U.S. v. Montoya

• Decision Date: 12 January 1995
• Docket Number: Nos. 94-1666,s. 94-1666
• Citation: 62 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. John Berio MONTOYA, a/k/a John Freddy Montoya, Defendant, Appellant. UNITED STATES of America, Appellee, v. Marco VILLEGAS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Guillermo MONTOYA, Defendant, Appellant. to 94-1668. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

62 F.3d 1

UNITED STATES of America, Appellee, v. John Berio MONTOYA, a/k/a John Freddy Montoya, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Marco VILLEGAS, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Guillermo MONTOYA, Defendant, Appellant.

Nos. 94-1666 to 94-1668.

United States Court of Appeals First Circuit.

Heard Jan. 12, 1995.

Decided July 27, 1995.

Eileen Donoghue, by Appointment of the Court, Lowell, MA, for appellant Marco Villegas.

Raymond E. Gillespie, by Appointment of the Court, Cambridge, MA, for appellant John Berio Montoya.

Diana L. Maldonado, Federal Defender's Office, Boston, MA, for appellant Guillermo Montoya.

Jeffrey A. Locke, Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., Boston, MA, was on brief for U.S.

Before SELYA, CYR and BOUDIN, Circuit Judges.

BOUDIN, Circuit Judge.

The three appellants in this case--Marco Villegas, Guillermo Montoya and John Berio Montoya--were indicted for conspiracy to possess cocaine with intent to distribute and for possession with intent to distribute. 21 U.S.C. Secs. 841, 846. After guilty pleas, they were sentenced to mandatory minimum terms of 10 years' imprisonment, as well as supervised release and the ordinary special assessment. They appeal their sentences on the ground that the government manipulated upward the amount of cocaine for which they were held responsible.

The underlying facts are largely undisputed. In August 1992, the FBI began a reverse sting operation in Boston, its undercover agent (Antonio Dillon) purporting to act as a high-volume wholesaler of cocaine seeking new distributors in the area. On August 26, 1992, Dillon met with Villegas who on behalf of Guillermo Montoya and his brother Hernan was seeking a new source of supply of cocaine. Like many of the subsequent encounters, this meeting was taped by the FBI.

Villegas said that the Montoyas were, by their own account, selling 15 to 25 kilograms of cocaine a week and paying between $19,500 and $20,000 per kilogram. He also said that he had been in the cocaine business with the Montoyas for six years. Villegas made similar statements at a September 7 meeting, although he there said that a New Jersey supplier was providing the brothers cocaine at $16,000-18,000 per kilogram. Villegas also offered to rent his garage to store the cocaine.

On September 18, 1992, Dillon met with Villegas, Guillermo Montoya and John Berio Montoya at a Boston restaurant. Dillon said that he would require a minimum purchase of 10 kilograms, with a down payment equal to three kilograms and payment of the balance in 15 to 20 days after delivery. Dillon requested $19,500 per kilogram; Guillermo Montoya balked; and Dillon ultimately offered a price of $17,000 per kilogram. Guillermo Montoya said he would consider buying 10 kilograms with a down payment of $50,000.

There were subsequent meetings in December 1992 and the first three months of 1993. Pleading a shortage of cash, Guillermo Montoya got the down payment reduced to a $5,000 advance for expenses (paid by John Berio Montoya in February 1993) and a $20,000 initial payment on delivery of the 10 kilograms. In a March meeting, Villegas and Guillermo Montoya discussed the possibility after the first purchase of increasing the sales from 10-15 kilograms per week to 20 kilograms. On March 30, 1993, the 10 kilograms were delivered and the appellants were then arrested.

At sentencing, each appellant objected to the determination in the pre-sentence report that the base offense level should be premised on a 10-kilogram transaction. The appellants did not dispute that 10 kilograms had been ordered and delivered, nor claim that the $17,000 price was below the market price. But they said that the government had manipulated the quantity upward by reducing the down payment from $50,000 to $25,000. Based on Dillon's original proposal of a one-third down payment, appellants urged that each appellant should be held liable only for three or four kilograms.

At the close of the sentencing hearing, the district court found that there was no manipulation of sentencing factors. The district judge said that the appellants were predisposed to purchase 10 kilograms and that they could and did purchase this amount. Since any amount of five kilograms or more triggers a mandatory minimum of 10 years' imprisonment, 21 U.S.C. Sec. 841(b)(1)(A), the district court imposed this sentence. The present appeals followed.

At the threshold, the government tells us that we lack jurisdiction over the appeals, saying that appellants cast their claim in the district court as one for a downward departure. Refusals to depart are not reviewable unless the district court has mistaken its own legal authority or made some other mistake of law. United States v. DeCosta, 37 F.3d 5, 8 (1st Cir.1994). Appellants say that their request was not limited to a departure from the guideline range, pointing out that they asked the court to sentence below the statutory minimum.

This is one of these superficially confusing situations in which "jurisdiction" is in certain respects intertwined with "the merits"; and "the merits" in turn depend on a still evolving body of case law. Under umbrella terms like sentencing entrapment and sentencing factor manipulation, the circuit courts have provided a certain amount of guidance, but there are some divisions among the circuits, and--even in the mainstream--more criteria than rules. This is to be expected, for the problem arises in context that is comparatively recent.

Undercover agents of the state have been "plotting" with potential defendants since Elizabethan times, and probably long before. But in federal courts the broad latitude formerly allowed to a sentencing judge made it easy to account for any equity. This discretion has now been curtailed by sentencing guidelines and statutory minimums, often keyed to amounts of drugs involved and dollars stolen. In turn, attention has turned to escape-hatch arguments which might exclude from the equation a portion of the criminal conduct.

Our own cases have concluded that where government agents have improperly enlarged the scope or scale of the crime, the sentencing court "has ample power to deal with the situation either by excluding the tainted transaction from the computation of relevant conduct or by departing from the [guideline sentencing range]." United States v. Connell, 960 F.2d 191, 195 (1st Cir.1992). See also United States v. Gibbens, 25 F.3d 28, 30-32 (1st Cir.1994); United States v. Brewster, 1 F.3d 51, 55 (1st Cir.1993). We think that this broad principle applies to statutory minimums as well as to the guidelines.

Admittedly, there is no statute to this effect. But there is also no statute enacting the familiar defense of entrapment or other defenses like duress or necessity. 1 W. LaFave & A. Scott, Substantive Criminal Law, Secs. 5.2-5.4 (1986). In creating such supplementary doctrines, courts have usually been careful not to insist on much more than minimum decency seems to require. As this court said in Connell, "[c]ourts should go very slowly before staking out rules that will deter government agents from the proper performance of their investigative duties." 960 F.2d at 196.

It is no accident that statements condemning sentencing factor manipulation are usually dicta. A defendant cannot make out a case of undue provocation simply by showing that the idea originated with the government or that the conduct was encouraged by it, e.g., Brewster, 1 F.3d at 55, or that the crime was prolonged beyond the first criminal act, e.g., Gibbens, 25 F.3d at 31, or exceeded...