U.S. v. Sanchez

• Decision Date: 16 April 1998
• Docket Number: No. 95-5546,95-5546
• Citation: 138 F.3d 1410
• Parties: 11 Fla. L. Weekly Fed. C 1257 UNITED STATES of America, Plaintiff-Appellee, v. Miguel SANCHEZ, Jose Manuel Duran, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1410

138 F.3d 1410

11 Fla. L. Weekly Fed. C 1257

UNITED STATES of America, Plaintiff-Appellee, v. Miguel SANCHEZ, Jose Manuel Duran, et al., Defendants-Appellants.

No. 95-5546.

United States Court of Appeals, Eleventh Circuit.

April 16, 1998.

David Raben, Sheryl Lowenthal, Coral Gables, FL, for Sanchez.

Richard Docobo, Miami, FL, for Duran.

Raul Ordonez, Jr., Miami, FL, for Diaz.

Aloyma Sanchez, Dawn Bowen, Carol Herman, Robert Cornell, Assts. U.S. Attys., Miami, FL, for Plaintiff-Appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT and BIRCH, Circuit Judges, and RONEY, Senior Circuit Judge.

RONEY, Senior Circuit Judge:

The charges in this case grew out of a government created reverse sting scenario by which the defendants agreed to invade and steal drugs from a house they thought contained illegal drugs. In fact, there was no house and there were no drugs. Five co-defendants, however, three of whom are on this appeal, conspired with a government informant and with each other. That conspiracy violates the drug laws of the United States.

Miguel Sanchez, Guillermo Diaz and Jose Manuel Duran appeal their convictions and sentences for conspiracy to possess with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. §§ 846 and 841. Diaz appeals also his conviction and sentence for using a firearm in the commission of a drug offense under 18 U.S.C. § 924(c). We affirm as to all issues except that we vacate the enhancement sentence of Duran and remand for strict compliance with 21 U.S.C. § 851.

A general summary of the facts without all the details is sufficient for an understanding of the issues raised on this appeal. In December 1994, the Bureau of Alcohol, Tobacco and Firearms (ATF) received information from a confidential informant about a group of armed home invaders who would "rip-off" narcotics from stash houses. Working with an informant and recording some of the conversations, the government created a reverse sting operation by which the defendants agreed to all the details of a home invasion. They were arrested in a parking lot where they had assembled in readiness for going to the stash house to steal the drugs, which they had been told would involve 50 kilograms of cocaine and 300 pounds of marijuana.

Defendants raise numerous issues on appeal which will be discussed separately, along with such other facts as may be necessary to understand our decision as to each issue. It is understood that if any defendant would prevail on an issue that applied equally to the other defendants, they would all get the advantage of that decision even if the point was not fully argued in the individual brief.

I.

As to any argument about the insufficiency of evidence to support the conspiracy convictions, we would affirm under Eleventh Cir. R. 36-1. The recorded conversations and the testimony of the government agents was clearly sufficient to support the jury verdict of guilt as to all of the defendants.

II.

A common and more troublesome issue presented by all defendants on this appeal is the fact that the crime was, in effect, created by the government. There being no real drugs involved, the amount used for sentencing guideline purposes was the amount set by the government informant under direction from a government agent.

Whether argued as outrageous government conduct, sentencing entrapment, sentencing factor manipulation, or as a quarrel with the amount of drugs used for sentencing purposes, however, the law of this Circuit does not permit a reversal under the facts of this case. Defendants argue that the conduct of the government in creating a fictitious crime for them to commit--robbery of a non-existent house allegedly stocked with large quantities of cocaine and marijuana, which did not in fact exist--was so outrageous as to warrant either dismissal of the superceding indictment, or reversal of their convictions, or a downward departure of their sentences.

