Opposition Brief — Justin Maxwell, Petitioner v. United States
Supreme Court briefJul 25, 2018
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Nos. 17-8370, 17-9219, 17-8411, and 17-8418
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
KENNETH FLOWERS, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
KALI ALEXANDER, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
TERRANCE CHAPPELL, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
JUSTIN MAXWELL, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
________________________________________________________________
________________________________________________________________
BRIAN A. BENCZKOWSKI
Assistant Attorney General
DAVID M. LIEBERMAN
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTIONS PRESENTED
1.
Whether the district court erred in declining to dismiss
the indictment based on asserted “outrageous government conduct”
in conducting a sting operation.
2.
sentence
Whether
the
petitioners
district
below
court
the
erred
statutory
in
declining
minimum
term
to
of
imprisonment based on their claims that the government engaged in
“sentencing entrapment” or “sentencing manipulation” in its sting
operation.
(I)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 17-8370
KENNETH FLOWERS, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
No. 17-9219
KALI ALEXANDER, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
No. 17-8411
TERRANCE CHAPPELL, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
No. 17-8418
JUSTIN MAXWELL, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
2
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 2a-32a) 1 is
not published in the Federal Reporter but is reprinted at 712 Fed.
Appx. 492.
relevant
The opinion of the district court denying petitioners’
pretrial
motions
is
not
published
in
the
Federal
Supplement but is available at 2015 WL 1523910.
JURISDICTION
The judgment of the court of appeals was entered on October
24, 2017.
A petition for rehearing filed by petitioner Kenneth
Flowers was denied on December 28, 2017 (Flowers Pet App. B1).
Petitions for rehearing filed by the other petitioners were denied
on January 3, 2018 (Pet. App. 34a).
Petitioner Flowers filed a
petition for a writ of certiorari on March 28, 2018.
Petitioners
Terrance Chappell and Justin Maxwell filed petitions for writs of
certiorari on April 3, 2018.
petition
for
a
writ
of
Petitioner Kali Alexander filed a
certiorari
on
June
1,
2018. 2
The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District Court
for the Northern District of Ohio, petitioners were each convicted
on one count of conspiracy to possess with intent to distribute
five or more kilograms of cocaine, in violation of 21 U.S.C.
Unless otherwise noted, petition appendix citations
refer to the appendix in Alexander v. United States, No. 17-9219.
2
On March 23, 2018, Justice Kagan granted petitioner
Alexander’s motion to extend the time within which to file a
petition for a writ of certiorari to and including June 2, 2018.
1
3
841(a)(1), (b)(1)(A), and 846, and one count of using or carrying
a firearm during and in relation to a drug conspiracy, in violation
of 18 U.S.C. 924(c)(1)(A)(i).
Pet. App. 4a-5a.
Petitioners
Alexander, Chappell, and Maxwell were each also convicted on one
count of unlawful possession of a firearm and/or ammunition by a
felon, in violation of 18 U.S.C. 922(g)(1).
Pet. App. 4a-5a.
And
petitioner Alexander was convicted on one count of distribution of
heroin, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C).
App. 4a-5a.
Pet.
The district court sentenced petitioner Flowers to
180 months of imprisonment, petitioner Alexander to 211 months of
imprisonment, petitioner Chappell to 181 months of imprisonment,
and petitioner Maxwell to 181 months of imprisonment, each to be
followed by a term of supervised release.
of appeals affirmed.
1.
Pet. App. 6a.
The court
Id. at 2a-32a.
In response to a nationwide increase in robberies of
“drug stash houses” in residential neighborhoods, the Bureau of
Alcohol, Firearms, and Tobacco (ATF) has carried out a series of
“undercover sting operations developed to find and arrest crews
engaging in violent robberies.”
United States v. Black, 733 F.3d
294, 298 (9th Cir. 2013), cert. denied, 135 S. Ct. 105, 135 S. Ct.
266, 135 S. Ct. 267, and 135 S. Ct. 275 (2014).
order
to
“prevent
actual
stash-house
In particular, in
robberies,”
which
are
“‘largely unreported crimes that pose a great risk of violence in
residential
communities,’”
relied
“sting
on
the
operation[s]
ATF’s
efforts
involving
a
have
fake
frequently
stash-house
4
robbery.”
United States v. Combs, 827 F.3d 790, 795 (8th Cir.
2016) (citation omitted).
