U.S. v. Staufer

• Decision Date: 06 June 1994
• Docket Number: No. 93-50173,93-50173
• Citation: 38 F.3d 1103
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark William Paul STAUFER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1103

38 F.3d 1103

63 USLW 2298

UNITED STATES of America, Plaintiff-Appellee, v. Mark William Paul STAUFER, Defendant-Appellant.

No. 93-50173.

United States Court of Appeals, Ninth Circuit.

Submitted June 6, 1994 ^*.

Decided Oct. 26, 1994.

Peter M. Furguson, Santa Barbara, CA, for defendant-appellant.

Mary C. Andreus, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court For the Central District of California.

Before: D.W. NELSON, BEEZER and KOZINSKI, Circuit Judges.

Opinion by Judge D.W. NELSON; Dissent by Judge BEEZER.

D.W. NELSON, Circuit Judge:

OVERVIEW

Mark William Paul Staufer was convicted after a jury trial on a one count indictment, charging him with possession with intent to distribute "LSD" (lysergic diethamide acid). He raises a variety of claims on appeal, challenging both his conviction and his sentence. We conclude that his challenges to his conviction are without merit. Based on the district court's factual findings, however, we are persuaded that he is entitled to a downward departure on the basis of sentencing entrapment. Accordingly, we vacate his sentence and remand.

FACTUAL AND PROCEDURAL BACKGROUND

In August 1992, Mark Staufer was introduced to Agent Michael Daul, a Drug Enforcement Administration ("DEA") agent acting in an undercover capacity and posing as someone interested in purchasing LSD. The meeting was initiated and arranged by a person named Scott, who Staufer had known as an acquaintance for approximately two During the time that Staufer had known him, Scott often had taken drugs in Staufer's presence. As a CI, Scott was free to contact Staufer as he pleased and received little or no supervision from the government. According to Staufer, the CI frequently contacted him, always encouraging him to sell drugs. Indeed, at one point during the set-up, Staufer commented to Daul that the CI was telephoning him so frequently at his job that his supervisor was upset with him.

years. Staufer did not know, however, that Scott had been convicted and sentenced to federal prison for more than ten years and was working for the government as a confidential informant ("CI"). The U.S. Attorney's office has the discretion to file a motion for a reduction in sentence for such an individual pursuant to Fed.R.Crim.Pro. 35 or U.S.S.G. Sec. 5K1.1 if it determines that the CI's cooperation has assisted the government in the investigation or the prosecution of another person who has committed an offense.

At the time of the sting operation, Staufer was experiencing serious financial difficulties. He had almost no money to his name, was living in a garage because he could not afford to pay rent, and had a number of outstanding bills that he was unable to pay. He recently had been robbed, beaten and hospitalized. Although Staufer had difficulty finding full time employment, making it difficult for him to maintain a permanent residence, he occasionally had been able to obtain part time employment.

It was against this background that Staufer finally was induced to meet undercover agent Daul on August 19, 1992. At the meeting, it was agreed that Staufer would procure 10,000 doses of LSD for Daul in exchange for $8,000. At trial, Staufer maintained that he had wanted to sell only 5,000 doses, but that the CI and Daul would not accept his offer, insisting instead that he provide 10,000 doses. There also is evidence that the CI and Daul immediately offered to pay more money than they initially had agreed to pay when Staufer expressed reluctance at the larger deal.

After a number of conversations, arrangements eventually were made for Staufer to deliver the 10,000 doses of LSD on September 16, 1992. When Staufer met with Daul on that date, and displayed to him the paper containing the LSD, he was arrested.

At trial, Staufer raised an entrapment defense. The jury rejected the defense and found Staufer guilty. Based on the weight of the drugs (0.5 grams) and the paper on which the LSD had been placed (129.4 grams), the district court set Staufer's offense level at 36. Based on Staufer's previously clean record and a two-point reduction for his acceptance of responsibility for the crime, the district court sentenced Staufer to 151 months in prison and five years of probation.

The district court, Judge Ideman presiding, found that prior to his involvement with the CI, Staufer had not engaged in any drug deals of a similar magnitude. Indeed, the only evidence that Staufer had ever sold drugs before his involvement with the CI was provided by Staufer himself during trial. Staufer testified at trial that on one occasion he had obtained 25 or 30 doses of LSD for $15. Although he had consumed most of the LSD himself, he had given some of it to friends who had given him $8 in return. The district court judge found that Staufer's testimony was credible.

