Law in Contemporary Society
* Circuit Split: Why Federal Courts Should Allow Sentencing Entrapment Defenses, and Exclude Sentencing Manipulation Defenses*.

Circuits are currently split as to whether sentence entrapment and sentence factor manipulation are valid defenses to sentences calculated under the Federal Guidelines. Some circuits allow one defense but not the other, some allow both, and some deny both. Some do not recognize the difference between the defenses, which further complicates the matter [for an excellent summary, see http://sentencing.typepad.com/sentencing_law_and_policy/2010/04/effective-review-of-federal-sentencing-law-on-sentencing-entrapment.html]. I will argue that federal courts should allow sentencing entrapment defenses, but deny sentencing manipulation defenses.

How the Defenses Work

Both defenses arise most commonly in the context of drug sales and money laundering. In the course of sting operations and undercover investigations, undercover agents will engage targets in illegal transactions. Because the Federal Guidelines feature a quantity-based approach to sentencing, the agent’s choices in structuring the transaction (or series of transactions) play a large part in the sentence the offender receives. Accordingly, if this discretion is abused, defendants argue that their sentences should be mitigated. The Turner court best explains the difference between the two defenses. See United States v. Turner, 569 F.3d 637, 641 (7th Cir. 2009). Manipulation occurs when improper behavior increases the sentence. For example, a narc officer could buy dime bags from a street corner dealer for weeks before finally charging him with selling a large quantity of drugs. Entrapment, in contrast, occurs when a government agent encourages the defendant to commit a greater offense than he was predisposed to. If an officer encouraged a marijuana dealer to sell him heroin, this would be sentencing entrapment. In one case, for example, an officer asked a coke dealer to cook the drugs into crack, which increased the Guideline sentence a hundredfold.

Why This Issue Matters

Because the Federal Guidelines are now advisory (US v. Booker, 2005), one wonders why courts still consider this issue. As a practical matter, courts continue to rule on this issue despite the advisory nature of the Federal Guidelines, which alone suggests that the issue is still of consequence. Although guidelines are advisory, they’re still hugely influential as the required starting point for sentence calculations, and judges are required to give reasons for departing from the guideline sentence. A judge will be reversed by an appellate court if she fails to justify departing from the guidelines. Consequentially, the vast majority of sentences fall within the guideline ranges. Though judges have room for discretionary leniency, leaving the matter to judicial discretion merely permits them to consider the issue, whereas recognizing the defense as a matter of law would require judges to consider the merits of the defense as a factor for sentence departure under 18 USCA 3553. Federal Courts Should Not Allow Sentence Manipulation Defenses

First and foremost, sentencing manipulation is not a valid defense because “there is no constitutional right to be arrested at the exact moment that police acquire probable cause.” Turner at 641. More importantly, denial of the defense supports law enforcement by deferring to the choices made by investigators. Recognizing sentence manipulation would run contrary to the way investigations are actually run, because lesser drug dealers are often followed for lengthy periods in order to gather information about targets higher up in the distribution chain. Ultimately, it is for law enforcement officers to decide when enough evidence has accumulated to bring charges. The desire to allow this defense is really a reaction to the quantity-based approach of the Federal Guidelines. We do not like charging a petty corner dealer the same way we punish a higher distributor, and charging the corner dealer with a high quantity offense seems unjust. Imagine that A sells kilos of cocaine, and B purchases one. B breaks the kilo down into small quantities and sells them on the street. If B is arrested on one sale, he will be charged with a far lower sentence than if A is arrested for one sale. However, if an officer waited to buy all of B’s supply, the sentences would be equal, as both would have sold a kilo. Charging them for the same offense seems wrong, because we want to criminalize their role in the distribution chain. Instead, the Guidelines look to punish in proportion to the amounts distributed, perhaps because perfect information regarding retail structures is not always available to courts. For this reason, charging the corner dealer with selling a kilo is permissible, and makes practical sense.

Federal Courts Should Allow Sentence Entrapment Defenses

Sentencing entrapment, on the other hand, does not serve justice, and therefore the defense should be allowed. If a criminal is not predisposed to commit a kind of crime, there is no rational reason to punish the offender for the heightened offense. For example, there is a reason why the law penalizes crack dealers more than coke dealers; asking a dealer to convert the drug in order to put away a dealer does not serve justice. Unlike situations of sentence manipulation, there are no issues of inevitability or aggregation here. Absent police encouragement, the marijuana dealer will remain a marijuana dealer, and thus inducing him to commit a heroin offense serves no just purpose. Although sentencing entrapment is a difficult defense to prove, allowing the defense sends the right message to law enforcement officers. There is a great deal of pressure on law enforcement agencies to appear tough on crime, and to put criminals away for long sentences. While we want to encourage aggressive investigation strategies, we do not want to encourage cracking down on crime for the sake of appearances. Thus, sentencing entrapment should be an available defense.

Why the Difference Matters

The difference between the two defenses delineates the boundaries of investigatory discretion. Courts want to encourage and enable sting operations and long investigations without giving unduly harsh sentences for the sake of appearing tough on crime. At the same time, making the defense available checks the discretion available to sentencing judges. Sentencing entrapment should mitigate a sentence, and sentencing leniency should not rest on the judge’s discretion alone. For this reason, judges should be required to consider issues of sentencing entrapment when calculating a sentence. If the matter were left to the discretion of judges, this would lead to inconsistent sentencing, which was the very harm the Federal Guidelines were designed to cure.