In
a
stash-house
sting
operation,
“an
undercover
agent
recruits individuals to steal a large quantity of drugs from a
house protected by an armed guard.”
Pet. App. 2a.
“The house,
the drugs, and the guards, however, are all fictional.”
Ibid.
After the individuals take “the opportunity to plan and carry out
an armed robbery of the stash house,” Black, 733 F.3d at 298, they
“are arrested before they reach the invented location,” Pet. App.
2a.
Such sting operations are “a safer technique” than the
“alternative
[of]
planting
fake
drugs
in
a
stash
house
and
confronting the armed robbers once they [break] into the house.”
Black, 733 F.3d at 298.
2.
In August 2014, an ATF agent directed two confidential
informants in Cleveland, Ohio, “to go into the community and return
with general information.”
Pet. App. 3a.
One of the informants
approached petitioner Alexander, who “agreed to sell the informant
ten grams of heroin.”
Ibid.
The agent accompanied the informant to the drug sale, where
the agent “proposed the idea of robbing a cocaine stash house” by
“presenting himself as a disgruntled drug courier who felt he was
being treated unfairly.”
Pet. App. 3a.
The agent “specified that
the house would have eight to nine kilograms of cocaine and be
guarded by two men, one armed with a gun.”
Ibid.
He also
“discussed splitting the cocaine 50/50 with Alexander and whoever
5
else assisted with the robbery.”
Ibid.
The agent later testified
that “the fictional amount of cocaine originated in a conversation
with” local law enforcement and “was intended to mimic the average
quantity in a Cleveland stash house.”
Id. at 5a.
Over the next two weeks, Alexander brought Rasheam Nichols
and petitioner Maxwell into the robbery plan.
Pet. App. 3a-4a.
The agent gave all three men an opportunity to withdraw from the
plan, but they declined.
Gov’t C.A. Br. 10.
On the day of the planned robbery, Alexander, Nichols, and
Maxwell -- joined by petitioners Flowers and Chappell -- met the
informant on the east side of Cleveland.
Pet. App. 4a.
informant drove the men across town to meet the agent.
Flowers and Nichols carried firearms on the trip.
Ibid.
Ibid.
The
Both
When the
men arrived, the agent entered the car, described the robbery plan,
and reiterated that the stash house “contained eight to nine
kilograms of cocaine and was guarded by two men, one with a gun.”
Ibid.
The agent later testified that petitioners “spoke about the
plan, asked him questions, and were attentive.”
again
offered
an
petitioners did so.
opportunity
to
withdraw,
Ibid.
but
The agent
none
of
the
See Gov’t C.A. Br. 11.
After the discussion of the plan, the informant drove the men
to a warehouse parking lot, where law enforcement officers were
waiting to arrest them.
Pet. App. 4a.
All petitioners except
Chappell were arrested with firearms, but an agent testified that
he
“saw
a
firearm
drop
from
Chappell’s
person
while
he
was
6
running,” and Chappell later admitted that he had carried a pistol
that day.
3.
Ibid.; see Gov’t C.A. Br. 14.
The grand jury indicted each petitioner on one count of
conspiracy to possess with intent to distribute five or more
kilograms
of
cocaine,
(b)(1)(A), and 846.
in
violation
Pet. App. 4a.
of
21
U.S.C.
841(a)(1),
The grand jury also indicted
each petitioner on one count of using or carrying a firearm during
and in relation to a drug conspiracy, in violation of 18 U.S.C.
924(c)(1)(A)(i).
Pet. App. 4a.
Petitioners Alexander, Chappell,
and Maxwell were each indicted on one count of unlawful possession
of a firearm and/or ammunition by a felon, in violation of 18
U.S.C. 922(g)(1).
Pet. App. 4a-5a.
Petitioner Alexander was
indicted on one count of distribution of heroin, in violation of
21 U.S.C. 841(a)(1) and (b)(1)(C).
Pet. App. 4a.
Before trial, petitioners filed a motion to dismiss the
indictment for “outrageous government conduct.”
Pet. App. 6a.
They
“created
asserted
that
the
government’s
conduct
and
encouraged [their] commission of the offense by luring” them “with
the
promise
of
a
large
payoff,
making
repeated
requests for
meetings over a short period of time, making repeated demands for
their commitment to the conspiracy,” and otherwise facilitating
the conspiracy.
citing
Sixth
“outrageous
conduct
Ibid.
