                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-23-2007

USA v. Jimenez
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3114




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"USA v. Jimenez" (2007). 2007 Decisions. Paper 1759.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1759


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                           NOT PRECEDENTIAL



     IN THE UNITED STATES COURT
              OF APPEALS
         FOR THE THIRD CIRCUIT


                 NO. 05-3114


       UNITED STATES OF AMERICA

                      v.

               JOSE JIMENEZ
                 Appellant




      On Appeal From the United States
                 District Court
   For the Eastern District of Pennsylvania
    (D.C. Crim. Action No. 04-cr-00063-1)
   District Judge: Hon. Eduardo C. Robreno


Submitted Pursuant to Third Circuit LAR 34.1(a)
               January 17, 2007

BEFORE: McKEE, AMBRO and STAPLETON,
            Circuit Judges

      (Opinion Filed: January 23, 2007)
                              OPINION OF THE COURT




STAPLETON, Circuit Judge:


      Appellant, Jose Jimenez, pled guilty to distributing approximately 124 grams of

cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). He was sentenced to a

mandatory minimum sentence of 120 months of imprisonment and five years of

supervised release.

      The following summary of the information of record is accurate:

             On December 2, 2003, at approximately 10:30 a.m., DEA
             agents met with Irizarry [a cooperating informant] at a pre-
             arranged location in Philadelphia, and instructed him to make
             a telephone call to Jimenez regarding the purchase of a
             quarter pound of crack cocaine for $3,100 United States
             currency. During the conversation, Irizarry asked Jimenez if
             he could get him a quarter pound of crack cocaine in 45
             minutes. Jimenez stated that he would find it and cook it for
             Irizarry. At approximately 10:40 a.m., the DEA agents
             searched Irizarry, found nothing, and provided him with
             recording devices and $3,100 to purchase the quarter pound of
             crack cocaine.

                                          ***

                    At approximately 12:13 p.m., an officer observed
             Jimenez arrive and park on the west side of Second Street,
             south of Master Street. Irizarry exited the undercover vehicle,
             and entered Jimenez’ car, which contained Jimenez and an
             unknown male. Several moments later, Irizarry exited
             Jimenez’ car, entered the undercover vehicle, and stated that
             Jimenez did not have the crack cocaine with him, but had to
             go “cook it.” Jimenez told Irizarry that he would be back in

                                            2
              twenty minutes.

                                            ***

              At approximately 1:50 p.m., officers observed Irizarry park
              on the west side of Second Street, south of Master Street, with
              two unknown males as his passengers. The officers observed
              Irizarry exit the undercover vehicle, and walk over to the
              passenger side of Jimenez’ car. Jimenez exited the driver’s
              side and met with Irizarry. At approximately 1:53 p.m., the
              officers observed Jimenez enter his car and Irizarry enter the
              undercover vehicle. The officers took custody of
              approximately 124.1 net grams of crack cocaine from Irizarry,
              which had been purchased from Jimenez for $3,100.

Br. Appellee at 5-7 (record citations omitted).

       Jimenez insists that “he was the victim of sentencing entrapment.” Br. Appellant

at 4. He represents that he initially brought 120 grams of powder cocaine for sale to

Irizarry, that he did not know how to cook to powder cocaine into crack, and that he

would not have gotten someone else to cook it had not Irizarry refused to be satisfied with

powder cocaine. We accept these representations for purposes of our review.

       “Sentencing entrapment occurs when an appellant, although pre-disposed 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 (3d Cir. 2002). The

District Court was clearly entitled to conclude that it did not occur here.

       Entrapment requires that the government engage in conduct that can reasonably be

expected to overcome, and does overcome, the will of someone not predisposed to

commit a particular offense. Here, the government did nothing more than provide


                                              3
Jimenez with the opportunity to sell crack cocaine, an opportunity that he immediately

seized in the first telephone conversation. He was thus willing from the start to commit

the crime of crack distribution, and he produced it for sale on the same day without any

significant delay. Here, Jimenez was predisposed to distribute crack, and his will did not

need to be overcome. United States v. Walls, 70 F.3d 1323, 1329 (D.C. Cir. 1995).

       Jimenez also argues that the sentencing disparity between crack and powdered

cocaine found in 21 U.S.C. § 841(b)(1)(A) and (B) violates his right to substantive due

process. The primary foundation of Jimenez’ argument has been expressly rejected by

the Supreme Court, however:

                      Petitioners argue that the due process of law
              guaranteed them by the Fifth Amendment is violated by
              determining the lengths of their sentences in accordance with
              the weight of the LSD “carrier,” a factor which they insist is
              arbitrary. They argue preliminarily that the right to be free
              from deprivations of liberty as a result of arbitrary sentences
              is fundamental, and therefore the statutory provision at issue
              may be upheld only if the Government has a compelling
              interest in the classification in question. But we have never
              subjected the criminal process to this sort of truncated
              analysis, and we decline to do so now. Every person has a
              fundamental right to liberty in the sense that the Government
              may not punish him unless and until it proves his guilt beyond
              a reasonable doubt at a criminal trial in accordance with the
              relevant constitutional guarantees. But a person who has been
              so convicted is eligible for, and the court may impose,
              whatever punishment is authorized by statute for his offense,
              so long as that penalty is not cruel and unusual, . . . and so
              long as the penalty is not based on an arbitrary distinction that
              would violate the Due Process Clause of the Fifth
              Amendment. In this context, . . . an argument based on equal
              protection essentially duplicates an argument based on due
              process.

                                             4
Chapman v. United States, 500 U.S. 453, 464-65 (1990) (citations omitted).

       This Court, as well as every other court that has considered the issue, has

concluded that there is a rational basis for (i.e., no arbitrariness in) the disparity Jimenez

attacks. See United States v. Frazier, 981 F.2d 92, 96 (3d Cir. 1992) (footnote omitted):

              There are reasonable grounds for imposing a greater
              punishment for offenses involving a particular weight of
              cocaine base than for comparable offenses involving the same
              weight of cocaine. These grounds include differences in the
              purity of the drugs, the dose size, the method of use, the effect
              on the user, and the collateral social effects of the traffic in
              the drug. Whether the ratio best reflecting these genuine
              differences should be calibrated at 5-to-1, 20-to-1, or 100-to-1
              is a discretionary legislative judgment for Congress and the
              Sentencing Commission to make.

See also United States v. Lawrence, 951 F.2d 751, 755 (7th Cir. 1991); United States v.

Pickett, 941 F.2d 411, 418 (6th Cir. 1991); United States v. Thomas, 932 F.2d 1085 (5th

Cir. 1991); United States v. Turner, 928 F.2d 956, 960 (10th Cir. 1991); United States v.

Buckner, 894 F.2d 975, 978, 980 (8th Cir. 1990); United States v. Cyrus, 890 F.2d 1245,

1248 (D.C. Cir. 1989); United States v. Solomon, 848 F.2d 156, 157 (11th Cir. 1988);

United States v. Collado-Gomez, 834 F.2d 280, 281 (2d Cir. 1987).

       The judgment of the District Court will be affirmed.




                                               5
