Cr. No. xx-0337 (RCL)

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), appellant xxxxxxxxxx hereby states as follows:

A. Parties and Amici: The only parties below and on appeal are defendant-appellant xxxxxxxxxxxx and plaintiff-appellee, the United States of America. There are no intervenors or amici.

B. Rulings Under Review: In this appeal, appellant seeks review of the decision of the district court (the Honorable Royce C. Lamberth) denying defendant a "minor participant" adjustment under U.S.S.G. § 3B1.2 and denying defendant a downward departure for imperfect entrapment or reduced predisposition.

C. Related Cases: There are no related cases. This case has not been before this Court previously.

JURISDICTION

The district court had jurisdiction over this case pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1) and (2).

ISSUES PRESENTED FOR REVIEW

1. Whether the district court erred in denying defendant a downward adjustment for his mitigating role as a "minor participant" pursuant to U.S.S.G. § 3B1.2.

2. Whether the district court misinterpreted the scope of its authority to depart from the Sentencing Guidelines by requiring evidence of government misconduct or outrageous government conduct to consider defendant's request for downward departure based on imperfect entrapment or reduced predisposition. STATUTES AND RULES

Pursuant to D.C. Cir. Rule 28(a), pertinent statutes and regulations are included in the addendum to this brief.

STATEMENT OF THE CASE

On September 26, 1996, a grand jury returned a four-count indictment against defendant xxxxxxxxx. Count One of the indictment charged defendant with distribution of five grams or more of cocaine base on or about January 17, 1996, in violation of 21 U.S.C. § 841 (a)(1) and 841(b)(1)(A)(iii). Counts Two, Three and Four charged defendant with unlawful use of a telephone to facilitate the distribution of cocaine base on or about January 14, 1996 (Counts Two and Three) and January 16, 1996 (Count Four), in violation of 21 U.S.C. § 843(b). (App. 7-8).¹

On January 8, 1997, defendant entered a plea of guilty to Count One of the indictment. On March 27, 1997, the Honorable Royce C. Lamberth sentenced defendant to 57 months imprisonment and four years of supervised release. (App. 28-31). Also on March 27, 1997, defendant filed a notice of appeal. (App. 32).

Statement of Facts

At the plea hearing held on January 8, 1997, the government made the following proffer:

On January 17, 1996, at approximately 1:40 p.m., an undercover officer of the Metropolitan Police Department met with the defendant, xxxxxxx, inside of his residence at xxxx 14th Street, Northeast, Washington, D.C. This meeting had been set up by a series of recorded telephone conversations between the defendant and a cooperating witness on January 14th and January 16th, 1996. The substance of those discussions was that the defendant had agxxxxx to sell a quantity of crack cocaine. The officer and the defendant discussed the impending drug transaction. The defendant told the officer that his supplier had the drugs. The defendant paged an individual, who called back a short time later. After further discussion with this individual over the phone, the defendant left the house. However, the undercover officer first gave the defendant $2,000.00 in cash for the crack cocaine.

The defendant left the house, returning approximately 20 minutes later. He removed a quantity of crack cocaine from a potato chip bag he was carrying, and gave the crack cocaine to the cooperating witness and to the undercover officer. The officer gave the defendant an additional $100.00 for helping to arrange the deal, and then left the defendant's house.

The substance purchased by the undercover officer was submitted to the Drug Enforcement Administration lab for analysis. This analysis revealed the material to be 41.40 grams of a mixture and substance containing cocaine base.

(Plea Tr. 11-12).

Defendant did not contest the proffer at the plea hearing. However, at the sentencing hearing, in allocution, defendant explained:

I admit to doing what it says in the factual proffer but there are two words that [are] incorrect. The first word is "sell." I did not sell rock cocaine to the undercover officer; I purchased the drugs for her. And the second word is "supplier." I didn't purchase them from my supplier; I purchased the drugs from someone I knew.

Your Honor, the only reason I agxxxxx to purchase the drugs was so that I could receive $100 to continue my 25-year drug addiction.

(Sent. Tr. 14). Defendant continued, explaining his desire to become drug-free (responding, in part, to concerns raised earlier and at bond review hearings):

Your Honor I've been living for 48 years and even though I was late for court twice, I've never missed a court date in my life.

