47 F.3d 238 (7th Cir. 1995), 94-2588, United States v. Okey

Docket Nº:94-2588.
Citation:47 F.3d 238
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Philip Scott OKEY, Defendant-Appellant.
Case Date:February 08, 1995
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 238

47 F.3d 238 (7th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Philip Scott OKEY, Defendant-Appellant.

No. 94-2588.

United States Court of Appeals, Seventh Circuit

February 8, 1995

Submitted Jan. 24, 1995.[*]

Page 239

Mark D. Stuaan, Asst. U.S. Atty. (submitted), Indianapolis, IN, for plaintiff-appellee.

Timothy J. O'Connor, O'Connor & Auersch, Indianapolis, IN, for defendant-appellant.

Before POSNER, Chief Judge, and CUMMINGS and ROVNER, Circuit Judges.

CUMMINGS, Circuit Judge.

Philip Scott Okey pled guilty to one count of Possession of Plates for Counterfeiting, a violation of 18 U.S.C. Sec. 474. Okey had an offense level of 15 and a criminal history category of II, resulting in a sentencing range of 21-27 months. The district court imposed a sentence of 21 months of imprisonment and three years of supervised release. On appeal, Okey argues that the district court incorrectly computed his offense level.

I. Facts

On November 24, 1993, the Secret Service began an investigation based on a tip from an informant that Okey was planning to produce $900,000 in counterfeit money. Special Agent Deal, working undercover, made contact with Okey, earned his confidence, and promised to help further his plan. On January 10, 1994, Okey produced $30,000 in counterfeit bills, which he and Deal then destroyed. On January 11, Okey, accompanied by Deal, procured sufficient quantities of paper to print $2 million in counterfeit currency. After obtaining the paper, Deal was present while Okey worked on the negatives and the plates, which he planned to use "to start printing the backs of ... [counterfeit bills] the following day." Love Affidavit at 12. On January 12, a criminal complaint was filed against Okey and a warrant issued. On January 14, Okey was arrested, and agents seized his printing equipment along with $422,000 in counterfeit bills that he had produced between January 10 and 14.

At sentencing, the district court held that Okey's relevant conduct, see U.S.S.G. Sec. 1B1.3, included producing $422,000 in counterfeit currency. 1 Thus, he received a nine-level enhancement under Sec. 2F1.1(b)(1)(J) of the Sentencing Guidelines. He argues that by arresting him on January 14 rather than on January 10 the government improperly extended the investigation. He claims that he should have been arrested on January 10 after the first batch of counterfeit bills was produced. Had he been arrested on January 10, his relevant conduct would have included producing $30,000 in counterfeit money, which would have resulted in an enhancement of four levels under Sec. 2F1.1(b)(1)(E), rather than nine levels under Sec. 2F1.1(b)(1)(J). The four-day delay in making the arrest, Okey contends,

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served no purpose except to enhance his offense level and thus was improper government conduct.

II. Discussion

Although Okey appears reluctant to characterize it as such, his claim is essentially one of sentencing factor manipulation, or sentencing manipulation. Sentencing manipulation occurs when the government engages in improper conduct that has the effect of increasing a defendant's sentence. Some courts link sentencing manipulation to outrageous government conduct, holding that a manipulation claim arises when "outrageous government conduct that offends due process could justify a reduced sentence." United States v. Jones, 18 F.3d 1145, 1153 (4th Cir.1994). 2 Other courts, however, have hinted that sentencing manipulation may arise from conduct that does not rise to the level of offending due process. See United States v. Connell, 960 F.2d 191, 194 (1st Cir.1992) (the sentencing manipulation defense "requires us to consider whether the manipulation inherent in a sting operation, even if insufficiently oppressive to support an entrapment defense ... or [a] due process claim ... must sometimes be filtered out of the sentencing calculus"). Okey does not allege that the government engaged in outrageous conduct; thus his claim most resembles sentencing manipulation as defined in Connell. 3

This Court has questioned the validity of Connell-style sentencing manipulation arguments. In United States v. Cotts, 14 F.3d 300, 306 n. 2 (7th Cir.1994), we observed that

"If we are willing to accept the assumption apparently approved by Congress that [for example] dealing in greater quantities of drugs is a greater evil, it is not clear to us what the precise legal objection to governmental behavior based on cognizance of relative penal consequences in this area could be (so long as it does not rise to the level of true entrapment or [outrageous government] conduct)." 4

Regardless whether sentencing manipulation claims are ever...

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