GUIDELINE DISPUTES

A. Mr. *Is Base Offense Level Must Reduced Due to Sentencing Entrapment.

1. Introduction.

This Court must determine the amount of drugs for which

Mr. * is responsible. United States v. Naranjo, 52 F.3d 245, 248 (9th Cir. 1995) (citations omitted). Mr. * contends that the PSR misstates that amount because he was a victim of sentencing entrapment undertaken by an unscrupulous confidential informant ("CI"). "Sentencing entrapment occurs when la defendant, although predisposed to commit a minor or lesser offense, is entrapped in[to] committing a greater offense subject to greater punishment."' United States v. Parrilla, 114 F.3d 124, 126 (9th Cir. 1997) (quoting United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994)). Thus, "in a case where the government induced a target to sell far more of a controlled substance than had formerly been within his practice or resources, . . . sentence entrapment applie[s] and a downward departure [is] authorized." United States v. Ramirez-Rangel, 103 F.3d 1501, 1506 (9th Cir. 1997) (citing Staufer, 38 F.3d at 1107). The burden of proof on this issue, by a preponderance of the evidence, lies on the defendant .

Because sentencing entrapment is in the nature of an affirmative defense, the burden of persuasion should shift to the government when the burden of production is met by the defendant. Cf. United States v. Kessee, 992 F.2d 1001, 1003 (9th Cir. 1993)Parrilla, 114 F.3d at 127 (citation omitted). Here, the CI, taking advantage of Mr. *'s friendship, his drinking problem, and his need for money due to a family health crisis, induced Mr. to commit an offense on a scale he never would have even contemplated but for the CI's conduct.

There are numerous remedies available when sentencing entrapment is established. The Court may "decline to apply the statutory penalty provision for the greater offense that the defendant was induced to commit, and instead apply the penalty provision for the lesser offense that the defendant was predisposed to commit." Parrilla, 114 F.3d at 127 (citing Ramirez-Rangel, 103 F.3d at 1307-08). Accord United States v. Castaneda, 94 F.3d 592, 595 (9th Cir. 1996) (finding of sentencing entrapment may avoid application of drug minimum mandatory sentence). The Court also cannot increase the base offense level based upon conduct which the defendant was improperly induced to commit. Id. (citing Staufer, 38 F.3d at 1107). Finally, the Court "may exercise its discretion to depart downward from the sentencing range for the greater offense the defendant was induced to commit it." Id. (citing Staufer, 38 F.3d at 1108).

2. Statement of Facts.

Mr. * was in deep trouble. He had little employment. He had been arrested on and had a (once defendant adduces slight evidence of entrapment at trial, burden shifts to the government to disprove it beyond a reasonable doubt).pending court case. In that case, Mr. * was charged with possessing 20.98 grams of cocaine base and 7.56 grams of amphetamine. In short, he possessed small street level quantities. He confessed at the time of his arrest, and, during the pendency of the instant case, he entered a plea of guilty and was sentenced.

Mr. * had been unable to send money to his wife in Mexico, and, worst of all, his son required major reconstructive surgery. On top of all these problems, Mr. * has a serious drinking problem, a problem which landed him in jail twice before on driving under the influence charges.

It was at the height of these troubles that he met the CI, a false friend who would drink beer with him and commiserate with him regarding his troubles. The CI led Mr. * to believe that the Cl was a "big time" drug trafficker, with access to easy money that could solve all of Mr. *'s troubles. As a consequence, when the CI asked him to acquire drugs for him in early August, Mr. * agreed. At the time, however, Mr. * did not realize that his new found "friend" would embark upon a campaign of intimidation, inducing Mr. * to seek to undertake drugs transactions that were of a far greater magnitude than he would ever have even attempted.

On August 12, 1996, Mr. * met the CI at Burger King and delivered a sample of methamphetamine. Disc. at 5-6. He also reminded the CI of the plight of his son in Mexico and the money Mr. * would need for the son's medical treatment. Disc. at 7-8, 319, 320-21. That same day, however, the CI expressed his impatience with Mr. *, calling him a "dummy" and an "asshole". Disc. at 314, 318. The reason for the CI's impatience was, of course, the difficulty that Mr. *, a small time operator, was having coming up with the quantity of drugs the CI demanded. Disc. at 318.

