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."