           Case: 14-15438   Date Filed: 09/03/2015   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-15438
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:14-cr-60174-JIC-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

MICHAEL BROWN,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (September 3, 2015)

Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Michael Brown appeals his convictions and sentences after pleading guilty

to conspiring to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a),

and to using a firearm during the commission of a crime of violence, in violation of

18 U.S.C. § 924(c)(1)(A). The charges in this case grew out of a government

created “reverse sting” operation by which Brown and a codefendant agreed to rob

a stash house they thought contained at least fifteen kilograms of cocaine. In fact,

the stash house was a fabrication of the government, communicated to Brown by

an undercover officer who had been notified by a confidential informant that

Brown was interested in committing a “drug rip” for cocaine. During June 2014,

Brown and a codefendant met with the undercover officer and discussed details of

the home invasion. Then, in July, Brown and the codefendant were arrested at an

undercover facility where they had met to prepare for going to the stash house to

steal the drugs.

      At sentencing, Brown moved for a downward variance to 78 months’

imprisonment—reflecting 18 months for the conspiracy offense and a consecutive

60 months for the firearm offense. He argued that the court should account in its

sentencing determination for the constitutionally problematic nature of reverse

sting operations and the indiscriminate use of that tool by the government in this

case. Brown did not move to dismiss the indictment, and he acknowledged, as he




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does on appeal, that a dismissal of the charges was precluded by this Court’s

precedent, see United States v. Sanchez, 138 F.3d 1410 (11th Cir. 1998).

      The district court sentenced Brown to a total term of 90 months’

imprisonment—30 months for the conspiracy offense and 60 consecutive months

for the firearm offense. The court found that a sentence within the guideline range

of 30 to 37 months for the conspiracy offense was appropriate in light of Brown’s

two prior robbery convictions. Brown now brings this appeal.

      Brown’s initial brief on appeal largely consists of constitutional and policy

arguments against reverse sting operations in general. For example, he argues that

reverse sting operations (1) are used solely to obtain convictions, not to prevent

crimes; (2) amount to entrapment; (3) discriminatorily target racial minorities and

those in poverty; (4) can be used to inflate a defendant’s sentencing exposure

through manipulation of the drug quantity or other aspects of the fake stash house;

and (5) are a waste of law-enforcement resources.          He also contends that

recognition of the problematic nature of reverse sting operations is growing.

      To the extent that Brown challenges the legality of reverse sting operations

in general, his argument is foreclosed by prior precedent, as he appears to

acknowledge. We have stated that “[g]overnment-created reverse sting operations

are recognized and useful methods of law enforcement investigation.” United

States v. Ciszkowski, 492 F.3d 1264, 1271 (11th Cir. 2007). And we have rejected


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challenges to the reverse sting method of investigation on numerous occasions.

See, e.g., Sanchez, 138 F.3d at 1413-14 (collecting cases); United States v.

Walther, 867 F.2d 1334, 1338-39 (11th Cir. 1989); United States v. Rogers, 701

F.2d 871, 872 n.1 (11th Cir. 1983). Therefore, even if we agreed with Brown’s

criticisms of the use of reverse sting operations, we are not at liberty to disregard

our prior precedent and create new law. United States v. Vega-Castillo, 540 F.3d

1235, 1236-37 (11th Cir. 2008).

       To the extent that Brown argues that the government’s conduct in this

particular case violated due process, we disagree. 1              We have recognized the

possibility that the government’s investigatory conduct might be so outrageous or

reprehensible as to amount to a due-process violation, Ciszkowski, 492 F.3d at

1270-71, but we have never applied the defense to reverse a conviction, see United

States v. Jayyousi, 657 F.3d 1085, 1111 (11th Cir. 2011) (describing prior

discussions of the defense as “dicta”). The undercover officer in this case merely

provided an opportunity for Brown to commit a crime, after Brown had already

expressed an interest in committing a “drug rip” for cocaine to a confidential

informant.      Brown and his codefendant readily accepted and pursued this

       1
          The government contends that any challenge Brown makes to his convictions is either
waived, due to his unconditional guilty plea, see United States v. Patti, 337 F.3d 1317, 1320
(11th Cir. 2003) (“Generally, a voluntary, unconditional guilty plea waives all nonjurisdictional
defects in the proceedings.”), or subject to plain-error review, because Brown did not move to
dismiss the indictment, see United States v. Madden, 733 F.3d 1314, 1320-21 (11th Cir. 2013).
Because Brown is not entitled to relief under any standard, we need not discuss whether these
arguments are waived or subject to plain error.
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opportunity, bringing the gun with them on the day of the supposed robbery.

