca, 889 F.2d 1417 (5th Cir. 1989).
5th Circuit upholds guidelines against due process challenge. (135) There is no due process right which guarantees a defendant the right to present mitigating factors prior to sentencing. The Constitution does not require individualized sentences. Since Congress is free to eliminate judicial sentencing discretion by establishing mandatory sentences, it is also free to limit sentencing discretion through the guidelines. U.S. v. White, 869 F.2d 822 (5th Cir. 1989).
6th Circuit rejects sentencing entrapment and sentencing manipulation claims. (135) Defendant was caught in a government sting operation, and pled guilty to terrorism-related and immigration offenses. The district court rejected his request to depart downward on the basis of sentencing entrapment and sentencing manipulation, and the Sixth Circuit affirmed. This circuit has never recognized these theories as valid reasons to depart downward. Moreover, defendant would not qualify for a departure under either theory. First, defendant’s guilty plea foreclosed his argument of sentencing entrapment or manipulation. His sentence was not the result of the government tricking him into trafficking in a greater quantity of contraband. Instead, it was the result of his conspiring to traffic in a different kind of contraband at different times. If defendant lacked the intent to deal in surface-to-air missiles as charged in Count 10, he needed to assert the substantive defense of entrapment. Instead he pleaded guilty, waiving any substantive entrapment defense. Second, defendant did not prove that he was not predisposed to commit the more egregious crimes in the indictment. He boasted repeatedly of his prior terrorist activities in Iraq and demonstrated familiarity with Stinger missiles and other explosives. Additionally, he never balked at taking part in the scheme. U.S. v. Hammadi, 737 F.3d 1054 (6th Cir. 2013).
6th Circuit affirms refusal to grant variance based on claim of imperfect entrapment. (135) Defendant pled guilty to food stamp fraud, drug distribution, and firearms charges. He sought a below-guidelines sentence based on “imperfect entrapment,” arguing that he only sold the handgun to the confidential informant after the informant repeatedly played on his sympathy by stating that he needed a gun for protection from someone who recently raped his niece and was starting to harass him. After rebuffing the informant for months, defendant finally gave in and sold him a gun. The district court denied the motion. On appeal, defendant claimed that the district court’s failure to address his entrapment argument meant that the court did not consider it. The Sixth Circuit found no abuse of discretion. It would have been better for the judge to expressly mention why the government’s obvious encouragement on the firearm charge did not warrant a below-guidelines sentence. However, because the court’s reasons for not granting a variance were clear, the failure to address the argument “head-on” did not require reversal. Defendant willfully violated the terms of his supervised release by leaving his town to work at his co-defendant’s store, and was unable to explain why he continued to work there after learning of the criminal activity. U.S. v. Taylor, 696 F.3d 1257 (6th Cir. 2012).
6th Circuit holds that denial of three-level acceptance reduction did not violate equal protection. (135) Defendant argued that § 3E1.1, which allows a three-level reduction for acceptance of responsibility for a defendant with an offense level of 16 or greater, but only a two-level reduction for defendants with an offense level of 15 or lower, violated his right to equal protection. However, the background commentary to § 3E1.1 explains that a defendant with an offense level of 15 or lower cannot receive the additional one-point reduction because the two-level decrease “is a greater proportional reduction in the guideline range than at higher offense levels due to the structure of the Sentencing Table.” Thus, for these defendants, a two-level reduction “is adequate for the court to take into account the facts set forth in subsection (b) within the applicable guideline range.” The Sixth Circuit concluded that § 3E1.1 was rationally related to a legitimate government purpose and thus did not violate the equal protection clause. It was clearly rational for the Sentencing Commission to use a higher potential reduction for acceptance of responsibility as a means or encouraging criminal defendants with higher offense levels to plead guilty instead of pursuing needless litigation. U.S. v. Jiles, 259 F.3d 477 (6th Cir. 2001).
6th Circuit holds that 29-month delay from remand to resentencing did not violate due process. (135) Defendant was originally sentenced to 212 months’ imprisonment. On September 13, 1994, the Sixth Circuit affirmed his conviction but vacated his sentence because of an error in the district court’s drug quantity attribution. Defendant was not resentenced until March 1997. The Sixth Circuit held that the 29-month delay from remand to resentencing did not violate due process. There are four factors to determine whether a trial delay is unconstitutional: (1) length of the delay; (2) reason for the delay; (3) defendant’s assertion of his right; and (4) prejudice to the defendant. Although 29 months is lengthy, the remaining factors militated against relief. The reason for the delay is the most important factor. The delay was not attributable to the government. In fact, defendant admitted that some of the delay was caused by his own filings. Much of the remaining delay could be attributed to the construction and renovation of the courthouse. Finally, defendant did not suffer any prejudice from the delay. Although defendant was incarcerated at a local jail during the delay, rather than a federal penitentiary, an incarcerated federal felon has no right to be imprisoned in a particular institution. U.S. v. Thomas, 167 F.3d 299 (6th Cir. 1999).
6th Circuit will not review ruling that there was no sentencing entrapment. (135) Defendant and an associate sold crack to undercover agents. The agents then attempted to sell cocaine to defendant, offering to accept guns in partial payment of, or as collateral for, the cocaine. Defendant agreed. On the day of the transaction, defendant arrived with the weapons and was arrested. Defendant argued that the district court should have departed downward or granted him a dismissal based on sentencing entrapment. He contended that the police already knew they were going to arrest him and that they only insisted on a weapons exchange in order to enhance the crime. The Sixth Circuit held that the issue was not appealable. The district court assumed, without deciding, that sentencing entrapment is a valid grounds for departure, but that defendant failed to demonstrate facts amounting to sentencing entrapment. Because the court recognized its discretion to depart, its refusal to do so is not appealable. U.S. v. Jones, 102 F.3d 804 (6th Cir. 1996).
6th Circuit calculates drugs in reverse sting based on price defendant “was used to paying.” (135) Defendant was caught in a government sting operation. Relying on note 15 to § 2D1.1, defendant argued that his mandatory life sentence should be reversed because the government encouraged him to purchase more cocaine than he would otherwise have bought. The government offered to sell him cocaine at less than half of the market price—$9,500 a kilogram. The Sixth Circuit found no error since the district court recalculated the amount of cocaine defendant would have purchased with the money he brought using the $22,500 a kilogram price he was accustomed to paying. The district court was not required to use the higher estimate of market value offered in a civil forfeiture proceeding against the home in which defendant lived. The district court properly relied on the price defendant usually paid. U.S. v. Anderson, 76 F.3d 685 (6th Cir. 1996).
6th Circuit says defendant who wins appeal risks having error corrected in government’s favor. (135) Defendant was convicted of firearms charges. On appeal, the Sixth Circuit found an inadequate factual basis for the departure to 36 months, and reversed. On remand, the district court found it had erroneously computed defendant’s base offense level. It corrected the error by finding that defendant used the firearm in connection with a drug offense, and imposing a 41-month sentence. In this second appeal, the Sixth Circuit held that the enhanced sentence was not a result of vindictiveness and thus did not violate due process. The appellate court’s earlier opinion left room for the district court to revisit the entire sentencing procedure on remand. A defendant who appeals takes the risk that an error may be corrected against the defendant’s favor. This must be anticipated when the decision to appeal is made. U.S. v. Duso, 42 F.3d 365 (6th Cir. 1994).
6th Circuit says government manipulation of drug quantity may violate fundamental fairness but rejects defendant’s claim. (135) Defendant and his co-defendant had $15,000 to purchase cocaine, but defendant was unsure of the quantity that could be purchased with this sum. The co-defendant advised defendant that he expected to get a pound and a tenth, or 498.96 grams, for the money. Nonetheless, the state police and FBI decided to “sell” one kilogram of cocaine to the co-defendant for $15,000. Defendant’s sentence was based upon one kilogram of cocaine, which resulted in a two-level increase in his base offense level. The 6th Circuit upheld the sentence, although it noted that there was something “very disturbing” about the government having the power to manipulate a sentence by essentially changing the market value of the cocaine. If defendant could “demonstrate that the government manipulated the dollar amount of cocaine to increase his sentence, such manipulation would certainly provide a fundamental fairness defense against the higher sentence.” Defendant did not have such a fundamental fairness claim because he ratified the amount of cocaine actually sold to the co-defendant. U.S. v. Sivils, 960 F.2d 587 (6th Cir. 1992).
6th Circuit upholds referral of case for federal prosecution because of stiffer sentences. (135) Defendant was arrested by state police but his case was referred to federal prosecutors for federal prosecution. The 6th Circuit rejected defendant’s claim that the unguided referral by state law enforcement personnel, which defendant believed to be motivated by the stiffer sentences available under federal law, violated due process and equal protection. The court agreed with the 10th Circuit’s decision in U.S. v. Andersen, 940 F.2d 593 (10th Cir. 1991), which rejected a similar argument and emphasized a prosecutor’s broad discretion in determining whether to bring charges against a particular defendant. Although the state strike force would be well served by written guidelines addressing referral decisions, such guidelines are not constitutionally mandated. U.S. v. Allen, 954 F.2d 1160 (6th Cir. 1992).
6th Circuit reaffirms that sentencing guidelines do not violate procedural due process. (135) Defendant argued that the sentencing guidelines violate procedural due process by restricting the sentencing judge’s discretion. The 6th Circuit disposed of this argument by noting that it had already rejected this position in U.S. v. Allen, 873 F.2d 963 (6th Cir. 1989). U.S. v. Loonsfoot, 905 F.2d 116 (6th Cir. 1990).
6th Circuit finds that guidelines do not violate due process. (135) Relying on its earlier decisions in U.S. v. Jacobs, 877 F.2d 460 (6th Cir. 1989) and U.S. v. Allen, 873 F.2d 963 (6th Cir. 1989) the 6th Circuit held without comment that the guidelines do not violate the 5th Amendment due process clause. U.S. v. Vanover, 888 F.2d 1117 (6th Cir. 1989).
6th Circuit upholds constitutionality of guideline for possession of firearm during drug offense. (135) Defendant’s base offense level was increased two points under § 2D1.1(b) for possession of a firearm during commission of a drug offense. He argued that the enhancement violated due process because it unconstitutionally shifted the burden to him to prove it was “highly improbable that the weapon was connected with the offense.” Relying on several Supreme Court cases, the Sixth Circuit rejected his challenge, holding that sentencing provisions such as this do not violate the due process clause, because sentencing issues not bearing on guilt need not be proven beyond a reasonable doubt to a jury. Based upon this rationale, there also is no violation of the Sixth Amendment right to a jury trial. U.S. v. McGhee, 882 F.2d 1095 (6th Cir. 1989).
6th Circuit holds that guideline’s narrow range of prison terms does not violate due process. (135) The 6th Circuit rejected the argument that the guidelines violate due process by precluding the trial court from weighing aggravating and mitigating factors. The court stated that there is no constitutional guarantee of an individualized sentence and that Congress could prescribe a narrow range of prison terms. U.S. v. Jacobs, 877 F.2d 460 (6th Cir. 1989).
7th Circuit finds no clerical error that would allow court to revisit drug quantity. (135) As part of his plea, defendant agreed that his relevant conduct involved 1.5 kilograms or more of crack cocaine, but the district court calculated his relevant conduct at 4,536 grams. After he was sentenced, the Sentencing Commission reduced the penalties for certain crack offenses. However, the amendments do not apply to offenses involving 4.5 kilograms or more of crack cocaine. Defendant nonetheless moved under 18 U.S.C. §3582(c)(2) to reduce his sentence, claiming that the PSR contained a mathematical error that led to the finding of 4,536 grams. The district court denied defendant’s motion, finding that it did not have jurisdiction to review the PSR because defendant’s relevant conduct exceeded 4.5 kilograms, rendering the Guideline amendment inapplicable. The Seventh Circuit agreed that the district court lacked jurisdiction to apply the revised Guideline. Defendant was making a collateral attack on his sentence. Defendant’s challenge was not to the mathematical calculation, but to the variables that led to the amounts used in the relevant conduct calculation. U.S. v. Johnson, 571 F.3d 716 (7th Cir. 2009).
7th Circuit rejects sentencing manipulation and sentencing entrapment claims. (135) On September 30, defendant sold about 25.4 grams of crack cocaine to a government informant. On October 7, he sold the same individual about 26.4 grams of crack. He argued that the government had enough evidence to convict him after the first controlled buy, and that the purpose of the second buy was merely to increase his sentence. He argued that he was a small-time, “dime-bag” dealer who was not predisposed to sell the quantity of drugs requested by the informant. The Seventh Circuit rejected defendant’s claims of sentencing manipulation and sentencing entrapment. This circuit does not recognize the sentencing manipulation doctrine. To establish sentencing entrapment, the defendant must show that he lacked a predisposition to commit the crime, and that his will was overcome by “unrelenting government persistence.” Defendant had a history of selling crack, which he admitted to doing for a number of years prior to his arrest. He presented no evidence that the government was unrelenting in its attempts to purchase higher quantities of drugs than he usually sold, or engaged in inducements that were otherwise extraordinary. U.S. v. Turner, 569 F.3d 637 (7th Cir. 2009).
7th Circuit rejects sentencing entrapment claim where defendant was predisposed to sell crack. (135) Defendant was arrested after selling two ounces of crack to Fuller, a previous customer who began cooperating with police after being arrested on drug charges. Defendant argued that the government’s specific instruction to Fuller to buy two ounces of crack from him, an amount that trigged a mandatory minimum sentence under 21 U.S.C. § 841(B)(1)(a)(iii), was so “outrageous” as to violate his rights. The Seventh Circuit found no merit to the claim. First, this circuit has refused to recognize any defense based on either “sentencing manipulation” or “outrageous government conduct.” The government’s actions did not qualify as sentencing entrapment or sentencing manipulation. Defendant clearly was predisposed to distribute crack. Defendant admitted to selling both cocaine powder and crack to various customers. There was testimony from other drug purchasers that defendant engaged in multiple, individual sales of large quantities of crack, and Fuller did not offer defendant any “extraordinary inducements” to make the sale. Defendant, a drug dealer with a history of dealing crack, readily acceded to Fuller’s request. U.S. v. White, 519 F.3d 342 (7th Cir. 2008).
7th Circuit holds that distinction between receipt and possession of pornography did not violate due process. (135) Because defendant pled guilty to both receipt and possession of child pornography, 18 U.S.C. §§ 2252(a)(2), 2252(a)(4) (B), the court applied the stricter guideline for receiving child pornography, § 2G2.2, rather than the guideline for possessing such material, § 2G2.4. The Seventh Circuit rejected defendant’s claim that the distinction between the receipt and possession of child pornography violates due process. The Supreme Court has held that the prohibition of receipt of child pornography in § 2252(a)(2) includes a scienter requirement; and therefore encompasses only situations in which the defendant knows that the material he is receiving depicts minors engaged in sexually explicit conduct. Thus, a person who seeks only adult pornography, but without his knowledge is sent a mix of adult and child pornography, will not have violated that statutory provision. That same person could be in violation of the possession provision of § 2252(a)(4)(B) if he decides to retain that material, thereby knowingly possessing it. It is not irrational to punish more severely the person who knowingly receives such material, because it is that person who is creating and/or perpetuating the market for such material. U.S. v. Myers, 355 F.3d 1040 (7th Cir. 2004).
7th Circuit holds that government did not engage in sentencing manipulation. (135) Defendant agreed to purchase from a confidential informant five kilograms of cocaine and take two kilograms on credit. When he arrived to make the purchase, he was arrested in possession of $35,000. Police recovered an additional $25,000 from a nearby vehicle. The district court found that defendant was responsible for five to 15 kilograms cocaine. Defendant argued that he was predisposed to purchase a much smaller quantity of cocaine and that the informant used bargain basement pricing and generous credit terms to induce him to agree to accept delivery of a larger quantity of cocaine. The Seventh Circuit rejected defendant’s claim of sentencing entrapment. It was clear from the record that defendant desired a source to supply him with drugs, and had it not been the informant who had done so, it would have been some other dealer. Although defendant initially inquired about purchasing a smaller quantity, in later conversations he appeared “fixated” upon receiving five kilograms because he had already sold this amount to an individual or several people. The informant never pressured him to go through with the deal. Finally, the government did not set a price that was “substantially below the market value of the controlled substance.” Note 15 to § 2D1.1. One agent testified that $16,000 was the area’s “rock bottom” price for a kilogram of cocaine. Thus, this price was not “substantially below” market value. U.S. v. Estrada, 256 F.3d 466 (7th Cir. 2001).
7th Circuit says court may have misunderstood discretion to depart. (135) Defendant contended that his acquittal on firearms charges perversely increased his sentence. Had he been convicted, his offense level, without any firearms adjustment, would have been 41, resulting in a range of 360 months to life. A 60-month consecutive sentence for the firearm charge would have resulted in a final range of 420 months to life. However, because defendant was acquitted of the gun charge, he received a § 2D1.1(b)(1) increase for an offense level of 43, which carries a life sentence. The Seventh Circuit noted that the district court had discretion to depart downward in this situation under 18 U.S.C. § 3553(b). Note 2 to § 2K2.4 states that “[i]n a few cases, the offense level for the underlying offense … may result in a guideline range that, when combined with the mandatory consecutive sentence [for the firearm offense], produces a total maximum penalty that is less than the maximum of the guideline range that would have resulted had there not been a [firearm conviction.] In such a case, an upward departure may be warranted so that the [firearm conviction] does not result in an decrease in the total punishment.”] Because it was unclear whether the district judge understood the extent of his discretion under § 3553(b), the panel remanded so that the judge could consider his options. The judge could go either way, but the record must reflect that he understood and exercised that discretion. U.S. v. Patterson, 215 F.3d 776 (7th Cir. 2000), vacated in part by Patterson v. U.S., 531 U.S. 1003, 121 S.Ct. 621 (2000).
7th Circuit holds that guidelines are not susceptible to attack under vagueness doctrine. (135) Defendant, the president of a credit union, pled guilty to making false entries in the credit union’s books. Section 2F1.1(b)(6)(1) provides for an increased offense level if the offense “substantially jeopardized the safety and soundness of a financial institution.” Defendant argued that this section was unconstitutionally vague. The Seventh Circuit held that the Sentencing Guidelines are not susceptible to attack under the vagueness doctrine. The vagueness doctrine says that a person cannot be held liable for conduct he could not be reasonably be expected to know was a violation of law. The guidelines do not establish the illegality of any conduct. They are directives to judges for their guidance in sentencing convicted criminals. With the exception of capital cases, a defendant has no constitutional right to such directives. Since there is no constitutional right to sentencing under the guidelines, the discretionary limits the guidelines place on the sentencing judge do not violate a defendant’s right to due process by reason of vagueness. U.S. v. Brierton, 165 F.3d 1133 (7th Cir. 1999).
7th Circuit holds that cross-reference to murder did not violate due process. (135) Defendant was convicted of a drug conspiracy. The district court found that defendant had murdered one man and had directed a co-conspirator to murder another man. The murders had been committed because defendant believed that the victims were going to inform the police of his drug activities. Section 2D1.1(d)(1) directs a court to apply § 2A1.1, the first-degree murder guideline, where a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111. This increased defendant’s offense level to 43, and resulted in a life sentence. The Seventh Circuit rejected defendant’s claim that the cross-reference violated due process. Although increased precautions may be necessary where the use of a cross-reference dramatically alters the balance between trial and sentencing, this was not such a case. The enhancement only increased defendant’s offense level from 39 to 43. This was not the type of dramatic increase which would allow the sentencing enhancement to become the tail which wags the dog of the substantive offense. U.S. v. Meyer, 157 F.3d 1067 (7th Cir. 1998).
7th Circuit rejects departure based on alleged cajoling by government agents. (135) Defendant argued that he should have received a downward departure because government agents “cajoled” him into introducing them to a cocaine supplier. The Seventh Circuit rejected this claim. Defendant did not develop his point¾there was no description of how, when or where the agents cajoled him, much less a claim that the government used tactics that violated due process. in fact, the government’s confidential informant claimed that it was defendant who repeatedly bragged about his connections to cocaine dealers and ability to broker deals. The district court concluded that the extent of the alleged “cajoling” was not so unique as to remove this case from the heartland of drug offenses. U.S. v. Santoyo, 146 F.3d 519 (7th Cir. 1998).
