State v. Monaco

• Decision Date: 22 January 2004
• Docket Number: No. 2 CA-CR 2002-0466.,2 CA-CR 2002-0466.
• Citation: 83 P.3d 553,207 Ariz. 75
• Parties: The STATE of Arizona, Appellee, v. Matthew Rueben MONACO, Appellant.
• Court: Arizona Court of Appeals

83 P.3d 553

207 Ariz. 75

The STATE of Arizona, Appellee, v. Matthew Rueben MONACO, Appellant.

No. -0466.

Court of Appeals of Arizona. Division Two, Department A.

January 22, 2004.

Terry Goddard, Arizona Attorney General, By Randall M. Howe and Vincent L. Rabago, Tucson, for Appellee.

Clay Hernandez, Tucson, for Appellant.

OPINION

HOWARD, J.

¶ 1 After a jury trial, appellant Matthew Monaco was convicted of multiple drug offenses and sentenced to six, four-year prison sentences and two, six-month sentences, all to be served concurrently. Monaco contends that his sentences should be reduced because 1) the state engaged in sentence entrapment or manipulation, 2) the undercover officer breached his duty to arrest Monaco after the first sale, and 3) Monaco suffered prejudice from preindictment delay. Because Arizona courts are not permitted to ignore the statutory range of sentences and the officer's investigative delay did not violate any state statute or Monaco's due process rights, we affirm.

BACKGROUND AND FACTS

¶ 2 We view the facts in the light most favorable to upholding the trial court's sentence. State v. Wideman, 165 Ariz. 364, 369, 798 P.2d 1373, 1378 (App.1990). Over a two-month period, Monaco sold cocaine five times to an undercover police officer. The first sale he sold one quarter of an ounce; in the second, third, and fourth sales he sold one ounce; and in the final sale he sold two ounces of cocaine. During that time, the officer was not attempting to obtain information about other drug dealers; he testified he simply was not ready to arrest Monaco. After the fifth sale, the officer obtained a search warrant for Monaco's residence and found narcotics paraphernalia and marijuana. Monaco was subsequently convicted of sale of a narcotic drug, four counts of selling a narcotic drug in an amount of nine grams or more; possession of a narcotic drug for sale in the amount of nine grams or more; possession of marijuana; and possession of drug paraphernalia. The trial court sentenced Monaco to mitigated, four-year prison terms for each count involving the possession or sale of cocaine and to concurrent, six-month terms for the possession of marijuana and drug paraphernalia counts.

SENTENCE ENTRAPMENT OR MANIPULATION

¶ 3 Monaco argues the officer conducted multiple undercover purchases of illegal drugs to purposely increase Monaco's prison time. He contends that, had the officer arrested him after the first purchase, he would be eligible for parole or possibly even probation under A.R.S. § 13-3408(C). Monaco also contends that, because the officer "purpose[ful]ly manipulate[d his] sentence[s]," the aggregate weight of the sales exceeded the threshold amount under A.R.S. § 13-3401(36), which made Monaco ineligible for "suspension of sentence, probation, pardon, or release from confinement on any basis" until he has fully served his sentences. § 13-3408(D). As a result, Monaco urges us to adopt the federal doctrine of sentence entrapment or sentence factor manipulation and adjust his sentences accordingly. Whether a trial court can use a particular factor in sentencing is a question of law, which we review de novo. See State v. Tschilar, 200 Ariz. 427,

¶ 32, 27 P.3d 331, ¶ 32 (App.2001).

¶ 4 Several federal circuit courts have adopted the doctrines of either "sentence entrapment" or "sentence factor manipulation." "Sentencing entrapment ... occurs when `a defendant, although predisposed to commit a minor or lesser offense, is entrapped in[to] committing a greater offense subject to greater punishment.'" United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir.1994), quoting United States v. Stuart, 923 F.2d 607, 614 (8th Cir.1991)

; see also United States v. Berg, 178 F.3d 976, 981 (8th Cir.1999). Sentence factor manipulation occurs when the government engages in improper conduct that has the effect of increasing a defendant's sentence. United States v. Lacey, 86 F.3d 956, 963 n.5 (10th Cir.1996); United States v. Connell, 960 F.2d 191, 194 (1st Cir.1992). Sentencing entrapment focuses on the defendant's predisposition to commit crimes, and sentencing factor manipulation focuses on the government's conduct. United States v. Sanchez, 138 F.3d 1410, 1414 (11th Cir.1998).