Outrageous Government Conduct--This Court recognizes the defense of outrageous governmental conduct, a defense interrelated with the sentencing manipulation theory. This defense focuses on the tactics employed by law enforcement officials to obtain a conviction for conduct beyond the defendant's predisposition. The question, however, is whether the methods comport with the Fifth Amendment's guarantee of due process. See United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973) ("While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, ... the instant case is distinctly not of that breed") (citation omitted). United States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir.) ("Whether outrageous governmental conduct exists 'turns upon the totality of the circumstances with no single factor controlling' and the defense 'can only be invoked in the rarest and most outrageous circumstances.' "), cert. denied, 469 U.S. 1072, 105 S.Ct. 563, 83 L.Ed.2d 504 (1984). The government contends and neither Sanchez nor Duran dispute that they failed to seek dismissal of the indictment in the district court on the ground of outrageous governmental conduct, and their appeal of this issue is therefore barred. Defendants would not prevail even were we to reach the merits of their claim. While the Supreme Court and this Court have recognized the possibility that government involvement in a criminal scheme might be so pervasive that it would be a constitutional violation, that standard has not yet been met in any case either before the Supreme Court or this Court. See United States v. Gianni, 678 F.2d 956, 959-60 (11th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982). Government infiltration of criminal activity is a recognized and permissible means of investigation, see United States v. Russell, 411 U.S. at 432, 93 S.Ct. at 1643; United States v. Puett, 735 F.2d 1331, 1335 (11th Cir.1984), and frequently requires that the government agent furnish something of value to the criminal. See Puett, 735 F.2d at 1335. The fact that government agents may supply or sell illegal drugs or provide other essential services does not necessarily constitute misconduct. See Hampton v. United States, 425 U.S. 484, 489, 96 S.Ct. 1646, 1649-50, 48 L.Ed.2d 113 (1976). Moreover, challenges to the "reverse sting" method of police investigation have been rejected by this Court on numerous occasions. See United States v. Savage, 701 F.2d 867, 869-70 (11th Cir.1983); United States v. Gianni 678 F.2d at 960; United States v. Nicoll, 664 F.2d 1308, 1314-15 (5th Cir. Unit B 1982), cert. denied, 457 U.S. 1118, 102 S.Ct. 2929, 73 L.Ed.2d 1330 (1982), rev'd on other grounds, United States v. Henry, 749 F.2d 203 (5th Cir.1984).

The evidence reveals that ATF agents contacted individuals suspected of being involved in home invasions. Informed by these individuals that large amounts of narcotics could be stolen in a home invasion, defendants voluntarily agreed to participate. The defendants were involved without any instigation from the government. They only had contact with the government agent after they had already agreed to participate. The availability of defendants, their weapons, and vehicles was not the result of any governmental activity. The conduct of the government here does not approach that demonstrable level of outrageousness the case law suggests would be necessary for reversal of these defendants' convictions.

Sentencing Entrapment--Sentencing entrapment is the claim that "a defendant, although predisposed to commit a minor or lesser offense, is entrapped into committing a greater offense subject to greater punishment." United States v. Stuart, 923 F.2d 607, 614 (8th Cir.), cert. denied, 499 U.S. 967, 111 S.Ct. 1599, 113 L.Ed.2d 662 (1991). See United States v. Staufer, 38 F.3d 1103,1106 (9th Cir.1994) (citing the definition in Stuart); see generally Defending a Sentence: The Judicial Establishment of Sentencing Entrapment and Sentencing Manipulation Defenses, 145 U. Pa. L.Rev. 1359 (May 1997). The focus of sentencing entrapment is the predisposition of the defendant to commit the greater offense. The government alleges that this issue was not properly preserved on appeal. Notwithstanding the government's position, defendants' claim must fail as a matter of law because this Circuit has rejected sentence entrapment as a viable defense. See United States v. Miller, 71 F.3d 813 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 123, 136 L.Ed.2d 73 (1996).

Sentencing Factor Manipulation--While sentencing entrapment focuses on the defendant's predisposition, sentencing factor manipulation focuses on the government's conduct. "It requires us to consider whether the manipulation inherent in a sting operation, even if insufficiently oppressive to support an entrapment defense, ... or due process claim, ... must sometimes be filtered out of the sentencing calculus." United States v. Connell, 960 F.2d 191, 194 (1st Cir.1992) (coining the phrase). Such a claim points to "the opportunities that the sentencing guidelines pose for prosecutors to gerrymander the district court's sentencing options and thus, defendant's sentences." Connell, 960 F.2d at 194.

Several circuits have recognized some form of sentencing manipulation as an arguably valid defense, see United States v. Gibbens, 25 F.3d 28 (1st Cir.1994); United States v. Jones, 18 F.3d 1145, 1153 (4th Cir.1994); and United States v. Shephard, 4 F.3d 647, 649 (8th Cir.1993), while the Tenth Circuit analyzes such claims under an outrageous conduct standard, see United States v. Lacey, 86 F.3d 956 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 331, 136 L.Ed.2d 244 (1996); and the Seventh Circuit has rejected the defense...