The district court denied the motion,
Circuit
precedent
foreclosing
government
conduct,”
including
* * *
a
where
defense
of
“government
induces a defendant to commit a crime.”
Mem. Op.
7
& Order 7 (Apr. 3, 2015) (Mem. Op.) (quoting United States v.
Warwick, 167 F.3d 965, 974 (6th Cir. 1999)).
Petitioners also filed a joint pretrial motion seeking to
preclude the district court from imposing the statutory minimum
sentence of ten years applicable to the drug-conspiracy count.
Pet. App. 5a, 19a; see 21 U.S.C. 841(b)(1)(A)(ii), 846.
They
contended that the government had manipulated the drug quantity
involved in the sting to trigger the ten-year statutory minimum
sentence for an offense involving “5 kilograms or more” of cocaine.
21 U.S.C. 841(b)(1)(A)(ii).
The court denied the motion but
explained that petitioners’ claims “would be more appropriately
raised at sentencing.”
Pet. App. 5a.; see Mem. Op. 8.
After a joint trial, the jury found petitioners guilty on all
charged counts, indicating through a special verdict form its
particular finding that the drug conspiracy involved “more than
five kilograms” of cocaine.
4.
At
sentencing,
Pet. App. 5a.
petitioners
Flowers,
Alexander,
and
Maxwell renewed their objection to the imposition of statutory
minimum sentences on the drug-conspiracy counts, on the theory
that the government had improperly manipulated the quantity of
drugs involved in the conspiracy.
See Pet. App. 6a.
Chappell did not renew that objection.
1,
2015).
sentenced
The
district
petitioner
court
Flowers
to
See D. Ct. Doc. 105 (Sept.
overruled
180
Petitioner
the
months
of
objections
and
imprisonment,
petitioner Alexander to 211 months of imprisonment, petitioner
8
Chappell to 181 months of imprisonment, and petitioner Maxwell to
181 months of imprisonment.
5.
Pet. App. 6a.
The court of appeals affirmed in an unpublished per
curiam opinion.
Pet. App. 2a-32a.
The court of appeals rejected petitioners’ contention that
the district court had been required to dismiss the indictment for
“outrageous
government
conduct.”
Pet.
App.
6a.
The
court
explained that “there is no authority in this circuit which holds
that the government’s conduct in inducing the commission of a
crime, if ‘outrageous’ enough, can bar prosecution of an otherwise
predisposed defendant under the Due Process Clause of the Fifth
Amendment.”
Id. at 7a (quoting United States v. Tucker, 28 F.3d
1420, 1424 (6th Cir. 1994), cert. denied, 514 U.S. 1049 (1995)).
The court of appeals also rejected petitioners’ claims of
sentencing manipulation and sentencing entrapment.
20a.
Pet. App. 19a-
The court explained that it had “not yet recognized either
sentence manipulation or sentence entrapment” as a defense to a
statutory minimum sentence.
Ibid.
The court cited its decision
in United States v. Hammadi, 737 F.3d 1043 (6th Cir. 2013), which
had found that the court “‘need not decide whether to adopt or
reject these doctrines’” under “the facts of the case.”
20a (quoting 737 F.3d at 1048).
Pet. App.
The court again “decline[d] to
resolve that question” and “le[ft] it for another day.”
Ibid.
Judge Stranch filed a concurring opinion that took no issue
with
the
court
of
appeals’
position
as
a
legal
matter,
but
9
“express[ed]
[her]
discomfort
known as a ‘stash house sting.’”
with
the
governmental
operation
Pet. App. 28a.
ARGUMENT
Petitioner Chappell contends that the lower courts erred in
rejecting his “outrageous government conduct” defense (Chappell
Pet. 15-19), and all petitioners contend that that the district
court erred by sentencing them based on drug-quantity findings
that
were
the
result
of
improper
“sentencing
entrapment”
or
“sentencing manipulation” (Flowers Pet. 9-16; Alexander Pet. 1016; Chappell Pet. 11-15; Maxwell Pet. 7-14).
lack merit.
Those contentions
This Court has never recognized the “outrageous
government conduct” defense that Chappell proposes, and the court
of appeals did not err in declining to do so here.
The courts
below likewise appropriately declined to determine whether claims
of
sentencing
entrapment
and
sentencing
manipulation
may
be
cognizable, because petitioners adduced no evidence to support any
such claim.
