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January 25, 2008

Panel splits in today's circuit sentencing stories

The end of a busy week brings two notable split decisions on sentencing issues from panels of the Sixth and Ninth Circuits:

Cherer seem to be the more consequential of the opinions, in part because it has the first extended Ninth Circuit discussion of Gall.  Also, because of the split and the presence of a district judge on the panel, I would guess Cherer has some en banc potential.

January 25, 2008 at 04:31 PM | Permalink


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In Cherer, though there may be no entrapment of the underlying offense because of disposition, it is still entrapment to urge someone to cross state lines when there is no proof, or even any suggestion, that there was a disposition to do that. In other words, crossing state lines to commit the crime is a crime entirely manufactured by the FBI even if there was other act evidence of predisposition and sexual intent. Crossing state lines is not a fetish of any kind that I know of, though it's possible there is a connection between cartography and pornography. Maps probably excite someone, somewhere.

Without any knowledge of predilection to cross state lines, the FEDS should have turned the case over to the state, or notified his probation officer and had him violated. The only way the FEDS could obtain jurisdiction was to entrap him into crossing state lines. So that is what they did.

Posted by: George | Jan 25, 2008 10:45:40 PM

The opinion is correct. Even assuming Kimbrough alows a district judge to take into consideration a policy dispute between the advisory guidline to this crime and a violent rape, the fudge would not be required to do that. It appears Noonan wants to sit in judgment of all sentencing policy choices. Gall places the power with the lower court.

Posted by: lawdevil | Jan 28, 2008 1:55:53 PM

Again, re: Cherer:

"Sentencing entrapment or sentence factor manipulation occurs when a defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment." United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994) (internal quotation marks and citation omitted). A defendant bears the burden of proving sentencing entrapment by a preponderance of the evidence. See United States 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. See id.

"There are two possible remedies for sentencing entrapment. "First, a sentencing court may decline to apply the statutory penalty provision for the greater offense that the defendant was induced to commit, and instead apply the penalty provision for the lesser offense that the defendant was predisposed to commit." Id. Alternatively, the sentencing court may grant a downward departure from the sentencing range for the greater offense that the defendant was induced to commit. See id.

"However, because a district court may not impose a sentence below a statutory minimum term, the only available remedy for sentencing entrapment where the defendant is faced with a mandatory minimum term is to apply the penalty provision for the lesser offense. Cf. Castaneda, 94 F.3d at 595; Naranjo, 52 F.3d at 251 n.14. Therefore, if the government induced Riewe to sell more methamphetamine than he was predisposed to sell, the district court should have subtracted the amount of drugs tainted by the entrapment, and thereby reduced his mandatory minimum sentence to five years under 21 U.S.C. S 841(b)(1)(B)(viii). Since the reduction in the quantity of drugs would result in the application of a different statutory penalty provision altogether, this remedy does not involve a departure from the applicable statutory minimum. See Castaneda, 94 F.3d at 595." [9th Circuit, USA v RIEWE No. 9710105 - 01/15/99.]

So, there really is the potential of a crossing state lines "sentencing entrapment."

Posted by: George | Jan 28, 2008 5:14:48 PM

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