U.S. v. Salmon, 91-3073

• Decision Date: 12 November 1991
• Docket Number: No. 91-3073,91-3073
• Citation: 948 F.2d 776
• Parties: UNITED STATES of America v. Floyd Fitzroy SALMON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 776

948 F.2d 776

292 U.S.App.D.C. 184

UNITED STATES of America v. Floyd Fitzroy SALMON, Appellant.

No. 91-3073.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 7, 1991.

Decided Nov. 12, 1991.

Appeal from the United States District Court for the District of Columbia.

Mary E. Davis, with whom Christopher M. Davis, Washington, D.C. (appointed by the court) was on brief, for appellant.

Peter R. Zeidenberg, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, and Sylvia L. Gonzalez, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before MIKVA, Chief Judge, WILLIAMS and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

In compliance with a plea agreement, Fitzroy Salmon entered a plea of guilty to three counts of distributing cocaine powder (in violation of 21 U.S.C. §§ 841(a)(1) &amp 841(b)(1)(A)(iii)). In return, the government dismissed the remaining counts of the indictment--three counts of distributing cocaine base or crack (in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(C)), and the one count of using a communication facility in connection with a drug trafficking offense (in violation of 21 U.S.C. § 843(b))--and promised not to prosecute him for a firearms offense, for which he had not yet been charged.

Plea agreements such as Salmon's, calling for the dismissal of counts, will not necessarily result in a reduced sentence under the Sentencing Guidelines. See United States v. Dukes, 936 F.2d 1281, 1282-83 (D.C.Cir.1991). If the dismissed counts entail "relevant conduct" as defined in U.S.S.G. § 1B1.3 (Nov.1990) (Relevant Conduct (Factors that Determine Guideline Range)), ^* the court will take that conduct into account in determining the base offense level, which in drug trafficking cases depends on the quantity of drugs involved. Id. § 2D1.1. In Salmon's sentencing proceedings, the government therefore sought to prove, as "relevant conduct," that Salmon sold crack to a female undercover officer on the three occasions described in the dismissed counts, that on an earlier occasion he converted powder cocaine into crack for her and that he had a large quantity of crack in his possession when he was arrested. Rather than disputing the government's evidence of his crack dealing, Salmon contended that he served a more discriminating clientele interested only in powder cocaine, and that the undercover officer had entrapped him into selling crack. In the alternative, he requested a downward departure due to his initial reluctance to deal in crack. The district court rejected both arguments and, after using the weight of the crack--a total of 536 grams--to calculate the guideline range, sentenced Salmon to 188 months' imprisonment.

Salmon's principal argument on appeal is that the trial court mistakenly placed the entire burden of proving entrapment upon him. The Guidelines shed little light on the subject. The Sentencing Commission originally suggested that the preponderance-of-the-evidence standard should govern all aspects of sentencing, see UNITED STATES SENTENCING COMMISSION, PRELIMINARY DRAFT OF SENTENCING GUIDELINES FOR THE UNITED STATES COURTS, 51 Fed.Reg. 35,080, 35,085 (1986), but later withdrew the suggestion on the theory that "[e]xisting law addressing dispute resolution in the sentencing context remains to be developed fully." UNITED STATES SENTENCING COMMISSION, SUPPLEMENTARY REPORT ON THE INITIAL SENTENCING GUIDELINES AND POLICY STATEMENTS 47 (June 18, 1987). Finding no reason to depart from previous practice, we joined with other courts of appeals, as the Ninth Circuit now has, United States v. Restrepo, 946 F.2d 654 (9th Cir.1991) (en banc), in holding that the government bears the burden of proving by a preponderance of the evidence any facts that would enhance a defendant's sentence. United States v. Burke, 888 F.2d 862, 869 (D.C.Cir.1989). In Burke, we also suggested that "[t]he defendant properly bears the burden of proof under those sections of the Guidelines that define mitigating factors." Id. at 869 n. 10 (citations omitted). We have not, however, considered who should bear the burden of proving or disproving an entrapment defense to conduct that would enhance a defendant's sentence.

The government contends that affirmative defenses such as entrapment should be treated like mitigating factors (see, e.g., U.S.S.G. §§ 3B1.2, 3E1.1, 5K2.0), so that once the government has established, by a preponderance of the evidence, that criminal conduct occurred, the defendant should bear a similar burden of proving an excuse or justification for that conduct. While there is some similarity between an affirmative defense and a mitigating circumstance, the government's argument rests on a questionable assumption--that conduct and an entrapment defense to that conduct can be considered independently of each other. They are not treated independently at trial, and we find nothing in the Guidelines to signal a departure from this practice. In defining "relevant conduct," the Guidelines make conduct relevant only if the defendant is "accountable" for it, either by committing the act, aiding or abetting it, or "otherwise." U.S.S.G. § 1B1.3(a)(1). Note 2 of the Commentary to § 1B1.3, emphasizes that the phrase "such acts and omissions" in § 1B1.3(a)(2) incorporates the same standard. In other words, conduct is only relevant if the defendant is accountable for it. Since an affirmative defense absolves a defendant of responsibility or accountability for particular conduct, it follows that affirmative defenses are part of the "relevant conduct" inquiry. Furthermore, since affirmative defenses at sentencing, like defenses at trial, demonstrate that the defendant is not responsible for certain conduct, it makes sense to take the allocation of burdens at trial as a model and fit them into the sentencing context.

We have adopted a bifurcated approach to entrapment. To simplify for the purposes of this case, the defendant bears an initial burden of demonstrating inducement; once the defendant meets that burden, the ultimate burden of persuasion shifts to the government to prove predisposition. See, e.g., United States v. Burkley, 591 F.2d 903, 911-15 (D.C.Cir.1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1516, 59 L.Ed.2d 782 (1979). Inducement is government behavior that would "cause[ ] an unpredisposed person to commit a crime." United States v. Kelly, 748 F.2d 691, 697 (D.C.Cir.1984) (citation omitted). Here the district court found no threats, no fraudulent misrepresentations, no solicitation, no improper persuasion that would constitute inducement. Having failed to carry his initial burden in...