United States v. McLean

• Decision Date: 08 August 2016
• Docket Number: No. 13-CR-487,13-CR-487
• Citation: 199 F.Supp.3d 926
• Parties: UNITED STATES of America v. Clifton MCLEAN
• Court: U.S. District Court — Eastern District of Pennsylvania

199 F.Supp.3d 926

UNITED STATES of America

v.Clifton MCLEAN

No. 13-CR-487

United States District Court, E.D. Pennsylvania.

Signed August 8, 2016

Jeanine M. Linehan, U.S. Attorney's Office, Philadelphia, PA, for United States of America.

Luis A. Ortiz, Philadelphia, PA, for Clifton McLean.

MEMORANDUM OPINION

McHugh, District Judge

The latitude given to federal authorities in charging drug offenses has been described as creating a "terrifying capacity for escalation of a defendant's sentence."¹ This case exemplifies that reality, as a defendant caught by an undercover "sting" operation faces a Guideline sentence of 35 years to life imprisonment, with a mandatory minimum sentence of 25 years, because of a professed willingness to rob a drug stash house that was invented entirely by Government agents, containing a fictional amount of drugs chosen by those agents. At sentencing, Defendant Clifton McLean argued that his sentence should be reduced because the Government improperly inflated his culpability by choosing a quantity of drugs—5 kilograms of cocaine—that would trigger such a high mandatory minimum.

In an earlier opinion, I described the historical background of ATF "sting" cases, and concern among both judges and commentators over the consequences of this particular law enforcement tactic. United States v. McLean , 85 F.Supp.3d 825 (E.D.Pa.2015). Although I denied Defendant's Motion to Dismiss the Indictment, resulting in his trial and conviction, as to this issue, I agree that imposing the sentence prescribed for the quantity of cocaine charged would violate his constitutional right to Due Process of Law on the facts of this case. I have as a result imposed a sentence that excludes consideration of the amount specified by the Government, imposing only two of the three mandatory minimums for the reasons that follow.

I. The Emergence of Due Process Principles in Sentencing

Application of Fourteenth Amendment principles to issues of sentencing was a function of the advent of the Federal Sentencing Guidelines in 1987, and the growth of mandatory minimum sentences in the 1980s and 1990s. Eda Katharine Tinto, Undercover Policing, Overstated Culpability , 34 Cardozo L. Rev. 1401, 1411 (2013). Under the current federal sentencing regime, the sentence prescribed for particular drug crimes is tied to the drug quantity based on the "belief that quantity of drugs reflects a defendant's position in the drug hierarchy." Robert S. Johnson, The Ills of the Federal Sentencing Guidelines and the Search for a Cure: Using Sentence Entrapment to Combat Governmental Manipulation of Sentencing , 49 VAND. L. REV. 197, 206 (1996). However, the presumed relationship between drug quantity and a defendant's culpability is disrupted in cases where the Government, rather than the defendant, controls the quantity. Although a defendant may have been willing to engage in the unlawful activity proposed by the Government informant, and is therefore not entrapped in the traditional sense, that same defendant might never have had either the inclination or the capacity to deal narcotics in minimum-triggering quantities. Id. at 206–09.

The Sentencing Guidelines themselves recognize the danger of vesting too much discretion in the Government to solicit and then charge certain quantities of drugs, and in certain instances they empower judges to compensate for law enforcement overreach. See United States v. Stavig , 80 F.3d 1241, 1245–46 (8th Cir.1996). For example, Application Note 17 of section 2D1.1 allows the district court to depart downward when government agents set a below-market price that allows the defendant to purchase a significantly larger quantity of drugs. Application Note 12 of section 2D1.1 instructs the court to exclude from its sentencing calculation the amount which the defendant is unable to produce if the produced amount is less than negotiated. These provisions "show[ ] that the Sentencing Commission is aware of the unfairness and arbitrariness of allowing drug enforcement agents to put unwarranted pressure on a defendant in order to increase his or her sentence without regard for his predisposition, his capacity to commit the crime on his own, and the extent of his culpability." United States v. Staufer , 38 F.3d 1103, 1107 (9th Cir.1994) ; see also Stavig , 80 F.3d at 1241 n. 6. But the "Sentencing Commission's determination that the defendant may receive a downward departure when the government artificially lowers the price of the drugs ... only addresses one of the ways in which drug enforcement agents are able to manipulate sentences." Id. ; see also United States v. Naranjo, 52 F.3d 245, 250 (9th Cir.1995).

