U.S. v. Barth, s. 92-2152

• Decision Date: 25 May 1993
• Docket Number: 92-2180,Nos. 92-2152,s. 92-2152
• Citation: 990 F.2d 422
• Parties: UNITED STATES of America, Appellant/Cross-appellee, v. Michael Floyd BARTH, Appellee/Cross-appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 422

990 F.2d 422

61 USLW 2659

UNITED STATES of America, Appellant/Cross-appellee, v. Michael Floyd BARTH, Appellee/Cross-appellant.

Nos. 92-2152, 92-2180.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 9, 1992.

Decided April 6, 1993.

Rehearing and Rehearing En Banc

Denied May 25, 1993.

Jeffrey S. Paulsen, Minneapolis, MN, argued, for appellant/cross-appellee.

Michael McGlennen, Minneapolis, MN, argued, for appellee/cross-appellant.

Before McMILLIAN, Circuit Judge, FRIEDMAN, ^* Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

McMILLIAN, Circuit Judge.

The United States appeals from the district court's downward departure from the applicable sentencing guidelines range in sentencing Michael Floyd Barth. 18 U.S.C. § 3742(b). Barth was found guilty by a jury of six counts of distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and one count of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Barth was sentenced to 72 months imprisonment, four years of supervised release, and a special assessment of $350.00. Barth cross-appeals and argues the district court abused its discretion in denying his motion for a new trial on the basis of newly discovered evidence. For reasons discussed below, we affirm Barth's conviction, but we vacate his sentence and remand for resentencing.

I.

Beginning in April 1991, Barth sold crack cocaine to undercover officer John Cich. The first sale was set up by a paid government informant named Charles "Chuckie" Smith; Smith introduced Barth to the undercover officer. Over a five-week period, Barth made seven sales of crack cocaine to the undercover officer. Barth was arrested after the seventh sale. Law enforcement officers searched his residence following his arrest and found 2.4 grams of crack cocaine and drug paraphernalia. Barth was charged with seven counts of distribution and one count of possession with intent to distribute crack cocaine.

Barth's defense at trial was entrapment. He testified he had been introduced to crack cocaine by his friend Chuckie Smith, the government informant. Barth testified that he became a crack cocaine addict and sold crack for Smith in exchange for his own crack cocaine supplies. The government presented evidence that Barth was predisposed to distribute drugs--he used appropriate language and precautionary gestures and he was not hesitant to sell drugs. The government also disputed Barth's claim of addiction, because he did not appear under the influence of drugs during the deals and no user paraphernalia was found in his residence. Barth was acquitted of the first distribution count, but convicted of the other counts.

In the presentence investigation report, the probation officer excluded the drugs involved in the first distribution count and calculated a total drug quantity of 50.4 grams on which Barth's sentence would be based. The sentencing guideline range for 50.4 grams based on Barth's total offense level of 30 and a criminal history category of I is 121 to 151 months, including a 10-year mandatory minimum penalty because the offense involved more than 50 grams of crack cocaine. 21 U.S.C. § 841(a)(1). At sentencing, the district court reduced the quantity to 49.8 grams because of a dispute over the quantity of crack cocaine involved in count 7. The government does not appeal the reduction of the total drug quantity to less than 50 grams. The guideline sentencing range for 49.8 grams of crack is 97 to 121 months based on a total offense level of 30 and a criminal history category of I, including a five-year mandatory minimum sentence for amounts from five to less than 50 grams. 21 U.S.C. § 841(b)(1)(B).

The district court departed downward pursuant to 18 U.S.C. § 3553(b), which allows the sentencing court to take into account a circumstance not adequately taken into consideration by the sentencing commission. The district court found "sentencing entrapment" and ruled that none of the drugs following the fourth undercover buy would count toward Barth's sentence because, after that transaction, the investigatory objective was no longer focused on Barth but on his source. The district court found the sentencing commission failed to consider "the terrifying capacity for escalation of a defendant's sentence based on the investigating officer's determination of when to make an arrest." United States v. Barth, 788 F.Supp. 1055, 1057 (D.Minn.1992). The district court stated it was "not at all fortuitous that the agent arrested [Barth] only after he had arranged enough successive buys to reach the magic number (referring to 50 grams, the quantity that triggers the application of the 10-year mandatory minimum sentence)." Id. In reaching its decision, the district court found the issue before it to be "whether or not the circumstances under which these transactions occurred constitute a mitigating factor for sentencing purposes," and found that they did. Id. While noting that undercover investigations require "the orchestration of locations, timing, and methods of investigation," the district court stated "[investigators] cannot be permitted to orchestrate a defendant's sentence." Id. at 1058. The district court sentenced Barth to 72 months imprisonment, four years of supervised release, and a special assessment of $350.00.

II.

The government argues the district court had no authority to depart downward by arbitrarily disregarding the quantity of drugs involved in counts five through eight of which Barth was convicted. The government asserts there is no legal basis for the concept of sentencing entrapment, but argues that, even if there were, in the present case there was no outrageous conduct by the government.

Sentencing entrapment has been described by this court as " 'outrageous official conduct [which] overcomes the will of an individual predisposed only to dealing in small quantities' for the purpose of increasing the amount of drugs ... and the resulting sentence of the entrapped defendant." United States v. Rogers, 982 F.2d 1241, 1245 (8th Cir.1993), quoting United States v. Lenfesty, 923 F.2d 1293, 1300 (8th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 1602, 113 L.Ed.2d 665 (1991). Although courts have not generally adopted the concept of sentencing entrapment, the sentencing guidelines are causing courts nationwide to rethink the long-established rule of entrapment. See, e.g., United States v. Williams, 954 F.2d 668, 673 (11th Cir.1992) (rejecting the theory of sentence entrapment); United States v. Connell, 960 F.2d 191, 196 (1st Cir.1992) (refusing to apply sentencing entrapment). This court has declined "to say there is no such animal as 'sentencing entrapment,' " Lenfesty, 923 F.2d at 1300, yet has so far failed to apply sentencing entrapment. In United States v. Stuart, 923 F.2d 607, 613-14 (8th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 1599, 113 L.Ed.2d 662 (1991), this court explained that adopting a sentencing entrapment theory would require us to "abandon [our] long-established rule of entrapment which focuses on the predisposition of the defendant to commit crime."

This court has held that, in determining whether a departure is maintainable, we must consider several...