                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         JUN 7 2004
                                   TENTH CIRCUIT
                                                                   PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 02-1383
 v.
                                                 (D.C. No. 99-CR-211-N)
                                                        (D. Colo.)
 WILLARD MARVIN RICE,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, MURPHY and McCONNELL, Circuit Judges.


      Willard Martin Rice (“Defendant”) pled guilty to knowingly and unlawfully

possessing a machine gun, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2), and

was sentenced to 49 months’ imprisonment. This appeal followed. We exercise




      *
        After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and AFFIRM

Defendant’s conviction and sentence. 1




                                BACKGROUND

      From September 1997 through October 1999, undercover ATF Agents

Blake Boteler and Darrell Edwards investigated members and associates of the

Sons of Silence Motorcycle Club for narcotics and firearms violations. (PSR at

4.) Agent Boteler was introduced to Defendant during the course of the

investigation (Sent. Tr. at 59), and Defendant told Agent Boteler that he

possessed an unregistered Sten machine gun (id. at 62). On July 14, 1998,

Defendant showed Agent Boteler the parts necessary to manufacture a machine

gun and said that he could acquire Sten machine gun kits for $100 each. (PSR at

5.) On September 26, Agent Boteler asked Defendant to manufacture and sell

him five Sten machine guns. (Id.)

      On October 1, Defendant agreed to manufacture the machine guns, and he

and Agent Boteler agreed on a price. (Id.) Defendant said that he would have

some of the parts sent to his neighbor’s house so there would be no record of the


      1
       On May 6, 2004, Defendant moved to expedite these proceedings. We
dismiss that motion as moot. Defense counsel has also filed a motion to withdraw
under Anders v. California, 386 U.S. 738 (1967). Because we find that Defendant
has raised no non-frivolous issues on appeal, we grant that motion.

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parts coming to Defendant’s address. (Id.) Agent Boteler then advised Defendant

that his actions would become illegal when Defendant assembled the firearms.

(Id.) Defendant told Agent Boteler that he would advise Steven Kressin, the Sons

of Silence National Vice President, of the deal. (Id.) Kressin was to weld the

guns together. (Id.) Agent Boteler then said to Defendant, “I want to make sure

this is something you want to do and I ain’t twisting your arm.” (Id.) Defendant

stated that Agent Boteler was not twisting his arm and that he did not mind doing

the deal. (Id.)

      Defendant thereafter manufactured and sold a total of 20 machine guns to

Agent Boteler on five occasions from October 19, 1998, to September 16, 1999.

(Doc. 1198 at 3.) During the course of these transactions, Defendant informed

Agent Boteler that his illegal machine gun trafficking was “extremely insulated”

to avoid detection. (See Doc. 1316, Att. 3156.) Specifically, Defendant informed

Agent Boteler that several people involved only deal in individual parts of guns.

(Id.) Defendant stated that he had been dealing in illegal machine guns for years

and that there was no chance of being caught. (Id.)

      After completion of the investigation, Defendant and eighteen co-

defendants were charged in a 27-count indictment with various narcotics and

firearms offenses. (See Doc. 407.) Defendant was charged with five counts of

knowingly and unlawfully possessing a machine gun, in violation of 18 U.S.C.


                                        -3-
§ 922(o). (See id. at 8-10.) In exchange for dismissal of the remaining counts,

Defendant pled guilty to Count VI, which charged him with knowingly and

unlawfully possessing one machine gun on October 19, 1998. (Docs. 407, 1198-

99, 1362.) Defendant was sentenced to 49 months’ imprisonment.



                                  DISCUSSION

      In this appeal, Defendant challenges the constitutionality of the statute

under which he was convicted, the calculation of his base offense level, and the

district court’s decision not to grant Defendant a downward departure based on

the government’s alleged sentencing factor manipulation. We address each

argument in turn.



                    A. Constitutionality of 18 U.S.C. § 922(o)

      Defendant first argues that 18 U.S.C. § 922(o), the statute under which he

was convicted, is an impermissible exercise of the authority granted to Congress

under the Commerce Clause. In United States v. Wilks, we upheld § 922(o) as a

permissible exercise of the power granted to Congress under the Commerce

Clause. 58 F.3d 1518, 1522 (10th Cir. 1995); see also United States v. Haney,

264 F.3d 1161, 1171 (10th Cir. 2001).




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                    B. Sentencing as a “Prohibited Person”

      Defendant next argues that his sentence is improper because he was

indicted and convicted under § 922(o) but was sentenced as a “prohibited person”

under § 922(g)(3), an offense that was not charged in the indictment. Defendant

appears to be arguing that the district court’s application of the Sentencing

Guidelines violated his Fifth and Sixth Amendment rights under Apprendi v. New

Jersey, 530 U.S. 466 (2000). We review the district court’s legal conclusions

under the sentencing guidelines de novo and factual determinations for clear

error. United States v. Lacey, 86 F.3d 956, 962 (10th Cir. 1996).

      The Supreme Court in Apprendi held that “[o]ther than the fact of prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” 530 U.S. at 490. Apprendi is not implicated when judges find facts

increasing the sentence below the maximum sentence for the crime committed.

See Harris v. United States, 536 U.S. 545, 565 (2002) (“[F]acts guiding judicial

discretion below the statutory maximum need not be alleged in the indictment,

submitted to the jury, or proved beyond a reasonable doubt.”). Accordingly, a

defendant need not necessarily be charged in the indictment as a prohibited

person in order for the defendant’s status as a prohibited person to be used in the




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base offense level calculation. United States v. Bennett, 329 F.3d 769, 778

(2003).

