
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1666                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 JOHN BERIO MONTOYA,                              a/k/a JOHN FREDDY MONTOYA,                                Defendant, Appellant.                                 ____________________        No. 94-1667                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   MARCO VILLEGAS,                                Defendant, Appellant.                                 ____________________        No. 94-1668                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  GUILLERMO MONTOYA,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Eileen Donoghue, by  Appointment of the Court, for appellant Marco            _______________        Villegas.            Raymond  E. Gillespie, by Appointment of the  Court, for appellant            _____________________        John Berio Montoya.            Diana  L.  Maldonado,  Federal  Defender's  Office,  for appellant            ____________________        Guillermo Montoya.            Jeffrey  A. Locke,  Assistant United  States Attorney,  with  whom            _________________        Donald K. Stern, United States  Attorney, was on brief for  the United        _______________        States.                                 ____________________                                    July 27, 1995                                 ____________________                 BOUDIN,  Circuit Judge.   The  three appellants  in this                          _____________            case--Marco  Villegas,  Guillermo  Montoya  and   John  Berio            Montoya--were indicted for conspiracy to possess cocaine with            intent  to  distribute  and  for possession  with  intent  to            distribute.  21 U.S.C.    841, 846.  After guilty pleas, they            were  sentenced  to  mandatory  minimum terms  of  10  years'            imprisonment, as well as  supervised release and the ordinary            special  assessment.   They  appeal  their  sentences on  the            ground that  the government manipulated upward  the amount of            cocaine for which they were held responsible.                 The underlying facts are  largely undisputed.  In August            1992,  the FBI began a reverse sting operation in Boston, its            undercover  agent (Antonio  Dillon)  purporting to  act as  a            high-volume wholesaler of cocaine seeking new distributors in            the area.   On August 26, 1992,  Dillon met with Villegas who            on behalf  of Guillermo  Montoya and  his brother Hernan  was            seeking a  new source of supply of cocaine.  Like many of the            subsequent encounters, this meeting was taped by the FBI.                   Villegas  said  that the  Montoyas  were,  by their  own            account, selling 15  to 25  kilograms of cocaine  a week  and            paying between  $19,500 and  $20,000 per  kilogram.   He also            said  that he  had  been in  the  cocaine business  with  the            Montoyas for six years.   Villegas made similar statements at            a  September 7  meeting, although  he there  said that  a New            Jersey   supplier  was  providing  the  brothers  cocaine  at                                         -3-                                         -3-            $16,000-18,000 per  kilogram.  Villegas also  offered to rent            his garage to store the cocaine.                 On  September  18,  1992,  Dillon  met  with   Villegas,            Guillermo  Montoya  and  John   Berio  Montoya  at  a  Boston            restaurant.   Dillon  said that  he would  require a  minimum            purchase  of 10 kilograms, with a down payment equal to three            kilograms and payment  of the balance in 15  to 20 days after            delivery.   Dillon  requested $19,500 per kilogram; Guillermo            Montoya  balked; and  Dillon  ultimately offered  a price  of            $17,000  per  kilogram.    Guillermo Montoya  said  he  would            consider buying 10 kilograms with a down payment of $50,000.                 There were subsequent meetings  in December 1992 and the            first three months  of 1993.   Pleading a  shortage of  cash,            Guillermo Montoya  got the down  payment reduced to  a $5,000            advance for expenses (paid by John Berio Montoya  in February            1993) and a  $20,000 initial  payment on delivery  of the  10            kilograms.    In  a  March meeting,  Villegas  and  Guillermo            Montoya discussed the possibility after the first purchase of            increasing  the  sales from  10-15 kilograms  per week  to 20            kilograms.    On  March  30,  1993,  the  10  kilograms  were            delivered and the appellants were then arrested.                 At   sentencing,  each   appellant   objected   to   the            determination  in  the  pre-sentence  report  that  the  base            offense   level  should   be   premised  on   a   10-kilogram            transaction.    The  appellants   did  not  dispute  that  10                                         -4-                                         -4-            kilograms had been ordered and delivered,  nor claim that the            $17,000 price was below the market price.  But they said that            the  government  had  manipulated  the  quantity  upward   by            reducing  the down payment from $50,000 to $25,000.  Based on            Dillon's  original proposal  of  a  one-third  down  payment,            appellants urged  that each  appellant should be  held liable            only for three or four kilograms.                 At  the close  of the  sentencing hearing,  the district            court  found that  there  was no  manipulation of  sentencing            factors.  The  district judge said  that the appellants  were            predisposed  to purchase 10 kilograms and that they could and            did purchase this amount.  Since any amount of five kilograms            or   more  triggers   a  mandatory   minimum  of   10  years'            imprisonment, 21  U.S.C.    841(b)(1)(A), the  district court            imposed this sentence.  The present appeals followed.                 At  the threshold, the government  tells us that we lack            jurisdiction over  the appeals, saying  that appellants  cast            their  claim  in the  district court  as  one for  a downward            departure.  Refusals to depart are  not reviewable unless the            district court has  mistaken its own legal authority  or made            some other mistake of law.  United States v. DeCosta, 37 F.3d                                        _____________    _______            5, 8 (1st Cir. 1994).   