7th Circuit reverses sentence based on powder where defendant bought crack. (135) Defendant, a crack dealer, bought crack cocaine from a cooperating witness. Defendant contended, and was supported by audiotapes, that he preferred to buy powder cocaine and convert it to crack himself to ensure uniform quality for his customers. When the witness told defendant that only crack was available, however, defendant bought crack. The district court held that because of the government’s involvement in determining the type of drug involved, defendant should only be sentenced for powder cocaine. The Seventh Circuit reversed. The judge does not have an equitable power to sentence defendant as if he had committed the crime he preferred to commit, rather than the crime he actually committed. “As if” sentencing is not authorized by federal law. Judges must sentence defendants for their actual crimes. U.S. v. Wilson, 129 F.3d 949 (7th Cir. 1997).
7th Circuit refuses to consider sentencing manipulation claim. (135) Defendant contended he was the victim of a “delayed arrest,” and that the government chose not to arrest him earlier in order to ratchet up his sentence under the guidelines. The Seventh Circuit refused to consider this claim because there is no sentencing manipulation defense in this circuit. The court was not interested in “micro-managing law enforcement’s criminal investigations and its arrest of suspected drug conspirators.” The “Constitution does not protect an individual from himself by requiring the government to arrest the criminal before he commits another crime.” U.S. v. Pearson, 113 F.3d 758 (7th Cir. 1997).
7th Circuit okays basing criminal history on date of prior sentence, not date of crime. (135) Under § 4A1.2(e), sentences of more than 60 days but less than 13 months are excluded from a defendant’s criminal history if they were imposed more than ten years before the instant offense began. Defendant argued that using the date on which the prior sentences were imposed, as opposed to the date on which the prior criminal conduct occurred, violated the Equal Protection Clause. A defendant who pleads and is promptly sentenced for the prior offense could fall outside the 10-year inclusion period, while a defendant who exercises his right to a jury trial, thus prolonging sentencing for the prior offense, might not. The Seventh Circuit rejected defendant’s constitutional challenge because the measuring scheme in § 4A1.2(e)(2) is rationally related to the legitimate government interest in administrative efficiency. Using the date of sentencing for the prior crime provides a court with an easily determinable lookback date. It is much harder to determine the date a ten-year old crime was committed than the date of sentencing. U.S. v. Carroll, 110 F.3d 457 (7th Cir. 1997).
7th Circuit rejects sentencing manipulation claim where government uninvolved in defendant’s gun purchases. (135) Defendant attempted to export parcels containing ammunition from the U.S. to Yemen by misrepresenting that the parcels contained honey. He argued that the government engaged in sentencing entrapment by allowing him to continue to purchase firearms and ammunition from a firearms dealer. The Seventh Circuit found no sentencing manipulation, since police do no have an obligation to arrest an offender before he commits his crime. The government had absolutely nothing to do with his firearms and ammunition purchases. U.S. v. Muthana, 60 F.3d 1217 (7th Cir. 1995).
7th Circuit finds no sentencing entrapment even though informant asked conspirators to cook cocaine into crack. (135) Defendant objected to being held accountable for 19 grams of crack manufactured for a government informant by a co-conspirator. Defendant originally sold 28 grams of cocaine to the informant, but the informant asked a co-conspirator to cook the cocaine into crack. Defendant argued that this constituted sentencing entrapment, because the informant had no reason to insist on cooking the cocaine other than to increase the potential sentence. The Seventh Circuit found no sentencing entrapment, since the co-conspirator was the one who first offered to cook the cocaine, and the informant initially refused. The informant later made the request. The request was not sentencing entrapment because it legitimately furthered the government’s investigation. After the co-conspirator proposed the manufacture, the government would naturally want to see if he would follow through with his offer. U.S. v. Saulter, 60 F.3d 270 (7th Cir. 1995).
7th Circuit says second firearms purchase was not sentencing manipulation. (135) On two different dates, defendant sold several firearms to a confidential informant. Defendant argued that the two point enhancement for selling more than five firearms was the result of governmental sentencing manipulation. Contrary to government policy, the government continued to use the informant for the second purchase even after it discovered that he had made an unauthorized drug purchase from defendant. The Seventh Circuit held that the government’s conduct was not sufficiently outrageous to constitute sentencing manipulation. Sentencing manipulation can only exist where the government’s conduct is “so outrageous that due process principles would absolutely bar the government from invoking judicial processes.” The second transaction was justified by the legitimate concern that a jury might not be persuaded by a single transaction. The quantities involved were not unusual, and defendant was comfortable with them. U.S. v. Messino, 55 F.3d 1241 (7th Cir. 1995).
7th Circuit finds defendant had adequate notice of armed career criminal status. (135) Defendant argued that due process required that he receive formal notice before trial that he could be sentenced as an armed career criminal under § 4B1.4. The Seventh Circuit held that defendant received constitutionally adequate notice. First, he received actual notice long before trial, during plea negotiations. One of the reasons defendant refused to plead guilty was the substantially increased penalty he faced as an armed career criminal. Second, the PSR proposed a § 4B1.4 adjustment and specified the prior convictions on which it would be based. Finally, the government filed an additional notice just before actual sentencing formally notifying defendant that he could be sentenced as an armed career criminal. Defendant had ample opportunity to contest the earlier convictions and their applicability to his sentence. U.S. v. Hardy, 52 F.3d 147 (7th Cir. 1995).
7th Circuit upholds constitutionality of including juvenile convictions in criminal history. (135) Defendant argued that § 4A1.2(d) (2)(A), which increases a defendant’s criminal history for certain offenses committed before the age of 18, violates due process. The Seventh Circuit upheld the constitutionality of including juvenile convictions in a defendant’s criminal history. The consideration of a defendant’s juvenile record is essential for a court to evaluate a defendant’s criminal history. The guidelines authorize a downward departure if the judge believes the criminal history overstates a defendant’s past conduct or his tendency to recidivism. U.S. v. Davis, 48 F.3d 277 (7th Cir. 1995).
7th Circuit finds government did not prolong investigation to increase sentence. (135) On January 10, defendant produced $30,000 in counterfeit bills to an undercover agent. On January 11, defendant and the agent obtained sufficient paper to print $2 million in counterfeit currency. On January 12, a criminal complaint was filed. On January 14, defendant was arrested, and agents seized $422,000 in counterfeit bills that he had produced between January 10 and 14. Defendant argued that the government improperly extended its investigation in order to increase his sentence. The Seventh Circuit, without deciding whether sentencing manipulation claims are viable, found no improper conduct. The charges were brought as soon as the government was sure that defendant would carry out his plan. The two day delay in arresting him was not significant, and there was no evidence that the agents knew defendant would produce such large quantities of counterfeit money in such a short time. U.S. v. Okey, 47 F.3d 238 (7th Cir. 1995).
7th Circuit holds that judge was aware of authority to depart based on agent’s coercion. (135) Defendant requested a downward departure because she initially intended to buy only two kilograms of cocaine, but was coerced by an undercover agent into buying 10 kilograms. The district court denied the motion, finding that defendant was not subject to serious coercion or duress when she agreed to buy the 10 kilos. The 7th Circuit held that the refusal to depart was not reviewable, since the judge was aware of her authority under § 5K2.12 to depart downward based on duress or coercion. Judge Ripple concurred separately because he was disturbed that the undercover agent had attempted to increase the amount of the drug sale to ensure that defendant would be prosecuted by the federal government, rather than by the state. U.S. v. Steels, 38 F.3d 350 (7th Cir. 1994).
7th Circuit refuses to review failure to depart for sentencing manipulation. (135)) Defendant argued that the district court erred in refusing to depart downward based on the government’s sentencing manipulation. He contended that the government’s sole purpose in using two kilograms of cocaine in the reverse sting operation was to trigger a mandatory minimum sentence. He further argued that the drug was improperly sold at substantially below market value. The 7th Circuit held that it lacked jurisdiction to consider these claims. The district court was aware of its authority to depart on the grounds suggested by defendant, but declined to do so. Such a decision in not appealable. U.S. v. Winston, 34 F.3d 574 (7th Cir. 1994).
7th Circuit upholds longer sentence for reentering U.S. despite inaccurate notice from INS. (135) Defendants illegally reentered the U.S. following their deportation and were convicted under 8 U.S.C. § 1326. Because defendants had prior aggravated felony convictions, they received a 16-level enhancement under § 2L1.2(b)(2). Defendants argued that their increased sentences violated due process because at the time they were deported, the INS had given them a form incorrectly warning that reentry into the U.S. was punishable by only two years’ imprisonment. The form did not reflect amendments to § 1326 that increased the punishment to 15 years for deportees previously convicted of aggravated felonies. The 7th Circuit held that the statutes under which defendants were convicted provided adequate notice of the increased penalties. Defendants’ claim of estoppel also failed, since they were unable to show that they relied on the inaccurate advice. U.S. v. Samaniego-Rodriguez, 32 F.3d 242 (7th Cir. 1994).
7th Circuit finds no due process violation in delayed federal prosecution which prevented concurrent sentences. (135) Defendant shot and killed a man. He was convicted of manslaughter in state court. Four years later, as the possibility of release from state prison moved closer, he was indicted by the U.S. for being a felon in possession of a firearm. Defendant argued that the federal government delayed the indictment in order to strip him of his opportunity for concurrent sentencing. The 7th Circuit rejected this as “pure speculation.” The lost possibility of serving a federal sentence concurrent with a state sentence does not violate any due process right. A defendant has no right to serve state and federal sentences concurrently. U.S. v. Smith, 5 F.3d 259 (7th Cir. 1993).
7th Circuit rules defendant was not punished for going to trial but for obstructing justice. (135) Defendant argued that the district court was overly harsh when sentencing him because he chose to have a jury trial rather than pleading guilty and continuing to cooperate with federal agents. The 7th Circuit found no abuse of discretion. His sentence was not based on the withdrawal of defendant’s cooperation, but on his decision to change his story and lie under oath. Moreover, a sentence without the insulation of a plea agreement would reflect the harsh penalties under the guidelines for drug crimes. U.S. v. Severson, 3 F.3d 1005 (7th Cir. 1993).
7th Circuit scrutinizes informant’s asking price. (135) Defendant argued that 600 pounds of marijuana that he agreed to buy from an informant should not be included in calculating his sentence because of the ability of informants to manipulate sentences by “offering large amounts of drugs at bargain prices or by offering extraordinary credit terms.” The 7th Circuit held open the possibility that such conduct could result in the exclusion of certain amounts. However, defendant’s case did not present this situation. Though the informant had initially requested a down payment of $65,000, he agreed to sell the marijuana later in the day when defendant returned with only $30,000. It was realistic that such a deal would be struck, given defendant’s demonstrated ability to resell large quantities of marijuana. In addition, the drug quantity was properly included under an application note to former 2D1.4, which the court construed as requiring assessment of the buyer’s intent and his ability to complete the deal. U.S. v. Fowler, 990 F.2d 1005 (7th Cir. 1993).
7th Circuit, en banc, includes weight of carrier medium in calculating LSD sentence. (135) 21 U.S.C. § 841(b)(1) sets a mandatory minimum term of imprisonment of five years for selling more than one gram of a “mixture or substance containing a detectable amount” of LSD. One defendant was convicted of selling 10 sheets of paper containing LSD. Because the total weight of the paper and the LSD was 5.7 grams, defendant received the five year mandatory minimum sentence. The en banc 7th Circuit held that the weight referred to in § 841 was the gross weight of the drug plus the carrier medium, not just the net weight of the drug. Although conceding that this could cause “odd things” to happen, the court found the language of the statute unambiguous. The 7th Circuit also held that the drug quantity table set forth in the guidelines referred to the gross weight of the LSD and the carrier medium. The court rejected the argument that the sentences violated the 8th Amendment or due process. Judge Cummings dissented, joined by Chief Judge Bauer, and Judges Wood, Cudahy and Posner, finding that the inclusion of the weight of the medium violated the statute and due process. Judge Posner also wrote a separate dissent, joined by the other dissenters, finding that the majority’s interpretation made the punishment scheme for LSD irrational and violative of due process. U.S. v. Marshall, 908 F.2d 1312 (7th Cir. 1990) (en banc), aff’d, Chapman v. U.S., 500 U.S. 453, 111 S.Ct. 1919 (1991).
7th Circuit upholds guidelines against due process challenge. (135) Defendant contended that guideline § 1B1.3, which permits the judge to increase a sentence based on related, but uncharged, drug activity, violates due process by requiring the judge to impose a fixed penalty for such activity. He argued that since uncharged relevant conduct need only be proved by a preponderance of the evidence, due process requires that judges have discretion to discount penalties imposed for such conduct. The 7th Circuit rejected this argument. Since standardizing the process of sentencing by using the same offense and offender characteristics is permissible, and sentencing defendants on the basis of crimes for which they have not been convicted is permissible, then Congress may impose a uniform penalty when the evidence indicates that defendant committed these other crimes. Moreover, Congress could have constitutionally prescribed a higher mandatory sentence for possession of any amount of drugs, making quantity irrelevant to the sentencing process. Congress adopted the less draconian method of making quantity a factor relevant to sentencing and mandating the weight to be accorded to additional quantities not proved beyond a reasonable doubt. U.S. v. Ebbole, 917 F.2d 1495 (7th Cir. 1990).
7th Circuit reaffirms that guidelines do not violate due process. (135) The 7th Circuit, following previous Circuit precedent, reaffirmed that the sentencing guidelines do not violate due process. The guidelines do not eliminate individualized sentences, since even in defendant’s case, factors such as acceptance of responsibility, past criminal history and conduct of the victim were taken into account. Even without such tailoring the guidelines would pass muster in a non-capital case, since “criminals aren’t entitled to sentences devised by judges rather than the legislature.” U.S. v. Bigelow, 914 F.2d 966 (7th Cir. 1990).
7th Circuit rejects due process challenge to guidelines. (135) Defendant argued that the guidelines both on their face and as applied to his case violated due process because they exhibited utter disregard for the human characteristics of the individual offender. Relying upon its earlier decision in U.S. v. Pinto, 875 F.2d 143 (7th Cir. 1989), the court again rejected the argument that the guidelines violate due process by depriving a defendant of an individualized sentence. U.S. v. Valencia, 907 F.2d 671 (7th Cir. 1990).
7th Circuit finds that assignment of weight to various factors does not violate due process. (135) A drug defendant argued that the guidelines violate due process because they arbitrarily assign weight to certain factors. The 7th Circuit rejected his challenge, finding that his real argument was that the guidelines limit judicial discretion and fail to require proof beyond a reasonable doubt of factors relied upon during sentencing. The 7th Circuit found that the defendant had not identified a sentencing factor accorded excessive weight by the district court. Moreover, relying on the Supreme Court’s decision in McMillan v. Pennsylvania, 477 U.S. 9 (1986), sentencing factors can be proven by a preponderance of the evidence without violating due process. U.S. v. Ross, 905 F.2d 1050 (7th Cir. 1990).
8th Circuit says judge’s criticism of counsel’s advice not to cooperate did not violate Fifth Amendment. (135) Defendant argued for the first time on appeal that the district court violated his Fifth Amendment right to remain silent when it criticized his attorney for advising him not to co-operate with the probation office in preparing his presentence investigation report. The Eighth Circuit ruled that defendant could not show that his substantial rights were affected by the district court’s view of his lack of cooperation. The district court had already announced defendant’s sentence, and provided in detail its reasons for the sentence, not alluding in any way to defendant’s lack of cooperation with the probation office’s investigation. In light of this record, there was no plain error. U.S. v. Godat, 688 F.3d 399 (8th Cir. 2012).
8th Circuit finds court did not consider facts in undisclosed sentencing recommendation. (135) Defendant defrauded a victim whom he convinced to invest in an entirely fictional business. He argued that the court violated his Fifth Amendment right to due process and his Sixth Amendment right to confrontation by relying on factual allegations in a confidential sentencing recommendation prepared by the probation office that he was not allowed to see or challenge. The Eighth Circuit rejected this argument, because when challenged on this issue, the district court explicitly stated that it was not relying on any facts in the confidential recommendation in reaching its sentencing decision. The court further explained that its references at sentencing to information in the confidential recommendation were solely for the purpose of “looking for any way to recover any of this [money] … to see if there is any way at all to get any recovery for this poor woman he fleeced.” U.S. v. Godat, 688 F.3d 399 (8th Cir. 2012).
8th Circuit says failure to find sentencing entrapment was not plain error. (135) Defendant argued for the first time on appeal that his mandatory minimum sentence was the product of sentencing entrapment. In the district court, he only claimed improper sentencing manipulation. Sentencing manipulation and sentencing entrapment are distinct defenses. Sentencing entrapment involves an individual predisposed to commit a minor or lesser offense who is entrapped into committed a greater offense subject to greater punishment. Sentencing manipulation focuses on whether the government stretched out the investigation merely to increase the defendant’s sentence. The Eighth Circuit ruled that the district court did not plainly err in failing to find sentencing entrapment. Whether defendant was predisposed to sell more than five grams of crack was a factual issue, and there was strong evidence weighing against defendant. He was a convicted crack dealer who had been released from prison less than eight months before the current conduct. U.S. v. Booker, 639 F.3d 1115 (8th Cir. 2011).
8th Circuit says defendant lacked standing to challenge constitutionality of mandatory minimum. (135) Defendant pled guilty to possessing five grams or more of cocaine base with intent to distribute. The district court sentenced him to 70 months imprisonment. Defendant appealed, arguing in part that the mandatory minimum sentence required by § 841(b)(1)(B)(iii) violated due process. The Eighth Circuit held that defendant lacked standing to raise this argument. During sentencing, the district court properly considered the factors in 18 U.S.C. § 3553(a) and imposed a sentence 10 months above the 60-month mandatory minimum found in § 841(b)(1) (B)(iii). Because defendant’s sentence was unaffected by § 841(b)(1)(B)(iii), he did not demonstrate a causal connection between his injury (i.e. his sentence) and the mandatory minimum sentence. U.S. v. Scott, 627 F.3d 702 (8th Cir. 2010).
8th Circuit upholds preponderance standard for sentencing enhancements. (135) After correctly establishing defendant’s base offense level under the guidelines, the district court held that defendant was eligible for six sentencing enhancements that raised his offense level from 26 to 43. Defendant argued that because the enhancements had a disproportionate impact on his sentence, clear and convincing evidence was required. The Eighth Circuit rejected the argument. In U.S. v. Villareal-Amarillas, 562 F.3d 892 (8th Cir. 2009), the court decided that due process never requires applying more than a preponderance of the evidence standard for finding sentencing factors, even where the fact-finding has “an extremely disproportionate impact on the defendant’s advisory guidelines range.” The panel also ruled that it did not violate the 6th Amendment for a sentencing court to base its sentence on facts that it finds to be true, just because they may later be used to support a conviction in a state court. U.S. v. Lee, 625 F.3d 1030 (8th Cir. 2010).
8th Circuit rejects sentencing manipulation claim. (135) Defendant was convicted by a jury of conspiracy to distribute at least 50 grams of actual methamphetamine. He contended that the district court erred by refusing to grant a downward departure or variance because the government engaged in sentencing manipulation. He pointed to evidence that the amount of drugs that the government informant requested increased over time, noting that the drug quantity requested increased soon after an investigator learned that he had two previous felony drug convictions. The Eighth Circuit rejected the sentencing manipulation claim. Police are permitted to engage in transactions of increasing amounts in an effort to probe the depth and extent of the criminal enterprise. Moreover, even if the investigators were aware of defendant’s earlier felony convictions, this awareness did not require them to cease their investigation. U.S. v. Moran, 612 F.3d 684 (8th Cir. 2010).