The CI and Mr. * had further conversations regarding the proposed heroin deal. Disc. at 12. Mr. *, however, was still having trouble coming up with the drugs. Disc. at 325-36. Mr. * failed to deliver the drugs as agreed. Disc. at 26-27. The next day, the CI ominously informed Mr. * that Mr. *was making the CI looked bad with the CI's"guy." Disc. at 327.

Mr. * was still trying to comply with the CI's demands. In yet another taped conversation, he advised the CI that he wanted to be "big" like the CI, a status he obviously would not have even hoped to have achieved absent the CI's involvement. Disc. at 331. In fact, in that same conversation, he asked the CI to lend him money so that he could do the deal; money was a resource that Mr. *, a street level dealer at best, clearly lacked. Disc. at 331.

While he was undertaking these desperate efforts to satisfy the CI, the evidence indicates that Mr. * continued to drink. In fact, on , he and the CI planned to meet. Disc. at 333. But in a conversation recorded on , Mr. * stated he had forgotten the previous day's conversation because he had been drunk. Disc. at 334.

On that date, Mr. * again tried to put a deal together and failed; the source would not come to his house. Disc. at 28-29. Again, Mr. * did not have the money to pull off a deal of this magnitude. He again asked the CI to lend him money; the CI refused. Disc. at 335. Even though Mr. * advised the CI that the source, who Mr. * had just met, would not lend him money either, the CI held firm. Disc. at 335. Mr. * simply did not have the cash.

On , Mr. * indicated that he was willing to try a third time. Disc. at 337-38. The deal finally took place on . Significantly, Mr. * was not "fronted" the drugs. Emissaries of the owners delivered the drugs and kept them under surveillance at all times. Mr. * was never in a position of trust to the extent that he was alone with the drugs. In fact, in Mr. *Is post arrest statement, he indicated that it was codefendant Vasquez who put the deal together. Disc. at 16-18.

3. Mr. * was entrapped into a much larger transaction than he would otherwise have undertaken.

The Ninth Circuit's sentencing entrapment cases stand for the proposition that the doctrine is applicable "in a case where the government induced a target to sell far more of a controlled substance than had formerly been within his practice or resources . . . . Ramirez-Rangel, 103 F.3d at 1506 (citing Staufer, 38 F.3d at 1107). A brief discussion of the cases that have established that principle make it abundantly clear that Mr. * was the victim sentencing entrapment; the deal he was induced to undertake was "within [neither] his practice [n]or [his] resources." Id.

In Staufer, the government targeted a young LSD user, Staufer, by use of an informant. The informant allegedly contacted Staufer numerous times. Staufer had substantial financial problems, having had difficulty finding full time employment. 38 F.3d at 1105. He did not have stable living arrangements. id. The district court found that he had sold drugs before, albeit in small quantities to friends, but that he "had never engaged in a deal even approaching the magnitude of the transaction for which he was convicted." Id. at 1108.

The Staufer court examined the structure of the sentencing guidelines and found that district court must be able to ameliorate the guidelines' emphasis on drug quantity in cases where the government has induced a defendant to engage in a transaction the magnitude of which is beyond what the defendant was predisposed to undertake: "Under the present sentencing scheme, government abuse can be discouraged and corrected only if the courts are able to ensure that the government has some reason to believe that defendants are predisposed to engage in a drug deal of the magnitude for which they are prosecuted." Staufer, 38 F.3d at 1107. Such discretion is essential to the sentencing court's fulfillment of its responsibility to ensure that the sentence adequately reflects the defendant's personal responsibility: "courts can ensure that the sentences imposed reflect the defendants' degree of culpability only if that are able to reduce the sentences of defendants who are not predisposed to engage in deals as large as those induced by the

government." Id. As a consequence, the Ninth Circuit found that Staufer, who was no more than a small time dealer who was enduring financial hardship, was eligible for relief under the doctrine of sentencing entrapment. Id. at 1108.

Like the defendant in Staufer, Mr. * is a person who has been involved in low level trafficking before, as evidenced by his arrest and conviction involving street level quantities of drugs, and who was experiencing serious financial difficulties of which the CI was aware. Unlike the defendant in Staufer, Mr. had the additional obligation of a family in Mexico and a son who needed surgery. But, like the defendant in Staufer, he has never been involved in the type of large scale transaction in which he was induced to participate in the instant case. The fact that he needed three attempts before he could produce the drugs speaks volumes regarding Mr. *Is true level of participation. Mr. * is thus eligible for relief under Staufer.