Consequently, Brown has not shown that the government’s conduct in this case is

sufficiently outrageous or reprehensible to amount to a due-process violation. See

Sanchez, 138 F.3d at 1413-14.

      Brown also challenges his sentence on similar grounds. First, he contends

that the government engaged in sentencing factoring manipulation by selecting a

large quantity of cocaine for the fictitious stash house. Second, he argues that the

sentencing court should have downwardly varied from the guideline range of 30 to

37 months for the conspiracy offense to account for the government’s allegedly

questionable conduct in fabricating a crime.

      We review the reasonableness of a sentence under an abuse-of-discretion

standard. United States v. Moran, 778 F.3d 942, 982 (11th Cir. 2015). The district

court is required to impose a sentence that is “sufficient, but not greater than

necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2). The

party challenging the sentence has the burden of establishing that the sentence is

unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). We

will vacate a sentence as substantively unreasonable only if “we are left with the

definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” United


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States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal quotation

marks omitted).

      First, Brown has not shown that the government engaged in sentencing

factor manipulation.     “[S]entencing factor manipulation occurs when the

government’s manipulation of a sting operation, even if insufficient to support a

due process claim, requires that the manipulation be filtered out of the sentencing

calculus.” Ciszkowski, 492 F.3d at 1270; see also United States v. Docampo, 573

F.3d 1091, 1097-98 (11th Cir. 2009); Sanchez, 138 F.3d at 1414. Brown contends

that the government manipulated his sentence by selecting an excessively large

amount of cocaine for the fictitious stash house.        But “[t]he fact that the

government’s fictitious reverse sting operation involved a large quantity of drugs

does not amount to the type of manipulative governmental conduct warranting a

downward departure in sentencing.” Sanchez, 138 F.3d at 1414.

      More important, though, is the fact that drug quantity simply did not factor

into Brown’s sentencing calculations. Brown’s offense level was increased by one

level because the taking of controlled substances was the object of the offense,

U.S.S.G. § 2B3.1(6), but his guideline range was not affected in any way by the

amount of drugs involved.      Nor was Brown subject to a statutory minimum

sentence based on drug quantity. Also, the district court did not cite drug quantity




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as a reason for its chosen sentence. As a result, there was no manipulation to

“filter[] out of the sentencing calculus.” Ciszkowski, 492 F.3d at 1270.

      Second, Brown has not shown that his 30-month sentence for the conspiracy

offense, for a total sentence of 90 months’ imprisonment, is substantively

unreasonable under the totality of the circumstances and in light of the § 3553(a)

factors. The district court found that a guideline-range sentence for the conspiracy

offense was appropriate in view of Brown’s two prior robbery convictions.

Although the stash house was fictional, Brown did not know that, and he

demonstrated a willingness and ability to commit a serious and dangerous crime,

implicating the need, in imposing a sentence, to reflect the seriousness of the

offense, to protect the public from Brown’s future conduct, and to deter Brown and

others from similar conduct.       18 U.S.C. § 3553(a)(2).         Indeed, Brown’s

involvement in this case began while he was incarcerated, and he planned and

committed the instant offenses soon after his release. Also, the sentence was at the

bottom of the guideline range, and we expect that a sentence within the guideline

range is reasonable. United States v. Alfaro-Moncada, 607 F.3d 720, 735 (11th

Cir. 2010). In sum, the district court did not abuse its discretion in sentencing

Brown.




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       AFFIRMED. 2




       2
           To the extent that Brown moves this panel to submit this appeal for en banc
consideration, the motion is DENIED. We express no opinion on the merits of that request, but
we note that Brown is free to petition for rehearing en banc. See Fed. R. App. P. 35.
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