Petition for Writ of Certiorari — Humberto Falcon San-Martin, Petitioner v. United States

No. 24In The

Supreme Court of the United States

HUMBERTO FALCON SAN-MARTIN

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

SONIA ESCOBIO O’DONNELL

Counsel of Record

O’DONNELL CHRISTOPHER LLP

700 S. Royal Poinciana Blvd., Suite 705

Miami Springs, Florida 33166

Tel: 305.640.8958

sodonnell@odonnellchristopher.com

ROBERT A. O’DONNELL

Counsel for Petitioner

O’DONNELL CHRISTOPHER LLP

700 S. Royal Poinciana Blvd., Suite 705

Miami Springs, Florida 33166

rodonnell@odonnellchristopher.com

SEPTEMBER 7, 2024

QUESTION PRESENTED

Whether the conduct of government agents or officials can constitute

sentencing entrapment, as that constitutional theory is recognized outside of

sentencing.

Whether the Court should resolve the conflict among the Circuits on whether

to apply the doctrine of entrapment to sentencing decisions.

i

PARTIES TO THE PROCEEDINGS

Pursuant to Sup. Ct. R. 14.1(b)(i), Mr. San-Martin submits that although there

are parties to an associated proceeding in 22-20252-Cr-BB, there are no parties to

this proceeding other than those named in the caption of the case.

RELATED PROCEEDINGS

The following proceedings directly relate to the case before the Court:

United States v. San-Martin, 2024 WL 2182101 (11th Cir. May 15, 2024)

(Decision below)

United States v. San-Martin, No. 22-Cr-20335 (S.D. Fla. July 29, 2022)

(Criminal Case)

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED...............................................................................................i

PARTIES TO THE PROCEEDINGS .............................................................................. ii

RELATED PROCEEDINGS………………………………………………………………….ii

TABLE OF AUTHORITIES .............................................................................................. v

PETITION FOR A WRIT OF CERTIORARI……………………………………………….1

OPINIONS BELOW…..……………………………………………………………………….1

JURISDICTION .................................................................................................................2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .........................3

INTRODUCTION………………………………………………………………………………3

STATEMENT OF THE CASE ..........................................................................................4

I. The Charges Against Petitioner……………………………………………………4

II. Facts Giving Rise To The Charges .....................................................................4

REASONS FOR GRANTING THE PETITION...............................................................7

CONCLUSION .................................................................................................................14

iii

TABLE OF APPENDIX

Appendix A:

Opinion of the U.S. Court of Appeals for the

Eleventh Circuit (May 15, 2024)…………………………………………1a

iv

TABLE OF AUTHORITIES

CASES

Page

Hampton v. United States,

25 U.S. 484 (1976) .........................................................................................................12

Jacobson v. United States,

112 S. Ct. 1535 (1992) ...................................................................................................12

Leech v. State,

66 P.3d 987 (2003 OK CR 4)……………………………………………………………….11

Sherman v. United States,

356 U.S. 369 (1958)………………………………………………………………………..7, 8

Sorrells v. United States,

287 U.S. 435 (1932)………………………………………………………………………..7, 8

State v. Steadman,

827 So.2d 1022 (Fla. 3d DCA 2002)……………………………………………………..13

United States v. Barth,

990 F.2d 422 (8th Cir. 1993) ......................................................................................13

United States v. Cannon,

987 F.3d 924 (11th Cir. 2021) ....................................................................................13

United States v. Cortes,

757 F.3d 850 (9th Cir. 2014) ......................................................................................11

United States v. Gibson,

135 F.3d 1124 (6th Cir. 1998) ....................................................................................13

United States v. Lenfesty,

923 F.2d 1293 (8th Cir. 1991) ....................................................................................11

United States v. Russell,

411 U.S. 423 (1973) .......................................................................................................8

United States v. San-Martin,

2024 WL 2182101 (11th Cir May 15, 2024)……………………………………………..ii

v

TABLE OF AUTHORITIES CITED (Cont’d)

CASES

Page

United States v. Staufer,

38 F.3d 1103 (9th Cir. 1994) ......................................................................................11

United States v. Sumler,

294 F.3d 579 (3d Cir. 2002) ........................................................................................12

STATUTES AND RULES

18 U.S.C. § 2 ......................................................................................................................4

21 U.S.C. § 841(a)(1) ..........................................................................................................4

21 U.S.C. § 846 ...................................................................................................................4

28 U.S.C. § 1254(1).............................................................................................................2

Sup.Ct. R. 14.1(b)(i)…………………………………………………………………………….ii

OTHER

U.S. Const. amend. V .................................................................................................. 2,3,7

U.S. Const. amend. VI ................................................................................................ 2,3,7

vi

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully seeks a writ of certiorari to review the judgment of the

United States Court of Appeals for the Eleventh Circuit.

