LYNN, District Judge:
This appeal arises from a series of controlled drug purchases conducted over a period of nearly seven months during 2006 and 2007.
At trial, the defendant, Anthony Boykin ("Boykin"), was convicted on five counts of distribution of methamphetamine, one count of distribution of cocaine, and one count of conspiracy to distribute. His appeal challenges the sufficiency of the evidence on Count Six, one of the counts for distribution of methamphetamine. He also challenges his sentence, arguing that the district court erred in (1) not departing downward for sentencing manipulation; (2) not finding his criminal history to be overstated; and (3) not sustaining objections to certain sentencing enhancements.
The Court finds the evidence was sufficient to convict Boykin on Count Six. While the Court finds deeply troubling the conduct of the involved law enforcement agencies, the improprieties do not warrant reversal due to sentencing manipulation. Finally, the Court finds it was not an abuse of discretion for the district court to find the defendant's criminal history to be accurately stated, nor for it to apply the enhancements challenged. Therefore, we affirm the district court's rulings on each of the grounds raised on appeal.
Boykin and his brother, Patrick, sold methamphetamine and cocaine to three
On August 29, 2006, the government directed a confidential source, Rachel Rios, to call Boykin to purchase two ounces of methamphetamine. Boykin instructed Rios to go to an apartment complex, where she met with an unidentified female while he watched the transaction from a second-story window. The government later deactivated Rios as a source when it discovered that she was still selling methamphetamine, and as a result, the government recruited a new confidential source, Crystal Housley.
Housley participated in two controlled purchases involving Boykin, on September 13, 2006, and September 28, 2006. In the first purchase, Housley called Boykin and asked to purchase cocaine. He directed her to meet with Patrick, who completed the transaction. In the second purchase, Housley called Boykin and asked to buy methamphetamine. Boykin met her at Wilbur Market and completed the transaction.
On or about October 27, 2006, Housley was arrested on federal fraud charges. However, she was not deactivated as a source until December 23, 2006, after she pled guilty to fraud. Housley had been handled by Detective Thomas Oakes, a narcotics detective with the Yuba County Sheriff's Department and a member of NET-5, with whom she had a close relationship. At Boykin's trial, Detective Oakes testified that upon learning of Housley's pending federal fraud charges, he immediately delivered her to federal agents, deactivated her as an informant, and paid no further monies to her after she was arrested. This testimony was inaccurate, and ultimately led to a stipulation that, in fact, Housley continued to work as an informant for almost two months after her arrest, and she was paid during that time period.
Detective Oakes' brother, Jonathan "Johnny" Oakes, was a friend or associate of the Boykins. Johnny was known to "hang out and be in contact" with them, and Detective Oakes testified that Johnny and Boykin played pool together.
On appeal, Boykin challenges the sufficiency of the evidence only for the drug transaction of February 9, 2007. Patrick arranged for that transaction to take place at 251 Wilbur Avenue. Both brothers were outside the residence when Walton arrived. Walton left with Patrick to pick up a scale and met an unidentified Hispanic male at Wilbur Market to obtain the drugs, after which they returned to 251 Wilbur Avenue. Walton remained in Patrick's truck while Patrick went in the house. Boykin had also left 251 Wilbur Avenue, but he returned after Patrick and Walton did. An unidentified white male also entered the residence while Walton sat in Patrick's truck. Officers conducting surveillance testified that Patrick made several trips in and out of 251 Wilbur Avenue before completing the transaction with Walton. The government also introduced evidence that several phone calls were made between Patrick and Boykin during the relevant time period. The evidence showed that Patrick began arranging for the drug transaction at 11:58 a.m., and it took place at 2:11 p.m. Meanwhile, Boykin called Patrick at 12:35 p.m., and Patrick called Boykin at 1:51 p.m. and 3:04 p.m.
On March 29, 2007, law enforcement officials executed search warrants at 251 Wilbur Avenue, Patrick's residence, and Boykin's residence. At Boykin's residence, agents seized $27,000 in cash, scales with drug residue, and cellular telephones used during the controlled purchases. At 251 Wilbur Avenue, agents found a small amount of methamphetamine with packaging material, two scales, and several guns, including a sawed-off shotgun with Boykin's fingerprints.
Boykin and Patrick were charged by indictment with one count of conspiracy to distribute and possess with intent to distribute methamphetamine and cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1); six counts of distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and one count of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1). Patrick pled guilty to the conspiracy count, but Boykin proceeded to a jury trial. On March 4, 2011, the jury returned its verdict, finding Boykin guilty of the conspiracy count and six counts of distribution, and acquitting him of one count of distribution of methamphetamine.
