           Case: 18-10338   Date Filed: 04/30/2019   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-10338
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:16-cr-60323-KAM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff–Appellee,

                                  versus

ADRIAN APODACA,

                                                         Defendant–Appellant.

                       ________________________

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

                              (April 30, 2019)

Before WILLIAM PRYOR, GRANT, and HULL, Circuit Judges.

PER CURIAM:
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      A federal jury found Adrian Apodaca guilty of two counts of attempted

possession with intent to distribute cocaine, use of interstate commerce facilities in

the commission of murder for hire, Hobbs Act robbery, possession of a firearm in

furtherance of a crime of violence or drug trafficking, and possession of

ammunition by a convicted person. The jury also found that the firearm that

Apodaca possessed in furtherance of his crimes was equipped with a silencer,

triggering a mandatory minimum 30-year sentence of imprisonment under 18

U.S.C. § 924(c)(1)(B)(ii). The district court sentenced Apodaca to the mandatory

minimum of 10 years’ imprisonment on the drug trafficking crimes plus 30 years

for the firearm offense.

      On appeal, Apodaca argues that the government’s conduct during the sting

operation that caught him was so outrageous that it violated his due process rights,

and that several of the charges should have been dismissed as a result. In the

alternative, he argues that the government improperly orchestrated the sting

operation to inflate his sentence, and that his sentence should be reduced

proportionally. We disagree and affirm.

                                          I.

      The charges against Apodaca arose from an undercover investigation in

which several FBI agents pretended to be members of a crime syndicate involved

in cocaine trafficking in Miami. Apodaca became involved with the organization


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through his acquaintance with Steven Watt, a fellow white supremacist who was

also a government informant. After observing Watt apparently receive cash

payment from agents posing as members of the criminal organization, Apodaca

asked Watt for an introduction so that he too could earn some money. Watt

introduced Apodaca to FBI agents posing as leaders of the organization, and

Apodaca enthusiastically agreed to work for them. Apodaca told Watt and the

agents that he had been involved in several murders and other violent crimes,

including drug-related robberies and criminal debt collection, and the agents

designed a sting operation to capitalize on Apodaca’s apparent willingness to

engage in crimes involving drugs and violence.

       As part of the operation, the agents paid Apodaca to act as “security” at a

meeting between an agent posing as a member of the organization and another

agent, Deon, who acted the part of a drug dealer from Atlanta who owed the

organization money. Apodaca offered to “beat the f*ck out of” Deon and

volunteered that he had access to a backhoe if one was needed. After seeing

Deon’s expensive sports car, Apodaca suggested that they could recover the

organization’s money by raiding Deon’s house and forcing him to sign over the

title to his car.

       Later, when one of the agents mentioned that Deon still owed the

organization money, Apodaca said, “He’s gotta go,” which the agent understood to


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mean that they needed to kill him. The agent agreed and offered Apodaca $5000

and false identification to kill Deon but told him that it was “up to [him]” whether

he wanted to take the job. Apodaca agreed to the murder-for-hire and thanked the

agent “for the opportunity.” He eventually provided a list of supplies that he

would need for the murder, which included a gun with a silencer, ammunition,

body armor, pepper spray and a gas mask, a phone with “the number for

extraction,” and information about Deon’s movements and the layout of his house.

      On the arranged date, an agent picked Apodaca up and drove him from

Miami to Valdosta. Before leaving Florida, the agent gave Apodaca cash, body

armor, zip ties, duct tape, rubber gloves, a gas mask, and ammunition, and told him

that an associate in Valdosta would have the firearm and silencer that Apodaca had

requested. He offered Apodaca another chance to back out, saying, “I wanna just

check and sure [sic] it’s cool with you, ‘cause if it ain’t cool with you, you know, I

get it. I don’t want you to do anything you don’t f*ckin’ wanna do.” Apodaca did

not back out; instead, he discussed his plan for the murder, telling the agent why he

had asked for pepper spray and a particular type of ammunition and asking if the

agent could also get him a “brass catcher” (to collect the shells that would be

ejected when the gun was fired) and a change of clothing for after the murder.