OPINIONS BELOW

The opinion of the Eleventh Circuit affirming petitioners’ conviction, dated

May 15, 2024, is unreported, and is reprinted as Appendix (“App.”) A. That opinion

was entered as the court’s judgment pursuant to a Mandate entered on June 13,

2024.

The judgment of the United States District Court for the Southern District of

Florida is dated July 31, 2023 (Doc. 53).

1

JURISDICTION

On August 14, 2023, Petitioner appealed his conviction and sentence

from the United States District Court for the Southern District of Florida to

the Eleventh Circuit, arguing that undercover agents and an informant,

acting on behalf of the government, manipulated and entrapped appellant

and impermissibly augmented his sentence by inducing actions he otherwise

would not have undertaken (Doc. 16). On May 15, 2024, the Eleventh Circuit

issued its opinion affirming Petitioners’ conviction and sentence. App. 1a.

The Eleventh Circuit issued a mandate on June 13, 2024, as the judgement

in the case.

This Court has jurisdiction to review the Eleventh Circuit’s judgment under

28 U.S.C. §1254(1), and the Fifth and Sixth Amendment to the United States

Constitution. U.S. Const. amend. V, U.S. Const. amend. VI. The Petition is timely

filed. The Eleventh issued its opinion on May 15, 2024. On August 8, 2024, this

Court granted an extension to file a petition for writ of certiorari until September 12,

2024.

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Petitioner intends to rely upon the following Constitutional and other

provisions:

U.S. Const. amend. V

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, … nor be deprived of life,

liberty, or property, without due process of law.

U.S. Const. amend. VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury. . . and to be informed of the nature and cause of

the accusation; to be confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor; and to have the Assistance of Counsel

for his defense.

INTRODUCTION

Petitioner Humberto Falcon San-Martin respectfully petitions this Court for

a writ of certiorari to review the judgment of the United States Court of Appeals for

the Eleventh Circuit. In affirming the sentence, the Eleventh Circuit allowed the

government to continue its practice of “sentencing entrapment.” The defense of

entrapment protects defendants from being unduly punished for crimes instigated or

exacerbated by government conduct. The Circuits are split on whether the defense of

entrapment can be raised at sentencing. The Eleventh Circuit does not recognize the

defense; other Circuits do.

3

STATEMENT OF THE CASE

I. The Charges Against Petitioner

Petitioner Humberto Falcon San-Martin was charged in a four-count

indictment. (Doc. 8). Count 1 charged Falcon San-Martin with knowingly and

intentionally distributing a controlled substance on December 27, 2021, in violation

of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code,

Section 2. This count alleged that this violation involved five hundred (500) grams or

more

of

a

mixture

and

substance

containing

a

detectable

amount

of

methamphetamine, and a mixture and substance containing a detectable amount of

cocaine, Schedule II controlled substances. Counts 2 and 3 charged Appellant with

knowingly and intentionally distributing a controlled substance (on January 5, 2022,

and March 8, 2022, respectively), involving a mixture and substance containing a

detectable amount of cocaine, a Schedule II controlled substance, in violation of Title

21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section

2. Count 4 charged Appellant with knowingly and willfully combining, conspiring,

confederating, and agreeing with other persons known and unknown to the Grand

Jury, to possess with intent to distribute a controlled substance in violation of Title

21, United States Code, Section 846.

II. Facts Giving Rise To The Charges

Upon San-Martin’s conviction, the District Court sentenced him to 240 months

in prison and imposed a compelled forfeiture of assets, without a corresponding jury

verdict that the proceeds subject to forfeiture were actual proceeds the defendant

4

received from criminal offenses. On appeal, the Eleventh Circuit affirmed SanMartin’s conviction in an unpublished opinion.

Appellant Falcon San-Martin came into possession of a bulk amount of cocaine

left in his care by an individual known as “Danger.” (Doc. 68:8). Initially, Appellant

took some of the cocaine for his own use but when “Danger” did not come back,

Appellant attempted to sell the cocaine. (Doc. 68:9).