The Presentence Report (PSR) recommended a base offense level of 34, plus a two-level increase under United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1(b)(1) for possession of a firearm, resulting in an Adjusted Offense Level of 36. The PSR recommended 262 months of incarceration, which was at the low end of the advisory guideline range, after taking into account Boykin's criminal history level of IV.
The district court gave Boykin a two-level reduction for acceptance of responsibility,
Boykin filed a timely notice of appeal, challenging the sufficiency of the evidence on Count Six and arguing that the district court erred by not granting a downward departure for sentencing manipulation, and by not finding his criminal history to be overstated. After initial briefing was complete, Boykin filed a pro se supplemental brief, arguing the district court committed plain error by applying a two-level enhancement for possession of a firearm, and by failing to conduct an individualized analysis of his participation in the conspiracy. On September 24, 2014, Boykin's counsel sent a letter to the Court, requesting remand in light of Amendment 782 to the U.S. Sentencing Guidelines.
The court reviews de novo a challenge to the sufficiency of the evidence. United States v. Antonakeas, 255 F.3d 714, 723 (9th Cir.2001). "Viewing the evidence in the light most favorable to the government, [the Court] must determine whether any rational jury could have found [the defendant] guilty of each element of the crime beyond a reasonable doubt." United States v. Esquivel-Ortega, 484 F.3d 1221, 1224 (9th Cir.2007) (citation omitted). The trier of fact has the responsibility "to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
A conviction for possession with intent to distribute may be based on one of three legal theories: (1) co-conspirator liability; (2) aiding and abetting; and (3) exercising dominion and control over the contraband. United States v. Sanchez-Mata, 925 F.2d 1166, 1168 (9th Cir.1991) (citations omitted).
Boykin argues the government failed to establish that he actually or constructively possessed the methamphetamine on February 9, 2007. However, because the jury was instructed on an aiding and abetting theory of liability, it was not necessary for the government to show actual or constructive possession, or that Boykin actually sold the drugs. See United States v. Gillock, 886 F.2d 220, 222 (9th Cir.1989). Rather, it was enough to show that Boykin associated with the criminal venture, participated in it, and sought, by his actions, to make it a success. See id. Circumstantial evidence may support a conviction for aiding and abetting. United States v. Corona-Verbera, 509 F.3d 1105, 1119 (9th Cir.2007).
Here, there was sufficient evidence for a rational jury to find that Boykin aided and abetted Patrick's distribution of methamphetamine on February 9, 2007. Patrick arranged the transaction and told Walton to come to 251 Wilbur Avenue. Both Patrick and Boykin were there when Walton arrived. After leaving briefly, Patrick and Walton returned to 251 Wilbur Avenue. Boykin, who had also left, returned to 251 Wilbur Avenue as Patrick was making trips back and forth between the residence and Patrick's truck, where Walton remained and where the drug transaction ultimately took place. The government's evidence also showed three phone calls between Boykin and Patrick on February 9, 2007, two of which were close
Considering all of the evidence, including the conspiracy and the fact that Boykin and Patrick collaborated on multiple drug transactions, in person and by phone, a rational jury could have found that Boykin and Patrick collaborated on the drug transaction of February 9, 2007. See United States v. Smith, 832 F.2d 1167, 1172 (9th Cir.1987) ("Hence, this is not a case involving nothing more than a simple, isolated purchase."). For the aforementioned reasons, we affirm the jury's conviction on the February 9, 2007 count for distribution of methamphetamine.
The Ninth Circuit has not always been careful in recognizing the distinction between "sentencing entrapment" and "sentencing manipulation." See, e.g., United States v. Si, 343 F.3d 1116, 1128 (9th Cir.2003) ("the result of sentencing factor manipulation, also known as sentencing entrapment"); United States v. Riewe, 165 F.3d 727, 729 (9th Cir.1999); United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir.1994) (describing "sentencing entrapment" as "sentence factor manipulation"). When a defendant can show he was predisposed to commit a minor or lesser offense, but was entrapped to commit a greater offense, subject to greater punishment, he may be eligible for a downward departure or variance for "sentencing entrapment." United States v. Mejia, 559 F.3d 1113, 1118 (9th Cir.2009). In contrast, "sentencing manipulation" occurs when the government increases a defendant's guideline sentence by conducting a lengthy investigation which increases the number of drug transactions and quantities for which the defendant is responsible. United States v. Torres, 563 F.3d 731, 734 (8th Cir.2009). In other words, what sets "sentencing entrapment" apart from "sentencing manipulation" is that, in the latter, "the judicial gaze should, in the usual case, focus primarily — though not necessarily exclusively — on the government's conduct and motives." United States v. Fontes, 415 F.3d 174, 181-82 (1st Cir.2005).
