Filed: Jan. 23, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 1-23-2007 USA v. Jimenez Precedential or Non-Precedential: Non-Precedential Docket No. 05-3114 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "USA v. Jimenez" (2007). 2007 Decisions. Paper 1759. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1759 This decision is brought to you for free and open access by the Opinions of the United St
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 1-23-2007 USA v. Jimenez Precedential or Non-Precedential: Non-Precedential Docket No. 05-3114 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "USA v. Jimenez" (2007). 2007 Decisions. Paper 1759. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1759 This decision is brought to you for free and open access by the Opinions of the United Sta..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-23-2007
USA v. Jimenez
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3114
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Jimenez" (2007). 2007 Decisions. Paper 1759.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1759
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-3114
UNITED STATES OF AMERICA
v.
JOSE JIMENEZ
Appellant
On Appeal From the United States
District Court
For the Eastern District of Pennsylvania
(D.C. Crim. Action No. 04-cr-00063-1)
District Judge: Hon. Eduardo C. Robreno
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 17, 2007
BEFORE: McKEE, AMBRO and STAPLETON,
Circuit Judges
(Opinion Filed: January 23, 2007)
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant, Jose Jimenez, pled guilty to distributing approximately 124 grams of
cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). He was sentenced to a
mandatory minimum sentence of 120 months of imprisonment and five years of
supervised release.
The following summary of the information of record is accurate:
On December 2, 2003, at approximately 10:30 a.m., DEA
agents met with Irizarry [a cooperating informant] at a pre-
arranged location in Philadelphia, and instructed him to make
a telephone call to Jimenez regarding the purchase of a
quarter pound of crack cocaine for $3,100 United States
currency. During the conversation, Irizarry asked Jimenez if
he could get him a quarter pound of crack cocaine in 45
minutes. Jimenez stated that he would find it and cook it for
Irizarry. At approximately 10:40 a.m., the DEA agents
searched Irizarry, found nothing, and provided him with
recording devices and $3,100 to purchase the quarter pound of
crack cocaine.
***
At approximately 12:13 p.m., an officer observed
Jimenez arrive and park on the west side of Second Street,
south of Master Street. Irizarry exited the undercover vehicle,
and entered Jimenez’ car, which contained Jimenez and an
unknown male. Several moments later, Irizarry exited
Jimenez’ car, entered the undercover vehicle, and stated that
Jimenez did not have the crack cocaine with him, but had to
go “cook it.” Jimenez told Irizarry that he would be back in
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twenty minutes.
***
At approximately 1:50 p.m., officers observed Irizarry park
on the west side of Second Street, south of Master Street, with
two unknown males as his passengers. The officers observed
Irizarry exit the undercover vehicle, and walk over to the
passenger side of Jimenez’ car. Jimenez exited the driver’s
side and met with Irizarry. At approximately 1:53 p.m., the
officers observed Jimenez enter his car and Irizarry enter the
undercover vehicle. The officers took custody of
approximately 124.1 net grams of crack cocaine from Irizarry,
which had been purchased from Jimenez for $3,100.
Br. Appellee at 5-7 (record citations omitted).
Jimenez insists that “he was the victim of sentencing entrapment.” Br. Appellant
at 4. He represents that he initially brought 120 grams of powder cocaine for sale to
Irizarry, that he did not know how to cook to powder cocaine into crack, and that he
would not have gotten someone else to cook it had not Irizarry refused to be satisfied with
powder cocaine. We accept these representations for purposes of our review.
“Sentencing entrapment occurs when an appellant, although pre-disposed to
commit a minor or lesser offense, is entrapped into committing a greater offense subject
to greater punishment.” United States v. Sumler, 294 F.3d 579 (3d Cir. 2002). The
District Court was clearly entitled to conclude that it did not occur here.
Entrapment requires that the government engage in conduct that can reasonably be
expected to overcome, and does overcome, the will of someone not predisposed to
commit a particular offense. Here, the government did nothing more than provide
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Jimenez with the opportunity to sell crack cocaine, an opportunity that he immediately
seized in the first telephone conversation. He was thus willing from the start to commit
the crime of crack distribution, and he produced it for sale on the same day without any
significant delay. Here, Jimenez was predisposed to distribute crack, and his will did not
need to be overcome. United States v. Walls, 70 F.3d 1323, 1329 (D.C. Cir. 1995).
Jimenez also argues that the sentencing disparity between crack and powdered
cocaine found in 21 U.S.C. § 841(b)(1)(A) and (B) violates his right to substantive due
process. The primary foundation of Jimenez’ argument has been expressly rejected by
the Supreme Court, however:
Petitioners argue that the due process of law
guaranteed them by the Fifth Amendment is violated by
determining the lengths of their sentences in accordance with
the weight of the LSD “carrier,” a factor which they insist is
arbitrary. They argue preliminarily that the right to be free
from deprivations of liberty as a result of arbitrary sentences
is fundamental, and therefore the statutory provision at issue
may be upheld only if the Government has a compelling
interest in the classification in question. But we have never
subjected the criminal process to this sort of truncated
analysis, and we decline to do so now. Every person has a
fundamental right to liberty in the sense that the Government
may not punish him unless and until it proves his guilt beyond
a reasonable doubt at a criminal trial in accordance with the
relevant constitutional guarantees. But a person who has been
so convicted is eligible for, and the court may impose,
whatever punishment is authorized by statute for his offense,
so long as that penalty is not cruel and unusual, . . . and so
long as the penalty is not based on an arbitrary distinction that
would violate the Due Process Clause of the Fifth
Amendment. In this context, . . . an argument based on equal
protection essentially duplicates an argument based on due
process.
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Chapman v. United States, 500 U.S. 453, 464-65 (1990) (citations omitted).
This Court, as well as every other court that has considered the issue, has
concluded that there is a rational basis for (i.e., no arbitrariness in) the disparity Jimenez
attacks. See United States v. Frazier, 981 F.2d 92, 96 (3d Cir. 1992) (footnote omitted):
There are reasonable grounds for imposing a greater
punishment for offenses involving a particular weight of
cocaine base than for comparable offenses involving the same
weight of cocaine. These grounds include differences in the
purity of the drugs, the dose size, the method of use, the effect
on the user, and the collateral social effects of the traffic in
the drug. Whether the ratio best reflecting these genuine
differences should be calibrated at 5-to-1, 20-to-1, or 100-to-1
is a discretionary legislative judgment for Congress and the
Sentencing Commission to make.
See also United States v. Lawrence, 951 F.2d 751, 755 (7th Cir. 1991); United States v.
Pickett,
941 F.2d 411, 418 (6th Cir. 1991); United States v. Thomas,
932 F.2d 1085 (5th
Cir. 1991); United States v. Turner,
928 F.2d 956, 960 (10th Cir. 1991); United States v.
Buckner,
894 F.2d 975, 978, 980 (8th Cir. 1990); United States v. Cyrus,
890 F.2d 1245,
1248 (D.C. Cir. 1989); United States v. Solomon,
848 F.2d 156, 157 (11th Cir. 1988);
United States v. Collado-Gomez,
834 F.2d 280, 281 (2d Cir. 1987).
The judgment of the District Court will be affirmed.
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