Appellant made contact with an individual who was, unbeknownst to him, a

government informant. (Doc. 63:17-18; Doc. 68:9). The informant urged Appellant to

incorporate crystal methamphetamine into the transaction. (Doc. 68:9-10). There is

no evidence that Appellant had originally intended to sell methamphetamine. But

influenced by the government informant’s suggestions, he became involved in

transactions with both substances. (Id.) Appellant Falcon San-Martin procured the

initial kilogram of crystal methamphetamine from the informant himself. As

Appellant’s counsel argued at sentencing, although Appellant had not intended to

sell anything, the cocaine left by “Danger” was sold on the insistence of the

government informant that the cocaine would sell more easily if it were sold together

with methamphetamine.

Appellant thereafter carried out an initial transaction involving both cocaine

and crystal methamphetamine:

But my point is that at the time that he first approached the

informant, he was trying to get rid of this cocaine. The informant,

according to what he’s informed not only the – well, he’s informed me,

but he also informed agents during the safety valve debrief, and I had

5

reached out to Mr. Calderon to let him know, is that according to Mr.

Falcon, his only intention was to try to sell cocaine. He was never really

in the market for crystal meth. He was never trying to get rid of crystal

meth. The informant was the one that was telling him, Listen, you know,

we can get rid of this a little bit better if you include this crystal, and if

you got some crystal meth, we could make this move a little faster.

(Doc. 68:9-10) (Sentencing Hearing, Appellant’s counsel). Also, according to counsel’s

proffer, Falcon San-Martin received the crystal methamphetamine, which he did not

originally intend to sell, from the government informant. (Doc. 68:10).

The government neither confirmed nor disputed that contention. The

Government did respond that the Appellant told probation he had used crystal

methamphetamine as well as cocaine in 2020. The Government did not argue that he

had sold either before. (Doc. 68:15). Two subsequent drug sales involved cocaine and

did not include crystal methamphetamine. As Appellant’s counsel proffered:

After that, he did engage in two other transactions, one – sorry –

the first one was in December – excuse me. The next one occurs in

January and another one two months later, in March. And those two

transactions never included crystal meth. Those were simply more of the

original bulk of cocaine that Danger had left in Mr. Falcon’s possession.

(Doc. 68:10).

Appellant sold one kilogram of crystal methamphetamine and two ounces of

cocaine on December 27, 2021, four ounces of cocaine on January 5, 2022, and ten

ounces of cocaine on March 8, 2022. (Doc. 63:6, 17-18). Subsequent to that, after

several conversations with the informant, Appellant procured additional crystal

meth, additional cocaine, and “did the final transaction.” (Doc. 68:10).

6

REASONS FOR GRANTING THE PETITION

Certiorari is warranted in this case to address the

important issue of

sentencing entrapment: whether the conduct of the government can be so

outrageous as to constitute a violation of Petitioner’s due process rights under the

Fifth and Sixth Amendments, as in this case, when Petitioner was sentenced based

on the narcotics provided by the government agents; and whether the Supreme

Court should address the constitutional issue of sentencing entrapment to resolve

a split in the Circuits.

The Defense of Entrapment

This Court has recognized the defense of entrapment for almost a century.

Sorrells v. United States, 287 U.S. 435, 53 S. Ct 210, 77 L. Ed. 413 (1932). Two

competing theories of entrapment have jostled for supremacy over the years: the first

and prevailing theory holds that a defendant’s predisposition toward a crime

determines whether or not he may invoke the defense of entrapment. Sorrells, 287

U.S. at 448 (“a Defendant may invoke entrapment as a defense if state agents

instigate criminal acts in those people who are “otherwise innocent in order to lure

them and punish them”); see also: Sherman v. United States, 356 U.S. 369 (1958); a

second theory, one featured in numerous Supreme Court dissents over the years,

propounds that the correct test for entrapment does not involve an analysis of a

defendant's criminal disposition, but instead a consideration of the government's

complicity in the crime. Sorrells, 287 U.S. at 459, 53 S. Ct. at 219. (“The courts must

be closed to the trial of a crime instigated by the government’s own agents”).