Sir, the October 31st report from the Heightened Supervision Program indicated that on October 16th I refused drug treatment. Sir, I did not refuse drug treatment. . . . Sir, I have always welcomed the chance for drug treatment, but due to long waiting lists and financial reasons, I could never receive drug treatment, other than the methadone program, which I found I was allergic to . . . .

Sir, . . . since November 6th I've been incarcerated. By the grace of God I've been drug free for approximately 150 days, not because I've been in jail, but because being away from my family, being away from my loved ones have been the force that kept me from doing drugs. Sir, this is the first time in my life that I've been drug free for such a long time. My mind is crystal clear, and my health has improved tremendously. I came in weighing about 145 pounds; now I weigh about 175. It feels good to be drug free.

(Id.).

The presentence investigation report described defendant's role in the offense as that of a "middle man." (PSR 3 n.1). That report also noted defendant's objections to the use of the term "supplier;" defendant stated that the individual who was the source of the drugs was not a regular supplier, but an individual known to him. (PSR 12). The report further recorded defendant's assertions that he generally only purchased small amounts of drugs for his personal use and that a transaction of this magnitude was unusual for him. (PSR 12 & 14).

Defendant's guideline offense level was 25, which was arrived at using a base offense level of 30, pursuant to U.S.S.G. § 2D1.1(c)(5) (for offenses involving at least 35 but less than 50 grams of cocaine base), a three level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b)(2), and a two level reduction pursuant to U.S.S.G. § 2D1.1(b)(4) because defendant met the safety valve criteria established in U.S.S.G. § 5C1.2. With a criminal history category of I and a base level of 25, the guideline range was 57 to 71 months. Though the statutory mandatory minimum was five years, the court was authorized to depart downward to the bottom of the guidelines range pursuant to the safety valve. U.S.S.G. § 5C1.2.

At sentencing, defendant requested a reduction in his sentence pursuant to U.S.S.G. § 3B1.2, arguing that he was a "minor participant" because he was neither a regular drug seller nor the actual source of drugs in this case, and because this was an unusually large transaction for him. (Sent. Tr. 4-6; PSR 12-14; App. 14-15). At the time of the offense, defendant was a 48-year old man with a serious drug problem. He was unemployed and cared for his mother, who suffered from Parkinson's Disease, until she passed away, and his father, who suffered from diabetes and stroke. (Sent. Tr. 3; PSR 8; App. 10). In his Memorandum in Aid of Sentencing, defendant stated that in April, 1996, when the government contacted him a second time to request that he arrange a second crack cocaine transaction, he refused. (App. 13). He also noted that in March, 1996, when the police searched his house (apparently targeting defendant's brother, Eddie xxxxx), 2.9 grams of cocaine base, an amount consistent with personal use, was found on his person. (Id.). Defendant argued that--unlike the unindicted individual who supplied the drugs--he himself did not profit by an amount that correlated with the size of the transaction, and the only reason he handled the drugs and money was because the actual supplier "took steps to insulate himself as more culpable and sophisticated individuals often do, leaving Mr. xxxxx to do the street work to get his $100 fee." (App. 14).

Defendant also argued that the court should depart downward based on his low level of culpability and reduced predisposition to engage in a transaction of this size, citing United States v. Naranjo, 52 F.3d 245 (9th Cir. 1995), and United States v. Staufer, 38 F.3d 1103 (9th Cir. 1994). Defendant acknowledged that a complete entrapment defense was not available to him, and he did not assert a due process violation based on government misconduct or outrageous government conduct (as contemplated in United States v. Russell, 411 U.S. 423, 431-32 (1973)). (Sent. Tr. 4-5; PSR 14; App. 15-16).

The government agxxxxx at sentencing that defendant should be given a three level reduction for acceptance of responsibility and that defendant met the safety valve criteria. The government argued that defendant was not a minor player because he "brought this deal to fruition" and because the transaction "would not have occurred but for his activity in this case." (Sent. Tr. 7).

With respect to the question of a downward departure based on reduced predisposition, or imperfect entrapment, the District court and the government held the following discussion:

The Court: I take it the D.C. Circuit has some notion that there can be some kind of sentencing manipulation that would affect sentencing that doesn't just lead to a dismissal; right.

Mr. Gidez: I believe so.

The Court: That must be what [they're] talking about.