The court of appeals’ unpublished decision does not
conflict with any decision of this Court or any other court of
appeals.
The petitions for writs of certiorari should be denied.
1.
Petitioner Chappell does not contest that he committed
the charged crimes or that he was predisposed to do so.
He instead
argues (Pet. 18-19) that the courts below should have dismissed
the prosecution based on the government’s alleged “inducement” of
him to commit the crimes, which he characterizes as “outrageous
government conduct” in violation of the Due Process Clause.
This
10
Court has never recognized such a defense, however, and petitioner
Chappell ultimately acknowledges (Pet. 16) that no court of appeals
has applied the defense to a criminal defendant in his position.
This Court’s intervention is accordingly unwarranted.
a.
This Court has never held that a defendant who was
predisposed to commit a crime can avoid conviction by claiming
that the government induced him to commit the offense through
“outrageous” conduct.
To the contrary, the Court in United States
v. Russell, 411 U.S. 423 (1973), reversed a court of appeals
decision that had recognized a purported “defense to a criminal
charge
* * *
founded upon an intolerable degree of governmental
participation in the criminal enterprise.”
omitted).
Id. at 424 (citation
This Court explained that allowing such a defense would
require it to “reconsider the theory of the entrapment defense,”
which
the
Court
has
long
“held
to
focus
on
the
predisposition of the defendant to commit the crime.”
intent
or
Id. at 424,
429; see Sherman v. United States, 356 U.S. 369, 372 (1958);
Sorrells v. United States, 287 U.S. 435, 451 (1932).
The Court
observed that allowing courts to “bar prosecutions” of admittedly
predisposed
defendants
merely
because
of
concerns
about
“‘overzealous law enforcement’” would give courts an impermissible
“‘chancellor’s foot’ veto over law enforcement practices of which
[they] did not approve.”
Russell, 411 U.S. at 435.
Russell left open the possibility that the Court “may some
day be presented with a situation in which the conduct of law
11
enforcement agents is so outrageous that due process principles
would
absolutely
bar
the
government
processes to obtain a conviction.”
indicated,
however,
that
such
from
invoking
judicial
411 U.S. at 431-432. The Court
conduct
would
have
to
violate
“fundamental fairness” and be “shocking to the universal sense of
justice.”
Id. at 432 (citation omitted).
And the Court included
a “cf.” citation to Rochin v. California, 342 U.S. 165 (1952), in
which the Court reversed a conviction that had relied on evidence
that the police had obtained by forcibly pumping the defendant’s
stomach “against his will” -- a “brutal” application of “force”
that was “offensive to human dignity.”
Id. at 166, 174.
In Hampton v. United States, 425 U.S. 484 (1976), a plurality
of the Court stepped back from the possibility left open in
Russell, explaining that “[t]he remedy of the criminal defendant
with respect to the acts of Government agents” not “resisted” by
the defendant “lies solely in the defense of entrapment.”
490.
Id. at
Justices Powell and Blackmun concurred in the judgment,
explaining that they would leave open the possibility of a due
process defense that reaches beyond entrapment, but that any such
case would be “rare” and would have to involve “a demonstrable
level of outrageousness.” Id. at 495 n.7.
Petitioner Chappell has never contended that he was entrapped
--
i.e.,
induced
by
the
government
to
commit
notwithstanding a lack of predisposition to do so.
a
crime
See Mathews v.
United States, 485 U.S. 58, 62-63 (1988); D. Ct. Doc. 145, at 715
12
(Sept.
22,
2015)
(Chappell’s
entrapment instruction).
counsel
declining
to
seek
an
And he does not meaningfully contend
that the government’s involvement in the crime approaches the level
of “shocking to the universal sense of justice.”
U.S. at 432 (citation omitted).
Russell, 411
The court of appeals’ rejection
of petitioner’s asserted “due process defense of inducement” thus
follows from the decisions of this Court.
b.
Pet. App. 7a.
Petitioner Chappell errs in suggesting (Pet. 15-19) that
the decision below conflicts with the decisions of other courts of
appeals.
Although some circuits have recognized the conceptual
possibility
of
an
outrageous
government
conduct
defense,
petitioner Chappell acknowledges that those courts “impose[] such
a high burden on defendants that the defense rarely results in
dismissal of charges.”
