United States v. Hinds, Gregorio

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 21, 2003 Decided May 20, 2003

No. 02-3042

UNITED STATES OF AMERICA,

APPELLEE

v.

GREGORIO HINDS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 00cr00173-01)

Howard B. Katzoff, appointed by the court, argued the

cause and filed the brief for appellant.

Mary G. Leary, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Roscoe C. Howard,

Jr., U.S. Attorney, and John R. Fisher, Thomas J. Tourish,

Jr., Thomas C. Taylor, and Roderick L. Thomas, Assistant

U.S. Attorneys.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND,

Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Defendant Gregorio Hinds con-

tends that the district court erred in refusing to exclude a

quantity of crack cocaine from the relevant conduct used to

calculate his sentence under the United States Sentencing

Guidelines (U.S.S.G.). We conclude that the provision of the

guidelines upon which Hinds relies, Application Note 12 to

U.S.S.G. § 2D1.1, is inapplicable, and reject his underlying

claim of sentencing entrapment. We therefore affirm the

judgment of the district court.

I

In late 1999, Hinds and his co-defendant, David Rollins,

sold cocaine to an undercover police officer on three occa-

sions. On November 22, 1999, they sold the officer 58.3

grams of powder cocaine (cocaine hydrochloride). On No-

vember 30, 1999, they sold him 60.3 grams of crack cocaine

(cocaine base). And on December 7, 1999, they sold the same

officer 60.6 grams of powder cocaine. All three transactions

were audio- and videotaped.

On November 29, 1999, the day before the second transac-

tion, the undercover officer asked Hinds if he could ‘‘rock up’’

the cocaine — that is, convert the cocaine from its powder

form into crack, a process also known as ‘‘cooking.’’1 That

conversation, which was also recorded, proceeded as follows:

Officer: Can you rock it up or do you know somebody for

me?

Hinds: I can do that for you.

1 See U.S. SENTENCING COMM’N, REPORT TO CONGRESS — COCAINE AND

FEDERAL SENTENCING POLICY 16 (May 2002) (‘‘Crack cocaine is made

by dissolving powder cocaine in a solution of sodium bicarbonate

and water. The solution is boiled and a solid substance separates

from the boiling substance. After the solid substance is dried, the

crack cocaine is broken into ‘rocks’TTTT’’).

3

Officer: You can do that for me?

Hinds: Yeah.

App. at 33. Following the conversation, Hinds asked a friend

for assistance in rocking up the cocaine. Unbeknownst to

Hinds, however, the friend was working as a confidential

government informant, in cooperation with the undercover

police officer. Although the informant declined to perform

the conversion himself, he put Hinds in contact with another

unidentified individual. Hinds brought powder cocaine to

that individual, who cooked it into crack in Hinds’ presence.

On November 30, as the parties had agreed the previous day,

Hinds delivered the crack cocaine to the undercover officer.

Hinds and Rollins were subsequently arrested and indicted

on several charges related to the three drug transactions.

On December 19, 2000, Hinds signed a written plea agree-

ment in which he acknowledged that he was ‘‘accountable for

at least 100 grams but less than 200 grams of cocaine powder

and at least 50 grams but less than 150 grams of cocaine base,

also known as crack.’’ App. at 13. The same day, Hinds pled

guilty to one count of conspiracy to distribute and possess

with intent to distribute cocaine powder and cocaine base, in

violation of 21 U.S.C. § 846. In its Presentence Investigation

Report (PSR), the United States Probation Office determined

that Hinds’ adjusted offense level under the Sentencing

Guidelines was 27, based on relevant conduct that included

the 60.3 grams of crack and 118.9 grams of powder cocaine

that Hinds sold to the undercover officer. PSR ¶¶ 16, 24.2

That offense level, together with a criminal history category

of I, yielded a guidelines sentencing range of 70 to 87 months.

Id. ¶ 46; see U.S.S.G. ch. 5, pt. A.