Mr. Gidez. I think so, but I think in -- in that case, and certainly in the cases the defendant cited from the Ninth Circuit, there's got to be some measure of outrageous conduct by the government, and in both those cases cited from the Ninth Circuit, there [were] clearly efforts by the government agents involved to boost the level of the offense against the will of the individual involved. . . .

(Sent. Tr. 8).²

Without offering defendant the opportunity for rebuttal argument, the district court denied defendant's requests for a § 3B1.2 reduction and a downward departure, stating:

I find that the minor role [adjustment] is not appropriate where the defendant actually did the deal, got the drugs, passed the drugs, got the money. He didn't have a minor role, so I reject the defendant's request for a reduction because of a minor role. I also think that sentencing manipulation reduction is not appropriate here when really all we have is a solicitation to engage in criminal activity, and we don't have anything at all that would raise to any improper conduct by the government, much less outrageous conduct by the government. So I will reject the defendant's request for a reduction for sentencing manipulation as well.

(Sent. Tr. 9). Adopting the pre-sentence report, the district court sentenced defendant to 57 months imprisonment, four years of supervised release, and a $50.00 special assessment. (Sent. Tr. 16-17).

SUMMARY OF ARGUMENT

This case involves a single government drug purchase for which defendant received $100.00. There was no evidence that defendant was a drug dealer; defendant claimed that this was an unusual transaction for him and that he refused, when approached again, to enter into a second transaction. Defendant was less culpable than the unindicted individual who provided the drugs and should have received a two or three level reduction in sentence for his role as a minor participant, pursuant to U.S.S.G. § 3B1.2.

Furthermore, the district court misinterpreted the scope of its authority to depart from the Sentencing Guidelines. Defendant argued that the district court should consider departure because of his vulnerability, his reduced culpability, and his reduced predisposition to enter into a transaction of this magnitude. The district court erred as a matter of law in finding that it was not permitted to depart on these grounds absent evidence of government misconduct or outrageous government conduct. This Court has not and should not preclude departure on these grounds, and defendant respectfully requests that this case be remanded to the district court for additional factual findings relevant to his request for departure.

ARGUMENT

THE DISTRICT COURT ERRED IN DENYING DEFENDANT A "MINOR PARTICIPANT" REDUCTION PURSUANT TO U.S.S.G. § 3B1.2

 

Standard of Review

This Court applies due deference to a district court's application of the Sentencing Guidelines to fact, and reviews the factual findings made by a district court in applying the Guidelines under a clearly erroneous standard. See, e.g., United States v. Edwards, 98 F.3d 1364, 1371 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 1437 (1997); United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994).

 

Defendant's Role in the Offense was Less Culpable than That of the Unidentified Source of the Drugs

Section 3B1.2(b) of the Sentencing Guidelines provides that the district court was required to reduce defendant's sentence if defendant was a minor participant in the offense.³In cases falling between (a) and (b), decrease by 3 levels. Application note 3 to § 3B1.2 states that "a minor participant means any participant who is less culpable than most other participants, but whose role could not be described as minimal." Application note 1 to U.S.S.G. § 3B1.1 defines "participant" as "a person who is criminally responsible for the commission of the offense, but need not have been convicted." Where a defendant is less culpable than another participant, the Guidelines directive for a reduced sentence is "unequivocal." United States v. Mitchell, 49 F.3d 769, 785 (D.C. Cir.), cert. denied, 116 S. Ct. 327 (1995).

In United States v. Caballero, 936 F.2d 1292 (D.C. Cir. 1991), cert. denied, 502 U.S. 1061 (1992), this Court explained that "section 3B1 allows the sentencing judge to look to '"the contours of the underlying scheme itself" rather than the mere elements of the offense charged'" and that the underlying scheme must involve more than one participant. Id. at 1298-99. The court held that the defendant's status as a "courier" was not sufficient by itself to justify a reduction in sentence as a minor participant, and remanded for additional factual findings. Id. at 1299-1300; see also United States v. Washington, 106 F.3d 983, 1018 (D.C. Cir. 1997), petition for cert. filed, (U.S. July 29, 1997) (No. 97-5423).

In Edwards, this Court explained that a sentencing court "must assess the defendant's role in the specific criminal conduct and not gauge his culpability generically." 98 F.3d at 1370.⁴ The Court denied the defendant's request for a minor role reduction in that case because "[s]he did more than simply exchange names and telephone numbers," she "handled the drugs and exchanged them for money," and "[o]n another occasion, [she] requested payment in drugs for her services in arranging the deal." Id. at 1371.

