                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 09-11653                  OCTOBER 7, 2009
                            Non-Argument Calendar            THOMAS K. KAHN
                          ________________________               CLERK


                  D. C. Docket No. 07-00217-CR-ORL-28DAB

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

ALEXIS ARCE-NEGRON,

                                                           Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                               (October 7, 2009)

Before EDMONDSON, MARCUS and FAY, Circuit Judges.

PER CURIAM:

      Alexis Arce-Negron appeals from his 120-month sentence imposed for

conspiracy to possess with the intent to distribute five or more kilograms of

cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). On appeal, he
argues that the district court erred by: (1) misapprehending its authority to depart

downward from the sentencing guideline range when it denied his motion for a

downward departure; and (2) denying his request to adjust his guideline range

based on sentencing factor manipulation and sentencing entrapment.                         After

thorough review, we affirm.

       We generally lack the authority to review a district court’s refusal to issue a

downward departure under the Sentencing Guidelines. United States v. Chigbo, 38

F.3d 543, 546 (11th Cir. 1994). However, we may review a district court’s refusal

to make a downward departure if it was based on the court’s misapprehension of its

statutory authority to depart from the sentencing guideline range. United States v.

Fossett, 881 F.2d 976, 979 (11th Cir. 1989).1 We review a district court’s factual

findings for clear error and its application of the Sentencing Guidelines to those

facts de novo. United States v. Kinard, 472 F.3d 1294, 1297 n.3 (11th Cir. 2006).

       First, we are unpersuaded by Arce-Negron’s claim that the district court

mistakenly believed that it did not have the authority to depart downward from his

criminal history category based on “over-representation of criminal history,

sentencing manipulation, and unwarranted sentencing disparity.” When deciding



       1
          After United States v. Booker, 543 U.S. 220 (2005), we still cannot review a district
court's decision not to apply a downward departure, except to the extent noted in Fossett. United
States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).

                                                2
whether to depart downward from the defendant’s criminal history category, the

district court may consider “reliable information [which] indicates that the

defendant’s criminal history category substantially over-represents the seriousness

of the defendant’s criminal history or the likelihood that the defendant will commit

other crimes.” U.S.S.G. § 4A1.3(b)(1).

      Here, the district court did not erroneously believe that it lacked the

authority to depart downward, and therefore, its refusal to depart may not be

reviewed on appeal. As the record shows, the district court specifically stated that

it had the authority to depart downward but found no “valid basis to find that the

criminal history category [was] overstated.”       In other words, the district court

refused to grant the departure because it did not find reliable information that Arce-

Negron’s criminal history category substantially over-represented the seriousness

of his criminal history. U.S.S.G. § 4A1.3(b)(1). In making this finding, the district

court did not need to consider irrelevant information such as Arce-Negron’s

arguments about the disparity of his sentence with his codefendant and sentence

manipulation by the government.          See id.    Accordingly, the district court

understood its authority to depart from the guidelines, and we may not review its

refusal to make a downward departure. See Chigbo, 38 F.3d at 546.




                                          3
      We also reject Arce-Negron’s argument that the district court erred by

refusing to adjust his guideline range based on his contention that the government

engaged in sentencing manipulation or sentencing entrapment.          As an initial

matter, we do not recognize sentencing entrapment as a viable defense. United

States v. Sanchez, 138 F.3d 1410, 1414 (11th Cir. 1998).          Therefore, Arce-

Negron’s claim based on sentencing entrapment fails as a matter of law, id., and

the only issue is whether the district court erred in not adjusting Arce-Negron’s

sentence based on sentencing manipulation.

      “[S]entencing   factor    manipulation   occurs   when    the   government’s

manipulation of a sting operation, even if insufficient to support a due process

claim, requires that the manipulation be filtered out of the sentencing calculus.”

United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007). As we have

explained, “an adjustment for sentencing factor manipulation is not a departure.”

Id.   The party raising the defense bears the “burden of establishing that the

government’s conduct is sufficiently reprehensible to constitute sentencing factor

manipulation.”   Id. at 1271.   “Government infiltration of criminal activity is a

recognized and permissible means of investigation . . .The fact that government

agents may supply or sell illegal drugs or provide other essential services does not




                                         4
necessarily constitute misconduct.” Sanchez, 138 F.3d at 1413 (internal citations

omitted).

      Based on Arce-Negron’s own admission at the sentencing hearing that the

informant did not encourage him to purchase more cocaine and that he was aware

of the possibility of purchasing five kilograms, Arce-Negron has not shown how

the government’s conduct was “sufficiently reprehensible” and thereby had the

effect of increasing his sentence. See Ciszkowski, 492 F.3d at 1271. Thus, the

district court did not err in denying Arce-Negron’s motion.

      AFFIRMED.




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