SUMMARY OF ARGUMENT

Defendant was significantly less culpable than the unindicted seller of drugs who also participated in this offense. Therefore, the district court erred in denying defendant a downward adjustment for a mitigating role as a "minor participant" pursuant to U.S.S.G. § 3B1.2. In addition, this Court should remand this case to the district court for reconsideration of a downward departure from the Sentencing Guidelines for imperfect entrapment or reduced predisposition. The district court refused to consider defendant's request for departure without evidence of government misconduct. While such evidence may be required for an entrapment defense, a court's authority to depart from the Sentencing Guidelines is governed by a broader standard, which includes any ground for departure not proscribed by the Sentencing Commission. In this case, the district court misunderstood the scope of its authority to depart from the Guidelines.

I. The District Court Erred in Denying Defendant a "Minor Participant" Reduction Pursuant to U.S.S.G. § 3B1.2

As explained in the brief for appellant, the district court should have granted defendant a reduction as a minor participant pursuant to U.S.S.G. § 3B1.2 because defendant was less culpable than the unindicted source of the drugs. See, e.g., United States v. Mitchell, 49 F.3d 769, 785 (D.C. Cir.), cert. denied, 116 S. Ct. 327 (1995).

In its opposition, the government asserts that defendant was equally or more culpable than the unindicted participant. Brief for Appellee (hereinafter "Govt. Br.") at iv, 3, 8. The government cites a number of reasons for that assertion, several of which are not supported by the record. For example, the government asserts that defendant "contacted" the cooperating witness by telephone, suggesting that defendant initiated this transaction. Govt. Br. at iv, 3, 8, 10. However, the government did not make this assertion in its proffer, nor did it allege that defendant actively contacted the cooperating witness in its Memorandum in Aid of Sentencing. (Plea Tr. 11-12 (transaction set up through series of telephone conversations); App. 18-19, 21 (e.g., defendant "had telephone contact" with cooperating witness)). The government also asserts in its opposition that defendant established the location and time for the transaction. Govt. Br. at iv, 3, 8, 10, 13 n.4. This assertion was not made in the proffer and was not alleged in the description of facts contained in the government's sentencing memorandum. (Plea Tr. 11-12; App. 18-19). In addition, in describing the factual background of this case, the government states that "[a]ppellant prohibited the undercover officer and the cooperating witness from attending the meeting [with the drug seller.]" Govt. Br. at 5. However, in its sentencing memorandum, the government stated to the contrary that "[e]vidently, the supplier, "Mike," would not deal directly with the officer or the cooperating witness because he did not know them." (App. 19).¹ This statement by the government suggests that the unindicted seller of drugs had authority over defendant and supports defendant's argument that he was less culpable than that person.

Furthermore, the government's characterization of the defendant as a "middle man" does not determine his culpability in the offense relative to the seller of the drugs. See Govt. Br. at 8, 11. Nor is it determinative whether the transaction would have occurred "but for" defendant's actions, or whether defendant's role "was essential" to the deal, as asserted by the government. (Sent. Tr. 7); Govt. Br. at 13 n.4. The government could make that argument about most participants. Moreover, the government's arguments do not establish that Mr. Reed was as culpable, relative to co-participants, as Vonda Dortch in United States v. Edwards, 98 F.3d 1364, 1371 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 1437 (1997), or Regulo Zambrano or Zachary Williams in United States v. Gaviria, 116 F.3d 1498, 1519-20, 1530 (D.C. Cir. 1997). The government further asserts that Mr. Williams' role in Gaviria was "less serious" than Mr. Reed's role in the instant case. Govt. Br. at 11. However, as defendant noted (Brief for Appellant at 13), Mr. Williams participated in several activities in support of a complex international conspiracy at issue in Gaviria, in addition to receiving an upward adjustment for an aggravating role as an "organizer, leader, manager or supervisor" pursuant to U.S.S.G. § 3B1.1(c).²

This Court should not defer to the district court's erroneous decision to deny defendant a "minor role" reduction in his sentence.