7

Though dissenting voices from this Court have persisted throughout the 20th

century – including those of Justice Frankfurter in Sherman and Justice Roberts in

Sorrells – the majority on the Court has consistently decided in favor of a theory of

entrapment that considers primarily a defendant's disposition toward wrongdoing.

Neither of the aforementioned competing grounds for the defense of

entrapment is a constitutional defense. The first defense, which considers a

defendant's alleged criminal disposition, rests on the premise that the legislature did

not intend to hold entrapped defendants accountable. Sherman, 356 U.S. at 372

(“Congress could not have intended that its statutes would be enforced by tempting

innocent persons into violations”). The second defense, the minority view up to now,

reasons that it is the judiciary's prerogative not to grant an imprimatur on excessive

government complicity and crime. Sherman, 356 U.S. at 385 (“…police conduct to

ensnare [a defendant] into further crime is not to be tolerated by an advanced

society”).

This Court has recognized still a third ground for invoking the defense of

entrapment. In United States v. Russell, this Court stated that the government's

actions could be so egregious that a court must bar a defendant’s prosecution on due

process grounds: “we may someday 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 invoking judicial processes to obtain a

conviction.” 411 U.S. 423, 431, 93 S. Ct. 1637, 1643 (1973).

Petitioner Asks This Court To Recognize That Sentencing Entrapment Violates

the Constitution’s Due Process Clause

8

The controversy here, and the cause of this Petition, issues from a

disagreement among the Federal Circuits concerning a species of the entrapment

defense: sentencing entrapment. The concept of sentencing entrapment naturally

aligns with the foundational principles that justify the defense of entrapment. The

defense of entrapment protects defendants from being unduly punished for crimes

instigated or exacerbated by government conduct. The defense of sentencing

entrapment simply extends the same logic. Whereas the defense of entrapment

ratione generis protects defendants who have been induced into criminal activity by

the government, that of sentencing entrapment protects those who have committed a

crime, but who were induced by government action to a more serious crime in order

that the defendant’s sentence be augmented beyond what he would have faced had

he been left to his own.

The defense of sentencing entrapment is consistent with every major theory

this Court has advanced as grounds for the broader defense of entrapment. Under

the current predominating theory of entrapment, the focus falls on the defendant’s

initial inclination to commit a crime. Sentencing entrapment is consistent with that

theory, and simply applies to that subset of scenarios in which government actions

elevate the severity of an already existing crime in order to enhance a defendant’s

sentence. The same analysis that this Court propounded to establish the defense of

entrapment can be used to recognize a defense of sentencing entrapment.

A defense of sentencing entrapment is also consistent with the minority view

of the Court – namely, a theory of entrapment in which a court should scrutinize not

9

a defendant’s criminal alleged criminal propensity, but rather the propriety of the

government’s involvement in instigating crime. Just as it is intolerable for the

nation’s courts to extend their imprimatur to a government agent’s egregious

behavior in his pursuit of a conviction, it is equally intolerable for the courts to extend

their imprimatur to an agent’s egregious behavior in pursuit of a heightened

sentence. This Court, by recognizing sentencing entrapment as a defense, would not

change the theory of entrapment; rather, it would extend the logic of the defense of

entrapment in such a way as to prevent disproportionate punishment resulting from

government manipulation.

Similarly, to the extent that a criminal court may invoke the constitutional

protections of process in order to protect a defendant from the government’s efforts to

entrap him, that same court should be free to invoke a defendant’s due process

protections in order to exclude elements of a conviction that resulted from a

government agent’s unconstitutional efforts to enhance a defendant’s sentence

through sentencing entrapment.

The Federal Circuits Are Split In their Interpretation of Sentencing

Enhancement And Petitioner Asks This Court To Settle This Important Issue

The defense of sentencing entrapment is consistent with every major theory

that justifies the broader defense of entrapment. Yet the federal circuits are not

consistent in recognizing this fact.

The Eighth Circuit was perhaps one of the first to recognize hold that sentence

entrapment should be a defense when wrongful conduct on the part of the government

overcomes a defendant’s predisposition, inducing him to engage in a greater crime

10

than he first was disposes to commit. United States v. Lenfesty, 923 F.2d 1293 (8th

Cir. 1991).

The Ninth Circuit followed, and upheld a downward departure on the basis of

the defense of sentence entrapment, holding that:

Government abuse can be discouraged and corrected only if courts also

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. Furthermore, courts can ensure that the

sentences imposed reflect the defendants’ degree of culpability only if

they are able to reduce the sentences of defendants who are not

predisposed to engage in deals as large as those induced by the

government.

