                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 7 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-3345
                                                    (D.C. No. 00-40012-01)
    MICHAEL DUANE GRANT,                                   (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, PORFILIO, and ANDERSON, Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Defendant was apprehended selling drugs at a sting operation across the

street from the Washburn University campus. He pled guilty to distributing 11.7



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
grams of crack cocaine within 1000 feet of a school, 21 U.S.C. §§ 841(a)(1), 860,

and received a sentence of 70 months’ imprisonment and 8 years’ supervised

release. 1 He argues that, by selecting a location near the university for the sting

operation and offering favorable prices for sales completed there, government

officers engaged in outrageous conduct with the purpose of entrapping him into

an offense carrying inflated sentencing consequences. Upon review of the record

and our case law on the related defenses of sentencing entrapment/outrageous

government conduct, we affirm defendant’s sentence for substantially the reasons

stated in the district court’s order of October 20, 2000.

      In United States v. Lacy , 86 F.3d 956 (10th Cir. 1996), this court held that

allegations of improper government efforts designed to inflate sentencing should

be analyzed as a claim of outrageous conduct, which focuses on the government’s



1
      The court determined defendant’s Base Offense Level (BOL) pursuant to
U.S.S.G. § 2D1.2 (“Drug Offenses Occurring Near Protected Locations.”). Under
§ 2D1.2(a)(1), the BOL was “ 2 plus the offense level from § 2D1.1 applicable to
the quantity of controlled substances directly involving a protected location,” i.e.,
2 + 26 = 28. After reductions for acceptance of responsibility and cooperation
under § 3E1.1(a), (b), the offense level fell to 25. There were no enhancements.
Given defendant’s criminal history, the Guidelines directed a sentence of 70 to 87
months, and the court chose the minimum. The supervised release was statutorily
mandated. See § 860(a) (adopting sentencing provisions of § 841, but doubling
maximum prison and minimum supervised release terms); § 841(b)(1)(B)
(mandating 4-year term of supervised release for drug type/quantity here). We
note § 860 is a separate substantive offense, not a mere enhancement relating to
§ 841(a)(1). United States v. Smith , 13 F.3d 380, 382-83 (10th Cir. 1993);  accord
Watterson v. United States , 219 F.3d 232, 236 (3d Cir. 2000).

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behavior, rather than as a species of entrapment, which looks instead to the

defendant’s criminal predisposition.    Id. at 963 & n.5; see also United States v.

Eads , 191 F.3d 1206, 1212 (10th Cir. 1999). Accordingly, the following review

principles control here:

             Defendants have the burden of proving outrageous government
      conduct, . . . and we review this issue de novo, with factual findings
      reviewable under the clearly erroneous standard. The outrageous
      conduct defense . . . is an extraordinary defense that will only be
      applied in the most egregious circumstances. In order to prevail, the
      defendant must show that the challenged conduct violated notions of
      fundamental fairness and is shocking to the universal sense of
      justice.

United States v. McKissick , 204 F.3d 1282, 1294 (10th Cir. 2000) (quotations and

citations omitted).

      Defendant relies on three facts to establish outrageous conduct here: (1) the

government selected a location within the statutory 1000-foot radius of the school

to set up its sting operation, when the lessor offered other properties to rent which

were farther away; (2) the government instructed its informant/buyer to ask that

sales take place at the selected location and, if a seller hesitated, to say that he

had no transportation to go elsewhere; and (3) the government had its informant

offer to pay favorable prices to attract sellers. These facts do not demonstrate the

kind of egregious circumstances necessary to warrant relief under the standards

set out above.



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       Nothing in the record indicates the government selected the location

because it was near a school. The evidence shows only that the government

rejected a few suggested alternatives because they were located in heavy drug

trafficking areas and would likely lead to quicker exposure of the sting operation.

There was also no evidence that encouraging sales at the sting location reflected

anything other than the intent to make use of the videotape set-up installed there

to record the transactions. Finally, as to price manipulation, the record on appeal

includes general, conclusory references by counsel to offers of “more than the

going rate,” R. Vol. 1, doc. 55 at 4, “a great deal more than what was the going

rate,” R. Vol. 3 at 6, and “a little better than market price,”   id. at 8. Our cases

have rejected outrageous conduct claims based on financial inducement, even

when substantial incentives were offered to those in fairly desperate straits.      See

United States v. Sandia , 188 F.3d 1215, 1220 (10th Cir. 1999);        United States v.

Mosley , 965 F.2d 906, 913 (10th Cir. 1992). Relief might be available if it were

“clear from the record that the price was shockingly cheap [or expensive, if the

government acts as buyer],”      Mosley , 965 F.2d at 913, but we lack evidence, or

even allegations, rising to that level here. Further, there is no evidence that

defendant’s initial reluctance to do business at the sting location turned on its

proximity to the school–and there certainly are other reasons a dealer might prefer

to operate from a location of his own choice.


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      We have repeatedly stated that “[i]t is not outrageous for the government

. . . to induce a defendant to repeat, continue, or even expand previous criminal

activity.” United States v. Gell-Iren , 146 F.3d 827, 831 (10th Cir. 1998) (quoting

United States v. Pedraza , 27 F.3d 1515, 1521 (10th Cir. 1994)). While the sting

location used by the government had the effect of raising the stakes involved for

defendant (after an initial crack sale to the informant at defendant’s residence),

and the lure of extra profit may have played a role in inducing him to repeat or

expand his criminal activity, the facts of this case still fall within the wide range

of permissible government conduct.     See generally Mosley , 965 F.2d at 910 (in

assessing outrageous conduct claims, “[w]ide latitude is accorded the government

to determine how best to fight crime”).

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

is AFFIRMED.



                                                      Entered for the Court



                                                      John C. Porfilio
                                                      Circuit Judge




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