8th Circuit rejects sentencing manipulation claim based on six controlled buys. (135) Police engaged in a series of six controlled buys of methamphetamine from defendant. Defendant was arrested after the last controlled buy. Based on the quantity involved in all six buys, the district court found that defendant was responsible for at between 50 and 150 grams of actual methamphetamine, resulting in a guideline range of 121-151 months. Defendant argued that the district court abused its discretion by failing to grant a downward departure or variance based on sentencing manipulation, and that the police conducted the later controlled buys solely to increase his sentence. The Eighth Circuit found that the investigative purposes identified by the district court were sufficient to support a finding of no sentencing manipulation. The district court credited testimony from police officers that they were attempting to locate accomplices and the source of the drugs, learn the structure of the criminal enterprise, and build a strong case against defendant. The court did not abuse its discretion in sentencing defendant to 121 months. U.S. v. Torres, 563 F.3d 731 (8th Cir. 2009).
8th Circuit holds that undercover agent’s multiple drug purchases did not constitute sentencing entrapment. (135) An undercover officer purchased illegal drugs from defendant on eight separate occasions. The district court found defendant responsible for 35,700 Ecstasy pills, 11.25 grams of cocaine, and more than 100 kilograms of marijuana, the quantity of drugs connected to the conspiracy that the district court found reasonably foreseeable to defendant, rather than the relatively small amounts purchased by the undercover agent. The Eighth Circuit rejected defendant’s claim of sentencing entrapment or sentencing factor manipulation. The district court heard evidence that the undercover agent made repeated purchases to gather more information about the overarching conspiracy, as well as evidence indicating defendant’s disposition to sell illegal substances in the quantities sold to the undercover officer. Moreover, defendant failed to explain how sentencing manipulation would apply since his sentence was based on his involvement in the conspiracy and not on the limited quantity of drugs he sold to the undercover agent. U.S. v. Mai Vo, 425 F.3d 511 (8th Cir. 2005).
8th Circuit rejects sentencing entrapment claim. (135) Defendant requested a downward departure, claiming that law enforcement officers improperly engaged him in undercover drug sales and purchases for the sole purpose of driving up his sentence. The Eighth Circuit found this argument without merit. Law enforcement officers were investigating a large conspiracy. Under such circumstances, they are entitled to continue dealing with an individual with whom they have already engaged in illegal transactions in order “to probe the depth and extent of a criminal enterprise, to determine whether co-conspirators exist, and to trace the drug deeper into the distribution hierarchy.” The panel also rejected defendant’s claim that the probation office violated his due process rights by participating in an unlawful law enforcement contract. The district court addressed this issue and determined that there were no grounds for a departure. U.S. v. Jackson, 345 F.3d 638 (8th Cir. 2003).
8th Circuit rejects aberrant behavior departure for case involving serious bodily injury. (135) Section 5K2.20 provides for downward departures in extraordinary cases if the defendant’s criminal conduct constituted aberrant behavior. The departure is not available in cases involving serious bodily injury or death. Section 1B1.1 provides that “‘serious bodily injury’ is deemed to have occurred if the offense involved conduct constituting criminal sexual abuse under 18 U.S.C. §§ 2241 or 2242 or any similar offense under state law.” The Eighth Circuit rejected defendant’s claim that the “deeming” provision of § 1B1.1 violated the due process clause. The guideline has no impact on the burden of proof with respect to the charged crime. Therefore, the authority cited by defendant was inapplicable. U.S. v. Grassrope, 342 F.3d 866 (8th Cir. 2003).
8th Circuit holds that strict liability for stolen firearm did not violate 5th Amendment. (135) Defendant argued that a two-level increase under § 2K2.1(b)(4) because one of the firearms he possessed was stolen violated due process the government did not establish that he knew the firearm was stolen. Note 19 to § 2K2.1 says that the subsection (b)(4) increase applies “whether or not the defendant knew or had reason to believe that the firearm was stolen….” The Eighth Circuit held that the imposition of this type of strict liability did not violate defendant’s 5th Amendment due process rights. No due process concerns are implicated by the lack of a scienter requirement, because “the upward adjustment for possession of a stolen firearms does not stand alone as an independent crime but is part of a sentencing court’s quest to formulate a proper sentence.” U.S. v. Martinez, 339 F.3d 759 (8th Cir. 2003).
8th Circuit says court erred in finding defendant was victim of sentencing entrapment. (135) On defendant’s first appeal, the Eighth Circuit found that the district court had used the wrong standard in rejecting defendant’s sentencing entrapment claim. The sentencing entrapment analysis must focus on the defendant’s predisposition, not on whether the government’s conduct had been outrageous. U.S. v. Searcy, 233 F.3d 1096 (8th Cir. 2000). On remand, the district court found that defendant was not predisposed to deal in crack and resentenced defendant by treating all of the drugs sold as powder cocaine rather than crack. The Eighth Circuit reversed, finding defendant was predisposed to sell crack in the quantities sold. Although defendant had never sold crack before, and initially told Watkins, an informant, that “he doesn’t sell crack cocaine,” defendant had been present during the manufacturing of crack in the past, had used it, and had distributed it as gifts. Significantly, he displayed no reluctance to sell crack to Watkins in the very first conversation they had, a conversation that contained no particular signs of pressure or coercion on Watkin’s part. The actual agreement for sale did not take place until later, but there was no particular difficulty in getting defendant to entertain the idea. Although there was some evidence that the government sought a higher quantity in order to secure a severe sentence, defendant was not an all unwilling to sell the larger quantity. U.S. v. Searcy, 284 F.3d 938 (8th Cir. 2002).
8th Circuit upholds increased sentence for crack distribution. (135) Defendant argued that his 245-month sentence for distributing crack was excessive and violated his equal protection rights because the guidelines penalties for distributing crack are more severe than the penalties for distributing in powder form. The Eighth Circuit summarily rejected this argument, noting that it has been addressed frequently in past cases and found to be without merit. See, e.g. U.S. v. Davis, 154 F.3d 772 (8th Cir. 1998). U.S. v. Patterson, 258 F.3d 788 (8th Cir. 2001).
8th Circuit says sentencing entrapment focuses on predisposition, not outrageous government conduct. (135) A government informant asked his friend, a powder cocaine dealer, to buy some crack. Defendant said that he did not sell crack, just powder. They had five or six conversations over four weeks and the informant repeatedly asked defendant for crack. Finally, defendant agreed, and he was arrested when he delivered 28.6 grams of crack to the informant. The district court rejected his claim of sentencing entrapment, finding it was only viable when “outrageous government conduct overcomes the will of a defendant predisposed to deal only in small quantities of drugs, and in this case other types of drugs.” The Eighth Circuit reversed, holding that the sentencing entrapment analysis focuses on the defendant’s predisposition, and not on outrageous government conduct. The government’s conduct is relevant only insofar as it provides the inducement. See U.S. v. Berg, 178 F.3d 976 (8th Cir. 1999). The evidence showed that defendant never dealt crack until the government informant coaxed defendant to sell crack. The district court determined that the government’s conduct was not outrageous. However, the government’s conduct does not have to be outrageous. Rather, the facts should be evaluated by focusing on the defendant’s predisposition. U.S. v. Searcy, 233 F.3d 1096 (8th Cir. 2000).
8th Circuit finds cross-reference to murder guideline did not violate due process. (135) Defendant was convicted of robbery, conspiracy, gun-trafficking, and use of a gun in a crime of violence. The recommended guidelines sentence of life imprisonment was adjusted to comply with the statutory maximum sentences set for each of defendant’s offenses, yielding a total sentence of 540 months. Defendant argued that his sentence violated due process because this was a case where “a sentencing enhancement factor becomes ‘a tail which wags the dog of the substantive offense.’” The Eighth Circuit disagreed. This was not a case where a defendant received a life sentence based on the federal court’s finding that it “was more likely than not” that he committed murders for which he had been acquitted. Defendant was convicted by a federal judge of armed robbery. Section 2B3.1(c)(1) provides that “if a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111” the court should apply § 2A1.1 (First Degree Murder). Section 111(a) defines “murder” to include felony murder. There was no question that defendant could have been convicted of felony murder. U.S. v. Al-Muqsit, 191 F.3d 928 (8th Cir. 1999), vacated in part on other grounds by U.S. v. Logan, 210 F.3d 820 (8th Cir. 2000).
8th Circuit holds sentencing without new testimony from defendant’s witnesses did not violate due process. (135) Before an evidentiary hearing on drug quantity, the district court issued subpoenas to witnesses at defendant’s request. None of the witnesses were able to be located, and none were present at the hearing. All but one had testified at defendant’s trial. The court issued a subpoena for the deposition testimony of the sole witness who had not previously testified and quashed the remaining subpoenas. The Eighth Circuit held that the sentencing without the new testimony from defendant’s witnesses did not violate due process. Defendant did not allege that the witnesses testified falsely at trial. He claimed only that their trial testimony included unsubstantiated estimates of drug quantity. Thus, he implied that the witnesses would have provided different information at sentencing than they did at trial. However, there was no evidence to support this inference. Without information regarding the expected testimony, and given that the witnesses at trial were under oath, there was no evidence that the testimony at sentencing would have resulted in an appreciable difference in the district court’s finding. Thus, the proceedings did not violate due process. U.S. v. Granados, 202 F.3d 1025 (8th Cir. 2000).
8th Circuit upholds guideline requiring consecutive sentences to achieve “total punishment.” (135) n multi-count cases, if the highest statutory maximum sentence is less than the “total punishment” called for by the guidelines for all the offenses, § 5G1.2(d) requires consecutive sentences “to the extent necessary to produce a combined sentence equal to the total punishment.” Thus, although the statutory maximum for robbery is 20 years, defendant was sentenced on each count consecutively to reach a life sentence. The life sentence was required by § 2B3.1(c)(1), which directs the application of § 2A1.1 if a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111. The Eighth Circuit upheld the constitutionality of § 5G1.2(d), noting that numerous circuits, including this one, have previously rejected due process challenges to this provision. See e.g. U.S. v. Rodgers, 122 F.3d 1129, 1131 n.2 (8th Cir. 1997). U.S. v. Al-Muqsit, 191 F.3d 928 (8th Cir. 1999), vacated in part on other grounds by U.S. v. Logan, 210 F.3d 820 (8th Cir. 2000).
8th Circuit rejects downward departure for sentencing entrapment. (135) Defendant argued that two informants induced him to participate in a scheme to manufacture methamphetamine. He admitted that he had previously manufactured meth before working with the informants, but stated that he had never manufactured a batch as large as 12 pounds. He also argued that the informant would benefit under their cooperation agreement if they induced him to commit a crime with a greater sentence. The Eighth Circuit found no evidence of sentencing entrapment that would support a downward departure. The amount of drugs involved in sting and reverse-sting operations can be easily manipulated by the government, and courts have begun to question the government’s power to control sentencing. However, there was no evidence that the informants set defendant up to manufacture a greater amount of methamphetamine simply to enhance defendant’s sentence. U.S. v. Berg, 178 F.3d 976 (8th Cir. 1999).
8th Circuit rejects equal protection challenge to § 5G1.3(b). (135) Defendant argued that § 5G1.3(b) violates equal protection by permitting credit for undischarged sentences but not for discharged ones. The Eighth Circuit found no equal protection problem. By its terms, § 5G1.3(b) applies only to undischarged sentences. It is silent with regard to discharged sentences. However, a district court has authority to depart downward in order to give a defendant credit for time served on an expired state sentence. There is a rational basis for treating discharged and undischarged sentences differently. With undischarged sentences, there remains uncertainly as to the amount of time a defendant will actually serve. There are no such contingencies with discharged sentences. U.S. v. Otto, 176 F.3d 416 (8th Cir. 1999).
8th Circuit rejects sentencing entrapment claim. (135) Defendant and a co-conspirator operated a methamphetamine laboratory in defendant’s cabin. They invited Kearbey, defendant’s brother-in-law, to assist them in manufacturing methamphetamine. Unbeknownst to them, Kearbey was assisting federal authorities. Defendant was arrested after Kearbey delivered 2088 grams of ephedrine, which had been crushed and soaked by government agents. The Eighth Circuit rejected defendant’s claim that the government had engaged in sentencing entrapment. Although defendant contended that he was not predisposed to manufacture 100 grams of meth (the amount he admitted they were attempting to produce), his co-conspirator testified that he and defendant attempted to manufacture 100 grams in 1996 but they had “messed it up.” In light of lab’s capacity to manufacture 112 grams of actual meth, coupled with defendant’s admission that he had manufactured eight to 12 grams of meth on seven occasions before his arrest, the government did not overcome any predisposition on defendant’s part to deal only in smaller quantities of methamphetamine. U.S. v. Hunt, 171 F.3d 1192 (8th Cir. 1999).
8th Circuit upholds refusal to grant sentencing entrapment departure. (135) Defendant was convicted of conspiring to distribute 100 or more grams of methamphetamine. He argued that the district court erred in refusing to depart based on a theory of sentencing entrapment or sentencing manipulation. He contended that police improperly engaged him in additional drug sales, well after achieving their legitimate investigative goals, for the sole purpose of increasing his sentence. The Eighth Circuit held that the district court did not err in refusing to grant the sentencing entrapment departure. Defendant did not show that the officers engaged in the later drug transactions solely to enhance his potential sentence. The evidence supported the conclusion that the officers engaged in an ongoing series of drug purchases from defendant in an effort to gain his confidence and identify as many co-conspirators as possible, as well as his source of supply. U.S. v. Baber, 161 F.3d 531 (8th Cir. 1998).
8th Circuit declines challenge to murder-for-hire guideline that did not affect defendant. (135) Defendant was convicted of conspiring to hire a hit man to kill his girlfriend’s husband, in violation of 18 U.S.C. § 1958. He argued that the guideline, § 2E1.4, was irrational and violated due process because the base offense level is the greater of 32 or the offense level for the underlying conduct. Thus, a person in criminal history category I with a base offense level of 32 would have a guideline range of 121-151 months, while a person in criminal history category VI would have a guideline range of 210-262 months. However, the statutory maximum for 18 U.S.C. § 1958 is ten years. Therefore, two level-32 defendants, one with a criminal history of I and one with a criminal history of VI, would receive the same term of imprisonment. The Eighth Circuit held that defendant lacked standing to raise this issue because he was sentenced well below the ten-year statutory maximum. Because he was in criminal history category I, the guidelines were more lenient than if he had been placed in any higher category. Thus, § 2E1.4 was not irrational as applied to him. U.S. v. Turechek, 138 F.3d 1226 (8th Cir. 1998).
8th Circuit refuses to consider sentencing entrapment claim that did not affect sentence. (135) Defendant’s co‑conspirator sold crack cocaine to an undercover agent. Defendant asserted that the agent manipulated his sentence by insisting on buying crack cocaine. The Eighth Circuit did not address this sentencing entrapment claim because it had no affect on defendant’s base offense level of 36. Excluding the 34.34 grams of crack from the court’s estimate of 1083.4 grams of crack would still result in a base offense level of 36. U.S. v. Atkinson, 85 F.3d 376 (8th Cir. 1996).
8th Circuit holds that disparate sentences between leader and minor participants did not violate due process. (135) Defendant received a 235-month sentence for various drug convictions. Two co-conspirators who cooperated with authorities received a 24-month and an 18-month sentence, respectively. The Eighth Circuit held that the disparate sentences did not violate due process. The guidelines were correctly applied to defendant. The district court found that defendant was the leader of the conspiracy, while his co-conspirators were relatively minor players. More-over, the co-conspirators properly received downward departures under § 5K1.1 because they pled guilty and cooperated with authorities. The district court did not retaliate against defendant for exercising his right to trial. The 235-month sentence did not constitute cruel and unusual punishment. U.S. v. Thompson, 51 F.3d 122 (8th Cir. 1995).
8th Circuit rejects claim that government’s low price induced defendant to purchase additional drug quantities. (135) Defendant argued that it was unfair to predicate his sentence on the four kilograms the government agent sold him because the price (half the market rate) was artificially low. He claimed that the court should have based his sentence either on the quantity that the same amount of money would have bought at the usual retail price, or should have departed downward. The 8th Circuit rejected the claim, noting that a recent amendment to note 17, § 2D1.1 states that a court may depart downward if the government sets a price substantially below the market price, and this leads a defendant to purchase significantly more drugs than his resources would otherwise have allowed him to do. Here, however, the low price did not induce defendant to buy quantities that he otherwise lacked the resources to purchase. U.S. v. Hulett, 22 F.3d 779 (8th Cir. 1994).
8th Circuit rejects sentencing entrapment claim. (135) At sentencing, defendant argued that he was entrapped for sentencing purposes, i.e. the police entered into more drug transactions than necessary for a conviction in order to increase his sentence under the guidelines. The trial court found no abuse of prosecutorial discretion in the decision concerning when the police should stop their investigation of the drug house. On appeal, the 8th Circuit acknowledged the possibility of such a defense in certain situations, but upheld the district court’s decision. U.S. v. Magee, 19 F.3d 417 (8th Cir. 1994).
8th Circuit rejects constitutional challenge to mandatory minimums and guidelines. (135) Defendant argued that his statutory minimum sentence and the sentencing guidelines violated due process. The 8th Circuit, citing numerous previous cases, rejected the argument. U.S. v. Magee, 19 F.3d 417 (8th Cir. 1994).
8th Circuit rejects sentencing entrapment claim because additional drug buys had legitimate goals. (135) Defendant argued that police discriminated against him by making additional drug buys from him, thereby increasing his sentence. The 8th Circuit considered this a claim of sentencing entrapment, and rejected it. In a previous case, the court had rejected a sentencing entrapment claim involving seven purchases and 50.5 grams of cocaine. Here, by contrast, there were four undercover purchases and 107.4 grams of cocaine base and 111 grams of cocaine. The police articulated legitimate goals, such as uncovering defendant’s supply source. The sentencing entrapment claim failed because the government’s actions were not outrageous. U.S. v. Warren, 16 F.3d 247 (8th Cir. 1994).
8th Circuit holds preponderance of evidence standard does not violate due process. (135) Defendant argued that the district court erred in using the preponderance of the evidence standard instead of clear and convincing evidence in determining the amount of drugs involved in his conspiracy. The 8th Circuit found no due process violation. Cases cited by defendant suggesting that a higher burden of proof is required where a sentencing factor has a disproportionate effect on the sentence only addressed uncharged relevant conduct findings under section 1B1.3. In this case, the district court simply made a quantity determination under section 2D1.1 for defendant’s conspiracy conviction. There was no due process violation because defendant was given notice of the drug conspiracy charge and defended against that charge. U.S. v. Behler, 14 F.3d 1264 (8th Cir. 1994).
8th Circuit rejects due process challenge to drug guidelines. (135) Defendant argued that the guidelines violate due process by (a) limiting the sentencing court’s discretion and (b) classifying punishment for drug offenses on the basis of quantity rather than purity. The 8th Circuit rejected both arguments. The limits the guidelines place on a sentencing court’s discretion do not violate due process. It is neither arbitrary nor irrational to sentence according to the total quantity of the PCP mixture without regard to purity. U.S. v. Jones, 994 F.2d 456 (8th Cir. 1993).
8th Circuit rejects sentencing entrapment claim despite concern about government conduct. (135) Defendants fraudulently exchanged mislabeled computer parts for new parts during a computer company’s exchange program. They received a nine-level sentence enhancement based on the loss involved in the fraud. They claimed that sentencing entrapment compelled a downward departure, since the company and the government knew about the first mislabeled part in 1988, and the loss would have been far less if the government had stopped the fraud then. The 8th Circuit expressed concern about the government’s conduct in the case, but nonetheless rejected the entrapment argument since defendants were predisposed to commit the offenses. U.S. v. Nelson, 988 F.2d 798 (8th Cir. 1993).
8th Circuit upholds sentence after plea that was the same as if defendant had gone to trial. (135) Defendant argued that his due process rights were violated because after pleading guilty pursuant to a plea agreement, he received the same sentence that he would have received had he been convicted after a trial. The 8th Circuit rejected this “novel argument.” The plea agreement contained no promises of a downward departure, and defendant admitted that the government made no promises outside the agreement. The agreement made it clear that defendant’s ultimate sentence would depend on the district court’s factual findings as to the amount of cocaine involved in the conspiracy. Defendant, in entering the plea agreement, was simply gambling that the quantity of cocaine would be small enough to require a shorter sentence under the guidelines. He lost the gamble. U.S. v. Villegas, 987 F.2d 1362 (8th Cir. 1993).
