U.S. v. Riles, 90-4046

• Decision Date: 14 March 1991
• Docket Number: No. 90-4046,90-4046
• Citation: 928 F.2d 339
• Parties: 66 Ed. Law Rep. 573 UNITED STATES of America, Plaintiff-Appellee, v. Cedric RILES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 339

928 F.2d 339

66 Ed. Law Rep. 573

UNITED STATES of America, Plaintiff-Appellee, v. Cedric RILES, Defendant-Appellant.

No. 90-4046.

United States Court of Appeals, Tenth Circuit.

March 14, 1991.

Heather Cooke, Asst. U.S. Atty. (Dee Benson, U.S. Atty., with her on the briefs), Salt Lake City, Utah, for plaintiff-appellee.

Jerome H. Mooney, III, Salt Lake City, Utah, for defendant-appellant.

Before TACHA and McWILLIAMS, Circuit Judges, and NOTTINGHAM, District Judge. ^*

NOTTINGHAM, District Judge.

Cedric Riles pled guilty to one charge involving distribution of cocaine on the real property of a public university, in violation of 21 U.S.C. Sec. 845a (1988), and another charge involving distribution of cocaine base ("crack" cocaine), in violation of 21 U.S.C. Sec. 841(a)(1) (1988). Since the offenses were committed in April and June of 1989, the district court applied the federal sentencing guidelines in effect on those dates and sentenced Riles to 51 months in prison. See United States Sentencing Commission, Guidelines Manual (1988). Pursuant to 18 U.S.C. Sec. 3742(a)(2) (1988), Riles now appeals this sentence, arguing that it was imposed as a result of an incorrect application of the sentencing guidelines.

Riles argues that the district court misapplied the sentencing guidelines in two ways. First, he claims that he was not predisposed to distribute "crack" cocaine, that he did so only at the request of government agents, and that the government's conduct constitutes a form of entrapment which the court should have considered in imposing sentence. Second, he urges that he was a "minimal" or "minor" participant in the distribution of "crack" cocaine and that the district court should thus have made a downward adjustment in determining the appropriate offense level. We reject both contentions and affirm the district court's sentence.

BACKGROUND

Riles, a student and football player at the University of Utah, was accused in every count of a nine-count indictment. The first count charged that he conspired with three other people to distribute cocaine, in violation of 21 U.S.C. Sec. 846 (1988). The next six counts charged Riles and the co-conspirators with specific distributions of cocaine on real property comprising a public university, in violation of 21 U.S.C. Sec. 845a (1988). The total amount of cocaine delivered to undercover agents on these six occasions was 67.4 grams. The last two counts charged Riles, alone, with distribution of cocaine base ("crack" cocaine), in violation of 21 U.S.C. Sec. 841(a)(1) (1988). The total amount of cocaine base delivered to undercover agents on these two occasions was 16.6 grams.

As noted, Riles pled guilty to one of the counts charging distribution of cocaine on a university campus and one of the counts charging distribution of "crack" cocaine. The district court, accepting the findings and calculations contained in the presentence investigation report, used a four-step process to determine the base offense level. First, it decided that the events charged in all nine counts of the indictment constituted "relevant conduct," since (1) multiple-count drug offenses would be grouped together under U.S.S.G. Sec. 3D1.2(d) (1988) and (2) the offenses were "part of the same course of conduct." U.S.S.G. Sec. 1B1.3(a)(2) (1988). Second, following U.S.S.G. Sec. 2D1.3(a)(2)(B) (1988) (requiring court to double the drug amount involved, where distribution occurs on or near a college campus), it doubled the 67.4 grams which Riles delivered to undercover agents at the University of Utah. Third, using the drug equivalency tables found at U.S.S.G. Sec. 2D1.1 (1988) (1 gram of cocaine base equals 100 grams of cocaine), it found that the 16.6 grams of "crack" which Riles delivered to undercover agents was equal to 1,660 grams of "ordinary" cocaine. Fourth, it added the amounts calculated in steps two and three to decide that the amount of cocaine to be used in calculating the base offense level was 1,794.8 grams. It therefore concluded that the base offense level was 26. U.S.S.G. Sec. 2D1.1(a)(3) (1988). Although the court made a two-point downward adjustment for Riles' acceptance of responsibility, it found that he was not entitled to a downward adjustment for a mitigating role in the offense. The court also found that he was not entitled to

a downward adjustment or other favorable treatment because of his allegation that he was entrapped into selling "crack" cocaine.

