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Sentencing Entrapment

What is Sentencing Entrapment? Drug sentences are based on the amount and, in some cases, purity of a drug. The greater the amount and purity, the longer the sentence. For this reason, law enforcement agents have a motive to increase the amount and purity of a drug when they are attempting a set up a reverse-sting operation or a controlled buy. The Sentencing Guidelines have a terrifying capacity for escalation of a defendant’s sentence as a result of government misconduct.United States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993) The Guidelines link drugs to specific sentencing ranges based primarily upon the sheer quantity or kind of drugs involved in an offense.

Therefore, relatively small differences in the quantity or kind of drugs involved in an offense may dramatically alter a defendant’s prison term. United States v. Searcy, 233 F.3d 1096, 1099 (8th Cir. 2000).

The danger of government abuse is great because the government may influence, and in some cases control, the quantity and kind of a drug involved in the offense.

Sentencing entrapment occurs when official [government] conduct leads a defendant predisposed to deal only in small quantities of drugs to deal in larger quantities, leading to an increased sentence.United States v. Berg, 178 F.3d 976, 981 (8th Cir. 1999) (citing United States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993)).

Downward Departure. In order to ameliorate the dangers of government abuse, the Eighth Circuit has recognized sentencing entrapment as a viable theory for a downward departure. See United States v. Lenfesty, 923 F.2d 1293, 1300 (8th Cir.), cert. denied, 499 U.S. 968, 111 S.Ct. 1602, 113 L.Ed.2d 665 (1991). The Sentencing Guidelines also recognize sentencing entrapment as a viable basis for a downward departure.

See U.S.S.G. 2D1.1, comment (nn. 12, 14). Under Application Note 12, the district court shall exclude from the calculation the amount of drugs that flow from sentencing entrapment. It states, in relevant part: “If, however, the defendant establishes that he or she did not intend to provide, or was not reasonably capable of providing, the agreed-upon quantity of the controlled substance, the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that he or she did not intend to provide or was not reasonably capable of providing.” U.S.S.G.  2D1.1, comment. (n. 12).

This guideline, in part, focuses on the defendant’s intent or predisposition. Further, under Application Note 14, a downward departure is warranted when a form of sentencing entrapment occurs: If, in a reverse sting … the court finds that the government agent set a price for the controlled substance that was substantially below the market value of the controlled substance, thereby leading to the defendant’s purchase of a significantly greater quantity of the controlled substance than his available resources would have allowed him to purchase except for the artificially low price set by the government agent, a downward departure may be warranted. U.S.S.G. 2D1.1, comment. (n.14).

The Defendant’s Predisposition is Key. The sentencing entrapment analysis focuses on the defendant’s predisposition. The government’s conduct is relevant in a sentencing entrapment analysis, but only insofar as it provides the inducement.

The defendant bears the burden to prove by a preponderance of the evidence that he lacked the predisposition to sell a larger quantity or different type of drug. U.S. v. Martin, 583 F.3d 1068, 1073 (8th Cir. 2009). Berg, Stavig and Searcy – when read in context – provide a litmus test in determining what facts constitute sentencing entrapment. In Berg, the defendant and cooperating informants discussed a large [meth cook] where everyone would make a lot of money. Berg, 178 F.3d at 978 (emphasis added). A transcript of the recorded conversation revealed that the defendant suggested cooking as much as twelve pounds of methamphetamine, even though he usually dealt in small amounts. The Eighth Circuit acknowledged reverse-stings are especially prone to questions of sentencing entrapment, but found no indication that [the government] set up Berg to manufacture a greater amount of methamphetamine than he was otherwise contemplating. The Court finally noted that even had the government minimally enticed Berg to act in a manner out of accord with his proclivities, it required no great amount of persuasion.

The Eighth Circuit was presented with a closer question of sentencing entrapment in Stavig. There the defendant argued he only wished to purchase four ounces of cocaine from a CI but was compelled to purchase a kilogram. Specifically, the defendant argued the government continuously insisted on kilogram sale quantities and but for a favorable payment schedule he would not have purchased a kilogram of cocaine. At a sentencing hearing the defendant testified he had never dealt in kilogram quantities, and he was not interested in purchasing an entire kilogram. The government provided hearsay testimony indicating the CI had dealt kilogram quantities to the defendant in the past. The District Court refused to depart from the sentencing guidelines, holding the defendant was worked over some but ultimately desired to deal with kilograms rather than smaller quantities. While expressing extreme discomfort with the situation, the 8th Circuit affirmed the District Court. In so doing it relied on the fact that government used an amount of cocaine consistent with the defendant’s previous dealings with the CI. However, the three judge panel was reluctant to condone the reverse sting outright, repeatedly noting that sentencing entrapment did not occur based on the findings of fact that were not clearly erroneous.

Finally, in 2000, the Eighth Circuit found a fact scenario that established sentencing entrapment. In U.S. v. Searcy, the defendant originally refused to sell the CI crack-cocaine, repeatedly insisting that he only dealt powder cocaine. For four weeks the CI, at the direction of the DEA officer involved with the investigation, insisted that the defendant sell him crack cocaine. The defendant finally succumbed to this pressure and delivered 8.6 grams of crack-cocaine to the CI. The defendant was arrested several days later when he attempted to deliver 28 grams of crack-cocaine to the CI. The district court refused to depart downward from the sentencing guidelines on the basis of sentencing entrapment, holding that there was no outrageous conduct which induced the defendant’s actions. The 8th Circuit reversed and remanded, eliminating the outrageous government conduct prong from a sentencing entrapment analysis. The court explained that the crux of a sentencing entrapment issue turns on the defendant’s predisposition to commit the crime. Finally, it noted that insofar as government conduct is relevant, it is relevant only to illustrate whether the defendant’s actions were volitional or induced. See also, U.S. v. Staufer, 38 F.3d 1103 (9th Circ., 1994). (Relying on 8th Circuit case law the 9th Circuit adopted the doctrine of sentencing entrapment and noted the defendant was probably entitled to downward departure based on the fact that he had never engaged in a drug deal even nearing the magnitude of what the government induced through continued contact from a CI).

Factors to Consider. Ruiz lists a number of factors to aid the determination of a sentencing entrapment claim. When determining whether a defendant was predisposed to deal in a smaller drug quantity, a court should consider not only the defendant’s cash on hand, but also other facts indicative of intent and resources, including whether:

  • the government’s agent pressured the defendant;
  • the defendant desired the alleged quantity of drugs;
  • the defendant communicated an ability to repay the debt within a reasonable time;
  • the defendant has previously distributed substantial quantities; and
  • the defendant expressed his intent to engage in future dealings of similar size or scale.

Ruiz at 775. The Ruiz factors are nearly comprehensive, but I would add that the arbitrariness of the government’s conduct is crucial in determining whether a defendant has been induced to deal in the type and amount of narcotics involved in the sting or reverse sting. (Was there evidence known to police that supported decision to request and/or offer the type and amount of narcotic involved in the sting? Is this a case where a meth dealer is inclined to make and deal 12 pounds of meth (Berg) or a where a known coke dealer is repeatedly pressured to deal crack (Searcy)?).

Remember to Look for Sentencing Manipulation. Sentencing Manipulation is wholly different than sentencing entrapment, although the two are not necessarily mutually exclusive. Sentencing Manipulation occurs when the government intentionally prolongs an investigation in order to aggregate the number of offenses or amount of drugs, thereby hiking the guidelines up.

This information should not be relied upon for legal advice. If you have particular questions, feel free to contact Ryan Pacyga Criminal Defense.