8th Circuit upholds harsher penalties for cocaine base. (135) Defendant argued that 21 U.S.C. section 841(a)(1) and (b) were discriminatory in prescribing greater penalties for the sale of cocaine base than for cocaine, since black people were more likely to be prosecuted for the sale of cocaine base than white people. The 8th Circuit, relying on Circuit precedent, summarily rejected the argument. U.S. v. Taylor, 986 F.2d 297 (8th Cir. 1993).
8th Circuit says sentencing entrapment may be ground for downward departure, but not here. (135) Defendant sold crack cocaine to an undercover officer seven times, and was arrested after the seventh sale. The district court found sentencing entrapment, and ruled that none of the drugs following the fourth undercover buy would count towards defendant’s sentence. The 8th Circuit reversed, holding that sentencing entrapment may be legally relied upon to depart from the guidelines, but factually it was not present here. Defendant failed to demonstrate that the governments’ conduct was outrageous or that the undercover agent’s conduct overcame his predisposition to sell small quantities of crack cocaine. His predisposition was exhibited by his skillful methods of effecting drug deals — he used the appropriate language, he “palmed” the crack to the undercover officer during the first transaction, he owned a pager, and was sophisticated enough to use a “runner” on one occasion. Moreover, there was no evidence that the undercover officer continued to purchase drugs merely to enhance defendant’s sentence. U.S. v. Barth, 990 F.2d 422 (8th Cir. 1993).
8th Circuit rejects sentencing entrapment claim where government was unaware of defendants. (135) The 8th Circuit rejected defendants’ claim that the court should have departed below the mandatory minimum because the government engaged in sentencing entrapment. Defendants did not argue that they were not predisposed to commit the offense for which they were convicted. Moreover, they dealt solely with Basco, and not with the government informant. With the exception of the last transaction, Basco was not cooperating with the government. Defendants failed to show that the government was even conscious of their existence when the agent was arranging buys of LSD from Basco. The government cannot be guilty of intentionally entrapping defendants for sentencing purposes when it was unaware of their existence. U.S. v. Rogers, 982 F.2d 1241 (8th Cir. 1993).
8th Circuit finds no sentencing entrapment where government did not purchase drugs to increase sentence. (135) Defendant argued that the government engaged in sentencing entrapment in violation of his due process rights. Since the government indicted him on the basis of one two-ounce sale, he claimed that the remaining 8-1/8 ounces he sold to the government informant resulted from sales instigated by the government merely to increase his sentence. The 8th Circuit rejected this argument, since defendant presented no evidence that the government continued the purchases merely to enhance his eventual sentence. The government continued purchases of narcotics from defendant for a reasonable period of time in order to probe the extent of the distribution ring, identify forfeitable assets, and snare defendant’s supplier. The government was successful in this endeavor, locating considerable forfeitable assets, snaring defendant’ cocaine supplier, and arresting a co-conspirator. U.S. v. Calva, 979 F.2d 119 (8th Cir. 1992).
8th Circuit finds no plain error in prosecuting defendant in federal court. (135) Defendant contended for the first time on appeal that the government violated his procedural due process rights by prosecuting him in federal court rather than state court. He argued that he would have received a significantly lower sentence than the 262-month sentence he received under the guidelines. The 8th Circuit found no plain error, ruling that the fact that the federal government prosecutes a federal crime that could have prosecuted as a state crime in a state court does not itself violate due process, even if the defendant faces a harsher sentence in federal court. U.S. v. Johnson, 977 F.2d 457 (8th Cir. 1992).
8th Circuit affirms referral of case for federal prosecution despite lack of written guidelines. (135) Relying on U.S. v. Williams, 746 F.Supp. 1076 (D. Utah 1990), defendant argued that he should not have been sentenced under the guidelines because of the lack of written guidelines governing the referral of cases for state or federal prosecution. The 8th Circuit disagreed, noting that the 10th Circuit has reversed this case and that every circuit court of appeals to consider the issue has rejected this district court’s reasoning. U.S. v. Beede, 974 F.2d 948 (8th Cir. 1992).
8th Circuit rejects claim that IRS officials’ setting of amount of loss in bribery case constituted sentencing entrapment. (135) Defendant, a CPA, was suspected of “making illegal offers and compromises.” To investigate, the IRS established a fictitious tax account for an undercover IRS agent and then filed fictitious federal tax liens against the agent in the amount of $116,156.22. After accepting the case, defendant eventually offered a bribe to the IRS agent assigned to the case to eliminate the tax liability. Under section 2C1.1, the amount of the bribe was determined to be $116,156.22, the value of the benefit received. The 8th Circuit rejected defendant’s claim that the government’s actions in setting the amount of the fictitious tax account constituted “sentencing entrapment.” For defendant to succeed, he would have to demonstrate that the IRS agents acted outrageously in overcoming a predisposition on his part only to offer bribes for clients whose tax liabilities were much smaller. In fact, there was some evidence that defendant was predisposed to deal in schemes with a high value. There was no evidence that the IRS was trying to obtain a particular sentence for him, since at the undercover operation began prior to the effective date of the guidelines. U.S. v. Stein, 973 F.2d 600 (8th Cir. 1992).
8th Circuit holds that district court gave adequate reasons for maximum guidelines sentence. (135) Defendant had a guideline range of 151 to 188 months and received a 188 month sentence. She argued that the guidelines violated due process by preventing the district court from considering the specific circumstances of her crime. The 8th Circuit summarily rejected this claim. When a guideline range exceeds 24 months, due process and 18 U.S.C. section 3553(c)(1) require the court to state its reasons for imposing a sentence at a particular point within the sentencing range. The district court satisfied this obligation at sentencing by stating as its reasons the ongoing nature of defendant’s offenses and the need to deter defendant from committing those offenses in the future. U.S. v. Jones, 965 F.2d 1507 (8th Cir. 1992).
8th Circuit rejects due process claim based upon disparity of sentences among co-conspirators. (135) The 8th Circuit rejected defendant’s claim that the disparity between his sentence and the sentences received by his co-conspirators who were more culpable than he was violated his due process and equal protection rights. At defendant’s sentencing hearing, the prosecutor explained that conspirators who were prosecuted earlier in the investigation had received shorter sentences because the government was then unaware of the conspiracy’s magnitude. U.S. v. Askew, 958 F.2d 806 (8th Cir. 1992).
8th Circuit rejects claim that guidelines violate due process by failing to provide a standard of proof. (135) Defendant claimed that the guidelines violated his Fifth Amendment due process rights by failing to provide a standard of proof for the district court to apply in finding facts upon which a sentence is based. He also contended that the district court improperly failed to apply any express standard of proof. The 8th Circuit rejected these challenges. No particular standard of proof for fact-finding is required at the sentencing phase. The sentencing judge need only make findings sufficient to provide for a meaningful appeal. Here there was more than sufficient evidence to support the district court’s findings. The appellate court summarily rejected defendant’s claim that the guidelines unduly limit the sentencing judge’s discretion and improperly grant discretion to the prosecutor. U.S. v. Abdullah, 947 F.2d 306 (8th Cir. 1991).
8th Circuit finds no due process violation in application of guidelines. (135) Defendant had originally been prosecuted in state court, but the charges were dropped, and he was eventually convicted in federal court for the same conduct. He asserted that an Assistant U.S. Attorney assigned to the Drug Task Force served a dual role in the state prosecutor’s office, and that the case against him in state court was dismissed solely to gain a tactical advantage. The 8th Circuit rejected this argument. The fact that the federal government prosecutes a case in federal court that could have been prosecuted in state court does not violate due process. Nor does the fact that defendant was subject to a harsher sentence in federal court. Moreover, the fact that the prosecutor was spared from having to prove beyond a reasonable doubt crimes that were considered in setting his sentence did not violate due process. U.S. v. Turpin, 920 F.2d 1377 (8th Cir. 1990).
8th Circuit rejects due process challenge to guidelines where defendant stipulated to offense level. (135) Defendant asked to be allowed to withdraw his guilty plea, arguing that the guidelines had unconstitutionally eliminated the judge’s sentencing discretion. The 8th Circuit rejected the argument noting that it had already held that the guidelines are not facially unconstitutional on grounds similar to those advanced by the defendant here. The court found no constitutional infirmity based on the specific facts in this case. In pleading guilty defendant stipulated to an offense level of 26. “He will not now be heard to raise a challenge to that which he agreed to.” U.S. v. Nischwitz, 900 F.2d 139 (8th Cir. 1990).
8th Circuit holds that failure to consider purity of drugs does not violate due process. (135) Defendant argued that the sentencing guidelines violate due process because they fail to consider the purity of drugs involved when calculating sentences. The 8th Circuit held the argument to be without merit, as “basing sentencing on the quantity of drugs without regard to purity is reasonably related to the proper legislative purpose of penalizing large volume drug traffickers more harshly.” U.S. v. Luster, 896 F.2d 1122 (8th Cir. 1990).
8th Circuit upholds constitutionality of “100 to 1 ratio” for cocaine base. (135) The Eighth Circuit rejected a defendant’s contention that the “100 to 1 ratio” of cocaine to cocaine base in guideline § 2D1.1(a)(3) violated the substantive due process requirement of the 5th Amendment. The court noted that Congress was concerned about cocaine base because it is more dangerous than cocaine due to its potency, its highly addictive nature, its affordability and its increasing prevalence. The sentencing commission implemented a congressional directive in applying the “100 to 1 ratio” to its delineation of sentencing ranges and such a ratio was rationally related to Congress’s objective of protecting the public welfare. U.S. v. Buckner, 894 F.2d 975 (8th Cir. 1990).
8th Circuit holds that punishment based on quantity of drugs does not violate due process. (135) Defendants, convicted of distributing LSD, argued that basing the criminal penalty on the quantity of the drug rather than its purity violated due process. The Eighth Circuit disagreed, holding that “basing sentencing on the quantity of drugs without regard to purity is reasonably related to the proper legislative purpose of penalizing large volume drug traffickers more harshly.” U.S. v. Bishop, 894 F.2d 981 (8th Cir. 1990).
8th Circuit holds that guidelines do not violate due process. (135) The 8th Circuit held that the guidelines do not violate the due process clause despite the fact that the defendant does not have the right to a jury trial on facts which result in sentence enhancement and that the government therefore need not prove these facts beyond a reasonable doubt. The 8th Circuit held that due process was satisfied by giving the defendant an adequate opportunity to challenge those facts relied upon at sentencing. U.S. v. Barnerd, 887 F.2d 841 (8th Cir. 1989).
8th Circuit reaffirms that guidelines do not violate due process. (135) The 8th Circuit held that the sentencing guidelines restrictions on judicial sentencing discretion and availability of probation do not offend the due process clause. U.S. v. Lane, 883 F.2d 56 (8th Cir. 1989).
8th Circuit holds guidelines’ failure to consider defendant’s cultural background does not violate due process. (135) Defendant argued that the guidelines are constitutionally infirm because they assertedly do not allow a sentencing court to consider the defendant’s cultural background when imposing sentence. Noting that cultural background has consistently been rejected as an excuse for criminal activity, the Eighth Circuit held that Congress could properly prevent considerations of cultural background from being a mitigating factor at sentencing. The guidelines do not violate due process by failing to take cultural heritage into account. U.S. v. Natal-Rivera, 879 F.2d 391 (8th Cir. 1989), overruling on other grounds recognized by U.S. v. Longoria, 298 F.3d 367 (5th Cir. 2002).
8th Circuits holds that guideline sentences do not violate due process. (135) The 8th Circuit held there is no constitutional right to judicial discretion in individualized sentences, and the guidelines themselves satisfy the requirements of procedural due process. Due process only requires that the defendant be free to contest the legislative evaluation of certain crime-related factors. U.S. v. Brittman, 872 F.2d 827 (8th Cir. 1989); U.S. v. Nunley, 873 F.2d 182 (8th Cir. 1989).
9th Circuit finds no sentencing entrapment in reverse sting operation. (135) Undercover federal officers persuaded a group to commit a robbery of a stash house that supposedly contained multiple kilograms of cocaine. In fact, the stash house was fictional, and no cocaine existed. At sentencing, the district court set defendant’s offense level based on the fictional amount of cocaine (23 kilograms) they believed they would steal. The district court found that defendants had not shown that they were predisposed to steal a smaller amount of cocaine and rejected defendants’ sentencing entrapment claims. The Ninth Circuit affirmed, holding that defendants had failed to show that they were predisposed to commit a lesser offense. U.S. v. Black, 733 F.3d 294 (9th Cir. 2013).
9th Circuit clarifies elements of sentencing entrapment claim. (135) Defendant participated in a reverse sting in which undercover law enforcement agents convinced defendant and his co-conspirators that they would obtain 20 to 25 kilograms of cocaine if they robbed a stash house. When defendant and his co-conspirators arrived with firearms to commit the robbery, they were arrested. After being convicted of drug-trafficking offenses, defendant argued that 20 to 25 kilograms should not be used to calculate his guidelines range because he was entrapped into an offense involving that amount. The Ninth Circuit held that in the case of fictitious stash house robberies, the defendant need only show a lack of intent or a lack of capability to deal in the quantity of drugs charged, but not both. The court found that defendant had not carried his burden to show either. U.S. v. Yuman-Hernandez, 712 F.3d 471 (9th Cir. 2013).
9th Circuit says that “outrageous government conduct” is not a prong of sentencing entrapment. (135) Defendant participated in a phony stash house robbery set up by undercover law enforcement officers. The officers told defendant and his co-conspirators that they would probably obtain 20 to 25 kilograms of cocaine by robbing the stash house. At sentencing on drug-trafficking offenses, defendant claimed that he had been entrapped into an offense involving 20-25 kilos of cocaine. In clarifying the elements of a sentencing entrapment claim, the Ninth Circuit said that a defendant need not show that the government engaged in outrageous government conduct to establish sentencing entrapment. The court explained that inducing a defendant to commit a crime he is not predisposed to commit is necessarily outrageous. U.S. v. Yuman-Hernandez, 712 F.3d 471 (9th Cir. 2013).
9th Circuit rejects sentencing entrapment claim by defendant who possessed requested drugs. (135) An informant bought small quantities of methamphetamine from defendant and his accomplice. A few months after these transactions, the informant asked defendant and his accomplice to sell him 900 grams of methamphetamine, and defendant and his accomplice delivered that amount to the informant. Defendant pleaded guilty to possession with intent to distribute methamphetamine. At sentencing, he argued that the 900 grams should not be used to calculate his Guidelines offense level because he had been entrapped into providing that amount. The Ninth Circuit rejected defendant’s claim of sentencing entrapment, finding that defendant had the intent and capacity to produce for sale more than 900 grams of methamphetamine and acted on that intent without hesitation. U.S. v. Biao Huang, 687 F.3d 1197 (9th Cir. 2012).
9th Circuit says sentencing entrapment requires active government involvement in illegal activity. (135) Local police officers visited defendants’ marijuana growing operation on multiple occasions, and defendants claimed that the officers told defendants that the operation complied with the law. When defendants were convicted of manufacturing marijuana, in violation of federal law, they argued that the local officials’ acquiescence in their ongoing marijuana operation constituted sentencing entrapment and that they should receive a sentence below the sentence required by the jury’s verdict. The Ninth Circuit held that defendants could not show sentencing entrapment because there was no evidence that law enforcement officials affirmatively directed defendants to grow marijuana or offered defendants something in exchange for the production of a greater number of plants. U.S. v. Schafer, 625 F.3d 629 (9th Cir. 2010).
9th Circuit says plea agreement drug stipulation foreclosed sentencing entrapment claim. (135) Undercover police officers persuaded defendant to rob a drug stash house of 20 kilograms of cocaine and 10 kilograms of methamphetamine. In fact, neither the stash house nor the drugs existed, and defendant was arrested when he arrived to conduct the robbery. Defendant pleaded guilty to conspiracy to possess with intent to distribute the drugs that he thought he would obtain in the robbery. His plea agreement stated that his offense involved between five and 15 kilograms of methamphetamine and between 15 and 50 kilograms of cocaine. At sentencing, the district court set defendant’s sentence based on these quantities of drugs. On appeal, defendant claimed that the government had engaged in sentencing entrapment by saying that the stash house contained a large quantity of drugs. The Ninth Circuit held that the stipulation in the plea agreement to the drug amounts in the offense foreclosed defendant from raising his claim on appeal. U.S. v. Briggs, 623 F.3d 724 (9th Cir. 2010).
9th Circuit upholds supervised release condition requiring defendant to wear sign stating his crime. (135) Defendant was convicted of theft of mail. At sentencing, the district court ordered defendant, as a condition of supervised release, to stand outside a post office for a day wearing a signboard stating, “I stole mail. This is my punishment.” A divided panel of the Ninth Circuit held that requiring defendant to wear the sign was reasonably related to the permissible goal of rehabilitation and did not violate 18 U.S.C. § 3583(d). The court also held that the supervised release condition did not violate the Eighth Amendment ban on cruel and unusual punishments. U.S. v. Gementera, 379 F.3d 596 (9th Cir. 2004).
9th Circuit upholds sadistic image enhancement against vagueness and sufficiency challenges. (135) The guideline for transmitting child pornography, § 2G2.2(b)(3), provides for a four-level enhancement if the defendant transmits “material that portrays sadistic or masochistic conduct or other depictions of violence.” The images that defendant transmitted included pictures of adult males anally penetrating prepubescent children. The Ninth Circuit held that the word “sadistic” was not unconstitutionally vague as applied to the images that defendant transmitted because a person of reasonable intelligence would understand that it is sadistic for adult men to obtain pleasure at the expense of a child’s pain. The court also held that the images depicted sadistic conduct. U.S. v. Rearden, 349 F.3d 608 (9th Cir. 2003).
9th Circuit holds that defendant has right to testify about prior conviction at Three Strikes hearing. (135) At defendant’s California sentencing hearing, the State sought to have him sentenced under the Three Strikes law. One of defendant’s prior “strikes” was a 1976 conviction for assault with a deadly weapon. That conviction qualified as a strike only if defendant personally inflicted great bodily harm or used a weapon. In determining that the 1976 conviction counted as a strike, the trial court considered the record of the conviction as well as statements defendant made to the probation department. It refused to let defendant testify about the circumstances of the conviction. On federal habeas review, the Ninth Circuit held that the failure to allow defendant to testify violated due process, that the error was not harmless, and that defendant was entitled to be resentenced. Gill v. Ayers, 342 F.3d 911 (9th Cir. 2003).
9th Circuit holds that counting out-of-state convictions as “strikes” does not violate due process. (135) A defendant convicted under California’s “three strikes” law is subject to an enhanced sentence if he has prior felony convictions. While defendant’s case was pending, the California Supreme Court held that prior out-of-state convictions counted as strikes for some purposes under the three strikes law. That decision resulted in defendant’s receiving a sentence of 25 years to life. The Ninth Circuit held that even if California’s interpretation retroactively expanded the law, it did not violate due process. Instead, the court held, only unreasonable retroactive expansions of the scope of prohibited conduct violate due process. Holgerson v. Knowles, 309 F.3d 1200 (9th Cir. 2002
9th Circuit says advice that guilty plea would foreclose reduction for sentencing entrapment was ineffective assistance. (135) The government’s plea offer included an agreement to a three-level reduction in defendant’s offense level. Defense counsel mistakenly told defendant that if he accepted the offer, he would not be able to argue for a reduction in his sentence based on sentencing entrapment. Defendant rejected the plea offer, went to trial, and was convicted. At sentencing, the district court declined to give defendant an offense level reduction for acceptance of responsibility. The Ninth Circuit held that counsel’s mistaken advice constituted ineffective assistance because it prevented defendant from intelligently considering the government’s plea offer and resulted in his going to trial and being deprived of an acceptance-of-responsibility reduction. U.S. v. Day, 285 F.3d 1167 (9th Cir. 2002).
