USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 94-1666
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN BERIO MONTOYA,
a/k/a JOHN FREDDY MONTOYA,
Defendant, Appellant.
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No. 94-1667
UNITED STATES OF AMERICA,
Appellee,
v.
MARCO VILLEGAS,
Defendant, Appellant.
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No. 94-1668
UNITED STATES OF AMERICA,
Appellee,
v.
GUILLERMO MONTOYA,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Eileen Donoghue, by Appointment of the Court, for appellant Marco
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Villegas.
Raymond E. Gillespie, by Appointment of the Court, for appellant
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John Berio Montoya.
Diana L. Maldonado, Federal Defender's Office, for appellant
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Guillermo Montoya.
Jeffrey A. Locke, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for the United
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States.
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July 27, 1995
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BOUDIN, Circuit Judge. The three appellants in this
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case--Marco Villegas, Guillermo Montoya and John Berio
Montoya--were indicted for conspiracy to possess cocaine with
intent to distribute and for possession with intent to
distribute. 21 U.S.C. 841, 846. After guilty pleas, they
were sentenced to mandatory minimum terms of 10 years'
imprisonment, as well as supervised release and the ordinary
special assessment. They appeal their sentences on the
ground that the government manipulated upward the amount of
cocaine for which they were held responsible.
The underlying facts are largely undisputed. In August
1992, the FBI began a reverse sting operation in Boston, its
undercover agent (Antonio Dillon) purporting to act as a
high-volume wholesaler of cocaine seeking new distributors in
the area. On August 26, 1992, Dillon met with Villegas who
on behalf of Guillermo Montoya and his brother Hernan was
seeking a new source of supply of cocaine. Like many of the
subsequent encounters, this meeting was taped by the FBI.
Villegas said that the Montoyas were, by their own
account, selling 15 to 25 kilograms of cocaine a week and
paying between $19,500 and $20,000 per kilogram. He also
said that he had been in the cocaine business with the
Montoyas for six years. Villegas made similar statements at
a September 7 meeting, although he there said that a New
Jersey supplier was providing the brothers cocaine at
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$16,000-18,000 per kilogram. Villegas also offered to rent
his garage to store the cocaine.
On September 18, 1992, Dillon met with Villegas,
Guillermo Montoya and John Berio Montoya at a Boston
restaurant. Dillon said that he would require a minimum
purchase of 10 kilograms, with a down payment equal to three
kilograms and payment of the balance in 15 to 20 days after
delivery. Dillon requested $19,500 per kilogram; Guillermo
Montoya balked; and Dillon ultimately offered a price of
$17,000 per kilogram. Guillermo Montoya said he would
consider buying 10 kilograms with a down payment of $50,000.
There were subsequent meetings in December 1992 and the
first three months of 1993. Pleading a shortage of cash,
Guillermo Montoya got the down payment reduced to a $5,000
advance for expenses (paid by John Berio Montoya in February
1993) and a $20,000 initial payment on delivery of the 10
kilograms. In a March meeting, Villegas and Guillermo
Montoya discussed the possibility after the first purchase of
increasing the sales from 10-15 kilograms per week to 20
kilograms. On March 30, 1993, the 10 kilograms were
delivered and the appellants were then arrested.
At sentencing, each appellant objected to the
determination in the pre-sentence report that the base
offense level should be premised on a 10-kilogram
transaction. The appellants did not dispute that 10
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kilograms had been ordered and delivered, nor claim that the
$17,000 price was below the market price. But they said that
the government had manipulated the quantity upward by
reducing the down payment from $50,000 to $25,000. Based on
Dillon's original proposal of a one-third down payment,
appellants urged that each appellant should be held liable
only for three or four kilograms.
At the close of the sentencing hearing, the district
court found that there was no manipulation of sentencing
factors. The district judge said that the appellants were
predisposed to purchase 10 kilograms and that they could and
did purchase this amount. Since any amount of five kilograms
or more triggers a mandatory minimum of 10 years'
imprisonment, 21 U.S.C. 841(b)(1)(A), the district court
imposed this sentence. The present appeals followed.