In Edwards, the defendant had engaged in substantially more criminal activity than Mr. xxxxx, including four separate transactions. In the first, she had introduced another participant to an undercover officer and arranged a transaction between those two, for which she requested payment in drugs. In the second, she sold over 50 grams of cocaine base to the undercover officer in exchange for $1,700.00. In the third, with the understanding that she would receive $100.00, she introduced the undercover officer to a "runner" for a dealer who exchanged 62 grams of baking soda for $1,800.00; when the officer later told her he had been given baking soda, she promised to give him 125 grams of cocaine base. In the fourth transaction, the defendant arranged for and completed a transaction of over 125 grams of cocaine base in exchange for $3,400.00, and another package of more than 60 grams of cocaine base was found in a co-defendant's car.

In United States v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997), this Court also denied a minor or minimal role reduction for defendants who were substantially more culpable than Mr. xxxxx. Gaviria involved several appellants, four transactions involving shipments of a total of 25 kilograms of cocaine from South and Central America, more than 100 tape recorded conversations between members of the conspiracy and undercover agents, and complex financial arrangements including the purchase of drugs on credit. Id. at 1506-09 & n.4. One of the defendants who appealed the denial of a minor role reduction was heavily involved in the two largest transactions, spent an afternoon and evening conversing with the undercover agent about one of those transactions, accepted payment for both transactions--including $7,000.00 for one--and was entrusted with that money by the owner of the drugs, was asked to and did pressure the undercover agent and informing witness to pay for the drugs, and gave instructions requiring payment before additional drugs would be made available. Id. at 1507-08 & n. 9, 1519-20. In addition, other participants had vouched for that defendant as "a reliable source of drugs and a major player." Id. at 1520 n.30. Another defendant, who had been given an upward adjustment as a manager or supervisor, also appealed the denial of a minor role reduction. Id. at 1530. That reduction was denied because the defendant had supervised another participant, had "served as 'a crucial link between the sellers and the buyers of [the] cocaine,'" and had "arranged for the purchase of most of the cocaine on credit." Id.

In contrast, in this case, defendant agxxxxx to set up a single transaction in exchange for $100.00. This transaction did not involve the kind of international negotiations for sizeable shipments of drugs and payment on credit involved in Gaviria, or the four transactions in which the defendant participated in a variety of ways, as in Edwards. The district court found that defendant's participation was not minor because he "did the deal, got the drugs, passed the drugs, got the money." However, here, "the deal" involved a phone call to a known source of drugs. No evidence was introduced that defendant had access to such large amounts of drugs independently of knowing who in the neighborhood could supply those amounts. Moreover, the only reason defendant handled the drugs and money was because the more culpable participant--the source of the drugs--was sophisticated enough not to engage in a transaction with an undercover officer. Furthermore, defendant asserted that he had refused a request from the confidential informant for a second, similarly large transaction, and when he was later arrested he was found with an amount of drugs consistent with personal use rather than distribution, further supporting his claim that this was an unusual transaction for him.

Even in the absence of more detailed information about the source of the drugs, it is apparent that the drugs originated from an individual who dealt in transactions of this magnitude and who participated in this offense.⁵ In these circumstances, this Court should not defer to the district court's erroneous decision to deny defendant a minor role reduction. See, e.g., United States v. Foley, 906 F.2d 1261, 1262-63 (8th Cir. 1990) (approving two level minor role reduction for defendant who arranged for and participated in three transactions, each involving sale of approximately one ounce of cocaine in exchange for $1,500.00, and who also negotiated fourth transaction for sale of two ounces of cocaine). Alternatively, this Court should find that the district court did not consider all of the facts relevant to that determination, and remand this case for additional findings.

THE DISTRICT COURT SHOULD HAVE CONSIDERED A DOWNWARD DEPARTURE FROM THE SENTENCING GUIDELINES

Defendant requested that the district court depart from the Sentencing Guidelines in his case because of his vulnerability, his reduced culpability, and his reduced predisposition to engage in a drug transaction of this size. The district court did not consider defendant's request because it interpreted precedent in this Court to require evidence of government misconduct or outrageous government conduct to support a departure on these grounds. As explained more fully below, the district court misinterpreted the scope of its authority, the law on which defendant relied, and the decisions of this Court.