9th Circuit says that sentence above statutory maximum is plain error. (135) The district court imposed a 72-month sentence on defendant after he was convicted of conspiracy under 18 U.S.C. § 371, an offense that carries a five-year maximum. The Ninth Circuit held that a district court lacks the power to impose a sentence above the statutory maximum and that such a sentence constitutes plain error. U.S. v. Lomow, 266 F.3d 1013 (9th Cir. 2001).
9th Circuit says increasing sentence on remand to correct error was not vindictive. (135) Defendant argued that the district court’s imposition of a higher sentence on remand must be considered “vindictive” and therefore violated his due process rights under North Carolina v. Pearce, 395 U.S. 711 (1969) and Wasman v. U.S., 468 U.S. 559 (1984). The Ninth Circuit rejected the argument, holding that the higher sentence resulted solely from the correction of an error in defendant’s first presentence report, an error the district court was obligated to correct. The government did not waive its right to correct the error by not cross-appealing from the original sentence, because an unlimited remand for resentencing permits the district court to “consider any matter relevant to the sentencing.” U.S. v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995). There was no error. U.S. v. Garcia-Guizar, 227 F.3d 1125 (9th Cir. 2000).
9th Circuit reverses where judge drew adverse inference from defendant’s silence at sentencing. (135) In Mitchell v. U.S., 526 U.S. 314, 327-30 (1999), the Supreme Court held that a sentencing judge may not, in determining facts and circumstances of a crime, draw an adverse inference from a defendant’s silence. In this case, it appeared that the district court implicitly drew such an adverse inference. Specifically, the court questioned whether defendant was even entitled to an evidentiary hearing, given his silence. After independently reviewing the record, the Ninth Circuit found that the district court did draw an adverse inference from defendant’s silence. This error was a factor in its misapplication of the preponderance standard: the district court held that the government’s evidence preponderated because “there isn’t any on the other side.” This effectively shifted the burden of proof at sentencing and violated defendant’s Fifth Amendment right against self-incrimination. U.S. v. Mezas de Jesus, 217 F.3d 638 (9th Cir. 2000).
9th Circuit says “preponderance” standard requires evidence to be convincing, not simply more in quantity. (135) After holding that a 9-level increase for an uncharged kidnapping required proof by “clear and convincing” evidence, the Ninth Circuit added that in any event, the district court applied the “preponderance” standard improperly. The district court found that the government’s evidence preponderated because “there isn’t any on the other side.” This was improper because the judge must focus on the convincing force of the evidence, not simply on the “quantum” of evidence. See U.S. v. Restrepo, 946 F.2d 654, 661 (9th Cir. 199) (en banc), quoting In re Winship, 397 U.S. 358, 367-68 (1970). In relying on the quantum of evidence, rather than its convincing force, the district court denied defendant due process. U.S. v. Mezas de Jesus, 217 F.3d 638 (9th Cir. 2000).
9th Circuit reverses exclusion of marijuana plants to punish government misconduct. (135) In a 2-1 opinion, the Ninth Circuit reversed the district court’s exclusion of 2,200 marijuana plants, which reduced the mandatory minimum sentence from ten years to five years. Relying on a leading sentencing treatise, the majority held that the court lacked the authority to refuse to impose the ten-year mandatory minimum. In pleading guilty, the defendants acknowledged responsibility for 1,000-4,000 plants. The majority found no case sanctioning the suppression of lawfully seized evidence at sentencing as a remedy for government misconduct. And it found no authority for applying the exclusionary rule to sentencing proceedings. Finally, “the Koon rationale for departure from a guideline range, see Koon v. U.S., 518 U.S. 81 (1996), has no application in a statutory minimum case.” Judge Reinhardt dissented, arguing that the district court had discretion to exclude the 2,200 marijuana plants at sentencing as a sanction for government misconduct. U.S. v. Haynes, 216 F.3d 789 (9th Cir. 2000).
9th Circuit okays resentencing defendant to same sentence he received prior to reversal of one conviction. (135) Defendant argued that the district court violated his right to due process by resentencing him to the same sentence he received prior to reversal of his continuing criminal enterprise conviction. Due process is violated when a court imposes a more severe sentence against a defendant for having successfully pursued an appeal. North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989). The Ninth Circuit found no due process violation here because the district court resentenced defendant “to the same sentence, not a more severe one.” U.S. v. Ruiz-Alvarez, 211 F.3d 1181 (9th Cir. 2000).
9th Circuit says defendants were not punished for exercising right to trial. (135) Defendants were convicted of violating Forest Service regulations after a court trial, and were sentenced to 60 days in custody and a $500 fine. A co-defendant arrested on the same day for the same activity who pleaded guilty on the day of trial was sentenced to only 14 days in custody and no fine. Defendants argued that this demonstrated that they were punished for exercising their right to a trial. The Ninth Circuit disagreed, noting that the district court explained that it imposed heavier sentences on these defendants because they said they would not abide by any restitution order imposed by the court. This recalcitrance was sufficient reason to subject them to greater sentences. U.S. v. Mack, 200 F.3d 653 (9th Cir. 2000).
9th Circuit upholds “three strikes” law, rejecting due process claim. (135) The federal “three strikes” statute, 18 U.S.C. § 3559(c), requires a mandatory life sentence for a defendant’s third conviction of a serious violent felony (or combination of serious violent felonies and serious drug offenses). However, subsection (c)(3)(A) says that a robbery conviction does not count as a “strike” if the defendant proves by clear and convincing evidence that no firearm or dangerous weapon was used, and that death or serious bodily injury did not result. In a 7-4 opinion written by Judge Graber, the en banc Ninth Circuit held that the statute did not create additional elements of the present offense, but was only a sentencing enhancement. Thus the exception was an affirmative defense to the sentencing enhancement. Shifting the burden to the defendant to prove the exception by clear and convincing evidence did not violate due process. The majority found it unnecessary to decide whether the clear and convincing burden of proof violated due process because the defendant could not have shown that he came within the exception under any standard of proof. Judge Thomas dissented, joined by Judges Browning, Pregerson and Tashima, arguing that it violated due process to sentence defendant to life in prison “because he cannot muster clear and convincing proof that he was innocent of an act allegedly committed a quarter of a century ago.” U.S. v. Kaluna, 192 F.3d 1188 (9th Cir. 1999) (en banc).
9th Circuit reverses for failure to make express findings in rejecting sentencing entrapment claim. (135) “Sentencing entrapment or sentence factor manipulation occurs when a defendant, although predisposed to commit a minor or lesser offense, is entrapped into committing a greater offense subject to greater punishment.” U.S. v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994). A defendant bears the burden of proving sentencing entrapment by a preponderance of the evidence. See U.S. v. Parrilla, 114 F.3d 124, 127 (9th Cir. 1997). The district court is obligated to make express factual findings as to whether the defendant met this burden. In the present case, after hearing defendant’s sentencing entrapment argument, the district court simply said, “the presentence report correctly calculate[d] the sentencing guidelines.” The Ninth Circuit held that this was not “the express factual finding our case law requires.” Moreover, it was not clear that the court understood that if it had found sentencing entrapment, it could subtract the quantity of drugs tainted by the entrapment. U.S. v. Riewe, 165 F.3d 727 (9th Cir. 1999).
9th Circuit upholds guidelines’ consideration of misdemeanor offenses in criminal history. (135) Defendant argued that the guidelines’ consideration of misdemeanor crimes with summary probation and limited jail time results in sentences that do not truly reflect an individual’s criminal background or his propensity for future criminal behavior. In effect, defendant argued that the consideration of such minor offenses prevents judges from meting out individualized sentences. The Ninth Circuit found this argument foreclosed by its decision in U.S. v. Brady, 895 F.2d 538, 539-40 (9th Cir. 1990), which held that the guidelines do not infringe on a defendant’s Fifth Amendment right to substantive or procedural due process by limiting the sentencing judge’s discretion to individualize a sentence. U.S. v. Govan, 152 F.3d 1088 (9th Cir. 1998).
9th Circuit does not apply “plain error” doctrine where error was not “plain” until after sentencing. (135) The issue of sentencing entrapment was not raised before the district court, because sentencing entrapment was not recognized as a basis for reduction of a sentence until U.S. v. Staufer 38 F.3d 1103, 1106 (9th Cir. 1994), was decided fifteen days after sentencing. When possible error is not objected to at trial, the Ninth Circuit ordinarily reviews for plain error. “Here, however, any error was not plain until Staufer was decided.” Under these circumstances, the Ninth Circuit reviewed for harmless error, relying on the Supreme Court’s decision in Johnson v. U.S., 117 S.Ct. 1544 (1997). On the merits, however, the court found that even if sentencing entrapment was a possible reason for a lighter sentence at the time of sentencing, there was not sentencing entrapment here. U.S. v. Henson, 123 F.3d 1226 (9th Cir. 1997).
9th Circuit says entrapment may bar two-level increase for gun in drug crime. (135) The undercover informant traded a handgun to defendant for 1.4 grams of cocaine. Later that day, police executed a search warrant and found the gun and additional cocaine. A 924(c) count was dismissed as part of a plea bargain, but at sentencing, the court imposed a two-level enhancement under § 2D1.1(b)(1) for possession of a gun during a drug trafficking crime. Defendant argued that he had been entrapped by the informant into possessing the gun. The district judge rejected the argument and applied the enhancement. On appeal, the Ninth Circuit reversed and remanded to the district court to reconsider the evidence relating to defendant’s sentencing entrapment claim. If the defendant could show by a preponderance of the evidence that he was entrapped into possessing the gun, the two level increase could not be imposed. U.S. v. Parrilla, 114 F.3d 124 (9th Cir. 1997).
9th Circuit upholds refusal to depart for sentencing entrapment. (135) In U.S. v. McClelland, 72 F.3d 717, 726, n.5 (9th Cir. 1995), the Ninth Circuit noted that “the amount of inducement, the level of reluctance on the defendant’s part, and who acted first should all be relevant factors for the district court to weigh” in deciding whether a departure is warranted on the ground of sentencing entrapment. McClelland was decided after the sentencing hearing in this case, but the district court found that defendant in this case “did not show any reluctance to come forward with” the amount of cocaine and heroin the government suggested. The district court’s decision on the sentencing entrapment issue was not based on a misunderstanding of the law. Accordingly, the Ninth Circuit found that the district court did not abuse its discretion in declining to depart downward on the basis of sentencing entrapment. U.S. v. Lopez, 106 F.3d 309 (9th Cir. 1997).
9th Circuit departs downward for prejudice caused by government’s misconduct. (135) The district court originally dismissed the indictment in this drug case because the government had engaged in misconduct by entering into plea negotiations with defendant in the absence of his attorney. The Ninth Circuit reversed the dismissal in U.S. v. Lopez, 4 F.3d 1455, 1464 (9th Cir. 1993), ruling that this was the wrong remedy. On remand, defendant was convicted after a trial. At sentencing, the district court departed downward by three levels due to prejudice defendant suffered as a result of the government’s misconduct. On appeal, the Ninth Circuit affirmed, noting that defendant’s opportunity for full and fair plea negotiations was seriously affected by the government’s conduct. The district court noted that “although it cannot be determined what the result of those negotiations might have been, it is clear that he reasonably believed he had no choice but to go to trial.” The Ninth Circuit ruled that “[t]he prejudice [defendant] encountered as a direct result of the government’s conduct was, in our view significant enough to take this case out of the heartland of the Guidelines.” U.S. v. Lopez, 106 F.3d 309 (9th Cir. 1997).
9th Circuit finds prosecution filed after defendant moved to return property was not vindictive. (135) At sentencing, the district court commented that the case probably never would have been filed if the defendants had not requested a return of their property, because it appeared that the authorities “went to sleep” on the case until the defendants “called their attention to it.” The court said the defendants “would have been home free without that request for return of property.” The Ninth Circuit held that this did not indicate that the sentence was increased vindictively. The comments stated the obvious fact that defendants “might have escaped entirely” if they had not been so persistent about the return of their property. The fact that “a citizen’s prods and pokes of one government stir a different government prosecutor to action does not amount to proof of vindictive prosecution increasing the sentence.” U.S. v. Lightbourne, 104 F.3d 1172 (9th Cir. 1997).
9th Circuit applies “sentencing entrapment” in machine gun case. (135) Under 18 U.S.C. § 924(c)(1), a defendant who is convicted of using a gun in relation to a drug transaction or crime of violence must be sentenced to five years consecutive to the sentence on the underlying offense. But if he uses or carries a machine gun the mandatory sentence is 30 years. In this case, the machine guns that were traded for methamphetamine were delivered in a covered bag. The Ninth Circuit held that although the defendants could be convicted under § 924(c) without knowing that the guns were machine guns, the possibility of “sentencing entrapment” required the government to show at sentencing that the defendants knew the weapons were machine guns. The government should not be able to deliver a machine gun without the defendant’s knowledge, in order to increase a penalty by 25 years. U.S. v. Ramirez-Rangel, 103 F.3d 1501 (9th Cir. 1997).
9th Circuit requires disclosure of informant if testimony would be helpful on sentencing entrapment claim. (135) After holding that the “sentencing entrapment” doctrine applies to convictions for using a gun in relation to a drug transaction under 18 U.S.C. § 924(c)(1), the Ninth Circuit vacated the sentence, and remanded the case for an in camera hearing on whether the testimony of the informant would be relevant and helpful to the defendants in proving at sentencing that they did not know that the guns were machine guns. If the district court concludes that the testimony is relevant and potentially helpful as to the sentencing entrapment claim, the district court must conduct a hearing to resolve the claim then either reinstate the sentences or resentence the defendants. U.S. v. Ramirez-Rangel, 103 F.3d 1501 (9th Cir. 1997).
9th Circuit says excluding drugs for sentencing entrapment may reduce sentence below mandatory minimum amount. (135) Relying on U.S. v. Naranjo, 52 F.3d 245, 246 (9th Cir. 1995) the Ninth Circuit held that a district court may subtract the amount of drugs tainted by sentencing entrapment from the total quantity of drugs attributable to the defendant for purposes of establishing a mandatory minimum sentence. The court noted that this is in accord with the First Circuit’s ruling in U.S. v. Montoya, 62 F.3d 1, 3 (1st Cir. 1995). In the present case, the district court did not think it had discretion to reduce the amount of cocaine attributable to the defendant by the amount tainted by sentencing entrapment. Accordingly, the court vacated the sentence and remanded for resentencing. The court expressed “no opinion” on the merits of defendant’s claim of sentencing entrapment nor the precise quantity of cocaine defendant was predisposed to distribute. U.S. v. Castaneda, 94 F.3d 592 (9th Cir. 1996).
9th Circuit says government’s decision to prolong investigation was not “sentencing manipulation.” (135) The Ninth Circuit has held that sentencing “entrapment” may be a proper basis for a downward departure at sentencing. U.S. v. Staufer, 38 F.3d 1103, 1106 (1994). Here, however, defendant did not argue that he was subjected to this form of “sentencing entrapment.” He asserted only that the government stretched out its investigation after it had sufficient evidence to indict him. The Ninth Circuit declined to adopt a rule that in effect, would find “sentencing manipulation” whenever the government, even though it had enough evidence to indict, opted instead to continue its investigation. The court said police must be given leeway to probe the depth and extent of a criminal enterprise, to determine whether co-conspirators exist, and to trace deeper into the distribution hierarchy. Moreover, since the government bears the burden of proving its case beyond a reasonable doubt, “it must be permitted to exercise its own judgment in determining at what point in an investigation enough evidence has been obtained.” U.S. v. Baker, 63 F.3d 1478 (9th Cir. 1995).
9th Circuit upholds guidelines’ treating all persons with aggravated felonies equally. (135) Defendant argued that the 16-level enhancement for aliens deported following conviction of an aggravated felony, 2L1.2(b)(2), violated due process by “treat[ing] all persons with aggravated felonies equally.” The Ninth circuit found this argument “frivolous,” noting that under defendant’s logic, “all mandatory minimums and sentencing enhancements under the guidelines would violate due process. U.S. v. Estrada-Plata, 56 F.3d 578 (9th Cir. 1995).
9th Circuit reverses for failure to make clear findings on “sentencing entrapment.” (135) At the DEA’s urging, an informant tried forty times to get defendant to sell cocaine. Defendant refused. The DEA then told the informant tell defendant he could arrange to put defendant in contact with people from whom he could buy cocaine. Defendant indicated a willingness to buy one kilogram if the purchase could be “fronted” for a week before he had to pay for it. The informant arranged for an undercover DEA agent to meet with defendant. The agent told defendant he wanted to sell him five kilos now and another five within a couple of days. Defendant said he did not have the resources to buy five kilos, so the informant told him that he could buy “three, maybe four kilos from him. The undercover agent later delivered five kilos and arrested defendant. The district court rejected defendant’s “sentencing entrapment” argument, but on appeal, the Ninth Circuit reversed. The appeals court found defendant’s argument “convincing,” and ordered the district court on remand to provide specific factual findings to support its contrary ruling. U.S. v. Naranjo, 52 F.3d 245 (9th Cir. 1995).
9th Circuit permits departure for “sentencing entrapment” where defendant was pressured to sell more drugs. (135) Several cases have suggested that sentencing entrapment may warrant a downward departure, but in this case, the 9th Circuit became the first to actually authorize a downward departure. Defendant was a user and sometime seller of LSD, but he sold only to personal friends, and had never engaged in a deal even approaching the magnitude of the transaction for which he was convicted. The district court found that defendant was not predisposed “to involve himself in what turned out to be, from the standpoint of the sentencing guidelines, an immense amount of drugs.” The case was remanded to permit the district court to depart downward for sentencing entrapment. Judge Beezer dissented, arguing that sentencing entrapment should be limited to “reverse stings,” in accordance with commentary note 17 to Guideline §2D1.1. U.S. v. Staufer, 38 F.3d 1103 (9th Cir. 1994).
9th Circuit upholds prosecutor’s arbitrary decision to seek mandatory minimum sentence. (135) Defendant was prosecuted in federal court for a drug offense that carried a mandatory sentence of five years in federal court and 0-90 days in state court. The government acknowledged that the prosecution was in federal court primarily because of the stiffer penalties and more rigorous forfeiture provisions and also that the task force that referred defendant’s case had no written policies for making referrals. After the district court refused to impose the mandatory term, the government appealed defendant’s sentence, but not a similar non-mandatory sentence in another case involving more drugs. The case was remanded and the mandatory sentence was imposed. Defendant appealed. The 9th Circuit was inclined to agree with the district court that the prosecution produced “bizarre results” but found no due process or Eighth Amendment violations. The court has no jurisdiction to review arbitrary charging decisions, nor is there a remedy for the prosecutor’s decision to appeal one defendant’s sentence and not another. U.S. v. Oakes, 11 F.3d 897 (9th Cir. 1993).
9th Circuit declines to review claim that case should have been filed in state court. (135) Defendant argued that the government deprived him of due process by conspiring to dismiss the state charges in favor of federal ones. Relying on Wade v. U.S., 112 S.Ct. 1840, 1844 (1991), the 9th Circuit held that “[a]bsent any allegation that the prosecutor’s charging decision was based on an unconstitutional motive such as gender or race, we lack the authority to review his claim.” Moreover, citing U.S. v. Nance, 962 F.2d 860, 865 (9th Cir. 1992), the court said that even if it reviewed the merits, it would have rejected the challenge because “there are no grounds for finding a due process violation, even when the motive for federal prosecution is that harsher sentences are possible.” U.S. v. Soto, 1 F.3d 920 (9th Cir. 1993).
9th Circuit finds no sentencing entrapment where defendant was freely involved in reverse sting. (135) Defendant argued that sentencing on the basis of the amount under negotiation where the government is the seller of the drugs is sentencing entrapment. In a footnote, the 9th Circuit rejected the challenge because defendant did not argue he was actually entrapped. U.S. v. Barnes, 993 F.2d 680 (9th Cir. 1993).