      During the drive to Valdosta, the agent told Apodaca that he expected Deon

to have 5–10 kilograms of cocaine. He asked Apodaca to find the cocaine and take


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it from Deon, in exchange for a share of the profits from the sale of the drugs.

Apodaca agreed. When the two arrived in Valdosta, they met another agent who

gave Apodaca a gun with a silencer, and an FBI “takedown team” then moved in

and arrested him.

      Apodaca was charged with attempted distribution and possession with intent

to distribute a controlled substance, 21 U.S.C. § 846 (count 1); use of interstate

commerce facilities in the commission of murder for hire, 18 U.S.C. § 1958 (count

2); attempted possession with intent to distribute a controlled substance, 21 U.S.C.

§ 846 (count 3); Hobbs Act robbery, 18 U.S.C. § 1951(a) (count 4); possession of a

firearm equipped with a silencer in furtherance of a crime of violence or drug

trafficking crime, 18 U.S.C. § 924(c)(1)(A) & (c)(1)(B)(ii) (count 5); and

possession of ammunition by a convicted felon, 18 U.S.C. § 922(g)(1) (count 6).

He testified at trial, claiming that he had not really intended to go through with the

murder, and that the FBI had entrapped him into committing the crimes charged.

A jury convicted him of all counts.

                                          II.

      Apodaca’s due process and sentencing factor manipulation claims are related

arguments bearing some similarity to the defense of entrapment. In both claims, he

argues that the government engaged in misconduct by setting him up to commit

crimes that he would not or could not have committed on his own.


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                                          A.

      Ordinarily, this Court reviews claims of constitutional error, including

claims that the government engaged in outrageous conduct that violated the

defendant’s Fifth Amendment rights, de novo. United States v. Augustin, 661 F.3d

1105, 1122 (11th Cir. 2011). But because Apodaca did not make the “outrageous

government conduct” argument in the district court—instead, he argued that the

district court should dismiss all charges based on his entrapment defense (which

the jury rejected) and for lack of jurisdiction because the government had

manufactured the interstate-commerce connection—this Court reviews the claim

only for plain error. Id.; see United States v. Moriarty, 429 F.3d 1012, 1018 (11th

Cir. 2005). “Plain error occurs ‘if (1) there was error, (2) that was plain, (3) that

affected the defendant’s substantial rights, and (4) that seriously affected the

fairness, integrity, or public reputation of judicial proceedings.’” United States v.

Longoria, 874 F.3d 1278, 1281 (11th Cir. 2017) (citation and some punctuation

omitted). Where there is no precedent from this Court or the Supreme Court

directly addressing the issue, there is no plain error. United States v. Osmakac,

868 F.3d 937, 959 (11th Cir. 2017). “In reviewing charges that official conduct

rose to a constitutionally impermissible level, the cases turn on the totality of the

circumstances without any single controlling factor.” Augustin, 661 F.3d at 1122

(citation and punctuation omitted).


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      In United States v. Russell, 411 U.S. 423 (1973), the U.S. Supreme Court

recognized that law enforcement conduct could conceivably be “so outrageous that

due process principles would absolutely bar the government from invoking judicial

processes to obtain a conviction” if it violated “that ‘fundamental fairness,

shocking to the universal sense of justice,’ mandated by the Due Process Clause of

the Fifth Amendment.” 411 U.S. at 431–432 (citation omitted). The remedy for

outrageous government conduct amounting to a constitutional violation is reversal

of the conviction that was secured through the misconduct. United States v.

Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007).

      To reach the level of a constitutional violation, however, the government’s

conduct must be truly shocking, “so outrageous that it is fundamentally unfair.”