In response to Staufer's statements to the court, in which Staufer expressed remorse for what he had done, but bewilderment at the severity of his punishment, the district court judge expressed his own dissatisfaction with the sentence he felt he was compelled to impose. He explained to Staufer that the court of appeals had just reversed him for giving a life sentence to a man who had killed his wife by throwing her off a ship where they were spending their honeymoon, and he expressed his disapproval of a system that compelled him "to give Mr. Staufer for the transaction more time in prison than [he was] authorized to give a man who murdered his wife on their honeymoon." The Judge further explained that, although he was required to impose such an onerous sentence, he would "be delighted if the court of appeal[s] would find that [he was] in error."

DISCUSSION

I. SENTENCING ENTRAPMENT

At sentencing, Staufer maintained that the district court should have departed downward on the basis of sentencing entrapment. Sentencing entrapment or "sentence factor manipulation" occurs when "a defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment." United States v. Stuart, 923 F.2d 607, 614 (9th Cir.), cert. denied, 499 U.S. 967, 111 S.Ct. 1599, 113 L.Ed.2d 662 (1991) (describing defendant's argument but refusing to find that sentencing entrapment had in fact occurred). According to Staufer, sentencing entrapment provides a valid legal basis for a downward departure under 18 U.S.C. Sec. 3553(b), which allows the sentencing court to depart on the basis of a ground not adequately considered by the Sentencing Commission. Although the district court judge agreed that sentencing entrapment should be recognized as a proper ground for a downward departure, he declined to depart on that basis because he believed that he lacked the legal authority to do so.

This court "review[s] de novo a district court's legal determination that the Guidelines prevent departure if the court indicates it would otherwise have departed." United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992).

The Ninth Circuit recently has recognized that government misconduct of an entrapping nature may warrant a downward departure. See United States v. Garza-Juarez, 992 F.2d 896, 912-13 (9th Cir.1993). However, as the district court judge correctly noted, the Ninth Circuit has not yet decided whether, under the Guidelines, sentencing entrapment may be relied on as a basis for a downward departure. See, e.g., United States v. Barnes, 993 F.2d 680, 684 n. 2 (9th Cir.1993) (cert. denied, --- U.S. ----, 115 S.Ct. 96, 130 L.Ed.2d 46 (1994) (declining to reach the sentencing entrapment issue because defendant had failed to show he was not predisposed to buy the quantity of drugs involved); see also United States v. Frazier, 985 F.2d 1001, 1003 (9th Cir.1993) (same). ¹

Several other circuits have suggested that sentencing entrapment may warrant a downward departure. For example, in United States v. Barth, 990 F.2d 422 (8th Cir.1993), the Eighth Circuit reasoned in dicta that, although it was not present in that case, "sentencing entrapment may be legally relied upon to depart under the sentencing guidelines." Id. at 424. See also, United States v. Lenfesty, 923 F.2d 1293, 1300 (8th Cir.) (indicating that it is possible that when "outrageous official conduct overcomes the will of an individual predisposed only to dealing in small quantities" a sentence reduction may be appropriate), cert. denied, 499 U.S. 968, 111 S.Ct. 1602, 113 L.Ed.2d 665 (1991); United States v. Connell, 960 F.2d 191, 196 (1st Cir.1992) (leaving open the possibility that sentencing entrapment may be an appropriate basis for reducing a sentence). But see United States v. Williams, 954 F.2d 668, 673 (11th Cir.1992) (rejecting sentencing entrapment theory).

As the Barth court explained, "the sentencing guidelines are causing courts nationwide to rethink the long-established rule of entrapment." 990 F.2d at 424. Prior to the enactment of the Guidelines, the only discretion delegated to law enforcement agencies was over whom to investigate and prosecute, and courts could adequately prevent government abuse by ensuring that only defendants with a criminal predisposition were being targeted. By exercising their discretion in sentencing, moreover, courts were able to ensure that defendants' prison terms did not exceed their culpability. Now that our sentencing In November 1993, the Sentencing Commission amended the Guidelines specifically to provide that:

scheme has moved from a discretionary process to a determinate system based on the weight of the drugs involved in a transaction, the entrapment doctrine designed for the previous system no longer adequately protects against government abuse nor ensures that defendants will be sentenced on the basis of the extent of their culpability. See United States v. Calva, 979 F.2d 119, 123 (8th Cir.19...