Alison- This is a really interesting and complex topic. I tried to make it more accessible to (at least somewhat) average readers, by personifying the problem and restructuring the outline. I tried to identify your key points and make them clearer, but I did not substantively add to them or address their strength. I hope that this will help you see where your arguments could be stronger. I had more trouble in the last two sections, I think because it was difficult for me to figure out exactly what your arguments were for allowing entrapment but excluding sentence manipulation. I saw a few issues that could cut across both: deference to law enforcement, fairness to defendants, consistency in sentencing, and sufficient guidance and yet discretion for district judges. I tried to make the key points as salient as I could, but it's very possible that I misunderstood your original arguments. Let me know what you think! --Maren

Circuit Split: Why Federal Courts Should Allow Sentencing Entrapment Defenses, and Exclude Sentencing Manipulation Defenses

Scenario

On September 30, 2004, Richard Turner sold 25.4 grams of cocaine for $800 to a buyer. The following week, on October 7, Mr. Turner sold the same person another 26.4 grams of cocaine for $800. Unfortunately for Mr. Turner, this particular buyer was a government informant. Mr. Turner was charged with “knowingly and intentionally distributing five grams or more of a mixture or substance containing crack cocaine, in violation of 21 U.S.C. 841(a)(1)” (Turner, 639). While Mr. Turner might know that he is guilty, he might feel like he was lured into selling the cocaine at all, or that he was lured into selling more than was necessary to convict him of the initial charge.

The Two Defenses

Depending on the circuit that Mr. Turner is in, he might be able to turn these sentiments into valid defenses. If he can show that the government informant caused him to commit a more serious crime than he was predisposed to commit—maybe he is a marijuana dealer by trade but happened to be carrying cocaine or located some specifically for this customer—he can try a defense called “entrapment.” If he can show that the government informant acted improperly in a way that increased his sentence—maybe his sentence increased due to the difference between 25.4 grams and almost 52 grams—then he can try a defense called “sentence manipulation.”

In the First, Eighth Ninth and Tenth circuits, both of Mr. Turner’s defenses would be allowed. In the Fourth, Fifth, Sixth and DC circuits, both of Mr. Turner’s defenses would fail. In the Seventh Circuit, only the entrapment defense would be allowed, but in the Eleventh Circuit, only the sentence manipulation defense would be allowed.

I will argue that federal courts should allow sentencing entrapment defenses, but deny sentencing manipulation defenses. Both defenses arise most commonly in the context of drug sales and money laundering. In the course of sting operations and undercover investigations, undercover agents will engage targets in illegal transactions. Because the Federal Guidelines feature a quantity-based approach to sentencing, the agent’s choices in structuring the transaction (or series of transactions) play a large part in the sentence the offender receives. Accordingly, if this discretion is abused, defendants argue that their sentences should be mitigated.

Federal Courts Should Not Allow Sentence Manipulation Defenses

Sentence Manipulation defenses interfere too significantly with law enforcement, and do not sufficiently defer to choices made by investigators. Particularly in drug dealing and money laundering cases, lesser drug dealers are often followed for lengthy periods in order to gather information about targets higher up in the distribution chain. Law enforcement officers should be able to decide when enough evidence has accumulated to bring charges. Moreover, allowing this defense would demand precise information about amounts and occasions, which would too heavily burden investigators and prosecutors to produce. Federal Sentencing Guidelines punish in proportion to amounts distributed, perhaps because perfect information regarding retail structures is not always available. Thus, a corner dealer who sells a kilo of cocaine cumulatively over ten occasions can be charged the same as his distributor who sells a kilo on one occasion. If it took a government informant ten buys to identify the distributor, the government should be not deterred from gathering that information. Although this may seem unfair, denying this defense does not violate defendants’ rights, since, “there is no constitutional right to be arrested at the exact moment that police acquire probable cause.” Turner at 641.

Federal Courts Should Allow Sentence Entrapment Defenses

Sentencing entrapment, however, is unfair to defendants and the defense should be available. Unlike sentencing manipulation, if entrapment has occurred, the defendant has been induced to do something that he or she otherwise would not have done (whereas in manipulation, the defendant was simply not interrupted from continuing a specific behavior that likely would have continued). In theoretical terms, assigning punishment is contrary to the idea of culpability, since the defendant did not have the mens rea for the relevant crime.

Moreover, if a criminal is not predisposed to commit a kind of crime, there is no rational reason to punish the offender for the heightened offense. It does not assist investigations, and should warrant no deference. Unlike situations of sentence manipulation, entrapment will not likely help identify or convict others in a scheme. Also, allowing entrapment defenses sets an appropriate balance for law enforcement and investigation—that aggressive investigation strategies should not come at the cost of justice for defendants.

Why the Difference Matters

Some circuits find no difference between these two defenses and allow both. However, there is an important distinction between the two defenses that should be recognized. The difference between the two defenses delineates the boundaries of investigatory discretion—investigators should be able to make strategic choices about when to reveal undercover agents and arrest, but not induce defendants to commit crimes they are not predisposed to commit. Courts want to encourage and enable sting operations and long investigations without giving unduly harsh sentences for the sake of appearing tough on crime.

Sentence mitigating defenses are important because they raise meaningful issues of culpability and the limits of investigatory techniques. If it is not clear whether such defenses are valid, it is likely that some judges will be inclined to take these issues into consideration when sentencing, while others will not. Thus, when a defense serves justice for defendants and does not interfere substantially with investigations, it should be allowed, so as to promote consistency in sentencing.

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r3 - 13 Jan 2012 - 23:34:08 - IanSullivan
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