Standard of Review

Departure from the Sentencing Guidelines is authorized if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b). In Koon v. United States, 116 S. Ct. 2035, 2051 (1996), the Supreme Court clarified that "with few exceptions, departure factors should not be ruled out on a categorical basis."

We conclude, then, that a federal court's examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether the Commission has proscribed, as a categorical matter, consideration of the factor. If the answer to this question is no--as it will be most of the time--the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside the heartland of the applicable Guideline.

Id.

It has been uniform and consistent in the federal judicial tradition for the sentencing judge to consider every person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.

Id. at 2053.

The Sentencing Commission has not proscribed or even discouraged downward departures in cases involving reduced predisposition or imperfect entrapment. To the contrary, the Commission has encouraged downward departures in a related circumstance in application note 15 to U.S.S.G. § 2D1.1. That note provides:

If, in a reverse sting (an operation in which a government agent sells or negotiates to sell a controlled substance to a defendant), the court finds that the government agent set a price for the controlled substance that was substantially below the market value of the controlled substance, thereby leading to the defendant's purchase of a significantly greater quantity of the controlled substance than his available resources would have allowed him to purchase except for the artificially low price set by the government agent, a downward departure may be warranted.

As the court in United States v. Staufer, 38 F.3d 1103, 1107 (9th Cir. 1994), explained:

[Application note 15] illustrates [that] . . . the Sentencing Commission now expressly recognizes that law enforcement agents should not be allowed to structure sting operations in such a way as to maximize the sentences imposed on defendants, and that courts may take into consideration the predisposition and capacity of the defendant to engage in a deal of the magnitude for which he or she was convicted.

See also United States v. Naranjo, 52 F.3d 245, 250 (9th Cir. 1995) ("Application Note 17 [now application note 15] 'only addresses one of the ways in which drug enforcement agents are able to manipulate sentences'" (citing Staufer)).

The Commission has also encouraged downward departures in cases involving incomplete coercion, blackmail or duress defenses. U.S.S.G. § 5K2.12. These considerations are analogous to an incomplete entrapment defense. See United States v. Garza-Juarez, 992 F.2d 896, 912 (9th Cir. 1993) (affirming reliance on § 5K2.12 to support departure based on imperfect entrapment), cert. denied, 510 U.S. 1058 (1994); see also United States v. McClelland, 72 F.3d 717, 725 & n.4 (9th Cir. 1995), cert. denied, 116 S. Ct. 1448 (1996).

Accordingly, not only has the Sentencing Commission not proscribed or even discouraged consideration of this factor, it has encouraged consideration of related factors. In accordance with Koon, this Court should not categorically proscribe such a basis for departure.

The District Court Erred in Requiring Evidence of Government Misconduct or Outrageous Government Conduct to Consider Defendant's Request for a Downward Departure Based on Reduced Culpability or Reduced Predisposition

Defendant's request for a departure is supported by the decisions of the Ninth Circuit and other courts. In Staufer, the Ninth Circuit stated that "courts can ensure that the sentences imposed reflect the defendants' degree of culpability only if they are able to reduce the sentences of defendants who are not predisposed to engage in deals as large as those induced by the government." 38 F.3d at 1107 (citations omitted). The defendant in Staufer was paid $8,000 to procure 10,000 doses of LSD for government undercover agents. Describing the district court's findings, the Ninth Circuit stated:

In this case, Judge Ideman found that Staufer was a user and sometime seller of LSD, but that he sold only to personal friends and had never engaged in a deal even approaching the magnitude of the transaction for which he was convicted. The court recognized that although Staufer might have been predisposed to supply drugs "only on a very small level for his friends," he was not predisposed "to involve himself in what turned out to be, from the standpoint of the Sentencing Guidelines, an immense amount of drugs."