The limited scope of remedies provided by the Guidelines has led courts to consider questions of sentencing fairness on constitutional grounds, and courts have attempted to find ways that account and control for this kind of government manipulation of sentencing. As stated by the Eighth Circuit in a decision from the early 1990s, "the sentencing guidelines are causing courts nationwide to rethink the long-established rule of entrapment." United States v. Barth , 990 F.2d 422, 424 (8th Cir.1993). Two doctrines have emerged, but their definitions, and the test for application, differ by circuit. As described by the Third Circuit, in general terms the doctrine of "sentencing entrapment" applies when a government agent induces an individual to deal in a larger quantity or different type of drug than he is otherwise predisposed to deal, and the result is a high sentence for the offense. United States v. Sed, 601 F.3d 224, 230 (3d Cir.2010), citing United States v. Martin , 583 F.3d 1068, 1073 (8th Cir.2009). "Sentencing factor manipulation," on the other hand, "occurs when the government unfairly exaggerates the defendant's sentencing range by engaging in a longer-than-needed investigation and, thus, increasing the drug quantities for which the defendant is responsible." Id. at 231, citing United States v. Torres , 563 F.3d 731, 734 (8th Cir.2009).

II. Sentencing Manipulation Doctrines in Other Circuits

Almost all of the circuits have addressed both doctrines, and, in the words of the Third Circuit, reached "varied conclusions." Sed , 601 F.3d at 229. Among those circuits that have adopted one or both doctrines, disagreement exists about how to define and apply them.

For example, the First Circuit treats both doctrines as identical and valid, and it considers both the defendant's predisposition and the impropriety of the Government action to be relevant factors. See United States v. Jaca – Nazario , 521 F.3d 50, 57 (1st Cir.2008) ; United States v. Kenney , 756 F.3d 36, 52 (1st Cir.2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 770, 190 L.Ed.2d 640 (2014). The Ninth and Tenth Circuits also refer to the doctrines interchangeably, but those circuits focus more on analyzing the Government's conduct alone. See United States v. Boykin , 785 F.3d 1352, 1362 (9th Cir.2015), cert. denied, ––– U.S. ––––, 136 S.Ct. 272, 193 L.Ed.2d 198 (2015) (considering "whether legitimate reasons existed for the investigation or whether it was solely intended to increase [the defendant's] sentence"); United States v. Beltran, 571 F.3d 1013, 1017–18 (10th Cir.2009) (explaining that these doctrines are based on "a due process principle allowing a court to modify a sentence if, considering the totality of the circumstances, ‘the government's conduct is so shocking, outrageous and intolerable that it offends ‘the universal sense of justice’ ").

The Eighth Circuit accepts both doctrines but analyzes them separately. See Torres, 563 F.3d at 734 (accepting sentencing factor manipulation); Martin, 583 F.3d at 1073 (accepting sentencing entrapment). The Courts of Appeals for the Seventh and Eleventh Circuits also define the doctrines separately, but they reach opposite conclusions about their validity. See United States v. Turner, 569 F.3d 637, 641 (7th Cir.2009) (sentencing entrapment valid but sentencing manipulation not); United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir.2007) (sentencing factor manipulation valid but sentencing entrapment not).

Three circuits have explicitly rejected both doctrines. See United States v. Satterwhite , 23 F.3d 404 (Table), No. 93–5387, 1994 WL 118110, at *4 (4th Cir. April 4, 1994) ("We reemphasize today that we do not embrace these theories and hold that even if they were to apply, they are inapplicable to this case."); United States v. Macedo-Flores , 788 F.3d 181, 187 (5th Cir.2015), cert. denied, ––– U.S. ––––, 136 S.Ct. 1156, 194 L.Ed.2d 186 (2016) (citing United States v. Tremelling, 43 F.3d 148, 152 (5th Cir.1995) ); U.S. v. Stephens, 717 F.3d 440, 446 (5th Cir.2013) ("[T]his court has never recognized sentencing entrapment as a defense, but we have consistently noted that, were we to accept the defense, it would only be cognizable in cases involving ‘true entrapment,’ or where there is proof of ‘overbearing and outrageous conduct’ on the Government's part."); United States v. Guest , 564 F.3d 777, 781 n. 4 (6th Cir.2009) (holding that the Sixth Circuit does not recognize either defense, but pointing out that "[e]ven if we were to recognize sentencing entrapment or sentence manipulation as a defense, both would be inapplicable" on the facts of that case.).

The D.C. Circuit previously rejected these doctrines, but it recently reevaluated that decision in light of United States v. Booker :

Before United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), rendered the U.S. Sentencing Guidelines advisory, we forbade district courts from relying on sentencing manipulation as a basis for mitigation. See United States v. Walls, 70 F.3d 1323, 1329–30 (D.C.Cir.1995). But Booker and its offspring fundamentally changed the sentencing calculus ...

United States v. Bigley , 786 F.3d 11, 12 (D.C.Cir.2015) (citations omitted). As a result, the D.C. Circuit held that a sentencing court must consider non-frivolous...