U.S. v. Franco

• Decision Date: 09 August 1990
• Docket Number: Nos. 89-1703,89-1704,s. 89-1703
• Citation: 909 F.2d 1042
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ruben FRANCO and Norberto Garcia, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1042

909 F.2d 1042

UNITED STATES of America, Plaintiff-Appellee, v. Ruben FRANCO and Norberto Garcia, Defendants-Appellants.

Nos. 89-1703, 89-1704.

United States Court of Appeals Seventh Circuit.

Argued Feb. 13, 1990.

Decided Aug. 9, 1990.

Thomas M. Durkin, Michael R. Pace, Asst. U.S. Atty., Chicago, Ill., for U.S.

Thomas A. Gibbons, Kreiter & Associates, Chicago, Ill., for Ruben Franco.

Robert Habib, Chicago, Ill., for Norberto Garcia.

Before RIPPLE, MANION, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

MANION, Circuit Judge.

Norberto Garcia and Ruben Franco were convicted of one count of conspiracy and three counts of distributing cocaine in violation of 21 U.S.C. Secs. 846 and 841(a)(1). Franco also was convicted of possession with intent to distribute 499 grams (approximately a half-kilo) of a mixture containing cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Franco appeals his conviction and sentence, arguing that he was entrapped into selling a larger quantity of drugs and that mitigating factors warranted a downward departure in his sentence. Garcia's appeal is limited to whether the district court improperly counted the 499 grams he was not charged with selling when computing his base offense level under the Sentencing Guidelines. We affirm.

I. Background

Garcia supplied Franco with cocaine that Franco unwittingly sold to federal narcotics officers. The evidence at trial established that Franco and undercover officers were involved in a series of meetings and telephone calls for the purpose of procuring cocaine. Many of the conversations were tape recorded and introduced by the government as exhibits. There is no dispute that Garcia supplied Franco with cocaine, or that Franco sold cocaine to undercover officers. We will therefore summarize only those facts Franco and Garcia rely on to support their arguments on appeal.

Franco sold Drug Enforcement Agent Nancy Colletti one or two ounces of cocaine on three separate occasions in 1988. On a fourth occasion he sold a half-kilo to Colletti. At trial he produced evidence of cocaine addiction during that period, and voluntarily underwent a 26-day treatment program at St. Elizabeth's Hospital in January 1988. He was unable to stop using cocaine despite the hospital treatment, and after leaving the hospital contacted Colletti on several occasions with offers to sell quantities of cocaine. These conversations followed a pattern: Franco would try to sell Colletti an ounce or two, and Colletti would try to persuade Franco to sell more. At one point she asked Franco what the largest quantity he could obtain was, and Franco told her four ounces. Still she asked for more, and Franco ultimately agreed to obtain a half-kilo. Franco began to contact Colletti regularly to discuss details of the transaction. When he provided the half-kilo to Colletti on June 24, 1988, he was arrested.

Garcia was initially indicted on the same five counts as Franco: Count I was the conspiracy to distribute cocaine; Counts II through IV were the three occasions when small quantities were sold to Colletti; and Count V was based on the June 24 sale of the half-kilo. Five days before trial the government filed a superseding indictment in which Garcia was not charged for the half-kilo transaction. Further, Count I no longer alleged that the half-kilo transaction was part of the conspiracy. The government now alleged that Franco advised Colletti "that his source (GARCIA) had one-half kilogram of cocaine available for sale for $13,000.00." The government admitted, however, that Garcia was not the source for the half-kilo. After Garcia was convicted, the government alleged in its presentence report that under the guidelines, Garcia must be held responsible for amounts sold by codefendant Franco in furtherance of the conspiracy, including the half-kilo transaction. The district court agreed and counted the half-kilo in computing Garcia's sentence pursuant to Sec. 2D1.4 of the Sentencing Guidelines. This brought his base offense level to 26. The court added two points for his leadership role but subtracted two for acceptance of responsibility, leaving his base offense level at 26. The guidelines set a range of imprisonment between 63 and 78 months. Primarily because the district court thought Garcia more culpable than Franco, and because Franco's base offense level of 28 required at least a 78-month sentence, the court sentenced Garcia to 78 months, the highest amount possible within the guidelines range.

II. Analysis

A. Franco's Appeal

The crux of Franco's entrapment argument is this: Franco was a low-level narcotics trafficker who was not predisposed to sell large quantities, but in his weakened condition as a drug addict was persuaded by agent Colletti to sell a half-kilo. He therefore appeals his conviction only as to Counts I (conspiracy to sell the half-kilo) and V (possession with intent to sell the half-kilo), and seeks a remand to the district court for resentencing.

To successfully employ the entrapment defense, the defendant must show that the government induced him to commit a crime he was not predisposed to commit. Once the defendant provides evidence to that effect, the burden shifts back to the government to prove beyond a reasonable doubt that the defendant was predisposed or that there was no inducement by the government. United States v. Perez-Leon, 757 F.2d 866, 871 (7th Cir.1985), quoting United States v. Gunter, 741 F.2d 151, 153 (7th Cir.1984).

When determining whether the government had met its burden in proving that the defendant was predisposed to commit the crime, we must view the evidence in the light most favorable to the government and will affirm if any rational trier of fact could have found the requisite predisposition beyond a reasonable doubt.

Id., citing United States v. Gunter, 741 F.2d at 154. Further deference is required where, as here, the jury received an entrapment instruction and necessarily rejected it in finding Franco guilty.

In Perez-Leon we noted that

The factors relevant in determining the predisposition of the defendant are: (1) assessing the character or reputation of the defendant, including any prior criminal record; (2) whether the suggestion of criminal activity was made by the government; (3) whether the defendant was engaged in criminal activity for profit; (4) whether the defendant expressed reluctance to commit the offense which was overcome only by repeated government inducement or persuasion; and (5) the nature of the inducement or persuasion applied by the government.

757 F.2d at 871 (citations omitted). We further recognized that "none of these factors, when considered by themselves, are determinative; however, the most important factor is whether the defendant evidenced a reluctance to engage in the criminal activity that was overcome only by repeated government inducement." Id.

Our review of the record, in the light most favorable to the government, leads us to the conclusion that the evidence is sufficient to support the verdict of a reasonable jury. Applying the first three factors set forth in Perez-Leon to our facts, we conclude that (1) Franco was a drug addict and seller of small quantities of drugs, but had no prior criminal record; (2) Franco suggested the criminal activity of selling small quantities of cocaine, the government initially suggested the half-kilo sale, and Franco initiated the contacts leading up to the actual half-kilo transaction; and (3) Franco was engaged in the sale of drugs for profit.

Franco contends that he demonstrated substantial reluctance to sell the half-kilo that was overcome only by repeated government inducement. We disagree. Franco at first could only sell smaller quantities because his source's profit was greater with more frequent sales of smaller quantities. Franco therefore could not obtain more than a few ounces. This is not reluctance; this is inability, and it says nothing about whether Franco was predisposed to commit the crime for which he was convicted.

Prior to every transaction, Franco initiated contact with Colletti by calling her or paging her through her beeper. When Colletti first inquired about larger quantities, Franco told her "maybe later," and said he would discuss obtaining larger quantities with his source. Later Franco assured Colletti that his source was able to provide kilogram quantities of cocaine. His initial inability to...