United States v. Naranjo, 52 F.3d 245, also illustrates the strength of the evidence here. In Naranjo, the defendant raised the issue of sentencing entrapment, claiming that an informant and a DEA agent induced him to commit an offense involving a much larger quantity of cocaine -- five kilograms than that with which he would otherwise have been involved. The district court in that case failed to make any findings as to Naranjo's claim. In determining whether to remand, the Ninth Circuit observed that "the record [in that case] strongly suggests that Naranjo had neither the intent nor the resources to engage in a five-kilogram transaction." 52 F.3d at 251. One of the most significant facts was the defendant's financial inability to purchase more than one kilogram. Id. Indeed, when the defendant ultimately showed up for what was to be a five kilogram deal, he only had money for one kilogram. Id. at 247.

The Naranjo court also found that the defendant's claim was buttressed by the involvement of the DEA. The agent involved in the negotiations was clearly pushing to increase the quantity to the five kilogram level, such that the Naranjo court found that "there is strong evidence that the DEA was trying to increase the quantity of cocaine Naranjo would purchase." Id. at 251.

The evidence here is equally compelling. First, Mr. was clearly in way over his head. It took him three separate attempts to put together the quantity that the informant demanded. Disc. at 26-27, 28-29, 19-22. Second, Mr. * was woefully lacking in the resources necessary to operate at the level desired by the informant; he tried to borrow money both from the CI, Disc. at 331, 335, and a potential source whom he had just met. Disc. at 335. In fact, the only reason he ever succeeded was that he found a source who was willing to send his emissaries to Mr. *Is home, thus eliminating Mr. *Is need to come up with the cash that he so obviously lacked.

Similarly, as in Naranjo, the quantity at issue here had its genesis at the DEA. Eight pounds was what the CI wanted. It is no coincidence that the desired quantity results in a ten year minimum mandatory case with a very high offense level.

4. This Court should sentence Mr. * through use of the quantities from his prior arrest.

Mr. * prior arrest involved 20.98 grams of cocaine base and 7.56 grams of amphetamine. These are the quantities in which Mr. * was predisposed to traffic. The base offense level should be calculated based upon those quantities. The result is a level 2 8 .

5. The CI must be produced for any sentencing hearing.

Based upon the foregoing, almost all of which is based upon discovery produced by the government, Mr. * believes he has established sentencing entrapment as a matter of law. See Staufer, 38 F.3d 1103, and Naranjo, 52 F.3d 245. In the event that the Court disagrees, Mr. * requests a continuance for an evidentiary hearing at which the Government must produce the CI.

See Ramirez-Rangel, 103 F.3d at 1508.

B. Mr. * is Entitled to a Three Level Reduction for Acceptance of Responsibility.

On , Mr. * entered pleas of guilty to both counts of the indictment, even though he had never been offered a plea agreement. He admitted to this Court, under oath, his guilt. Mr. * is entitled to acceptance of responsibility for, among other reasons, his pleas of guilty. United States v._ Vance, 62 F.3d 1152, 1157-61 (9th Cir. 1995); accord U.S.S.G. §3El.l, App. n.3. His failure to speak with the Probation Officer regarding the offense is irrelevant. Id.; accord United States v. Flores, 93 F.3d 587, 590 (9th Cir. 1996) ("the district court cannot consider [the defendant's] refusal to talk to the Probation Officer as evidence of not accepting responsibility").

Mr. * is also entitled to an additional point off for pleading guilty early enough to "permit] the government to avoid preparing for trial and to permit the court to allocate its resources efficiently." U. S. S. G. §"3El. 1 (b) (2) Counsel forMr. * notified Assistant U.S. Attorney long before the scheduled trial date that there was a high likelihood that Mr. * would enter pleas of guilty, In addition, counsel called Mr. on to confirm that Mr. * would plead guilty. In a case where Mr. was never offered a plea agreement, his efforts timely to notify the prosecution of his intent to plead guilty are sufficient to merit an additional point pursuant to U.S. S. G. §3El. 1 (b) (2) .

C. Mr. * Should Be Given a Role Reduction.

Mr. *'s role in the instant offense was solely as a middleman. He is less culpable than those who are actively involved in transactions of this magnitude and who have ownership interests in the contraband. Therefore, a role adjustment is appropriate. U.S.S.G. § 3Bl.2.

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