¶ 5 The sentencing entrapment or manipulation doctrine developed in response to perceived abuses of the restrictive scheme of the federal sentencing guidelines. Staufer, 38 F.3d at 1106-07. These guidelines set forth narrow sentencing ranges determined by both the severity of the offense and the defendant's criminal record. These ranges are required by statute to be no more than six months or twenty-five percent of the minimum, unless the minimum exceeds thirty years. 28 U.S.C. § 994(b)(2). And a judge must impose a sentence within that narrow range if the case is "an ordinary one." Koon v. United States, 518 U.S. 81, 92, 116 S.Ct. 2035, 2044, 135 L.Ed.2d 392, 409 (1996). But a judge may depart from the range when the case is atypical and involves aggravating or mitigating circumstances that the United States Sentencing Commission did not adequately consider when it created the guidelines. 18 U.S.C. § 3553(b)(1). Although the commission provides guidance on what factors make a case atypical, see United States Sentencing Guidelines (U.S.S.G.) §§ 5H1.1 through 5H1.12; 5K2.0 through 5K2.23, a sentencing court is not constrained to these factors; a court may depart from the guidelines based on any circumstance not considered by the commission so long as the circumstance is consistent with the sentencing factors established by Congress. Koon, 518 U.S. at 94-96,116 S.Ct. at 2045,135 L.Ed.2d at 410-11; United States v. Pacheco-Osuna, 23 F.3d 269, 271 (9th Cir.1994).

¶ 6 The Eighth and Ninth Circuits have held that a court may legally rely upon sentencing entrapment to depart from the sentencing range in the guidelines. Staufer, 38 F.3d at 1108; Berg, 178 F.3d at 981. The Staufer court in particular was concerned that the federal sentencing scheme would not ensure that defendants would be sentenced on the basis of their culpability because of abuse of the sentencing scheme by government agents. Staufer, 38 F.3d at 1106-07. The court stated that "courts can ensure that the sentences imposed reflect the defendants' degree of culpability only if they are able to reduce the sentences of defendants who are not predisposed to engage in deals as large as those induced by the government." Id. at 1107. The court then found that the commission had considered this public policy concern of sentence entrapment as reflected in the amendment application note to U.S.S.G. § 2D1.1 on reverse sting operations. Thus, the court concluded, allowing a judge to depart from the sentencing range after finding that the government had engaged in sentencing entrapment is consistent with the sentencing factors prescribed by Congress. Id.

¶ 7 Based on the above analysis, the Ninth Circuit has subsequently held that if a defendant proves by a preponderance of the evidence that the law enforcement officer engaged in sentencing entrapment, a district court may reduce the prescribed sentences in one of two ways. United States v. Riewe, 165 F.3d 727, 729 (9th Cir.1999); United States v. Parrilla, 114 F.3d 124, 127 (9th Cir.1997). First, the court may grant a downward departure from the sentencing range under the federal guidelines. Riewe, 165 F.3d at 729. Second, the court may apply only the penalty provision for the lesser offense that the defendant was predisposed to commit rather than the offense that the defendant was induced to commit. Id. This second option allows the court to circumvent 21 U.S.C. § 841(b), which creates a statutory minimum sentence requirement for drug-related offenses. See id.

¶ 8 Although Arizona's sentencing statutes resemble the federal sentencing scheme by requiring a mandatory minimum sentence for drug-related offenses, Arizona allows for a much broader discretion within its sentencing range. Our legislature established a presumptive sentence for each offense and allows a judge to increase the sentence to a stated maximum or to decrease it to a stated minimum based on aggravating or mitigating factors. For drug-related offenses, Arizona accords a trial court a range in some cases of eight years rather than the six months under the federal guidelines. A.R.S. § 13-3419. And, when determining whether to aggravate or mitigate a sentence, a judge may consider "[a]ny ... factor that the court deems appropriate to the ends of justice." A.R.S. § 13-702(C)(20) and (D)(5); see State v. Alvarez, 205 Ariz. 110,

¶ 17, 67 P.3d 706, ¶ 17 (App.2003). Thus, within the statutory range, a sentencing court has broad discretion to determine an offender's sentence.

¶ 9 Although judges have discretion within the statutory range of sentences, Arizona's statutory scheme does not allow for departures outside this range. Arizona courts have a duty to impose a sentence authorized by statute and within the limits set by the legislature. State v. Kinslow, 165 Ariz. 503, 507, 799 P.2d 844, 848 (1990); see also State v. Jenson, 123 Ariz. 72, 74, 597 P.2d 554, 556 (App.1979)

(trial judge has no discretion to substitute own judgment for penalty prescribed by legislature). "`Whether mandatory prison sentences are not appropriate in every situation is a question for the law-making body, not the courts.'" State v. Jackson, 186 Ariz. 490, 491, 924 P.2d 494, 495 (App.1996),

quoting State v. Molina, 118 Ariz. 250, 251, 575 P.2d 1276, 1277 (App.1978). Even if a trial court concludes that the mandated sentence is clearly excessive, the court must still impose the sentence but may allow the defendant to petition the governor for commutation of the sentence. See A.R.S. § 13-603(L); Jackson, 186 Ariz. at 492,

924 P.2d at 496. Only if a sentence is so severe that it is grossly disproportionate to the offense and violates the Eighth Amendment may the courts examine the facts of the case...