2 Hinds’ base offense level was 32. See U.S.S.G. § 2D1.1(c)(4).

He received a two-level reduction under the guidelines’ ‘‘safety

valve’’ provisions, U.S.S.G. §§ 2D1.1(b)(6), 5C1.2, and a three-level

reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.

See PSR ¶¶ 16, 17, 23, 24. Because the district court found that

Hinds met the safety valve criteria, it sentenced him according to

the guidelines rather than imposing the otherwise-mandatory statu-

tory minimum of 10 years’ imprisonment. See 18 U.S.C. § 3553(f).

4

At sentencing, Hinds disputed the calculation contained in

the PSR. He argued that under U.S.S.G. § 2D1.1, Applica-

tion Note 12, the court was required to exclude the 60.3

grams of crack from the relevant conduct used to calculate his

sentence. If that amount had been excluded, or treated as

powder cocaine, Hinds’ adjusted offense level would have

dropped to 13, resulting in a sentencing range of 12 to 18

months. See U.S.S.G. ch. 5, pt. A.3 The district court

rejected Hinds’ argument, see United States v. Hinds, 190 F.

Supp. 2d 1 (D.D.C. 2002), and subsequently sentenced him to

70 months’ imprisonment, the bottom of the guidelines range.

II

Application Note 12 to U.S.S.G. § 2D1.1 states, in relevant

part:

Where there is no drug seizure or the amount seized

does not reflect the scale of the offense, the court shall

approximate the quantity of the controlled substanceTTTT

TTTT

In an offense involving an agreement to sell a controlled

substance, the agreed-upon quantity of the controlled

substance shall be used to determine the offense level

unless the sale is completed and the amount delivered

more accurately reflects the scale of the offense. For

example, a defendant agrees to sell 500 grams of cocaine,

the transaction is completed by the delivery of the con-

trolled substance — actually 480 grams of cocaine, and

no further delivery is scheduled. In this example, the

amount delivered more accurately reflects the scale of

the offense. In contrast, in a reverse sting, the agreed-

upon quantity of the controlled substance would more

accurately reflect the scale of the offense because the

amount actually delivered is controlled by the govern-

3 The base offense level for at least 100 but less than 200 grams of

cocaine powder is 18. U.S.S.G. § 2D1.1(c)(11). Applying the same

two- and three-level reductions that Hinds received, see supra note

2, would have yielded an offense level of 13.

5

ment, not by the defendant. If, however, the defendant

establishes that he or she did not intend to provide, or

was not reasonably capable of providing, the agreed-

upon quantity of the controlled substance, the court shall

exclude from the offense level determination the amount

of controlled substance that the defendant establishes

that he or she did not intend to provide or was not

reasonably capable of providing.

U.S.S.G. § 2D1.1, cmt. n.12 (emphasis added). Hinds con-

tends that the portion of Note 12 italicized above required the

district court to exclude the 60.3 grams of crack he sold to the

undercover officer from the calculation of his offense level,4

and that the court’s failure to do so constituted reversible

error.