38 F.3d at 1108.⁶ The district court, however, had believed it did not have the authority to depart on these grounds. Id. at 1106. The Ninth Circuit disagxxxxx and remanded the case for resentencing. Id. at 1108; see also Naranjo, 52 F.3d at 250; United States v. Pacheco-Osuna, 23 F.3d 269, 272 (9th Cir. 1994).⁷The court of appeals did not review the district court's decision not to depart because there was no indication the district court had misconstrued the scope of its authority, and a discretionary refusal to depart is generally unreviewable. Id. at 127. The court of appeals held instead that if the factual evidence on remand supported sentencing entrapment, the district court was precluded from applying an enhancement for the gun pursuant to § 2D1.1(b)(1). Id. Similarly, in United States v. Webb, 966 F. Supp. 16, 17-18 (D.D.C. 1997), appeal docketed, No. 97-3059 (D.C. Cir. May 22, 1997), the court departed downward from the Sentencing Guidelines in a case involving a drug addict, in part because the undercover officer involved in the case had arranged to arrest the defendant only after making a third purchase from him which brought the total amount of drugs to more than 50 grams of cocaine base.

And in McClelland, 72 F.3d at 724-26, the Ninth Circuit upheld a downward departure based on reduced predisposition for a defendant convicted of offenses associated with hiring an informant to murder his wife, where the defendant had initiated contact with the informant, and could have benefitted financially from the killing.⁸ As the court stated:

[The government's argument] that a defendant who was predisposed to commit a crime is not entitled to a departure . . . reflects a fundamental misunderstanding of the difference between imperfect entrapment as a ground for departure and entrapment as a legal defense. If the jury finds that a defendant who raises an entrapment defense was not predisposed to commit the crime, it would be obliged to find that he was not guilty. Conversely, if the jury convicts a defendant who has raised an entrapment defense, then it has necessarily found him to be predisposed to commit the crime. Since everyone convicted of a crime despite the assertion of an entrapment defense has been found to be predisposed, under the government's theory no one could ever receive a downward departure based on imperfect entrapment.

Id. at 725.⁹

Defendant's argument can be distinguished from a due process argument based on government misconduct or outrageous government conduct. Some courts have distinguished the two arguments by calling the latter one "sentence factor manipulation."¹⁰ See, e.g., United States v. Connell, 960 F.2d 191, 194 (1st Cir. 1992); United States v. Lacey, 86 F.3d 956, 962-63 (10th Cir.), cert. denied, 117 S. Ct. 331 (1996); United States v. Jones, 18 F.3d 1145, 1153 (4th Cir. 1994).¹¹ Others have suggested that an argument for departure based on reduced predisposition or imperfect entrapment is invalid or rarely applicable, citing a "reasonably bright line between guilt and innocence." See, e.g., United States v. Montoya, 62 F.3d 1, 4 (1st Cir. 1995); Lacey, 86 F.3d at 963 n.5 (citing Montoya). But no bright line between guilt and innocence precludes the numerous other considerations of reduced culpability which the Sentencing Guidelines take into account to authorize reductions in sentence or departures.

Several courts have departed based on similar arguments of reduced culpability where government misconduct was not at issue. For example, in United States v. Valdez-Gonzalez, 957 F.2d 643 (9th Cir. 1992), the court upheld a downward departure based on a relative lack of culpability for two defendants who had been offered $2,000.00 and $1,000.00, respectively, to drive marijuana from Mexico to the United States. Noting that a downward adjustment for a minor or minimal role was unavailable because the defendants had been the sole participants, the court stated: "we find that the marginal roles played by [the defendants] in the drug trade, coupled with the unavailability of the section 3B1.2 downward adjustment, could well represent a permissible basis for a downward departure." Id. at 648; see also Speenburgh, 990 F.2d at 76; Bierley, 922 F.2d at 1068-69. In United States v. Restrepo, 936 F.2d 661, 666-67 (2d Cir. 1991), the court upheld a four level downward departure in addition to a four level reduction pursuant to U.S.S.G. § 3B1.2 for a minimal role (for a total reduction of eight levels), where the Guidelines sentence based on the amount of money overstated the participation of defendants who loaded boxes of that money in a warehouse. And in United States v. Stuart, 22 F.3d 76, 83 (3d Cir. 1994), the defendant earned $2,000.00 for delivering $129,000.00 worth of stolen bonds, and received a nine level enhancement based on the value of the bonds. The Third Circuit upheld application of the enhancement but--remanding for consideration of whether the defendant should be awarded a mitigating adjustment as a minor participant--sua sponte suggested that the district court also depart because "strict application of the loss tables can overstate the seriousness of the offense." Id. at 83.