ANALYSIS

1. entrapment

While Riles concedes that he was involved in the distribution of cocaine before he was even contacted by undercover agents, he maintains that he was not predisposed to distribute "crack." He delivered "crack" to the undercover agents only after their repeated requests that he do so. He thus concludes that he was entrapped and asserts error in the district court's inclusion of the "crack" in determining his base offense level. Because Riles' contention presents the purely legal question whether a sentencing court should even consider this form of entrapment defense in imposing sentence, we review the district court's determination de novo. See United States v. Roberts, 898 F.2d 1465, 1468-69 (10th Cir.1990).

Defendant, having knowingly and voluntarily pled guilty to the charge of distributing "crack" cocaine, could not argue at sentencing that he was entrapped into the distribution or that he lacked the predisposition to distribute "crack." Entrapment is an affirmative defense, e.g. Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988); United States v. Fadel, 844 F.2d 1425, 1429 (10th Cir.1988), which bears on the question whether a defendant is guilty of the crime charged. United States v. Yater, 756 F.2d 1058, 1062 (5th Cir.1985). In most situations, this defense can only be resolved by trial of the general issue. Fadel, 844 F.2d at 1430-31; United States v. Graves, 556 F.2d 1319, 1321 (5th Cir.1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516 (1978). Once a defendant has plead guilty, "there will not be a further trial of any kind, so that by pleading guilty ... the defendant waives the right to a trial." Fed.R.Crim.P. 11(c)(4). By waiving the right to trial, a defendant waives non-jurisdictional defenses, including entrapment, a non-jurisdictional defense on the merits. Eaton v. United States, 458 F.2d 704, 707 (7th Cir.), cert. denied, 409 U.S. 880, 93 S.Ct. 208, 34 L.Ed.2d 135 (1972); Yater, 756 F.2d at 1063. He likewise admits that he was predisposed to commit the offense, since predisposition is "the crux of the entrapment defense." Fadel, 844 F.2d at 1429.

Riles attempts to avoid this conclusion by the strained argument that the sentencing guidelines' definition of conduct relevant to determining the guideline range permits him to litigate the question of entrapment at sentencing. His specific contention is that he should not be held "otherwise accountable," U.S.S.G. Sec. 1B1.3(a)(1) (1988), for conduct in which he would not have engaged, absent government coercion. An examination of the "relevant conduct" guideline, however, reveals that Riles has taken the "otherwise accountable" language out of context and that the guideline as a whole does not permit him to raise the issue of entrapment at sentencing.

The "relevant conduct" guideline, U.S.S.G. Sec. 1B1.3(a)(1) (1988) provides that the base offense level is to be determined on the basis of, inter alia, the following:

all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense.

Here, the distribution of "crack" was an "act ... committed or aided and abetted by the defendant." Indeed, it was an "offense of conviction." All of this was admitted by Riles' plea of guilty. Contrary to his contention, the "otherwise accountable" language permits a court to consider acts in addition to those which a defendant committed; it is not a limitation which permits him to raise at sentencing the question of whether he is "otherwise accountable" for the offense which he committed. The district court thus properly applied the guideline by refusing to consider the proffered issue of entrapment.

2. minimal or minor participation

Riles contends that he was entitled to a downward adjustment for his "minimal" or "minor" participation (he does not specify which) in the distribution of "crack." The contention raises a threshold issue concerning the method to be followed by a sentencing court in determining a base offense level and making adjustments to that...