4 It might be argued that Hinds waived this contention at the plea

stage. He entered a plea to conspiracy to distribute both powder

cocaine and crack; signed a plea agreement specifically acknowl-

edging that he was ‘‘accountable for TTT at least 50 grams but less

than 150 grams of cocaine base, also known as crack, which quantity

represents the total amount involved in [his] relevant criminal

conduct,’’ App. at 13; and further agreed not to seek any decreases

in his base offense level other than the two downward adjustments

expressly identified in the agreement, see supra note 2. Cf. United

States v. Calderon, 163 F.3d 644, 646 (D.C. Cir. 1999) (holding that

a defendant’s claim for a downward sentencing adjustment was

barred by her plea agreement not to seek any adjustment not

specified in the agreement). Moreover, at the plea hearing, the

court advised, and Hinds acknowledged, that the relevant conduct

to which he had admitted likely indicated an adjusted offense level

of 27 and a minimum sentence of 70 months’ imprisonment, App. at

53–56, precisely the level and minimum sentence subsequently

calculated by the Probation Office and applied by the court. Al-

though the government’s failure to make the waiver argument in

the district court would not necessarily preclude us from relying on

it here, see In re Swine Flu Immunization Prods. Liability Litig.,

880 F.2d 1439, 1444 (D.C. Cir. 1989) (holding that ‘‘an appellate

court can affirm a district court judgment on the basis of ‘any

grounds which TTT support [it]’ ’’ (alterations in original)), we do not

do so because the government’s appellate brief expressly disclaimed

reliance on the argument, Appellee’s Br. at 20 n.11, and the

defendant therefore has had no opportunity to respond to it.

6

We conclude that the district court correctly determined

that Application Note 12 is inapplicable to Hinds’ case.5

When considering a challenge to a district court’s sentencing

determination, we review purely legal questions de novo and

give ‘‘due deference to the district court’s application of the

guidelines to the facts.’’ 18 U.S.C. § 3742(e); see United

States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994). In order to

show that he should have been sentenced pursuant to Note

12, Hinds must establish that he ‘‘did not intend to provide’’

or ‘‘was not reasonably capable of providing’’ the agreed-upon

quantity of the controlled substance. U.S.S.G. § 2D1.1, cmt.

n.12. Hinds does not dispute that he intended to provide the

crack: indeed, he expressly agreed to do so, contacted the

informant for assistance with the conversion, brought the

powder to the individual who performed the conversion, and

then delivered the resulting product to the undercover officer.

Hinds does dispute that he was ‘‘reasonably capable of

providing’’ the agreed-upon quantity of crack. That claim,

however, is belied by the fact that he actually provided that

quantity.6 Hinds’ real claim is that he would not have been

5 We reject, however, the government’s contention that Note 12

applies only to differences in drug quantity and not to differences in

type, and hence that it is inapplicable here because Hinds does not

dispute his ability to provide 60.3 grams of cocaine powder. See

United States v. Searcy, 284 F.3d 938, 942 (8th Cir. 2002) (holding

that Note 12 ‘‘logically TTT would apply to [differences in] the type

of drugs’’); United States v. Munoz, 233 F.3d 410, 414–16 (6th Cir.

2000) (applying Note 12 where the defendant substituted a different

drug for the one he had agreed to sell). Application Note 12

expressly refers to the defendant’s inability to provide ‘‘the agreed-

upon quantity of the controlled substance,’’ U.S.S.G. § 2D1.1, cmt.

n.12 (emphasis added), and the narcotics statutes treat powder

cocaine as a different controlled substance from crack, compare,

e.g., 21 U.S.C. § 841(b)(1)(A)(ii), with id. § 841(b)(1)(A)(iii). More-

over, Hinds plainly disputes his ability to produce the quantity upon

which he agreed with the undercover officer, since he contends that

he was incapable of producing any amount of crack at all.

6 That fact also distinguishes this case from United States v.

Munoz, in which the Sixth Circuit ordered a sentence reduction

7

reasonably capable of providing the crack without the assis-

tance of the government informant. He avers that when he

agreed in the recorded telephone conversation to provide the

crack, he did so ‘‘assum[ing]’’ that the informant would cook

the powder for him. App. at 17. According to Hinds, the

informant was the only person he knew who could accomplish

the conversion.7

But the language of the Application Note does not contain

the qualifier underlined above, and there is nothing in the

note’s context to suggest that the Sentencing Commission had

it in mind. To the contrary, the context of the note —

including its introductory sentences and illustrative cases —

indicates that it was designed to guide courts in assessing

culpability where the amount of the drug agreed upon and the

amount of the drug actually delivered were different. In this

case, the two were exactly the same.