Precedent in this circuit does not require evidence of government misconduct or outrageous government conduct in order to consider defendant's request for a downward departure, contrary to its interpretation by the district court. For example, in United States v. Walls, 70 F.3d 1323 (D.C. Cir. 1995), cert. denied, 117 S. Ct. 90 (1996), two defendants argued that "they should have been sentenced as if they had distributed cocaine powder rather than crack cocaine" because they were not predisposed to sell cocaine base and were induced by government agents into converting cocaine powder into cocaine base. Id. at 1328. This Court rejected their argument that the government conduct in that case constituted "sentencing entrapment," and further stated that:

If the propriety of the agents' conduct had any significance, it would only be with respect to the following dictum in Russell: "we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from involving judicial processes to obtain a conviction." 411 U.S. at 431-32, 93 S. Ct. at 1642-43. The Supreme Court, of course, was speaking about setting aside a conviction. United States v. Baker, 63 F.3d 1478, 1500 (9th Cir. 1995). Whatever vitality the outrageous-conduct defense might have for that purpose, and we doubt that it has much, we conceive of no basis for allowing this defense, or some variant of it, to reduce a defendant's sentence. The life sentences Walls and Jackson received were mandated by statute. A court would be justified in giving them some other sentence if and only if the Constitution required this.

70 F.3d at 1329-30 (footnote omitted). However, this Court in Walls did not consider the question raised by Mr. xxxxx of whether a district court could take imperfect entrapment or reduced predisposition into account to depart from the Sentencing Guidelines; nor did it consider whether a court could depart based on claims related to sentence entrapment or sentence factor manipulation. See, e.g., United States v. Shepherd, 102 F.3d 558, 566-67 n.10 (D.C. Cir. 1996) ("[W]e have no occasion to consider the impact, if any, of Koon v. United States, [116 S. Ct. 2035] (1996), on the conclusion in Walls with respect to the district court's authority to depart from the Sentencing Guidelines where there is a claim of manipulative conduct by a government agent."); but see Washington, 106 F.3d at 1016.¹² Departures from the Sentencing Guidelines are not subject to the same standards required to overturn or ignore a statutorily mandated sentence under the Constitution. See, e.g., Koon, 116 S. Ct. at 2053 (departure based on constitutionally valid successive state and federal prosecutions is permissible).

Other cases decided by this Court similarly do not support the district court's interpretation of law in this circuit. In United States v. Studevent, 116 F.3d 1559 (D.C. Cir. 1997), a bank fraud case, the defendant argued that the district court could have departed in the case of a government sting which "lure[d] the target into committing himself to vast amounts of intended loss." Id. at 1563. This Court rejected that argument on factual grounds, because the defendant "began to engage in check fraud before the government arrived on the scene and . . . decid[ed] the amount of each fraudulent check, after the sting was underway." Id. The Court did not question whether a district court would have authority to depart on such grounds in Studevent. Nor did it do so in United States v. Spriggs, 102 F.3d 1245, 1263 (D.C. Cir. 1996), cert. denied, 118 S.Ct. 97 (1997), in which the defendant had asked the district court to depart based on "imperfect entrapment" and the district court stated that "no departure would be appropriate in this case." Because the defendant in Spriggs did not ask for clarification of the district court's reasons for its decision, this Court "'assume[d] 'that the district court kn[ew] and applie[d] the law correctly,' and that it had the authority to depart, but exercised its discretion and decided not to do so here.'" 102 F.3d at 1263 (internal quotations omitted).

Accordingly, defendant's request for departure based on imperfect entrapment or reduced predisposition has not been precluded as a matter of law in this Circuit. Furthermore, the Sentencing Commission has not proscribed its consideration and, pursuant to Koon, this Court should not rule that it is foreclosed in all circumstances. Instead, this Court should remand for reconsideration.

CONCLUSION

Defendant respectfully requests that this Court reverse the district court's decision denying defendant a minor role reduction pursuant to U.S.S.G. § 3B1.2, or remand that decision for further factual findings, and remand the district court's decision on defendant's request for a downward departure for reconsideration.

Respectfully submitted,

A.J. KRAMER,

FEDERAL PUBLIC DEFENDER

Beverly G. Dyer

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel for Appellant

625 Indiana Avenue, N.W.

Suite 500

Washington, D.C. 20004

CERTIFICATE OF LENGTH

I hereby certify that the foregoing brief for appellant, Randolph xxxxx, does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).