Id. A due process violation of this type would occur only in “‘the rarest and most

outrageous circumstances.’” Augustin, 661 F.3d at 1122 (citation omitted). Where

government agents merely supply contraband or “provide other essential services”

to someone who is a willing participant in a criminal scheme, there is no

constitutional violation. United States v. Sanchez, 138 F.3d 1410, 1413 (11th Cir.

1998); see also Hampton v. United States, 425 U.S. 484, 495 n.7 (1976) (Powell,

J., concurring) (“[T]he cases, if any, in which proof of predisposition is not

dispositive will be rare.”).




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      Here, Apodaca showed that he was predisposed to commit violent crimes by

bragging about past violence and offering to commit additional violence to further

the interests of what he thought was a criminal organization. He proposed and

willingly participated in the plan to kill Deon, despite being given multiple

opportunities to back out. He specifically requested the gun, silencer, and

ammunition that the agents provided for the proposed murder, and although an

agent drove Apodaca to Georgia in part to satisfy the interstate travel element of

the federal crimes, Apodaca was again a willing participant, having offered to

travel to wherever Deon might be to kill him. The government’s conduct in

creating a scenario calculated to appeal to Apodaca’s violent criminal tendencies is

exactly what one might expect in a sting operation; it was not “shocking to the

universal sense of justice” and did not violate Apodaca’s due process rights. There

was no error, let alone plain error, in the district court’s failure to dismiss the

indictment on its own initiative on due-process grounds.

                                           B.

      Apodaca also argues that the district court erred in failing to explicitly

address his sentencing manipulation argument and “specifically say that it believed

it had the power to go below the minimum mandatory because of the manipulation

of the sentence.” Appellant’s Brief at 50. “[S]entencing factor manipulation

occurs when the government’s manipulation of a sting operation, even if


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insufficient to support a due process claim, requires that the manipulation be

filtered out of the sentencing calculus.” Ciszkowski, 492 F.3d at 1270. Such

misconduct may be remedied by reducing the defendant’s sentence to remove any

sentencing enhancement that resulted from the improper manipulation. Id. This

includes any related mandatory minimum sentence because “[w]hen a court filters

the manipulation out of the sentencing calculus before applying a sentencing

provision, no mandatory minimum would arise in the first place.” Id. “A

reduction to a defendant’s sentence is only warranted, however, if the sting

operation involved ‘extraordinary misconduct.’” Osmakac, 868 F.3d at 959

(citation omitted).

      Generally, this Court reviews a district court’s ruling on a motion for

sentence reduction based on sentencing factor manipulation for an abuse of

discretion, as part of the Court’s review of the sentence for reasonableness. See

Ciszkowski, 492 F.3d at 1269–70; United States v. Haile, 685 F.3d 1211, 1222–23

(11th Cir. 2012). But we will not consider a defendant’s argument that the district

court erred in imposing a sentence where, as here, the defendant requested or

invited the sentence he received. United States v. Love, 449 F.3d 1154, 1157 (11th

Cir. 2006). Although Apodaca argued that his sentence should be reduced based

on sentencing factor manipulation, he never asked the court to sentence him below

the mandatory minimum. Instead, he asked the court to vary below the Sentencing


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Guidelines range of 528–570 months to 480 months, which was the mandatory

minimum on all counts (120 months on counts 1–4 plus 360 months on count 5).

Dist. Ct. Dkt. 76 at 20 (“So I’m going to ask the Court to grant a downward

variance to the 120 months, plus the 360.”). The district court gave him what he

asked for.

      Even if we were to consider Apodaca’s sentencing factor manipulation

claim, it would fail for the same reasons as his constitutional claim. The federal

agents tailored their sting operation to take advantage of Apodaca’s obvious

willingness to commit violent crimes for money. Providing the means and

opportunity for “a willing and predisposed offender” to commit crimes is not the

kind of egregious misconduct that would warrant a sentence reduction.

Ciszkowski, 492 F.3d at 1271. On these facts, it was not misconduct at all.


      AFFIRMED.




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