We agree with the district court that Hinds’ argument,

‘‘while couched in the language of Application Note 12,’’ is

really just ‘‘the kind of sentencing entrapment or sentencing

factor manipulation argument consistently rejected by’’ this

circuit. Hinds, 190 F. Supp. 2d at 4. As the district court

explained, the essence of Hinds’ argument is his contention

that, but for the request and assistance of the government

and its informant, he would have sold powder rather than

crack and hence should be subject to the less stringent

sentencing guideline provisions applicable to the former. Id.

That is, indeed, an argument that this court has consistently

rejected.

In United States v. Walls, for example, the defendants

alleged that they converted powder cocaine into crack be-

where the defendant never provided the agreed-upon drug, deliver-

ing a different drug instead. 233 F.3d at 415.

7The government disputes that Hinds would have been unable to

provide the crack in the absence of the informant, and the district

court also expressed skepticism on this point. See Hinds, 190

F. Supp. 2d at 4. The court, however, apparently accepted the

defendant’s assertion arguendo for purposes of resolving the appli-

cability of Note 12, and we do so as well.

8

cause the undercover agents to whom they were selling

demanded it; in fact, one agent testified that he had insisted

on the delivery of crack because he wanted to subject the

defendants to more severe sentences. 70 F.3d 1323, 1328–29

(D.C. Cir. 1995). The defendants claimed that this constitut-

ed ‘‘sentencing entrapment,’’ and that they should be sen-

tenced as if they had distributed powder rather than crack.

But the court rejected that claim, noting that the Supreme

Court ‘‘has warned against using an entrapment defense to

control law enforcement practices of which a court might

disapprove.’’ Id. at 1329 (citing United States v. Russell, 411

U.S. 423, 435 (1973)); see also United States v. Shepherd, 102

F.3d 558, 566 (D.C. Cir. 1997) (‘‘In Walls, this court rejected

the contention that insistence by government agents that

cocaine be delivered in crack form constitutes ‘sentencing

entrapment.’ ’’). Instead, Walls emphasized that the ‘‘main

element in any entrapment defense is TTT the defendant’s

‘predisposition’ — ‘whether the defendant was an ‘‘unwary

innocent’’ or, instead, an ‘‘unwary criminal’’ who readily

availed himself of the opportunity to perpetrate the crime.’ ’’

70 F.3d at 1329 (quoting Mathews v. United States, 485 U.S.

58, 63 (1988)); see also United States v. Glover, 153 F.3d 749,

756 (D.C. Cir. 1998) (holding that even if the government had

chosen to contract for a drug purchase within 1000 feet of a

school to increase the defendant’s sentencing exposure, the

‘‘usual elements of the entrapment defense — inducement

and lack of predisposition — would still have to be shown’’ to

make out a viable claim). The Walls court found that ele-

ment lacking because the defendants’ predisposition was

clear:

Persons ready, willing and able to deal in drugs —

persons like [the defendants] — could hardly be de-

scribed as innocents. These defendants showed no hesi-

tation in committing the crimes for which they were

convicted. Alone, this is enough to destroy their entrap-

ment argument.

70 F.3d at 1329.8

8Those courts that have considered sentencing entrapment argu-

ments in the context of Application Note 12 have similarly relied on

9

As in Walls, the district court here concluded that the facts

of Hinds’ case showed that he ‘‘was not induced by a govern-

ment agent to do something he was not otherwise disposed,

or at least willing, to do.’’ Hinds, 190 F. Supp. 2d at 4.

Regardless of whether he personally possessed the ability to

convert powder into crack or knew others who could do so —

a skill that can hardly be described as rocket science9 — he

‘‘showed no hesitation’’ when the undercover agent asked him

to provide the drugs in crack form. Walls, 70 F.3d at 1329.