At the threshold, the government tells us that we lack
jurisdiction over the appeals, saying that appellants cast
their claim in the district court as one for a downward
departure. Refusals to depart are not reviewable unless the
district court has mistaken its own legal authority or made
some other mistake of law. United States v. DeCosta, 37 F.3d
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5, 8 (1st Cir. 1994). Appellants say that their request was
not limited to a departure from the guideline range, pointing
out that they asked the court to sentence below the statutory
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minimum.
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This is one of these superficially confusing situations
in which "jurisdiction" is in certain respects intertwined
with "the merits"; and "the merits" in turn depend on a still
evolving body of case law. Under umbrella terms like
sentencing entrapment and sentencing factor manipulation, the
circuit courts have provided a certain amount of guidance,
but there are some divisions among the circuits, and--even in
the mainstream--more criteria than rules. This is to be
expected, for the problem arises in context that is
comparatively recent.
Undercover agents of the state have been "plotting" with
potential defendants since Elizabethan times, and probably
long before. But in federal courts the broad latitude
formerly allowed to a sentencing judge made it easy to
account for any equity. This discretion has now been
curtailed by sentencing guidelines and statutory minimums,
often keyed to amounts of drugs involved and dollars stolen.
In turn, attention has turned to escape-hatch arguments which
might exclude from the equation a portion of the criminal
conduct.
Our own cases have concluded that where government
agents have improperly enlarged the scope or scale of the
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crime, the sentencing court "has ample power to deal with the
situation either by excluding the tainted transaction from
the computation of relevant conduct or by departing from the
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[guideline sentencing range]." United States v. Connell, 960
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F.2d 191, 195 (1st Cir. 1992). See also United States v.
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Gibbens, 25 F.3d 28, 30-32 (1st Cir. 1994); United States v.
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Brewster, 1 F.3d 51, 55 (1st Cir. 1993). We think that this
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broad principle applies to statutory minimums as well as to
the guidelines.
Admittedly, there is no statute to this effect. But
there is also no statute enacting the familiar defense of
entrapment or other defenses like duress or necessity. 1 W.
LaFave & A. Scott, Substantive Criminal Law, 5.2-5.4
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(1986). In creating such supplementary doctrines, courts
have usually been careful not to insist on much more than
minimum decency seems to require. As this court said in
Connell, "[c]ourts should go very slowly before staking out
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rules that will deter government agents from the proper
performance of their investigative duties." 960 F.2d at 196.
It is no accident that statements condemning sentencing
factor manipulation are usually dicta. A defendant cannot
make out a case of undue provocation simply by showing that
the idea originated with the government or that the conduct
was encouraged by it, e.g., Brewster, 1 F.3d at 55, or that
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the crime was prolonged beyond the first criminal act, e.g.,
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Gibbens, 25 F.3d at 31, or exceeded in degree or kind what
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the defendant had done before. E.g., Connell, 960 F.2d at
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195-96. What the defendant needs in order to require a
reduction are elements like these carried to such a degree
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that the government's conduct must be viewed as
"extraordinary misconduct." Gibbens, 25 F.3d at 31.
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The standard is high because we are talking about a
reduction at sentencing, in the teeth of a statute or
guideline approved by Congress, for a defendant who did not
raise or did not prevail upon an entrapment defense at trial.
The standard is general because it is designed for a vast
range of circumstances and of incommensurable variables. See
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Gibbens, 25 F.3d at 31. The most important of these, as we
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have stressed, is likely to be the conduct of the government,
including the reasons why its agents enlarged or prolonged
the criminal conduct in question. See id. at 31 & n.3.