Appellants say that their request was            not limited to a departure from the guideline range, pointing            out that they asked the court to sentence below the statutory                                                                _________            minimum.                                         -5-                                         -5-                 This is one of these  superficially confusing situations            in  which "jurisdiction" is  in certain  respects intertwined            with "the merits"; and "the merits" in turn depend on a still            evolving  body  of  case  law.    Under  umbrella  terms like            sentencing entrapment and sentencing factor manipulation, the            circuit courts  have provided  a certain amount  of guidance,            but there are some divisions among the circuits, and--even in            the mainstream--more  criteria  than rules.   This  is to  be            expected,  for   the  problem  arises  in   context  that  is            comparatively recent.                 Undercover agents of the state have been "plotting" with            potential  defendants since  Elizabethan times,  and probably            long  before.   But  in  federal  courts the  broad  latitude            formerly  allowed  to a  sentencing  judge  made it  easy  to            account  for  any  equity.    This  discretion  has now  been            curtailed  by sentencing  guidelines and  statutory minimums,            often keyed to amounts of drugs involved  and dollars stolen.            In turn, attention has turned to escape-hatch arguments which            might exclude from  the equation  a portion  of the  criminal            conduct.                 Our  own  cases  have concluded  that  where  government            agents  have improperly  enlarged the scope  or scale  of the                         __________            crime, the sentencing court "has ample power to deal with the            situation either  by excluding the  tainted transaction  from            the computation of  relevant conduct or by departing from the                                         -6-                                         -6-            [guideline sentencing range]."  United States v. Connell, 960                                            _____________    _______            F.2d  191, 195  (1st Cir. 1992).   See also  United States v.                                               ___ ____  _____________            Gibbens,  25 F.3d 28, 30-32 (1st Cir. 1994); United States v.            _______                                      _____________            Brewster, 1 F.3d 51, 55 (1st Cir. 1993).  We  think that this            ________            broad principle applies  to statutory minimums as  well as to            the guidelines.                 Admittedly, there  is no  statute to  this effect.   But            there  is also no  statute enacting  the familiar  defense of            entrapment  or other defenses like duress or necessity.  1 W.            LaFave  &  A. Scott,  Substantive  Criminal  Law,     5.2-5.4                                  __________________________            (1986).   In creating  such  supplementary doctrines,  courts            have usually been  careful not  to insist on  much more  than            minimum  decency seems  to require.   As  this court  said in            Connell, "[c]ourts  should go very slowly  before staking out            _______            rules  that  will deter  government  agents  from the  proper            performance of their investigative duties."  960 F.2d at 196.                 It  is no accident that statements condemning sentencing            factor manipulation  are usually  dicta.  A  defendant cannot            make out a case  of undue provocation simply by  showing that            the idea originated  with the government or  that the conduct            was encouraged by  it, e.g., Brewster, 1 F.3d at  55, or that                                   ____  ________            the crime was prolonged beyond  the first criminal act, e.g.,                                                                    ____            Gibbens, 25  F.3d at 31, or  exceeded in degree  or kind what            _______            the  defendant had done before.   E.g., Connell,  960 F.2d at                                              ____  _______                                         -7-                                         -7-            195-96.    What the  defendant needs  in  order to  require a            reduction  are elements like  these carried to  such a degree                                                        _________________            that   the   government's   conduct   must   be   viewed   as            "extraordinary misconduct."  Gibbens, 25 F.3d at 31.                                         _______                 The  standard is  high because  we are  talking about  a            reduction  at  sentencing,  in  the  teeth  of  a statute  or            guideline  approved by Congress, for  a defendant who did not            raise or did not prevail upon an entrapment defense at trial.            The standard is  general because  it is designed  for a  vast            range of circumstances and of incommensurable variables.  See                                                                      ___            Gibbens, 25 F.3d at 31.   The most important of these,  as we            _______            have stressed, is likely to be the conduct of the government,            including the  reasons why  its agents enlarged  or prolonged            the criminal conduct in question.  See id. at 31 & n.3.                                               ___ ___                 In other situations,  the defendant's own predisposition            may  enter into the calculus,  see Connell, 960  F.2d at 196,                                           ___ _______            speaking  of  conduct "overbear[ing]  the  will  of a  person            predisposed only  to committing  a lesser  crime."   But  the            analogy  at sentencing  to ordinary  entrapment is  not often            going  to  help a  defendant who  is  arguing only  about the            number  or size  of  the transactions.    Having crossed  the            reasonably bright  line between  guilt and innocence,  such a            defendant's   criminal   inclination    has   already    been            established, and the extent of the crime is more likely to be            a matter of opportunity than of scruple.                                         -8-                                         -8-                 Because  of  the  diversity  of circumstances,  we  have            declined  to create  detailed rules as  to what is  or is not            undue manipulation, Gibbens, 25  F.3d at 31, but we  think it                                _______            is useful now to be very candid in saying that garden variety            manipulation   claims  are   largely   a   waste   of   time.            Nevertheless, where a defendant wants to argue that there has            occurred    a    sentencing    manipulation   amounting    to            "extraordinary misconduct," we think  that the claim need not            be limited to a  request for a discretionary departure,  that            it  applies  to statutory  mandatory minimums  as well  as to            guideline ranges, and that it is subject to appellate review.                 Of  course, the burden of proof is upon the defendant to            show that he is entitled to a reduction.  Gibbens, 25 F.3d at                                                      _______            31-32.   The district court's fact findings on this issue, as            on other fact questions, are subject to the clearly erroneous            standard.   Id.  at 30.   Because  manipulation is  largely a                        ___            fact-bound  inquiry,  even  the  district   court's  ultimate            judgment  whether the  government's conduct is  outrageous or            intolerable is not lightly to be disregarded.  Id. at 32; cf.                                                           ___        ___            United States v. Rosen,  929 F.2d 839, 844 (1st  Cir.), cert.            _____________    _____                                  _____            denied, 502 U.S. 819 (1991).            ______                 Against this backdrop, we decline to dismiss this appeal            for  lack of  jurisdiction,  but affirm  on  the merits  with            little hesitation.  This  case involves a single transaction,            not a string of crimes prolonged by the government; the price                                         -9-                                         -9-            was  within the market range; and the appellants by their own            recorded admissions  were  well established  drug dealers  or            abetters  who  had  previously  dealt  in  very   substantial            quantities.  As in  most stings, this episode began  with the            government; but  as to  pressure, there  was none,  let alone            outrageous  or  intolerable  pressure.    Nor  was  there  an            indication  of any  illegitimate motive  on the  part  of the            agents.                 All that agent Dillon did was to reduce the down payment            in the face of  claims by appellants that they  were short of            cash to make the full down payment originally proposed.  This            is so far from  government misconduct that we would  not have            written a published opinion but for two considerations.   One            is the government's jurisdictional  objection and the need to            make clear the procedural framework in which we will consider            such  claims.   And the  other is  to make very  explicit the            plain  import  of  our  previous  cases:  sentencing   factor            manipulation is  a claim  only for  the  extreme and  unusual            case.                 One qualification remains to be mentioned.  What we have            said  is directed  to  claims that  the  district court  must            disregard  at sentencing  a portion  of the  criminal conduct            because  it  was  the  product  of  impermissible  government            manipulation.    Quite  possibly--we  need  not  definitively            decide the point--a district  court may order a discretionary                                         -10-                                         -10-            downward departure from the guideline range on something less            than extraordinary  misconduct.  Indeed, this  is made fairly            clear for one narrow  class of conduct, by U.S.S.G.    2D1.1,            comment. (n.17), which provides:                      If, in  a reverse sting  . . .  the court                      finds  that  the government  agent  set a                      price for the  controlled substance  that                      was substantially below the  market value                      of  the   controlled  substance,  thereby                      leading to the  defendant's purchase of a                      significantly  greater  quantity  of  the                      controlled  substance than  his available                      resources  would  have  allowed   him  to                      purchase except for the  artificially low                      price  set by  the  government  agent,  a                      downward departure may be warranted.                 It  is  doubtful  that  expressio unius  concepts  would                                         _______________            prevent  a  defendant  from  seeking  such   a  discretionary            downward departure in other analogous circumstances--although                                  _____            not literally within this application note--assuming that the            general precepts for downward  departures were met.  U.S.S.G.               5K2.0  (not-contemplated-by-commission  test);   see  also                                                                ___  ____            United States v. Rivera, 994 F.2d 942 (1st Cir.  1993).  But,            _____________    ______            by  the  same   token,  a  refusal  to   depart  is  normally            unreviewable.   We mention departures to  make clear that the            stringent  standards  discussed  above  do  not  supplant the            guidelines' own rules for discretionary departures.                 That  the  same core  of facts  might  give rise  to two            related but  ultimately different  claims at sentencing  is a            complexity,  although  one not  often  likely  to affect  the            outcome.    But  in  addition  to  the  different  procedural                                         -11-                                         -11-            framework,  there is  a difference  in emphasis.   Sentencing            manipulation, as  we  have stressed,  is primarily  concerned            with impermissible  conduct by the government.   By contrast,            the  guidelines,  and   by  extension  departures   from  the            guidelines, are  centrally concerned  with a proper  sentence            for the defendant  in light of  his own  conduct and his  own            criminal history.                 Affirmed.                 _________                                         -12-                                         -12-