II. The District Court Misinterpreted the Scope of Its Authority to Depart Under the Sentencing Guidelines

As defendant explained in his opening brief, the Supreme Court in Koon v. United States, 116 S. Ct. 2035 (1996), held that only those grounds for departure which have been categorically proscribed by the Sentencing Commission should be precluded from consideration by a sentencing court. The government fails to address either the scope of the district court's authority to depart or the discussion of that question in Koon. Instead, the government asserts that this Court does not have jurisdiction to review the district court's decision on appeal because the sentence was not imposed in violation of law. Govt. Br. at 3, 14. This is a mischaracterization of the question raised on appeal and pursuant to Koon.

The government also characterizes the district court's denial of a departure from the Sentencing Guidelines as a factual, rather than a legal, decision. Govt. Br. at 3-4, 14. The discussion between the district court and counsel at the sentencing hearing, however, demonstrates otherwise. At sentencing, defense counsel conceded that this case did not involve improper government conduct and argued that government misconduct was not required to depart under the law. (Sent. Tr. 4). Government counsel argued to the contrary that, legally, "there needs to be more than a mere solicitation by a government agent" and "there's got to be some measure of outrageous conduct by the government." (Id. at 7-8). The district court accepted the government's characterization of law when it declined to depart because "really all we have is a solicitation to engage in criminal activity, and we don't have anything that would raise to any improper conduct by the government, much less outrageous conduct by the government." (Id. at 9). This colloquy and the court's ruling demonstrate that the district court believed that it could not consider departure in the absence of outrageous government conduct or at least government misconduct. To the contrary, under Koon, consideration of departure for reduced predisposition is permissible even in the absence of government misconduct. Accordingly, the district court misunderstood the scope of its authority to depart.

In addition, the government cites several cases that did not involve departure and are therefore irrelevant to the question presented here. Those cases, United States v. Shepherd, 102 F.3d 558, 565-67 (D.C. Cir. 1996), United States v. Sanchez, 88 F.3d 1243, 1248-49 (D.C. Cir. 1996), and United States v. Salmon, 948 F.2d 776, 778-79 (D.C. Cir. 1991), each involved claims that a cocaine powder sentence could be applied instead of a crack cocaine sentence where a defendant was not predisposed to sell crack cocaine or was induced to do so by government agents. In those cases, this Court analyzed a complete entrapment defense; none of those cases addressed whether partial entrapment or reduced predisposition could be a proper ground for departure. In Salmon and Shepherd, this Court explicitly did not reach the question presented here. See 948 F.2d at 779-780; 102 F.3d at 566 n.10.

Moreover, the government appears to believe the district court would only be authorized to consider defendant's request for departure if defendant could show a complete entrapment, "sentencing entrapment," or "sentence factor manipulation" defense. See, e.g., Govt. Br. at 16 ("Judge Lamberth held that merely offering appellant the opportunity to commit a crime in exchange for money is not 'inducement' that gives rise to an entrapment 'defense' at sentencing."); id. at 17 ("Without inducement, there can be no entrapment. Thus, to the extent, if any, the court was authorized to depart on the contested ground, the court recognized its authority and declined to do so."); id. at 18 n.5 ("We maintain that appellant's contention -- that there can be 'sentencing entrapment' or 'sentence factor manipulation' without outrageous government conduct -- is simply wrong."). To the contrary, as defendant has explained, a downward departure does not require a complete defense to criminal charges. Brief for Appellant at 16-23.

This Court should clarify that the district court is authorized to depart in mitigating circumstances not taken into consideration by the Sentencing Commission, where the defendant's conduct "significantly differs from the norm" -- and where strict application of the Guidelines would overstate the seriousness of the offense or the defendant's culpability. See U.S. Sentencing Guidelines Manual at 6 (1992); United States v. Stuart, 22 F.3d 76, 82 (3d Cir. 1996). Consideration of a downward departure on the basis of imperfect entrapment or reduced predisposition has not been proscribed by the Sentencing Commission or the courts and, pursuant to Koon, this Court should not foreclose such consideration. Instead, this Court should remand this case for resentencing.

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 for reconsideration the district court's decision on defendant's request for a downward departure.

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

(202) 208-7500

CERTIFICATE OF LENGTH

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

Beverly G. Dyer

CERTIFICATE OF SERVICE

I hereby certify that on December 17, 1997, two copies of the foregoing reply brief for appellant Randolph Reed were served by hand on John R. Fisher, Chief, Appellate Section, Criminal Division, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001.