Chappell Pet. 16; see, e.g., United States
v. Jayyousi, 657 F.3d 1085, 1111 (11th Cir. 2011) (“We have never
applied
the
outrageous
government
conduct
defense
and
have
discussed it only in dicta.”), cert. denied, 567 U.S. 946 (2012);
United States v. Capelton, 350 F.3d 231, 243 n.5 (1st Cir. 2003)
(referring
to
the
defense
as
“moribund”)
(citation
omitted);
United States v. Jones, 13 F.3d 100, 104 (4th Cir. 1993) (“[I]n
practice, courts have rejected [the defense’s] application with
almost
monotonous
regularity.”)
(citation
omitted).
Indeed,
petitioner Chappell appears to disagree with many of the decisions
that he cites as evidence of a purported circuit conflict, stating
13
that the “high burden” imposed by other courts of appeals is “not
just in cases such as this one.”
Chappell Pet. 16.
Petitioner Chappell identifies (Pet. 16) only one case in
which a court of appeals ordered dismissal of criminal charges on
the grounds of outrageous government conduct -- United States v.
Twigg, 588 F.2d 373 (3d Cir. 1978).
But the Third Circuit has not
relied on Twigg since it was decided four decades ago.
Three
circuit
to
judges
have
expressly
called
for
the
decision
be
overruled, see United States v. Jannotti, 673 F.2d 578, 610 n.17
(3d Cir.) (en banc), cert. denied, 457 U.S. 1106 (1982), and others
have expressed doubt whether it was correctly decided, see United
States v. Beverly, 723 F.2d 11, 12 (3d Cir. 1983) (per curiam);
see also United States v. Fattah, 858 F.3d 801, 813 (3d Cir. 2017)
(“Since
Twigg
distinguished,
was
and
decided,
even
this
questioned,
Court
its
has
repeatedly
holding.”)
(footnote
omitted); United States v. Nolan-Cooper, 155 F.3d 221, 230 (3d
Cir. 1998) (describing the outrageous government conduct defense
as “hanging by a thread”).
Moreover, the government conduct in Twigg differed markedly
from the government conduct at issue here.
panel
reversed
convictions
where
In Twigg, a divided
government
agents
were
“completely in charge of” a methamphetamine-production operation,
supplying the defendant with the necessary chemicals, laboratory
equipment, and expertise while the defendant himself “often ran
errands for groceries or coffee.”
588 F.2d at 376.
As other
14
courts
have
observed,
the
“manufactured the crime.”
1436 (9th Cir. 1986).
agent
suggested
the
agents
in
Twigg
quite
literally
United States v. Bogart, 783 F.2d 1428,
The same is not true here, where the ATF
possibility
of
a
stash-house
robbery
to
Alexander, who then recruited petitioner Chappell and the other
co-conspirators and with them planned how the robbery would occur,
which weapons they would use, and how they would subdue the guards.
See Pet. App. 3a-4a; Gov’t C.A. Br. 9-12.
Petitioner Chappell does not contend that any circuit would
find the government’s conduct here sufficiently “outrageous” to
require dismissal of the prosecution.
that
have
conduct
considered
defense
in
To the contrary, courts
assertions
of
the
stash-house
sting
outrageous
cases
have
government
repeatedly
rejected the defense, and this Court has repeatedly declined to
review the issue.
See, e.g., United States v. Washington, 869
F.3d 193, 209-210 (3d Cir. 2017), cert. denied, 138 S. Ct. 713
(2018); United States v. Combs, 827 F.3d 790, 795 (8th Cir. 2016);
United States v. Dennis, 826 F.3d 683, 695 (3d Cir. 2016); United
States v. Hare, 820 F.3d 93, 103–104 (4th Cir.), cert. denied, 137
S. Ct. 224 (2016); United States v. Pedrin, 797 F.3d 792, 797 (9th
Cir. 2015);
United States v. Black, 733 F.3d 294, 307 (9th Cir.
2013), cert. denied, 135 S. Ct. 105, 135 S. Ct. 266, 135 S. Ct.
267, and 135 S. Ct. 275 (2014).
The unpublished decision below is
consistent with those decisions and likewise does not warrant this
Court’s review.
15
2.
This Court’s review is also unwarranted with respect to
petitioners’
contention
that
the
court
of
appeals
erred
in
rejecting their claims that the sting operation’s inclusion of a
purported type and quantity of drug (eight or nine kilograms of
cocaine)
that
would
trigger
a
ten-year
minimum
sentence
constituted impermissible governmental “sentencing entrapment” or
“sentencing manipulation.”