To prove sentencing manipulation, a defendant must show "that the officers engaged in the later drug transactions solely to enhance his potential sentence." Torres, 563 F.3d at 734. Cases from other circuits have granted relief for sentencing manipulation in "only the extreme and unusual case" involving "outrageous governmental conduct." See Fontes, 415 F.3d at 180; United States v. Beltran, 571 F.3d 1013, 1018-19 (10th Cir.2009) (explaining that, based on due process principles, sentencing manipulation "allow[s] a
Although Boykin argued below that his sentence should be reduced due to sentencing entrapment, the substance of his argument and the district court's analysis indicate that Boykin mislabeled the argument. In fact, Boykin's challenge addressed the conduct of law enforcement rather than his predisposition. Given the thrust of Boykin's argument and the lack of precision with which we have previously used the terms "sentencing entrapment" and "sentencing manipulation," we review the district court's factual findings in the sentencing phase for clear error. See United States v. Castaneda, 94 F.3d 592, 594 (9th Cir.1996). "In order to reverse a district court's factual findings as clearly erroneous, we must determine that the district court's factual findings were illogical, implausible, or without support in the record." United States v. Spangle, 626 F.3d 488, 497 (9th Cir.2010).
To support his sentencing manipulation argument, Boykin points to three facts that allegedly motivated law enforcement to induce further controlled purchases from the Boykins: (1) the FBI memo reviewing the progress of the investigation against Patrick, Boykin, and others, and explaining that additional drug buys would be necessary to reach the sentencing goals set by the U.S. Attorney's Office; (2) Detective Oakes' close relationship with confidential source Housley; and (3) the close relationship of Detective Oakes' brother, Johnny, to Boykin and Patrick. Boykin argues that Detective Oakes' participation in the investigation constitutes outrageous government conduct, which supports a finding of sentencing manipulation under a test employed by the Tenth Circuit. See Beltran, 571 F.3d at 1017-18. In the alternative, Boykin argues that he was entitled to a downward departure because law enforcement engaged in additional transactions solely to increase his sentence, urging us to follow precedent from the Eighth Circuit. See Torres, 563 F.3d at 734.
Regardless of the test employed, Boykin fails to demonstrate that the district court's findings were clearly erroneous. With regard to the test in Beltran, although the Court is deeply troubled by the participation of Detective Oakes, the investigation fell just shy of constituting outrageous government conduct. As a result of his unusually close relationship with informant Housley and his brother's friendship with the Boykins, Oakes clearly had multiple incentives to prolong the investigation.
With respect to the Torres test, Boykin asks the Court to hold that it is improper for the government to continue an investigation merely to enhance the defendant's sentence, and that mitigating a defendant's sentence is a fitting tool to deter such improper investigations. This Court has previously held that a district court may consider the full amount of drugs involved when law enforcement arranges multiple controlled drug purchases for legitimate investigatory reasons. United States v. Baker, 63 F.3d 1478, 1500 (9th Cir.1995). Thus, the issue here is whether legitimate reasons existed for the investigation or whether it was solely intended to increase Boykin's sentence.
In Baker, this Court rejected the defendant's argument that his conviction should be reversed because the government stretched out its investigation to increase the drug quantity and potential charges against the defendant after it had sufficient evidence to indict. Id. The Court "decline[d] to adopt a rule that, in effect, would find `sentencing manipulation' whenever the government, even though it has enough evidence to indict, opts instead to wait in favor of continuing its investigation" because "[s]uch a rule `would unnecessarily and unfairly restrict the discretion and judgment of investigators and prosecutors,'" and "[p]olice ... must be given leeway to probe the depth and extent of a criminal enterprise, to determine whether coconspirators exist, and to trace ... deeper into the distribution hierarchy." Id. (internal quotations and citations omitted). Finally, the Court emphasized that because "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." Id.
Here, there was evidence that the government extended its investigation to build a stronger case against Boykin. Of particular concern was that the government's first two confidential sources — Rios and Housley — were both convicted of serious offenses during the period they were acting as confidential sources against the Boykins. Therefore, it was reasonable for law enforcement to extend the investigation with more controlled purchases by a more credible confidential source. This is precisely what law enforcement did in having Walton make controlled purchases in February and March 2007.