9th Circuit says referral for federal prosecution did not violate due process. (135) Defendant argued that the district court erred in denying his motion to dismiss the indictment and violated his due process rights because his case was referred to federal prosecutors without written referral guidelines. The 9th Circuit found this argument foreclosed by recent 9th Circuit decisions holding that absent proof of discrimination based on suspect characteristics, the court may not review charging decisions made by prosecutors. Defendant argued that his case was different because the Washington State authorities reneged on their plea agreement and referred the matter a second time to federal authorities after becoming frustrated with their own state processes. The 9th Circuit found this difference was immaterial and held that defendant’s claim was not reviewable. U.S. v. Traynor, 990 F.2d 1153 (9th Cir. 1993), overruled on other grounds by U.S. v. Johnson, 256 F.3d 895 (9th Cir. 2001).
9th Circuit upholds strict liability for stolen gun increase. (135) Defendant was convicted of being a felon in possession of a firearm. The district court increased his offense level by two levels under section 2K2.1(b)(2) (1990) because the firearm was stolen. The government admitted there was no evidence defendant knew the gun was stolen. Nevertheless, the 9th Circuit upheld the increase, finding that strict liability for possession of a stolen firearm is rationally related to the legitimate governmental goal of crime prevention. The history of the guideline provision provided support for the conclusion that the omission of scienter was deliberate. Finally, the omission of the scienter requirement did not violate due process. The increase does not alter the statutory maximum penalty, does not negate the presumption of innocence and does not create a separate offense calling for a separate penalty. U.S. v. Goodell, 990 F.2d 497 (9th Cir. 1993).
9th Circuit upholds basing sentence on culpability at time of sentencing. (135) Defendant argued that guideline sections 4A1.1 and 4A1.2 violated the 5th Amendment’s guarantee of due process by requiring his sentence to be based on his culpability at the time of sentencing, rather than his culpability at the time of the crime. He also contended that this violated his right to equal protection by treating similarly situated prisoners differently, depending on whether the state sentencing occurred before or after the federal sentencing. The 9th Circuit rejected both arguments, noting that in the sentencing context, “an argument based on equal protection essentially duplicates an argument based on due process.” The 9th Circuit found that basing a defendant’s sentence on his culpability at the time of sentencing was rationally related to the government’s legitimate interests in proportional punishment for repeat offenders. U.S. v. Carson, 988 F.2d 80 (9th Cir. 1993).
9th Circuit relies on negotiated amount of drugs in “reverse sting” operation. (135) The undercover agent delivered slightly less than the two kilos that the defendant’s coconspirator contracted to purchase. Defendant argued that in a “reverse sting” operation, where the government is the seller, the offense level should be based on the quantity of drugs delivered, rather than the negotiated amount. This would have reduced defendant’s sentence by two offense levels. The 9th Circuit rejected the argument, following the decisions in U.S. v. Adames, 901 F.2d 11, 12 (2nd Cir. 1990) and U.S. v. Brooks, 957 F.2d 1138, 1151 (4th Cir.). Liability for a conspiracy turns on the object rather than on the fruits of that conspiracy. U.S. v. Frazier, 985 F.2d 1001 (9th Cir. 1993).
9th Circuit reverses revocation of supervised release where defendant was not allowed to retest urine samples. (135) The district court revoked defendant’s supervised release and sentenced him to one third of the term as required by 18 U.S.C. section 3583(g) for possessing a controlled substance. The only evidence consisted of two laboratory urinalysis reports showing the presence of methadone and cocaine metabolites. The due process requirements of Morrissey v. Brewer, 408 U.S. 471 (1972) and Gagnon v. Scarpelli, 411 U.S. 778 (1973), are incorporated in Fed. R. Crim. P. 32.1, which applies to supervised release revocation. This includes the “right to confront and cross examine adverse witnesses” unless the hearing officer specifically finds good cause for not allowing confrontation. Here, the defendant’s right of confrontation outweighed the government’s good cause for denying it. The laboratory results were uniquely important. The revocation of supervised release was reversed and the case was remanded for further proceedings. U.S. v. Martin, 984 F.2d 308 (9th Cir. 1993).
9th Circuit finds judge was not sufficiently familiar with case to impose sentence. (135) Defendant was sentenced by a visiting judge who had no prior connection to the case. In determining whether a court has abused its discretion in imposing sentence, the appellate court considers whether the judge demonstrates familiarity with the case, whether the sentence shows informed discretion and whether the court used available information such as trial transcripts and presentence reports. Here, the judge had discussed the case with the trial judge. But he was not sufficiently familiar with the case to fashion an appropriate sentence. The record showed some confusion about the case and it was unclear whether the judge had even reviewed the trial transcripts. Moreover, there was a disparity between defendant’s sentence and others sentenced by different judges. This led the court to conclude the court may not have exercised informed discretion. The sentence was reversed. U.S. v. Jones, 982 F.2d 380 (9th Cir. 1992).
9th Circuit upholds continuance to obtain transcript of priors over defense objection. (135) Because the transcripts of defendant’s prior convictions were unavailable at the time of the guilty plea, the government agreed to recommend that defendant not be treated as a career offender. The probation report recommended a career offender finding and the district court, over objection of defendant, continued the sentencing hearing in order to obtain transcripts of the prior convictions. After obtaining the transcripts, the court sentenced defendant as a career offender. The court’s actions did not usurp the functions of the prosecutor. A district court can consider a wide variety of information when imposing a sentence and it is proper for a judge to elicit information in order to clarify evidence. The court’s successful efforts in obtaining the transcripts demonstrated its concern regarding the conclusions in the probation report. U.S. v. Lewis, 979 F.2d 1372 (9th Cir. 1992).
9th Circuit upholds filing case in federal court even though it resulted from state parole search. (135) Defendant claimed that because this case originated as a state parole search, it should have stayed in the California court system. The 9th Circuit rejected the argument, relying on U.S. v. Nance, 962 F.2d 860 (9th Cir. 1992), which held that, with limited exceptions, due process is not violated by the referral of cases for federal rather than state prosecution. Other courts are in agreement. U.S. v. Williams, 963 F.2d 1337 (10th Cir. 1992); U.S. v. Parson, 955 F.2d 858, 873 n.22 (3rd Cir. 1992); U.S. v. Allen, 954 F.2d 1160, 1165-66 (6th Cir. 1992); U.S. v. Carter, 953 F.2d 1449, 1461-62 (5th Cir. 1992). Here, defendant’s case was referred to the attorney’s office for review and prosecution, and the 9th Circuit “assume[d] that the United States Attorney exercised proper discretion to prosecute in federal court.” U.S. v. Robinson, 967 F.2d 287 (9th Cir. 1992).
9th Circuit says that decision to bring federal, rather than state charges is unreviewable. (135) Defendants argued that the government violated their due process rights by bringing federal, rather than state charges against them. The 9th Circuit held that it lacked authority to review this claim, noting that it had recently held that “a prosecutor’s charging decision cannot be judicially reviewed absent a prima facie showing that it rested on an impermissible basis, such as gender or race. U.S. v. Redondo-Lemos, 955 F.2d 1296, 1300-01 (9th Cir. 1992); U.S. v. Diaz, 961 F.2d 1417 (9th Cir. 1992); U.S. v. Nance, 962 F.2d 860 (9th Cir. 1992). The court observed that defendants did not claim that discrimination on the basis of any suspect characteristic played a role in their referral to federal court. U.S. v. Sitton, 968 F.2d 947 (9th Cir. 1992), abrogation on other grounds recognized by U.S. v. Williams, 282 F.3d 679 (9th Cir. 2002).
9th Circuit holds charging decision is reviewable only to determine whether it is based on race, religion, gender, etc. (135) Due process prohibits arbitrary or capricious charging decisions, see U.S. v. Redondo-Lemos, 955 F.2d 1296 (9th Cir. 1992). However, quoting U.S. v. Diaz, 961 F.2d 1417 (9th Cir. 1992), the 9th Circuit held that absent proof of discrimination based on race, religion, gender, or other similar grounds, “there is no judicial remedy to correct such violations.” U.S. v. Nance, 962 F.2d 860 (9th Cir. 1992).
9th Circuit upholds referral for federal prosecution despite harsher sentence. (135) Relying on U.S. v. Williams, 746 F.Supp. 1076 (D. Utah 1990), defendant argued that his due process rights were violated when the task force referred his case for federal rather than state prosecution without the benefit of a neutral, written policy governing such referrals. The 9th Circuit rejected the argument, noting that Williams had been rejected by the 10th Circuit in U.S. v. Andersen, 940 F.2d 593 (10th Cir. 1991). The court agreed with the 10th Circuit that unless a defendant can prove that federal prosecutors act as “rubber stamps” for charging decisions made by the task force, there is no due process violation, “even where the motive for federal prosecution is that harsher sentences are possible.” U.S. v. Nance, 962 F.2d 860 (9th Cir. 1992).
9th Circuit rules guidelines do not preclude judge from considering reliability of evidence. (135) The district judge held the guidelines unconstitutional on the ground that they preclude adjusting the weights of the various sentencing factors to reflect differences in the reliability of evidence. U.S. v. Davis, 715 F.Supp. 1473, 1483 (C.D. Cal. 1989). After the defendants were sentenced, the 9th Circuit rejected the identical argument in U.S. v. O’Neal, 937 F.2d 1369, 1376 (9th Cir. 1990) and other cases. Accordingly, the district judge’s ruling in this case was reversed. U.S. v. Davis, 960 F.2d 820 (9th Cir. 1992).
9th Circuit reaffirms that guidelines do not violate due process. (135) Defendant argued that the guidelines violate the requirement that every criminal sentence be imposed individually through the exercise of judicial discretion. The 9th Circuit noted this argument had been rejected in previous cases. The court also rejected defendant’s argument based on U.S. v. Davis, 715 F.Supp. 1473 (C.D. Cal. 1989) that the guidelines offend due process because they require judges to make findings without considering the reliability of the underlying facts, and do not require those facts to be proved beyond a reasonable doubt. The court noted that these arguments, too, had been foreclosed by prior decisions. U.S. v. Bertrand, 926 F.2d 838 (9th Cir. 1991).
9th Circuit holds that guidelines do not unconstitutionally transfer sentencing authority from the judge to prosecutor. (135) Defendant argued that the sentencing guidelines violate substantive and procedural due process because they place too much authority in the hands of the prosecutor. The 9th Circuit rejected the argument holding that the sentencing guidelines do not unconstitutionally transfer sentencing authority from the judge to the prosecutor. U.S. v. Fuentes, 925 F.2d 1191 (9th Cir. 1991).
9th Circuit upholds the guidelines against due process challenge. (135) Relying on the decision in U.S. v. Ortega Lopez, 684 F.Supp. 1506 (C.D. Cal. 1988)(en banc), defendant argued that the guidelines unconstitutionally denied due process because they do not permit adequate discretion to impose an individualized sentence. The 9th Circuit rejected this argument based on earlier cases similarly rejecting it. Defendant also relied on U.S. v. Davis, 715 F.Supp. 1473 (C.D. Cal. 1989), arguing that the guidelines violate due process because they permit a sentencing court to rely on facts not proved beyond a reasonable doubt. The 9th Circuit noted that the Davis rule had been rejected by two earlier 9th Circuit cases, “and we decline to resurrect it now.” Accordingly the court held that the guidelines do not violate due process. U.S. v. Ramos, 923 F.2d 1346 (9th Cir. 1991), overruled on other grounds by U.S. v. Ruiz, 257 F.3d 1030 (9th Cir. 2001).
9th Circuit holds that guidelines do not violate the presentment clause or due process. (135) The Sentencing Reform Act provides that the guidelines do not go into effect until Congress has had 6 months to examine them and consider the reports submitted to it. Defendant argued that Congress’s silence during the 6 months’ “examine and consider period” was tantamount to legislative action approving the guidelines, and therefore the guidelines should have been presented to the President. The 9th Circuit rejected the argument, noting that the act “does not purport to allow Congress to alter or invalidate the guidelines by unilateral resolution. “Instead, if Congress desires to alter the proposed guidelines, it must do so by a legislative enactment which would then need to be submitted to the President.” U.S. v. Scampini, 911 F.2d 350 (9th Cir. 1990).
9th Circuit finds guidelines constitutional despite arguments about individual sentencing, probation, and presentment clause. (135) The defendant argued that the guidelines violate due process because they fail to grant the trial judge adequate discretion to individualize sentencing. He also argued that the Commission went beyond its statutory mandate when it decided that straight probation should be available only rarely, and that the guidelines violate the presentment clause of the Constitutional because the guidelines were not presented to the President. The 9th Circuit rejected each of these arguments in turn. U.S. v. Litteral, 910 F.2d 547 (9th Cir. 1990).
9th Circuit upholds probation officer’s investigative role against separation of powers argument. (135) The defendant argued that the probation officer’s investigation of the facts violated his due process rights. He maintained that since the probation officer was a member of the judicial branch, it was improper for him to be involved in the “executive function” of determining what facts to present. Defendant asserted that the district court should have relied on the party’s presentation of the facts. The 9th Circuit rejected the argument based on its prior precedent in U.S. v. Belgard, 894 F.2d 1092 (9th Cir. 1990). The court noted that the sentencing court is still the ultimate decision maker. U.S. v. Watt, 910 F.2d 587 (9th Cir. 1990).
9th Circuit rejects claim that prosecutor’s discretion violates due process. (135) Defendant argued that by limiting judicial discretion, the guidelines have transferred sentencing discretion to prosecutors, who have substantial control over sentences by choosing the charges against defendants. The 9th Circuit rejected the claim that prosecutorial discretion raises any separate due process concern when it does not result in selective prosecution, disagreeing with the reasoning in U.S. v. Roberts, 726 F. Supp. 1359 (D.D.C. 1989). Nor did the court view defendant’s specific complaint — that the prosecutor had discretion to seek enhancement of defendant’s sentence because defendant played a “managerial role” in the offense under § 3B1.1 — as strengthening defendant’s due process claim. As to the claim that judicial discretion was unduly restricted, the court rejected that claim based on recent Circuit precedent. U.S. v. Sanchez, 908 F.2d 1443 (9th Cir. 1990).
9th Circuit rejects due process challenges to sentencing guidelines. (135) Defendant challenged the sentence imposed on him under the sentencing guidelines on three due process grounds–that the guidelines unconstitutionally restrict the sentencing court’s discretion, that they infringe a defendant’s right to an individualized sentence, and that they permit a sentence to be based on facts not proved beyond a reasonable doubt. Relying on recent Ninth Circuit precedent, Judges Alarcon, Wallace, and Leavy rejected each argument. U.S. v. Rexford, 903 F.2d 1280 (9th Cir. 1990).
9th Circuit upholds guidelines against due process challenge. (135) Overruling U.S. v. Davis, 715 F.Supp. 1473 (C.D. Cal. 1989), the 9th Circuit held that the sentencing guidelines do not violate due process. Specifically, the court rejected the argument that the guidelines do not permit a sentencing court to consider their reliability of available evidence and determine the weight to be given the applicable sentencing factors. U.S. v. Wilson, 900 F.2d 1350 (9th Cir. 1990).
9th Circuit joins other circuits in holding that guidelines do not violate due process. (135) Defendants attacked the guidelines on due process grounds, in that guidelines limit discretion of courts and infringe defendants’ rights to individualized sentences. The 9th Circuit joined the ten others which have ruled on these points and found no due process violation, facially or as applied, substantively or procedurally. Judge Reinhardt concurred, in that Congress had the authority to determine sentencing policy, and there was no due process problem, though the guidelines run “contrary to the basic principle which should govern modern sentencing” i.e., individualization. U.S. v. Brady, 895 F.2d 538 (9th Cir. 1990).
9th Circuit holds guidelines’ restriction on probation does not violate due process. (135) Defendant argued that since 18 U.S.C. 3561 allows probation for all but Classes A and B felonies, the guidelines could not further restrict the judges or curtail the authority of the judges to individualize sentences. The 9th Circuit held that Congress had expressly authorized the Sentencing Commission to act in the area of probation. Moreover, Congress had the power to totally remove the district courts’ sentencing discretion, which is not constitutionally based. Since there is no constitutional right to probation, Congress can limit probation as it sees fit. Therefore, the guidelines, prepared under congressional authority, do not violate due process. U.S. v. Belgard, 894 F.2d 1092 (9th Cir. 1990).
10th Circuit says sentence manipulation claim is not governed by pre-Booker standard for departure. (135) Defendant sought a variance based on alleged sentencing factor manipulation by government agents and application of the § 3553(a) factors. He contended that the court had discretion to consider sentencing factor manipulation or entrapment as a basis for a variance under 18 U.S.C. § 3553(a). Before Booker, the court analyzed claims of sentencing entrapment or manipulation under the rubric of “outrageous government conduct.” The Tenth Circuit, agreeing with the Eighth Circuit’s holding in U.S. v. Torres, 563 F.3d 731 (8th Cir. 2009), ruled that Booker did not alter the standard for defendant to succeed on a claim of outrageous governmental conduct, but a defendant’s claim of sentencing factor manipulation may also be considered as a request for a variance under the § 3553(a) factors. Defendant requested a variance rather than a departure, and there was no indication that the court applied the stricter standard for a departure to defendant’s request. The court here did not abuse its discretion by denying defendant’s request for a variance. U.S. v. Beltran, 571 F.3d 1013 (10th Cir. 2009).
10th Circuit holds that court’s reference to the Apostle Paul did not violate defendant’s due process rights. (135) In rejecting defendant’s request for a below-guideline sentence, the court said that “good things can come from jail. A guy named Paul was put in jail a couple thousand years ago and wrote a bunch of letters from jail … and people are still reading those letters and being encouraged by them and finding hope in them thousands of years later.” The Tenth Circuit rejected defendant’s claim that the court’s reference to the Apostle Paul impermissibly injected religion into the sentencing process, and thus violated his due process rights. It was obvious that the sentencing judge referred to the Apostle Paul as a way to illustrate that something good can come from difficult circumstances, even jail. The judge did not indicate that defendant needed a longer sentence to pay religious penance, or that the judge’s personal view of those letters prompted or influenced any aspect of defendant’s sentence. Defendant suffered no prejudice, religious or otherwise, because of the court’s reference. U.S. v. Traxler, 477 F.3d 1243 (10th Cir. 2007).
10th Circuit rejects claim of outrageous government conduct. (135) Defendant sold three pipe bombs to an undercover agent. He claimed that the government engaged in such outrageous conduct that the court should have disregarded the guidelines and not calculated his sentence based on the involvement of three pipe bombs or knowledge that the bombs would be used for a separate felony. He suggested the agent asked him to produce three pipe bombs and informed him that he was using them on a car simply to increase defendant’s potential penalty. The Tenth Circuit found no outrageous government conduct. A defendant must overcome a very high threshold to establish outrageous government conduct. The challenged conduct must be so shocking, outrageous, and intolerable that it offends the universal sense of justice. The undercover agent’s conduct did not rise to that level. Defendant was not coerced nor reluctant to produce three pipe bombs for the agent. U.S. v. Eaton, 260 F.3d 1232 (10th Cir. 2001).
10th Circuit holds that use of states’ treatment of juvenile offenders did not violate equal protection. (135) Defendant argued that the district court violated his right to equal protection when it used two Oklahoma drug convictions as predicates for an enhancement under 21 U.S.C. § 841(b). He noted that some states do not allow the unsealing of juvenile records, and states differ on the ages and crimes for which persons under 18 can be prosecuted as adults. The Tenth Circuit found no equal protection violation in the use of states’ differing laws governing juvenile convictions. Congress intentionally left certain aspects of the § 841 enhancements to be triggered by the laws of the states. The language of 21 U.S.C. § 802(13) clearly ties the definition of the term “felony” to the state’s classification of the crime as a felony. Although states have different criteria for determining when a juvenile can be charged as an adult, this did not render the sentencing scheme irrational any more than relying on the states’ various definitions of felonies. “It is not irrational for Congress to defer to state law with regard to the characteristics of a prior offense, and doing so is no more intentionally arbitrary than our system of federalism itself.” The fact that similarly situated juveniles might be treated differently in different states was irrelevant to defendant because he was convicted as an adult. U.S. v. McKissick, 204 F.3d 1282 (10th Cir. 2000).