See Flowers Pet. 9-16; Alexander Pet.
10-16; Chappell Pet. 11-15; Maxwell Pet. 7-14. 3
This Court has
consistently denied petitions for writs of certiorari seeking
review of sentencing entrapment or manipulation claims and should
follow the same course here.
See, e.g., Whitfield v. United
States, 137 S. Ct. 1063 (2017) (No. 16-5769); Macedo-Flores v.
United States, 136 S. Ct. 1156 (2016) (No. 15-5947); Daniels v.
United States, 562 U.S. 1079 (2010) (No. 09-9754); Docampo v.
United States, 559 U.S. 1050 (2010) (No. 09-7833); Jimenez v.
United States, 552 U.S. 828 (2007) (No. 06-10315).
a.
Courts of appeals have disagreed about whether claims of
“sentencing
entrapment”
and
“sentencing
manipulation”
are
potentially available defenses to an otherwise lawful -- or, in
Petitioner Flowers (Pet. 1, 9-11) references only
“sentencing manipulation,” not “sentencing entrapment,” and has
therefore abandoned his sentencing entrapment claim. Petitioner
Chappell failed to renew his claims of sentencing entrapment and
manipulation at sentencing, see D. Ct. Doc. 190, at 2-8 (Oct. 21,
2015), so those claims are forfeited and may be reviewed only for
plain error, see Fed. R. Crim. P. 52(b).
Even if petitioners
Flowers and Chappell had properly preserved sentencing entrapment
and manipulation claims, however, those claims would fail for the
same reasons as the claims raised by the other petitioners.
3
16
this case, mandatory -- federal sentence.
See United States v.
Sed, 601 F.3d 224, 230 (3d Cir.) (noting varying approaches and
declining to “rule on the legal merits of either doctrine”), cert.
denied, 562 U.S. 899 (2010).
Of the courts that acknowledge the
defenses, some treat them as “interchangeabl[e],” United States v.
Jaca-Nazario, 521 F.3d 50, 57 (1st Cir. 2008), while others treat
them as distinct, see United States v. Boykin, 785 F.3d 1352, 1360
(9th Cir.), cert. denied, 136 S. Ct. 272 (2015).
The Ninth
Circuit, for example, has stated that “sentencing entrapment”
occurs when the government entraps a defendant into committing a
crime with greater sentencing exposure than the offense he was
disposed to commit, while “sentencing manipulation” occurs when
the government induces a defendant to commit multiple offenses
“solely to enhance his potential sentence.”
Ibid. (citation
omitted); see Pet. App. 19a (noting that sentencing entrapment
“focuses on the defendant’s lack of predisposition to commit the
greater offense,” while sentencing manipulation “focuses on the
government’s conduct”) (brackets and citation omitted).
Even courts that recognize the theoretical possibility of
sentencing
entrapment
or
manipulation
claims,
however,
have
explained that the doctrines could apply only in “extreme and
unusual
case[s]
involving
outrageous
governmental
conduct.”
Boykin, 785 F.3d at 1360 (citation and internal quotation marks
omitted); see, e.g., United States v. Beltran, 571 F.3d 1013, 1018
(10th
Cir.
2009)
(“[T]he
government’s
conduct
[must
be]
so
17
shocking, outrageous and intolerable that it offends the universal
sense
of
justice.”)
(citation
and
internal
quotation
marks
omitted); United States v. Fontes, 415 F.3d 174, 180 (1st Cir.)
(defense may only apply in an “extreme and unusual case”) (citation
omitted), cert. denied, 546 U.S. 1050 (2005). Petitioners identify
no case in which a court of appeals has in fact granted relief on
such a claim of sentencing entrapment or manipulation.
b.
Petitioners’ claims here fall far short of satisfying
any plausible standard for sentencing entrapment or manipulation.
On the question of sentencing entrapment, petitioners adduced
(and the record includes) no facts suggesting that they were
predisposed to commit only a crime with lower sentencing exposure.
See Boykin, 785 F.3d at 1360; Pet. App. 19a; cf. United States v.
Hammadi, 737 F.3d 1043, 1048 (6th Cir. 2013) (“[T]he defendant
bears the burden of proof as to his lack of predisposition.”).