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In other situations, the defendant's own predisposition
may enter into the calculus, see Connell, 960 F.2d at 196,
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speaking of conduct "overbear[ing] the will of a person
predisposed only to committing a lesser crime." But the
analogy at sentencing to ordinary entrapment is not often
going to help a defendant who is arguing only about the
number or size of the transactions. Having crossed the
reasonably bright line between guilt and innocence, such a
defendant's criminal inclination has already been
established, and the extent of the crime is more likely to be
a matter of opportunity than of scruple.
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Because of the diversity of circumstances, we have
declined to create detailed rules as to what is or is not
undue manipulation, Gibbens, 25 F.3d at 31, but we think it
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is useful now to be very candid in saying that garden variety
manipulation claims are largely a waste of time.
Nevertheless, where a defendant wants to argue that there has
occurred a sentencing manipulation amounting to
"extraordinary misconduct," we think that the claim need not
be limited to a request for a discretionary departure, that
it applies to statutory mandatory minimums as well as to
guideline ranges, and that it is subject to appellate review.
Of course, the burden of proof is upon the defendant to
show that he is entitled to a reduction. Gibbens, 25 F.3d at
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31-32. The district court's fact findings on this issue, as
on other fact questions, are subject to the clearly erroneous
standard. Id. at 30. Because manipulation is largely a
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fact-bound inquiry, even the district court's ultimate
judgment whether the government's conduct is outrageous or
intolerable is not lightly to be disregarded. Id. at 32; cf.
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United States v. Rosen, 929 F.2d 839, 844 (1st Cir.), cert.
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denied, 502 U.S. 819 (1991).
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Against this backdrop, we decline to dismiss this appeal
for lack of jurisdiction, but affirm on the merits with
little hesitation. This case involves a single transaction,
not a string of crimes prolonged by the government; the price
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was within the market range; and the appellants by their own
recorded admissions were well established drug dealers or
abetters who had previously dealt in very substantial
quantities. As in most stings, this episode began with the
government; but as to pressure, there was none, let alone
outrageous or intolerable pressure. Nor was there an
indication of any illegitimate motive on the part of the
agents.
All that agent Dillon did was to reduce the down payment
in the face of claims by appellants that they were short of
cash to make the full down payment originally proposed. This
is so far from government misconduct that we would not have
written a published opinion but for two considerations. One
is the government's jurisdictional objection and the need to
make clear the procedural framework in which we will consider
such claims. And the other is to make very explicit the
plain import of our previous cases: sentencing factor
manipulation is a claim only for the extreme and unusual
case.
One qualification remains to be mentioned. What we have
said is directed to claims that the district court must
disregard at sentencing a portion of the criminal conduct
because it was the product of impermissible government
manipulation. Quite possibly--we need not definitively
decide the point--a district court may order a discretionary
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downward departure from the guideline range on something less
than extraordinary misconduct. Indeed, this is made fairly
clear for one narrow class of conduct, by U.S.S.G. 2D1.1,
comment. (n.17), which provides:
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.
It is doubtful that expressio unius concepts would
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prevent a defendant from seeking such a discretionary
downward departure in other analogous circumstances--although
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not literally within this application note--assuming that the
general precepts for downward departures were met. U.S.S.G.
5K2.0 (not-contemplated-by-commission test); see also
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United States v. Rivera, 994 F.2d 942 (1st Cir. 1993). But,
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by the same token, a refusal to depart is normally
unreviewable. We mention departures to make clear that the
stringent standards discussed above do not supplant the
guidelines' own rules for discretionary departures.
That the same core of facts might give rise to two
related but ultimately different claims at sentencing is a
complexity, although one not often likely to affect the
outcome. But in addition to the different procedural
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framework, there is a difference in emphasis. Sentencing
manipulation, as we have stressed, is primarily concerned
with impermissible conduct by the government. By contrast,
the guidelines, and by extension departures from the
guidelines, are centrally concerned with a proper sentence
for the defendant in light of his own conduct and his own
criminal history.
Affirmed.
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