10th Circuit rejects claim that government manipulated purity of meth to increase sentence. (135) An undercover agent sold defendant 454 grams of a substance that was 70 percent pure meth. At sentencing, the district court found that the substance was 317.9 grams of actual meth and, because this exceeded 100 grams, sentenced defendant to life imprisonment. 21 U.S.C. § 841(b)(1)(A) (requiring a life sentence for offenses involving 100 grams or more of methamphetamine or one kilogram or more of a mixture containing a detectable amount of meth). Defendant claimed the government impermissibly manipulated his sentence by controlling the purity of the substance sold to him, and that his sentence should have been based on the weight of the total mixture rather than the weight of the meth. Under U.S. v. Lacey, 86 F.3d 956 (10th Cir. 1996), a claim of sentencing entrapment is analyzed under the “outrageous government conduct” standard. The Tenth Circuit ruled that defendant failed to meet this standard. He did not claim that he was induced to purchase a purer batch of drugs than he otherwise would. Moreover, the fact that he tested the meth himself and pronounced it “fine” would undermine any such claim. U.S. v. Eads, 191 F.3d 1206 (10th Cir. 1999).
10th Circuit holds “unlawful drug user” firearms enhancement is not vague. (135) Defendant pled guilty to several drug and firearms counts. Section 2K2.1(a)(4)(B) provides for an increased offense level if the firearm was possessed by a “prohibited person” and the offense involved certain types of firearms. Under note 6, “prohibited person” includes anyone who “is an unlawful user of, or is addicted to, any controlled substance.” The Tenth Circuit rejected defendant’s claim that the phrase “unlawful user” was unconstitutionally vague as applied to him. Contrary to defendant’s contention, the term does not refer to one who currently uses an illegal substance while in possession of firearms. The guideline requires that the defendant be a prohibited person and that the offense involve a firearm. Nothing in the guideline or commentary suggests that the two components must exist simultaneously. In fact, because they are worded in different tenses, they need not coincide. In any event, the distinction between past and present substance abusers was irrelevant in this case. Defendant admitted to having a drug problem, and urinalysis showed the problem was ongoing. U.S. v. Solomon, 95 F.3d 33 (10th Cir. 1996).
10th Circuit examines sentencing manipulation claim under outrageous conduct standard. (135) Defendant argued that the government unnecessarily continued its undercover investigation for the sole purpose of increasing his punishment under the guidelines. The Tenth Circuit examined the sentencing manipulation claim under its established outrageous conduct standard. The relevant inquiry is whether, under the totality of the circumstances, the government’s conduct was so shocking, outrageous, and intolerable that it offended the universal sense of justice. The government gave several reasons for its continued investigation of defendant. The surveillance enabled the government to locate an underground drug stash, Moreover, until the date of defendant’s arrest, the FBI had no direct evidence placing cocaine in his possession. The government could properly decide to seek a “bigger buy” from defendant’s distributor. It is not outrageous for the government to induce a defendant to continue criminal activity or even induce him to expand or extend previous criminal activity. The ultimate seizure of a larger quantity of illegal drugs has positive social consequences. U.S. v. Lacey, 86 F.3d 956 (10th Cir. 1996).
10th Circuit says low price per kilo in government sting did not justify downward departure. (135) Defendants argued that the $15,000 per kilo price offered by the government agent was substantially below the $25,000 per kilo price for cocaine in Wichita. Thus, they claimed sentencing entrapment under note 17 to § 2D1.1, effective November 1993. The Tenth Circuit held that the $15,000 per kilo price was reasonable because the undercover officer was posing as a courier from Los Angeles, where the market price was $12‑18,000, and she testified that the price was presented as a discount for the first transaction in a continuing business relationship. She also testified that an excessively low price in a reverse sting operation would create a lot of suspicion and put the undercover officer at greater risk. U.S. v. Hardwell, 80 F.3d 1471 (10th Cir. 1996).
10th Circuit says seventh drug transaction was not intended to “ratchet up” offense level. (135) Defendant sold drugs to a confidential informant on seven different occasions. Defendant’s trial counsel testified that a drug agent told him the reason for the last transaction was to “ratchet up” the amount of cocaine base involved, and thus increase defendant’s sentence. The 10th Circuit found no due process violation. The drug agent denied making such a statement. The government claimed that the reason for the seven transactions was to determine defendant’s drug supplier. Also, the DEA wanted to have an undercover agent accompany the informant on some sales, to gain greater credibility in front of a jury. It is not outrageous for the government to induce a defendant to repeat or continue a crime or even to induce him to expand or extend previous criminal activity. U.S. v. Ashley, 26 F.3d 1008 (10th Cir. 1994).
10th Circuit finds no government manipulation of sentencing process. (135) Defendant argued that one and one-half kilograms of cocaine offered by undercover agents as sellers in a “reverse sting” should not have been included in his base offense level. He said the amount was substantially larger than he had previously sold to various informants, and the agents allowed him to take one-half kilogram on consignment since he only had $31,000. The 10th Circuit found no error, ruling that the court was required to include the full amount even though the government intended to actually deliver only the half-kilogram. Defendant, negotiated to purchase the full amount and arranged for the credit. Therefore, there was no support for his “sentencing entrapment” claim. U.S. v. Bara, 13 F.3d 1418 (10th Cir. 1994).
10th Circuit holds that multiple drug transactions with addict to stack charges violates due process. (135) Defendant was a drug addict who acted as a middleman for the government in facilitating three different drug transactions. He was given cocaine as compensation for his services. The 10th Circuit held that where police rely on a known addict to carry out multiple transactions with the primary purpose of stacking charges, and thus increasing the mandatory sentence length, the government has engaged in outrageous conduct violative of the defendant’s due process rights. The case was remanded for consideration of the extent of the government’s knowledge of defendant’s addiction, the reliance on that addiction to conduct multiple transactions, and whether any other purpose was served by the multiple transactions. U.S. v. Harris, 997 F.2d 812 (10th Cir. 1993).
10th Circuit upholds constitutionality of guidelines. (135) Relying on Circuit caselaw, the 10th Circuit rejected defendant’s claim that the guidelines denied him due process, equal protection, a fair trial and the right to be heard. There is no federal substantive liberty interest in an individualized determination of an appropriate sentence. Defendant’s argument that he had a right to be heard was another version of his individualized sentence argument, and he presented no articulable facts upon which the court could evaluate his equal protection claim. U.S. v. Rodriguez-Garcia, 983 F.2d 1563 (10th Cir. 1993).
10th Circuit upholds harsher penalties for cocaine base than for cocaine powder. (135) The 10th Circuit rejected constitutional challenges to the guideline section providing for harsher penalties for offenses involving crack cocaine than for cocaine powder. Even if such a provision has a discriminatory impact upon African-Americans, there is a rational relationship between the classification and a legitimate end. The guideline is not unconstitutionally vague. The mandatory nature of the guidelines is not an impermissible exercise of judicial power by the legislative branch. U.S. v. Robinson, 978 F.2d 1554 (10th Cir. 1992).
10th Circuit reaffirms that referral to federal rather than state prosecutors does not violate due process. (135) Relying on U.S. v. Anderson, 940 F.2d 593 (10th Cir. 1991), the 10th Circuit affirmed that the local investigator’s referral of defendant’s case to federal, rather than state, prosecutors did not violate due process. Although police may have some influence on charging decisions, the ultimate decision about whether to charge a defendant and what charges to file rests solely with state and federal prosecutors. The absence of any written policies to guide police referral decisions did not violate due process. U.S. v. Langston, 970 F.2d 692 (10th Cir. 1992).
10th Circuit affirms referral of case for federal prosecution. (135) The 10th Circuit rejected defendant’s claim that he was denied due process because the police referred his case to federal rather than state prosecutors, which subjected him to a five-year mandatory minimum prison term. Three recent 10th Circuit cases held that without proof that the choice of forum was improperly motivated, prosecution in a federal rather than a state court does not violate due process despite the absence of guidelines for such referrals. The fact that the harsher federal statute may have influenced the referral decision did not rise to a due process violation. Although police undoubtedly have some influence in charging decisions because they decide whether to refer the case to federal or state prosecutors, the ultimate decision whether to charge a defendant, and what charges to file, rests solely with the two prosecutors. U.S. v. Maxwell, 966 F.2d 545 (10th Cir. 1992).
10th Circuit reverses Williams and upholds referral for federal prosecution. (135) Defendants were arrested by a multi-agency strike force and referred to federal authorities for prosecution. The district court refused to impose federal mandatory minimum sentences or the guidelines, because the strike force had no written policy or guidelines for referring cases for federal prosecution. Therefore the referral could have been for improper purposes. U.S. v. Williams, 746 F.Supp. 1076 (D. Utah 1990 The 10th Circuit reversed. In the absence of proof that the choice of a forum was improperly motivated, prosecution in a federal rather than a state court does not violate due process despite the absence of guidelines for such referral. Here, there was no evidence that the referral was based on race or other impermissible reasons. U.S. v. Williams, 963 F.2d 1337 (10th Cir. 1992).
10th Circuit upholds sentencing where local police referred the case to federal prosecutors. (135) The 10th Circuit rejected defend-ant’s contention that he should have been sentenced under state law because his arrest, the search of his house, and the subsequent investigation were carried out by local law enforcement authorities. Regardless of what authorities perform the arrest, search or investigation, the ultimate decision whether to charge a defendant, and what charges to file, rests solely with state and federal prosecutors. The court rejected defendant’s claim that this case did not involve the exercise of prosecutorial discretion because local police, rather than the local prosecutor, referred the case to federal officers. Absent convincing evidence to the contrary, the court would not assume that prosecutors were acting as rubber stamps for charging decisions made by the police. U.S. v. Kay, 961 F.2d 1505 (10th Cir. 1992).
10th Circuit affirms referral of case for federal prosecution. (135) The 10th Circuit rejected defendant’s claim that he should have been sentenced under state, rather than federal law. In U.S. v. Andersen, 940 F.2d 593 (10th Cir. 1991), the court upheld the referral for federal prosecution of a defendant originally arrested by multi-agency strike force. The ultimate decision whether to charge a defendant and what charges to file rests solely with state and federal prosecutors, even though law enforcement investigators may have some influence in charging decisions, and regardless of whether policies and guidelines exist at the agency level. Due process rights are not violated when a law enforcement agency refers a case to federal rather than state prosecutors, and a defendant is tried, convicted and sentenced in federal rather than state court. U.S. v. Gines, 964 F.2d 972 (10th Cir. 1992).
10th Circuit rejects due process challenge to guidelines. (135) Defendant contended that the guidelines violate due process because they fail to provide a departure procedure analogous to 18 U.S.C. section 3553(e) and guideline section 5K1.1 for departing downward from a statutory minimum sentence. Defendant was the least culpable participant in a drug conspiracy, but the district court was unable to depart below the statutory minimum of 120 months. Other more culpable defendants received downward departures based on their substantial assistance, and received sentences of 72 to 84 months. The 10th Circuit found no due process violation. Defendant’s argument was “nothing more than a call for a reallocation of power in the sentencing process.” Defendants in non-capital cases have no due process right to a discretionary, individualized sentence. The substantial assistance provisions do not deny equal protection because a rational connection exists between obtaining information concerning narcotics and providing the opportunity for a sentence reduction in exchange for such information. U.S. v. Horn, 946 F.2d 738 (10th Cir. 1991).
10th Circuit upholds state prosecutor’s decision to drop charges and refer defendant to federal prosecutor. (135) Defendant was arrested on state drug charges by a strike force funded by and comprised of personnel from state, local and federal governments. Since there was an ongoing investigation of defendant on more extensive charges, the county attorney’s office dismissed the state charges and released defendant. Several months later defendant was arrested by the strike force on federal drug charges and was convicted. Defendant argued that due process was violated when members of the strike force referred his case for federal prosecution without any “articulated policy or written guidelines.” The 10th Circuit ruled that although such guidelines might be desirable, they were not constitutionally mandated. Defendant’s argument misconceived the role of the strike force. Although the strike force officers have some influence in charging decisions, the ultimate charging decision rests solely with state and federal prosecutors. The court refused to assume that the prosecutors acted as “rubber stamps” for the strike force. U.S. v. Andersen, 940 F.2d 593 (10th Cir. 1991).
10th Circuit upholds guidelines and mandatory minimum sentence against due process challenges. (135) Defendant claimed that the guidelines violate due process by impermissibly limiting the court’s consideration of the circumstances of the case, precluding defendants from demonstrating to the judge by relevant evidence that a downward departure is justified, and allows the prosecutor to determine the sentence. The 10th Circuit, noting that it had previously decided these issues, summarily rejected the arguments. The court also rejected defendant’s contention that the mandatory minimum sentence improperly removed a judge’s sentencing discretion. U.S. v. Hatch, 925 F.2d 362 (10th Cir. 1991).
10th Circuit summarily rejects due process challenge to guidelines. (135) Defendant argued that guideline sentencing is a denial of procedural and substantive due process because it fails to consider individual characteristics and does not allow a defendant to challenge the weight accorded the various factors which determine the sentence. The 10th Circuit summarily rejected the argument, citing its prior decision in U.S. v. Thomas, 884 F.2d 542 (10th Cir. 1989). U.S. v. Rutter, 897 F.2d 1558 (10th Cir. 1990).
10th Circuit holds guideline sentences do not violate due process. (135) Defendant argued that the sentencing guidelines violate due process by (1) unlawfully limiting a sentencing court’s ability to evaluate the particular circumstances of his case and fashion an appropriate sentence; (2) prohibiting a defendant from meaningfully participating in sentencing by limiting his ability to present relevant evidence; and (3) giving the prosecutor and Sentencing Commission, rather than the judge, the power to determine the sentence. The 10th Circuit rejected each of these arguments in turn. U.S. v. Thomas, 884 F.2d 540 (10th Cir. 1989).
11th Circuit rejects claim of sentencing factor manipulation. (135) Defendant was arrested in a reverse-sting operation, and was convicted of drug and firearms charges. He contended that his 438-month sentence was substantively unreasonable because the government improperly pressured him to buy more drugs than he originally intended to purchase, and to pay for the drugs with guns. The Eleventh Circuit rejected the sentencing factor manipulation claim. Although the circuit has recognized sentencing factor manipulation, it has never applied it. Here, even though government agents initiated the conversation about the guns, it was defendants who agreed to supply and who brought the guns to the transaction. And, although agents offered to supply defendant with cocaine in addition to marijuana, defendant did not reject the offer or express any discomfort with the idea. The panel therefore declined to overturn the district court’s decision regarding defendant’s claim of sentencing factor manipulation. The sentence, which was the lowest within-guideline sentence defendant could have received, was not unreasonable. U.S. v. Haile, 685 F.3d 1211 (11th Cir. 2012).
11th Circuit finds expansion of sting operation was not sentencing manipulation. (135) Defendant was arrested in a sting operation that involved the armed robbery of a fictional stash house of cocaine. Defendant was not the original target of the sting, but was brought in by the target to help with the robbery. He argued that his sentence was manipulated by the conduct of the federal agents, who “expanded the scope” of the original sting operation to include persons “unknown” to them. He also claimed that the inclusion of juveniles and defendant, a young adult (age 18) amounted to sentencing factor manipulation. The Eleventh Circuit upheld the sentence. Even if a sentence could be reduced based on sentencing factor manipulation, defendant failed to establish that the agents involved in the sting engaged in “extraordinary misconduct.” Defendant was an adult when the sting occurred and participated voluntarily. He attempted to lead the criminal activity and told the agent what to expect during the robbery. That the sting operation involved a young adult who was not the original target did not amount to extraordinary misconduct by the government. U.S. v. Docampo, 573 F.3d 1091 (11th Cir. 2009).
11th Circuit finds no sentencing manipulation where informant gave defendant gun equipped with silencer. (135) A confidential informant “hired” defendant to kill a witness. Defendant was convicted of murder for hire, drug and firearms charges. Because the firearm that the informant gave defendant to commit the murder was equipped with a silencer, defendant’s sentence was drastically lengthened due to the application of a 30-year mandatory minimum. Defendant argued that he did not know that the firearm was equipped with a silencer, and that the government engaged in sentencing manipulation. The Eleventh Circuit disagreed. Defendant did not meet his burden of establishing that the government’s conduct was sufficiently reprehensible to constitute sentencing factor manipulation. The fact that law enforcement might provide drugs or a gun essential to a willing and predisposed offender did not necessarily constitute misconduct. The standard for sentencing factor manipulation is high. While it would be troubling if the government provided defendant a firearm with a silencer that he could not see solely to inflate his sentence upon a conviction, defendant said he lacked awareness of the silencer when he accepted the gun from the government. However, defendant agreed to commit a murder for hire, and to accept a gun to do the job. It was conceivable that the government could reasonably decide that a muzzled firearm was the appropriate weapon for a murder for hire. U.S. v. Ciszkowski, 492 F.3d 1264 (11th Cir. 2007).
11th Circuit says use of acquitted conduct did not violate due process. (135) A jury acquitted defendant of conspiracy to manufacture more than 500 grams of methamphetamine and instead convicted him only of possession of the precursor chemical pseudoephedrine. At sentencing, the district court found by a preponderance of the evidence that defendant was responsible for the manufacture of at least 1.5 kilograms of methamphetamine and set defendant’s offense level under § 2D1.1(c)(3) using that amount. The Eleventh Circuit held that the district court did not err in using conduct on which defendant had been acquitted in setting his offense level, noting that the testimony of defendant’s coconspirators was consistent and had been corroborated by defendant’s own admissions. The court also held that use of the acquitted conduct did not increase defendant’s sentence so much as to violate due process. U.S. v. Clay, 483 F.3d 739 (11th Cir. 2007).
11th Circuit applies two-level enhancement based on fictitious victim’s age. (135) Defendant was convicted of using the Internet to entice a minor into sexual activity, 18 U.S.C. § 2422(b). He was arrested when he went to meet an undercover agent who had posed in an online chat room as a 15-year old girl. Defendant argued that a two-level enhancement under § 2G2.1(b)(1) for an offense involving a minor between 12 and 16 years old constituted improper sentencing manipulation. The commentary to § 2G1.3 expressly defines the term “minor” as including “an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.” Defendant believed he was interacting with a 15-year old girl and knew the consequences of engaging in sexual activity with a minor of this age, as he stated numerous times that he would have to be careful not to get caught, given the stiff penalties he faced due to the girl’s age. Moreover, his computer revealed numerous seductive pictures of others with whom defendant had sexual encounters. The government’s conduct in choosing an age for the “girl” was no more manipulative than in any other sting operation. U.S. v. Bohannon, 476 F.3d 1246 (11th Cir. 2007).
11th Circuit holds that application of fast-track program in only certain judicial districts does not violate equal protection. (135) Defendant was convicted of illegal re-entry into the U.S., in violation of 8 U.S.C. § 1326(a) and (b)(2). He argued that the absence of a fast-track or early disposition sentencing program in the district, which would have allowed the district judge to apply a downward departure to his sentence under U.S.S.G. § 5K3.1, violated the 5th Amendment equal protection clause. The Eleventh Circuit, joining the First, Seventh, and Ninth Circuits, held that the absence of a fast-track program in the judicial district where a defendant is sentenced does not violate equal protection. The fast-track program is rationally related to the legitimate government interest of conserving prosecutorial and judicial resources and easing congestion in judicial districts with a high volume of immigration cases. U.S. v. Campos-Diaz, 472 F.3d 1278 (11th Cir. 2006).