Specifically, petitioners point to nothing suggesting that they
were predisposed to commit an armed robbery of a stash house
containing fewer than five kilograms of cocaine, which would not
have subjected them to a ten-year statutory minimum sentence, but
were not predisposed to commit the more profitable armed robbery
of a stash house containing eight or nine kilograms of cocaine as
described by the ATF agent.
Indeed, the record undermines any assertion that petitioners
lacked predisposition to commit the charged offense.
All of the
petitioners “readily and actively acted as willing participants
18
with a professed ability to carry out a dangerous armed robbery.”
Black, 733 F.3d at 302.
As the ATF agent testified, petitioners
“spoke about the plan, asked him questions, and were attentive,”
Pet. App. 4a, and they expressly declined to withdraw from the
plan, see Gov’t C.A. Br. 10-11.
Moreover, only one of the
petitioners, Alexander, was actually recruited into the conspiracy
by a government agent; the others were recruited by Alexander and
the other co-conspirators.
Pet. App. 3a-4a; see Black, 733 F.3d
at 307 (noting that concerns about the government operation are
“mitigated” in part because “the defendants before [the court] in
this appeal were recruited by other defendants, not by” government
agents).
As for petitioner Alexander, he repeatedly confirmed his
predisposition to commit the planned robbery through his words and
actions.
See, e.g., Alexander Presentence Investigation Report ¶
13 (“I know what I’m doing, I’m about to holler at my big brother,
then we going to orchestrate it from there.”). Moreover, Alexander
expressly declined to seek an entrapment instruction at trial,
undercutting his effort to invoke this doctrine as a sentencing
claim.
See D. Ct. Doc. 145, at 715.
In short, petitioners could
not make out a claim of sentencing entrapment, even if the court
of appeals recognized that doctrine.
Petitioners likewise cannot make out a claim of sentencing
manipulation.
Petitioners adduced no proof that the ATF agent
informed the participants that the stash house contained eight or
nine kilograms of cocaine “solely,” or even primarily, “to enhance
19
[their] potential sentence[s].” Boykin, 785 F.3d at 1360 (citation
omitted).
To the contrary, the trial testimony indicated that the
ATF agent selected that purported drug quantity for operational
credibility reasons -- namely, that a typical stash house in
Cleveland would store that amount of cocaine.
See Pet. App. 5a
(explaining that “the fictional amount of cocaine originated in a
conversation with” local law enforcement and “was intended to mimic
the average quantity in a Cleveland stash house”).
Courts of
appeals have rejected arguments similar to petitioners’ in other
stash-house sting cases, including some involving even higher
purported cocaine quantities.
See, e.g., Washington, 869 F.3d at
212 & n.71 (rejecting sentencing manipulation argument based on
ten-kilogram quantity and collecting similar authorities); Hare,
820 F.3d at 103 (rejecting sentencing manipulation argument based
on quantity of 15 to 20 kilograms).
c.
Finally, some petitioners (Alexander Pet. 13; Chappell
Pet. 11; Maxwell Pet. 12-14) object to the court of appeals’
limited
explanation
for
its
rejection
of
their
sentencing
entrapment and manipulation claims, suggesting that the court
failed to resolve an issue on which they had a right to appeal.
That case-specific objection lacks merit and does not warrant this
Court’s review.
The court of appeals declined to decide whether sentencing
entrapment or sentencing manipulation constitute valid defenses,
“leav[ing]” those questions “for another day.”
Pet. App. 19a-20a.
20
Read in context, the court’s decision makes clear that it did
address -- and reject -- the merits of petitioners’ claims.
The
court cited its prior decision in Hammadi for the proposition that
“under the facts of the case, it ‘need not decide whether to adopt
or
reject
these
manipulation.
doctrines’”
of
sentencing
entrapment
Id. at 20a (quoting 737 F.3d at 1048).
or
That
discussion indicates that the court determined that petitioners
would not be entitled to relief, even if the court were to
recognize the existence of those doctrines.
See Sed, 601 F.3d at
230 (taking a similar approach); cf. Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 386 (2008) (reviewing court should not
lightly
presume
error
by
lower
court).
In
any
event,
any
explanatory deficiencies in the particular unpublished opinion in
this case would not provide a sound basis for certiorari.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
BRIAN A. BENCZKOWSKI
Assistant Attorney General
DAVID M. LIEBERMAN
Attorney
JULY 2018
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.