Rather, he ‘‘readily agreed,’’ Glover, 153 F.3d at 757, immedi-

ately responding, ‘‘I can do that for you,’’ App. at 33. And as

in Walls, that fact alone destroys Hinds’ sentencing entrap-

ment claim. See Walls, 70 F.3d at 1329; see also Shepherd,

102 F.3d at 566–67.

Hinds argues that his case is distinguishable from Walls

because, unlike the defendants there, he would not have been

able to convert his powder into crack but for the informant’s

active involvement. But this, too, is merely an incomplete

entrapment defense in disguise. As in many undercover

sting operations, what the government informant did here

was to facilitate the defendant’s commission of a crime. And

whether such facilitation rises to the level of entrapment

again depends on whether the government induced the defen-

dant to commit a crime for which he lacked predisposition.

See Mathews, 485 U.S. at 63; Glover, 153 F.3d at 756. As the

Supreme Court recently said in the course of holding that the

impossibility of achieving the object of a conspiracy does not

bar prosecution of the conspirators, there is no reason to

modify ‘‘a different branch of the law’’ — there conspiracy

the defendant’s predisposition as the decisive factor for the success

of the claim. See Searcy, 284 F.3d at 942 (holding that, although

Application Note 12 does require the exclusion of ‘‘the amount of

drugs that flow from sentencing entrapment,’’ the defendant must

establish ‘‘a lack of predisposition to commit the crime’’ to qualify as

having been entrapped); see also United States v. Estrada, 256

F.3d 466, 475 (7th Cir. 2001) (finding it unnecessary to determine

whether Application Note 12 addresses the issue of sentencing

entrapment because the defendant possessed the necessary predis-

position to commit the crime).

9 See supra note 1; see also supra note 7.

10

law, here sentencing law — ‘‘to forbid entrapment-like behav-

ior that falls outside the bounds of current entrapment law.’’

United States v. Jimenez Recio, 123 S. Ct. 819, 823 (2003).10

Finally, Hinds contends that ‘‘the government informant’s

actions in this case constituted egregious government miscon-

duct’’ that warrants exclusion of the crack cocaine from

Hinds’ guidelines calculation. Appellant’s Br. at 20. It is

true that Walls acknowledged that, under certain circum-

stances, government misconduct might give a defendant a

cognizable due process claim:

If the propriety of the agents’ conduct had any signifi-

cance, it would 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.’’

Walls, 70 F.3d at 1329 (quoting Russell, 411 U.S. at 431–32).

That acknowledgment, however, came with two caveats.

First, the court noted that such a claim would go to the

validity of the defendant’s conviction, rather than of his

sentence:

Whatever vitality the outrageous-conduct defense might

have [for setting aside a conviction], 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

sentenceTTTT [I]f the government’s actions were not so

10 In Jimenez Recio, the police seized a truckload of narcotics and

set up a sting by having the drivers page their contact as if nothing

had happened. The defendants were arrested when they arrived on

the scene and attempted to drive the truck away. The Supreme

Court rejected the contention that, because the seizure rendered

the object of the conspiracy impossible to achieve, the defendants

could not be prosecuted in the absence of evidence that they joined

the conspiracy prior to the seizure. Such a rule, the Court warned,

‘‘would reach well beyond arguable police misbehavior, potentially

threatening the use of properly run law enforcement sting opera-

tions.’’ Jimenez Recio, 123 S. Ct. at 823.

11

outrageous that judicial processes to obtain a conviction

were barred — if, in other words, there were no violation

of the Due Process Clause — it follows that those actions

cannot serve as a basis for a court’s disregarding the

sentencing provisions.

Id. at 1329–30 (internal quotation marks and citation omitted).

Second, Walls held that in order to successfully raise such a

due process claim, a defendant must establish that the gov-

ernment had committed ‘‘ ‘coercion, violence, or brutality to

the person.’ ’’ Id. at 1330 (quoting United States v. Kelly, 707

F.2d 1460, 1476 (D.C. Cir. 1983)). The informant’s actions in

this case — which amounted to nothing more than acceding to

Hinds’ request for help in converting cocaine powder into

crack — plainly do not rise to that level.

III

For the foregoing reasons, we reject the defendant’s at-

tacks on his sentence and affirm the judgment of the district

court.