11th Circuit upholds court’s refusal to instruct jury on sentencing entrapment. (135) Defendant appealed the court’s refusal to instruct the jury on his claim of sentencing entrapment, urging the court to overrule case law barring sentencing entrapment claims in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Eleventh Circuit found it unnecessary to address this issue, because even if the defense were available, instructions were clearly not warranted by the evidence presented here. The increasingly favorable offers by the government to sell marijuana to defendant did not involve any element of persuasion or coercion – the government’s offers merely made the drugs more accessible or available to defendant. The fact that a government agent supplies contraband or makes it available is not a proper basis for an entrapment defense. Moreover, the failure to give the instruction did not “seriously impair” the effective presentation of the defense. The court permitted defendant to argue vigorously to the jury that he did not have the intent or ability to purchase large amounts of marijuana, allowed him to cross-examine witnesses as to whether the offered drug price was below market, properly submitted the question of drug quantity to the jury, and instructed the jury that it could find defendant guilty of any of several lesser-included offenses involving smaller amounts of marijuana. U.S. v. Ryan, 289 F.3d 1339 (11th Cir. 2002).
11th Circuit finds no outrageous conduct, sentencing entrapment or manipulation in reverse sting. (135) The government ran a reverse sting operation in which defendants agreed to invade and steal drugs from a house they thought contained illegal drugs. In fact, there was no house and there were no drugs. The Eleventh Circuit rejected defendants’ claim of outrageous government conduct, sentencing entrapment or sentencing manipulation. Defendants did not seek dismissal of the indictment on the basis of outrageous government conduct, and therefore their appeal of this issue was barred. Moreover, government infiltration of criminal activity is a recognized and permissible means of investigation. The sentencing entrapment claim failed as a matter of law because the Eleventh Circuit has rejected sentencing entrapment as a viable defense. Finally, although several circuits have recognized some form of sentencing manipulation as an arguably valid defense, no court of appeals has overturned a conviction or departed downward on the basis of a sentencing manipulation claim. The fact that the government’s fictitious reverse sting operation involved a large quantity of drugs did not amount to the type of manipulative governmental conduct warranting a downward departure. U.S. v. Sanchez, 138 F.3d 1410 (11th Cir. 1998).
11th Circuit finds no prejudice from failure to raise sentencing entrapment and other claims. (135) In a 28 U.S.C. § 2255 petition, defendant argued that he was denied effective assistance of counsel on direct appeal. The district court found that although defendant’s appellate attorney rendered deficient performance, it did not prejudice defendant. On appeal, the Eleventh Circuit affirmed. The two claims that defendant argued appellate counsel should have raised were sentencing entrapment and acceptance of responsibility. There was no reasonable probability of success on appeal with either claim. The Eleventh Circuit has repeatedly rejected sentencing entrapment claims. The acceptance of responsibility determination by the district judge was entitled to great deference on appeal. A defendant who forces the government to trial is rarely entitled to an adjustment for acceptance of responsibility. Joiner v. U.S., 103 F.3d 961 (11th Cir. 1997).
11th Circuit rejects sentencing entrapment as basis for downward departure. (135) Defendant arranged for a confidential informant to buy a half kilogram of crack from an associate. The district court departed downward by sentencing defendant for conspiring to possess powder cocaine rather than crack on the theory that defendant was “trapped” by the informant into supplying crack rather than powder cocaine. The Eleventh Circuit rejected sentencing entrapment as grounds for a downward departure. The guidelines do not authorize a downward departure for entrapment under circumstances not amounting to a complete defense. Even § 5K2.12 does not authorize departures below a statutorily required minimum sentence. The jury rejected defendant’s entrapment defense. A downward departure for dealing powder cocaine implicitly undermines the jury’s verdict and flies in the face of the jury’s finding that defendant was not entrapped. U.S. v. Miller, 71 F.3d 813 (11th Cir. 1996).
11th Circuit says career offender provisions do not violate due process or equal protection. (135) Defendant argued that § 4B1.1 violated due process and equal protection because a defendant with a more extensive criminal record could have a lower criminal history category, while a “mega-farmer” convicted of growing 10,000 marijuana plants would have the same offense level. The Eleventh Circuit rejected the claim, finding the career offender scheme of using a defendant’s criminal record in considering both his offense level and his criminal history bears a rational relationship to a legitimate governmental purpose–to prevent repeat offenders from continuing to victimize society. U.S. v. Brant, 62 F.3d 367 (11th Cir. 1995).
11th Circuit holds that federal prosecution did not violate due process. (135) Defendant claimed that local officials arbitrarily decided to refer his case for federal rather than state prosecution because of the harsher penalties for crack cocaine offenses. The 11th Circuit found that the federal prosecution did not violate due process. Absent evidence that the decision to institute federal prosecution was improperly motivated, prosecution in federal rather than state court does not violate due process even without guidelines for such referral. U.S. v. Harden, 37 F.3d 595 (11th Cir. 1994).
11th Circuit holds lack of mens rea for stolen firearm enhancement does not violate due process. (135) The 11th Circuit held that the lack of a mens rea requirement for an enhancement under section 2K2.1(b)(4) for possession of a stolen firearm does not violate due process. That section does not create a crime separate and apart from the underlying felony. The rule of lenity does not require the government to prove defendant knew the firearm was stolen. U.S. v. Richardson, 8 F.3d 769 (11th Cir. 1993).
11th Circuit upholds drug quantity based on agent’s alteration of plan. (135) Defendant police officer agreed to protect drug transactions in return for bribes. An undercover agent altered the previously agreed plan by offering defendant drugs instead of some of the cash he had previously been promised. The 11th Circuit upheld inclusion of the drug bribe in determining the quantity of drugs involved in defendant’s crime. Given the scope of defendant’s involvement, it was reasonably foreseeable that defendant would be paid with drugs. The court also rejected separation of powers and due process challenges to basing the quantity on amounts supplied at the agent’s initiative. U.S. v. Clark, 989 F.2d 447 (11th Cir. 1993).
11th Circuit upholds constitutionality of armed career criminal sentencing scheme. (135) Defendant argued that section 4B1.4, the armed career criminal provisions, violates due process and equal protection because it takes into account a defendant’s criminal record in calculating both his criminal history and his offense level. Noting that every other circuit to consider this argument has rejected it, the 11th Circuit also rejected it. U.S. v. Johns, 984 F.2d 1162 (11th Cir. 1993).
11th Circuit upholds drug quantity despite claim that amount was dictated by government agent. (135) Defendant claimed that it was error for the district court to base his sentence on the one kilogram of cocaine involved in the transaction because the quantity involved was dictated by the special agent with whom defendant planned the drug transaction. The 11th Circuit rejected this argument, since there was sufficient evidence at trial to convict defendant of knowingly and voluntarily entering into an agreement to purchase one kilogram of cocaine. U.S. v. Brokemond, 959 F.2d 206 (11th Cir. 1992).
11th Circuit upholds government’s decision to seek mandatory life sentences for drug offenses. (135) The 11th Circuit rejected defendant’s claim that the district court denied him due process by permitting the government to invoke the procedures of 21 U.S.C. section 851 and seek mandatory life sentences. The mandatory life sentence provisions applicable to defendant appear to be valid, and there was no constitutional problem with the scope of the government’s discretion. There is no material difference between the grant of discretion to seek a downward departure and the grant of discretion here. The government’s decision to proceed against an accused under a particular statute is not reviewable unless the decision is made for an unlawful reason such as the accused’s race. U.S. v. Willis, 956 F.2d 248 (11th Cir. 1992).
11th Circuit rules that guideline sentences do not violate due process. (135) The 11th Circuit rejected challenges to the guidelines on procedural and substantive due process grounds. U.S. v. Erves, 880 F.2d 376 (11th Cir. 1989).
11th Circuit rules that guidelines’ restrictions on judicial discretion do not violate due process. (135) Joining the 2nd 3rd, and 5th Circuits, the 11th Circuit held that the fact that the guidelines restrict the discretion of the district court does not violate due process. The court cited Supreme Court dicta indicating that there is no constitutional right to individualized sentencing in a noncapital case. Moreover, “[t]he more uniform sentencing sought by the guidelines should provide even greater fairness to defendants.” U.S. v. Harris, 876 F.2d 1502 (11th Cir. 1989).
11th Circuit affirms District Court opinion upholding substantial assistance provision against due process challenge. (135) Defendant argued that 18 U.S.C. § 3553(e), which rewards substantial assistance to the authorities, does not violate due process in that it facially fails to differentiate between leaders and peripheral actors, and is an irrational sentencing scheme because it fails to consider the quality or purity of the narcotics. She thus argued the statutory classification lacked relevance to its purpose. The 11th Circuit affirmed the district court’s holding that she failed to rebut the presumption of validity accorded a statute. U.S. v. Severich, 676 F.Supp. 1209 (S.D.Fla. 1989), affirmed, 872 F.2d 434 (11th Cir. 1989).
D.C. Circuit denies acceptance reduction for defendant who moved to withdraw guilty plea, claiming entrapment. (135) Defendant contended that the district court erred in refusing to decrease his offense level for acceptance of responsibility. The district court found that defendant’s motion to withdraw his guilty plea was “in and of itself a statement that [defendant] did not wish to let the guilty plea stand, and therefore, he didn’t wish to accept responsibility for this offense.” Defendant insisted that this was error because he wished only to assert an entrapment defense and continued to admit to his guilt and involvement in the instant offense. However, by simultaneously claiming that he accepted responsibility but that he was entrapped, defendant was “in effect claiming that he accepted responsibility even though he was not responsible.” The D.C. Circuit noted that while there may be a situation in which an entrapment defense is not logically inconsistent with a finding of defendant’s acceptance of responsibility, defendant did not automatically earn the acceptance reduction simply by claiming entrapment. The district court did not think defendant was telling the truth about his alleged entrapment defense, and made very specific findings about that. U.S. v. Berkeley, 567 F.3d 703 (D.C. Cir. 2009).
D.C. Circuit finds no sentencing entrapment because defendant was predisposed to purchase five kilograms. (135) An informant told DEA agents that he had delivered substantial drug quantities to defendant at least eight times in 1993-94 and that defendant accounted for all of his kilogram-level sales. In a reverse sting operation, the informant contacted defendant and offered to front him five kilograms of cocaine. When defendant arrived at the informant’s hotel room, the informant showed him five one-kilogram bricks. Defendant decided to take two kilograms and said he would return for the other three. The D.C. Circuit held that defendant could not establish sentencing entrapment because he was predisposed to purchase five kilograms. When defendant saw the five kilograms, he asked the informant to supply drugs weekly. Also, in the past he routinely purchased from five to ten kilograms using the fronting method. U.S. v. Ramsey, 165 F.3d 980 (D.C. Cir. 1999).
D.C. Circuit upholds refusal to depart downward in reverse sting case. (135) Defendant was held responsible for two kilograms of cocaine that his co-conspirators purchased from an undercover agent. He argued that he should have received a downward departure based on the “reverse sting” provision of note 15 to § 2D1.1. This authorizes a downward departure where the government sets a price for the controlled substance that is substantially below its market value. The D.C. Circuit upheld the refusal to depart since the court recognized its authority to depart and did not make a clearly erroneous factual finding. The court found that even if note 15 were applicable to defendant, it would not make a difference in the two kilograms of cocaine for which he was accountable. Thus, the court must have found either that the undercover agent did not set the price at an artificially low level or that defendant did not buy more than he otherwise would have because of the depressed price. Neither of these findings would have been clearly erroneous. U.S. v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997).
D.C. Circuit rejects indirect sentencing entrapment claim. (135) Defendant was held responsible for two kilograms of cocaine that his co-conspirators purchased from an undercover agent. During a previous conversation, defendant and the co-conspirator agreed on a two-kilo purchase. The co-conspirator was to buy one kilo for cash and one on credit. Defendant argued that he was a victim of indirect sentencing entrapment because the co-conspirator intended to buy only one kilo, but was entrapped by the undercover agent into buying more. The D.C. Circuit rejected the indirect sentencing entrapment claim. Such claims may be raised only if the defendant was induced by an unknowing intermediary at the instruction or direction of a government official. The defense does not apply if, in response to pressure put on him by the government, the unknowing intermediary on his own induces the defendant to engage in criminal activity. Even assuming the co-conspirator’s request to defendant amounted to inducement, that inducement did not flow from the government agents. U.S. v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997).
D.C. Circuit will not review refusal to depart for sentencing manipulation. (135) Defendant was one of several car salesmen caught in a sting operation in which an undercover officer posed as a drug dealer seeking to buy cars with cash proceeds of cocaine sales. Defendant argued that the sentencing court erroneously failed to recognize its authority to depart under § 5K2.0 based on the “offense level inflation” caused by the massive vehicle purchases toward the end of the sting. The D.C. Circuit held that the refusal to depart was not appealable. The sentencing court found that there was no improper government conduct and no sentencing manipulation. Thus, to the extent, if any, that the court was authorized to depart, it recognized its authority and declined to do so. U.S. v. Spriggs, 102 F.3d 1245 (D.C. Cir. 1996).
D.C. Circuit says asking for crack rather than powder cocaine was not sentencing entrapment. (135) On three occasions, defendant sold crack cocaine to a DEA agent posing as a crack dealer. Each time, defendant came from her supplier with cocaine powder, but the agent said he wanted to buy crack. Defendant then would go to her apartment, “cook” the cocaine into crack, and sell the crack to the agent. The district court imposed sentences below the mandatory minimum for crack cocaine, finding that defendant sold crack cocaine only after the DEA agent insisted on purchasing crack rather than powder cocaine. The D.C. Circuit, relying on U.S. v. Walls, 70 F.3d 1323 (D.C. Cir. 1995), held that the agent’s insistence on purchasing crack was not sentencing entrapment. Walls makes clear that asking for crack cocaine upon delivery of powder cocaine, without more, is not sentencing entrapment. The main element in any entrapment defense is defendant’s predisposition. Here, when the DEA agent said he would buy only crack cocaine, defendant willingly, without hesitation, converted the powder cocaine into crack cocaine. U.S. v. Shepherd, 102 F.3d 558 (D.C. Cir. 1996).
D.C. Circuit rejects entrapment claim. (135) Defendant argued that the government entrapped him into selling crack rather than powder cocaine so that it could impose the harsher penalties applicable to crimes involving cocaine base. He further contended that the district court improperly treated his claim as one of “outrageous government conduct.” The District of Columbia Circuit rejected the entrapment claim, holding that the court properly applied a standard consistent with the normal “bifurcated approach” to an entrapment defense. The defendant bears the initial burden of demonstrating inducement; once the defendant meets that burden, the burden of persuasion shifts to the government to prove predisposition. Inducement focuses on whether the government’s conduct could have caused an undisposed person to commit a crime. In concluding that the record did not show improper motives or actions by police, the court was merely saying it had found no evidence of inducement. U.S. v. Sanchez, 88 F.3d 1243 (D.C. Cir. 1996), abrogated on other grounds by Peguero v. U.S., 526 U.S. 23, 119 S.Ct. 961 (1999).
D.C. Circuit rejects sentencing entrapment even though agent insisted on crack because of higher penalties. (135) Defendants sold crack cocaine to an undercover agent. They argued that they should have been sentenced as if they had distributed powder cocaine rather than crack, because the government agent had insisted that the cocaine be in the form of crack. The D.C. Circuit rejected the sentencing entrapment claim, even though the agent testified at trial that he insisted on crack rather than powder because of the higher penalties. The main element in any entrapment defense is the defendant’s predisposition, not the government’s conduct. Defendants showed no hesitation in committing the crack offense. The fact that they would have sold powder cocaine had the agent not negotiated for crack proved only that defendants were predisposed to commit both offenses. The government’s conduct was not so outrageous as to bar a conviction; therefore its actions could not serve as a basis for disregarding the statute’s mandatory sentencing requirements. U.S. v. Walls, 70 F.3d 1323 (D.C. Cir. 1995).
D.C. Circuit upholds transfer of case to take advantage of harsher federal penalties. (135) Defendant claimed his due process rights were violated because (a) the government transferred his case to federal court for the purpose of taking advantage of the higher penalties available under the sentencing guidelines, and (b) the transfer was motivated by prosecutorial vindictiveness. The D.C. Circuit rejected these claims. Recent cases have established that the prosecutor may select one alternative charge over another precisely because the selected offense carries a more severe sentence. Prosecutorial vindictiveness refers to a situation in which the government acts against a defendant in response to the defendant’s prior exercise of constitutional or statutory rights. Here, defendant failed to identify any legal right whose exercise the government sought to penalize by transferring his case to federal jurisdiction. U.S. v. Gerald, 5 F.3d 563 (D.C. Cir. 1993).
D.C. Circuit reverses downward departure based on government’s transfer of case to federal court. (135) Defendant was originally prosecuted in the D.C. Superior Court, but the U.S. Attorney’s office dropped these charges in favor of a federal prosecution in order to take advantage of harsher federal penalties. The district court departed downward from the mandatory minimum penalty and the guidelines to impose a sentence like the one defendant would have received in Superior Court. Based on U.S. v. Mills, 925 F.2d 455 (D.C. Cir. 1991), reheard en banc 964 F.2d 1186 (D.C. Cir. 1992), the D.C. Circuit rejected this as a proper ground for a downward departure. Mills held that the transfer of cases from Superior Court to federal court did not violate due process. Similarly, the transfer of the case to federal court was not the sort of inappropriate manipulation of the indictment that might warrant a departure. The court reserved the question of whether prosecutorial misconduct of a constitutional dimension might warrant a departure from a minimum sentence. U.S. v. Dockery, 965 F.2d 1112 (D.C. Cir. 1992).
D.C. Circuit upholds transfer to federal court to enable defendants to be sentenced under guidelines. (135) Although initially charged in the D.C. Superior Court, defendants’ cases were transferred to federal court pursuant to a new federal policy to bring more D.C. drug cases in federal court in order to take advantage of the stricter penalties available under the federal sentencing guidelines. The D.C. Circuit reversed the district court’s rulings in U.S. v. Holland, 729 F.Supp. 125 (D.D.C. 1990); and U.S. v. Roberts, 726 F.Supp. 1359 (D.D.C. 1989);, that this transfer violated due process. The guidelines do not violate due process by shifting influence over sentencing from the judiciary to the prosecutor, since a defendant is not entitled to an individualized sentence determined by a judge. The U.S. Attorney’s office may “select one alternative charge over another precisely because the selected offense carries a more severe sentence.” Moreover, the court found no vindictiveness or violation of due process in the fact that the prosecutor warned some of the defendants in plea negotiations that their cases would be transferred if they did not plead guilty. U.S. v. Mills, 925 F.2d 455 (D.C. Cir. 1991).
Article addresses due process implications of guidelines sentencing. (135) Jack H. McCall, Jr., examines the development of due process constraints on sentencing. He then provides a detailed review of the courts’ treatment of several due process challenges to guidelines sentencing, including the failure to individualize sentences, limitations on judicial discretion, transfer of discretion to prosecutors and probation officers, the burden of proof at sentencing, challenges to information used in sentencing, and the requirement of notice. For the most part, challenges to guidelines sentencing on these grounds have failed. The author advocates certain reforms. Jack H. McCall, Jr., The Emperor’s New Clothes: Due Process Considerations Under the Federal Sentencing Guidelines, 60 Tennessee L. Rev. 467-524 (1993).
Article critiques governmental power to affect sentence in undercover investigations. (135) A student author notes the ability of law enforcement officials to influence a defendant’s sentence by arranging undercover investigations so as to affect application of the guidelines, especially by influencing drug quantities. Arguing that this power undermines the goal of reducing sentence disparity, violates public policy, and may violate due process, the author advocates expanding the entrapment and outrageous government conduct defenses or allowing departures when investigations or sting operations are unduly manipulated by law enforcement. The author reviews cases considering whether governmental manipulation should be taken into account in sentencing. Note, The Federal Sentencing Guidelines’ Failure to Eliminate Sentencing Disparity — Governmental Manipulations Before Arrest, 1993 Wisc. L. Rev. 187-230.
Commission permits departure if amount in “reverse sting” exceeds market price. (135) In an amendment effective November 1, 1993, a new note 17 was added to the Commentary to 2D1.1 for “reverse sting” operations. The court may depart downward if it finds that the government agent set a price for the controlled substance that was substantially below the market value, thereby causing the defendant to purchase an amount he otherwise could not have afforded.