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April 6, 2010

Effective review of federal sentencing law on sentencing entrapment

The Third Circuit released an opinion today in US v. Sed, No. 09-1489 (3d Cir. Apr. 6, 2010) (available here), which includes this effective review of the disparate circuit law on the concept of "sentencing entrapment":

We have neither adopted nor rejected the doctrines of sentencing entrapment and sentencing factor manipulation. See United States v. Tykarsky, 446 F.3d 458, 476 n.13 (3d Cir. 2006); United States v. Raven, 39 F.3d 428, 438 (3d Cir. 1994).  Almost all of our sister courts of appeals have opined about both doctrines, reaching varied conclusions. 

For example, the Courts of Appeals for the First, Eighth, Ninth and Tenth Circuits have adopted sentencing entrapment and sentencing factor manipulation, but they have disagreed as to whether they are separate defenses.  See United States v. Jaca-Nazario, 521 F.3d 50, 57 (1st Cir. 2008) (both are identical, valid defenses); United States v. Torres, 563 F.3d 731, 734 (8th Cir. 2009) (accepting sentencing factor manipulation); United States v. Martin, 583 F.3d 1068, 1073 (8th Cir. 2009) (accepting sentencing entrapment, as distinct from manipulation); United States v. Riewe, 165 F.3d 727, 729 (9th Cir. 1999) (treating both defenses as identical and valid); United States v. Beltran, 571 F.3d 1013, 1017-18 (10th Cir. 2009) (accepting both as identical).

On the other hand, the Courts of Appeals for the Fourth, Fifth, Sixth, and District of Columbia Circuits have rejected both doctrines.  See United States v. Jones, 18 F.3d 1145, 1153-54 (4th Cir. 1994); United States v. Tremelling, 43 F.3d 148, 151 (5th Cir. 1995) (rejecting sentencing factor manipulation); United States v. Snow, 309 F.3d 294, 295 (5th Cir. 2002) (rejecting sentencing entrapment); United States v. Guest, 564 F.3d 777, 781 (6th Cir. 2009); United States v. Hinds, 329 F.3d 184, 188 (D.C. Cir. 2003).

Finally, the Courts of Appeals for the Seventh and Eleventh Circuits have reached mixed results.  See United States v. Turner, 569 F.3d 637, 641 (7th Cir. 2009) (sentencing entrapment valid but sentencing manipulation not); United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007) (sentencing factor manipulation valid but sentencing entrapment not).

And where does the Thrd Circuit jump in with Sed?  Nowhere: "Once again, we need not rule on the legal merits of either doctrine because Sed cannot establish the requisite factual predicates for sentencing entrapment or sentencing factor manipulation."

April 6, 2010 at 03:09 PM | Permalink


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Can someone tell me if either of the two (or both combined) following scenarios would comprise sentencing manipulation?
(1) Drug dealer A is targeted by an informant who has told the DEA Agent that Drug Dealer A is "sitting on 40 kilos of cocaine." Agent asks informant to request the delivery of 1 kilo. When Drug dealer A shows up with a detergent box, from which the agent confiscates the 1 kilo in the box, then meet with Drug Dealer A and his attorney and the Assistant U.S. Attorney, who inform Drug Dealer A that if he can help them set someone else up, he will receive leniency. He then names Friend B, and says Friend B supplied him with the kilo that he delivered. However, agents explain that 1 kilo is not enough. So, six hours after his arrest, Drug Dealer A suddenly remembers that he actually delivered 2 kilos & the agent goes back to the place of delivery and confiscates a second kilo.

(2) AUSA asks the grand jury to indict Friend B for conspiracy and for delivery of 5 kilos. Grand jury states they only see 2 kilos, and indict for 2 kilo. AUSA seeks a superseding indictment against both Drug Dealer A and Friend B for 5 kilos. Grand Jury returns superseding indictment for Drug Dealer A, and now Friend B is no longer listed as Drug Dealer A's co-conspirator; but as his supplier (of the 2 kilos). Because Drug Dealer A admits lying before trial, he is unavailable to be a witness in the trial of Friend B. Friend B is acquitted of the 2 kilo delivery, and although no witnesses are brought into the trial to try to prove a conspiracy, he is convicted of the conspiracy based on a convincing closing arguments sans facts (of which there were no objections by the defense attorney). At the end of the trial, the jury is given a special verdict and told by AUSA to check off "5 kilos or more" as the quantity, although that quantity was never argued, and 2 of the 5 kilos consist of acquitted conduct, and the remaining 3 are speculative?

Posted by: hope4justice | Apr 6, 2010 6:23:35 PM

One other thing - Friend B, although named as Drug Dealer A's supplier of the 2 kilos (of which he was acquitted) never received a superseding indictment for 5 kilos.

Posted by: hope4justice | Apr 6, 2010 6:26:03 PM

Where's Bill?


Posted by: Daniel | Apr 7, 2010 1:13:04 AM

hiding....the truth hurts!

Posted by: rodsmith | Apr 7, 2010 2:33:52 AM

Come on Daniel, do you really expect Bill to ever concede that one of his beloved prosecutors would ever stoop so low as to manipulate a sentence and in order to argue this one he would have to, at least, concede the possibility?

Posted by: LMAO Too | Apr 7, 2010 1:06:25 PM

what do you think of a dea agent contacting my client and 6 other defendants to do a home invasion and steal 30 k of cocaine , he also tells them where to go on this non existent cocaine and to dress as police officers and bring guns. Of course they are now looking at some high guidelines plus the 924 c enhancement.

Posted by: candelario elizondo | Feb 15, 2012 1:55:49 PM

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