United States v. Staufer, 38 F.3d 1103 (9th Cir. 1994).

The Ninth Circuit has maintained the defense of sentence entrapment over

decades, holding in United States v. Cortes that a defendant may be entitled to a jury

instruction upon it:

if there is some foundation in the evidence that he would be subject to a

lesser statutory minimum or maximum sentence if his sentencing

entrapment defense were to succeed, then he is entitled to a jury

instruction on that defense. 757 F.3d 850 (9th Cir. 2014).

State courts have likewise recognized the need for, and justice behind, a

defense of sentence entrapment:

If the defendant had no previous intent to commit the greater crime or

did not become ready and willing to commit a greater crime during the

course of the transaction, even though predisposed to commit the lesser

crime, then a finding that law enforcement agents committed sentencing

entrapment would require that the defendant be found not guilty of the

greater crime, and guilty of the lesser offense.

Leech v. State, 66 P.3d 987, 990 (2003 OK CR 4).

11

The Third Circuit likewise holds sentencing entrapment to occur when a

defendant, although predisposed to commit a minor or lesser offense, is entrapped

into committing a greater offense subject to greater punishment. United States v.

Sumler, 294 F.3d 579, 582, n.1. (3d Cir. 2002).

This Court, considering the generic defense of entrapment, held: “when the

government’s quest for convictions leads to the apprehension of an otherwise law–

abiding citizen who, if left to his own devices, likely would have never run afoul of the

law, this Court should intervene.” Jacobson v. United States, 112 S. Ct. 1535, 1543

(1992). That is, if an agent acting on behalf of the government behaves in such a way

as to implant the disposition to commit a crime, and then induce its commission, then

the defendant is protected by the defense of entrapment. See: Hampton v. United

States, 425 U.S. 484, 490 (1976).

The circuits recognizing the defense of sentencing entrapment are simply

acting consistently with this Court’s precedent concerning the broader defense of

entrapment, as this Court’s reasoning on entrapment holds even when the alleged

offense is one offense in a constellation of other offenses. That is, the promulgation of

the defense of entrapment – namely, that a defendant is excused from misbehavior

when such behavior was induced by the government persuasion – cannot logically be

said to hold only in such circumstances in which the government induced the primary

crime; if a government agent may not persuade a man to sell cocaine, the same

principle should restrain the government agent who tries to augment the same

defendant’s sentence by persuading that man to bring a gun, or to sell a different

12

drug than he had intended. See e.g., United States v. Gibson, 135 F.3d 1124 (6th Cir.

1998); United States v. Barth, 990 F.2d 422 (8th Cir. 1993). See esp., the law of

Florida, under which a trial court may impose a downward departure in a sentence

“when law enforcement allows a defendant to continue criminal activities for no

reason other than to enhance his or her sentence.” State v. Steadman, 827 So.2d 1022,

1025 (Fla. 3d DCA 2002).

Not every federal circuit, however, is consistent with this Court’s precedent.

Although the Eleventh Circuit has correctly understood the defense of sentencing

entrapment to involve “the claim that a defendant, although predisposed to commit

a minor or lesser offense, is entrapped into committing a greater offense subject to

greater punishment.” United States v. Cannon, 987 F.3d 924, 944 (11th Cir. 2021),

that Circuit departs from the logic of this Court’s precedent, however, when it refuses

to recognize that defense in sentencing. Cannon, 987 F.3d at 944. The Eleventh

Circuit bars the defense of sentencing entrapment, and departs from her sister

circuits in doing so. Petitioner brings this present Petition in an effort to resolve the

inconsistent application of law among the federal circuits.

13

CONCLUSION

For the foregoing reasons, the Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

SONIA ESCOBIO O’DONNELL

Counsel of Record

O’DONNELL CHRISTOPHER LLP

700 S. Royal Poinciana Blvd., Suite 705

Miami Springs, Florida 33166

Tel: 305.640.8958

/s/ Sonia E. O’Donnell

SONIA E. O’DONNELL

Florida Bar No. 250643

sodonnell@odonnellchristopher.com

/s/ Robert A. O’Donnell

ROBERT A. O’DONNELL

Florida Bar No. 1011567

rodonnell@odonnellchristopher.com

Counsel for Petitioner

14