Further, the existence of the FBI memo did not require the district court to conclude that the investigators extended the investigation solely to enhance Boykin's potential sentence. Although the memo specifically recommended drug volumes to establish charges, its text is too ambiguous to establish that the agents' sole intent was to enhance Boykin's sentence, because it discusses several defendants earlier in the text and the phrase in question does not clearly refer to Boykin:
In fact, on January 31, 2007, when the memo was circulated, Boykin had already participated in controlled purchases involving over 50 grams of methamphetamine, which was the amount described in the memo as necessary to meet the five-year statutory mandatory minimum sentence.
Boykin also argues the district court erred by failing to look at the underlying facts of his criminal history when deciding if it was overstated.
The Court reviews de novo a district court's interpretation of sentencing guidelines, and the application of the sentencing guidelines is reviewed for abuse of discretion. United States v. Hernandez-Guerrero, 633 F.3d 933, 935 (9th Cir.2011). "A sentencing court is permitted under U.S.S.G. § 4A1.3 to depart from a recommended sentence if it believes that a defendant's criminal history category significantly over-represents the seriousness of his criminal record or the likelihood that he will commit further crimes." United States v. Govan, 152 F.3d 1088, 1094 (9th Cir.1998). Furthermore, the district court retains discretion to depart downward from the guidelines should it find "mitigating circumstances of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." United States v. Brown, 985 F.2d 478, 481 (9th Cir.1993) (quoting 18 U.S.C. § 3553(b)) (alteration omitted). The district court may consider "without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited [by the guidelines or other law]." Id. (citing U.S.S.G. § 1B1.4).
At the sentencing hearing, Boykin gave a detailed explanation of the facts and circumstances surrounding his convictions for vandalism and a loud noise disturbance, and argued that the facts underlying those offenses were not sufficiently egregious to warrant two additional points being counted toward his criminal history category. The district court responded that "you get on a slippery slope when you start trying to look at the underlying facts and look beyond the judgment in determining the criminal history," and stated that the "criminal history [was] calculated properly," and that it did not "believe that the criminal-history category [overstated] the seriousness of the criminal history." This ruling was not an abuse of discretion, and the trial court was not required to give a further explanation.
It was not an abuse of discretion for the court to determine these incidents were properly calculated in determining Boykin's criminal history.
Finally, Boykin argues that the district court erred by applying a two-level enhancement for firearm possession. This Court reviews for clear error the district court's factual determination that the firearm enhancement in U.S.S.G. § 2D1.1(b)(1) applies. United States v. Kelso, 942 F.2d 680, 681 (9th Cir.1991).
The defendant argues the district court never connected him to the handgun. However, Boykin misinterprets both the enhancement and his burden. The two-level sentencing adjustment is appropriate "unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.1 n. 3 (2010). The government "must prove possession by a preponderance of the evidence before the court can apply the two-level increase under § 2D1.1(b)(1)." United States v. Cazares, 121 F.3d 1241, 1244 (9th Cir.1997) (quoting United States v. Mergerson, 4 F.3d 337, 350 (5th Cir.1993)).
This Court has defined "possession" broadly. United States v. Pitts, 6 F.3d 1366, 1372 (9th Cir.1993). "To demonstrate constructive possession the government must prove `a sufficient connection between the defendant and the contraband to support the inference that the defendant exercised dominion and control over the [contraband].'" Kelso, 942 F.2d at 682 (quoting United States v. Disla, 805 F.2d 1340, 1350 (9th Cir.1986)). Where a defendant is convicted of conspiracy, the firearm enhancement can be based on all of the offense conduct, not just the crime of conviction. United States v. Willard, 919 F.2d 606, 610 (9th Cir.1990), cert. denied, 502 U.S. 872, 112 S.Ct. 208, 116 L.Ed.2d 167 (1991).
Here, agents recovered several firearms from the residence at 251 Wilbur Avenue, including a sawed-off shotgun with Boykin's fingerprints. The evidence showed Boykin engaged in numerous drug transactions at 251 Wilbur Avenue. Thus, the court did not clearly err by finding Boykin possessed a weapon connected with the offense. See Pitts, 6 F.3d at 1372.
Boykin also argues the district court failed to make a proper individualized assessment of his relevant conduct in the conspiracy. He argues his tenuous connection with the transaction of February 9, 2007 made that drug quantity unforeseeable to him.
For reasons already discussed, the evidence was sufficient to convict Boykin of aiding and abetting the transaction of February 9, 2007. Therefore, the drug quantity attributed to him was foreseeable. See Willard, 919 F.2d at 610.
For the foregoing reasons, we affirm the sentence imposed by the district court.