      In this case, Defendant pled guilty to unlawful possession of a machine gun

in violation of 18 U.S.C. § 922(o). The statutory maximum for a § 922(o)

violation is 10 years. 18 U.S.C. § 924(a)(2). Pursuant to § 2K2.1(a)(4) of the

Sentencing Guidelines, the base offense level for unlawful possession of this type

of firearm by a “prohibited person” is 20. 2 See U.S.S.G. § 2K2.1(a)(4). A

“prohibited person” is “any person described in 18 U.S.C. § 922(g) or § 922(n).”

U.S.S.G. § 2K2.1 cmt. 6. Section 922(g)(3) prohibits the possession of a firearm

by any person “who is an unlawful user of or addicted to any controlled

substance.” 18 U.S.C. § 922(g)(3).

      The district court concluded that Defendant was a prohibited person under

§ 922(g)(3) based on evidence that Defendant ingested marijuana and/or

methamphetamine on numerous occasions after June 1998. (Memo. of Sent. Hrg.

at 2.) Accordingly, the court assigned Defendant a base offense level of 20

which, after adjustments to the offense level and in conjunction with his criminal

history category, resulted in a sentencing range of 41 to 51 months’

imprisonment. The court sentenced Defendant to 49 months’ imprisonment, well


      2
       The district court advised Defendant before he entered his plea that his
base offense level would be 20 if the court found Defendant to be a “prohibited
person.” (Doc. 1198 at 4.)

                                        -6-
below the 10-year statutory maximum for a § 922(o) offense. Because the

sentence imposed fell below the statutory maximum, there was no violation of

Defendant’s Fifth and Sixth Amendment rights under Apprendi. See Bennett, 329

F.3d at 778.



                       C. Sentencing Factor Manipulation

      Defendant argues that the district court erred in declining to depart

downward based on the government’s sentencing factor manipulation. Again, we

review the district court’s legal conclusions under the sentencing guidelines de

novo and factual determinations for clear error. 3 Lacey, 86 F.3d at 962.

      Arguments presented as “sentencing factor manipulation” or “sentencing

entrapment” are analyzed under the “outrageous conduct” standard that is invoked

to prevent the government from prosecuting a crime developed through egregious

investigatory tactics. Lacey, 86 F.3d at 963. “[T]he relevant inquiry is whether,

considering the totality of the circumstances in any given case, the government’s

conduct is so shocking, outrageous and intolerable that it offends the universal

sense of justice.” Id. at 964 (internal quotations omitted). The remedy is


      3
       In general, we have no jurisdiction to review the district court’s refusal to
grant a downward departure. United States v. Davis, 900 F.2d 1524, 1529-30
(10th Cir. 1990). Nonetheless, we have accepted jurisdiction to review a district
court’s assessment of a defendant’s request for downward departure based on
sentencing factor manipulation. Lacey, 86 F.3d at 962 n.2.

                                        -7-
reserved for the most egregious of cases due in primary part “to the reluctance of

the judiciary to second-guess the motives and tactics of law enforcement

officials.” Id.

      We have said that “[t]o succeed on an outrageous conduct defense, the

defendant must show either: (1) excessive government involvement in the creation

of the crime, or (2) significant governmental coercion to induce the crime.”

United States v. Pedraza, 27 F.3d 1515, 1521 (10th Cir. 1994). “[I]t is not

outrageous for the government...to induce a defendant to repeat, continue, or even

expand previous criminal activity.” Id. “In inducing a defendant to repeat or

expand his criminal activity, it is permissible for the government to suggest the

illegal activity, provide supplies and expertise, and act as both a supplier and

buyer of illegal goods.” Id. Law enforcement officers are often justified in

increasing the scope of criminal activity in a sting operation, especially when

attempting to ensnare those persons higher up in the criminal enterprise. Lacey,

86 F.3d at 965.

      In the instant case, Defendant received a 4-level enhancement based on his

manufacture and sale of 20 machine guns to Agent Boteler. (See Memo. of Sent.

Hrg. at 2.) Defendant claims that the government engaged in sentencing factor

manipulation by providing the capital for him to purchase the materials required

for the manufacture of additional machine guns and by inducing Defendant to


                                         -8-
continue manufacturing machine guns. Accordingly, Defendant requested a 4-

level downward departure.

         Agents Boteler and Edwards were engaged in a two-year undercover

narcotics and firearms investigation of Defendant and others associated with the

Sons of Silence. (PSR at 4.) The government explained that the purpose of

Agent Boteler’s repeated machine gun purchases was to identify additional

persons involved in the manufacture of the guns. (See Doc. 1316 at 11-12.)

Indeed, Defendant had informed Agent Boteler that at least one member of the

Sons of Silence (Kressin) was involved in the manufacture of the guns and that

Defendant’s neighbors might also have been involved. (See PSR at 5.) In

addition, Defendant had told Agent Boteler that his illegal machine gun

trafficking was “extremely insulated” to avoid detection. (See Doc. 1316, Att.

3156.)

         In light of this evidence that others were involved in Defendant’s criminal

enterprise, Agent Boteler’s repeated purchases of unlawful machine guns from

Defendant does not amount to conduct so “shocking, outrageous and intolerable”

as to justify a downward departure. Accordingly, we find no error in the district

court’s decision not to grant a downward departure on this basis.




                                          -9-
                                  CONCLUSION

      In sum, we conclude that the statute under which Defendant was convicted

is constitutional, that Defendant was properly sentenced as a “prohibited person”

for a violation of 18 U.S.C. § 922(o), and that the district court did not err in

refusing to grant a downward departure based on Defendant’s claim of sentencing

factor manipulation. Accordingly, we AFFIRM Defendant’s conviction and

sentence.

                                        ENTERED FOR THE COURT


                                        David M. Ebel
                                        Circuit Judge




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