                               IN THE COURT OF APPEALS
                                   STATE OF ARIZONA
                                     DIVISION TWO


THE STATE OF ARIZONA,                            )           2 CA-CR 2002-0466
                                                 )           DEPARTMENT A
                                   Appellee,     )
                                                 )           OPINION
                     v.                          )
                                                 )
MATTHEW RUEBEN MONACO,                           )
                                                 )
                                   Appellant.    )
                                                 )


              APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                   Cause No. CR-20003933

                             Honorable Michael D. Alfred, Judge

                                          AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Vincent L. Rabago                                               Tucson
                                                                         Attorneys for Appellee

Clay Hernandez                                                                          Tucson
                                                                         Attorney for Appellant


H O W A R D, Judge.


¶1            After a jury trial, appellant Matthew Monaco was convicted of multiple drug

offenses and sentenced to six, four-year prison sentences and two, six-month sentences, all to be

served concurrently. Monaco contends that his sentences should be reduced because 1) the state

engaged in sentence entrapment or manipulation, 2) the undercover officer breached his duty to

arrest Monaco after the first sale, and 3) Monaco suffered prejudice from preindictment delay.
Because Arizona courts are not permitted to ignore the statutory range of sentences and the

officer’s investigative delay did not violate any state statute or Monaco’s due process rights, we

affirm.

                                 BACKGROUND AND FACTS

¶2             We view the facts in the light most favorable to upholding the trial court’s sentence.

State v. Wideman, 165 Ariz. 364, 369, 798 P.2d 1373, 1378 (App. 1990). Over a two-month

period, Monaco sold cocaine five times to an undercover police officer. The first sale he sold one

quarter of an ounce; in the second, third, and fourth sales he sold one ounce; and in the final sale

he sold two ounces of cocaine. During that time, the officer was not attempting to obtain

information about other drug dealers; he testified he simply was not ready to arrest Monaco. After

the fifth sale, the officer obtained a search warrant for Monaco’s residence and found narcotics

paraphernalia and marijuana. Monaco was subsequently convicted of sale of a narcotic drug, four

counts of selling a narcotic drug in an amount of nine grams or more; possession of a narcotic

drug for sale in the amount of nine grams or more; possession of marijuana; and possession of

drug paraphernalia. The trial court sentenced Monaco to mitigated, four-year prison terms for

each count involving the possession or sale of cocaine and to concurrent, six-month terms for the

possession of marijuana and drug paraphernalia counts.

                     SENTENCE ENTRAPMENT OR MANIPULATION

¶3             Monaco argues the officer conducted multiple undercover purchases of illegal drugs

to purposely increase Monaco’s prison time. He contends that, had the officer arrested him after

the first purchase, he would be eligible for parole or possibly even probation under A.R.S. § 13-

3408(C). Monaco also contends that, because the officer “purpose[ful]ly manipulate[d his]

sentence[s],” the aggregate weight of the sales exceeded the threshold amount under A.R.S. § 13-

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3401(36), which made Monaco ineligible for “suspension of sentence, probation, pardon, or

release from confinement on any basis” until he has fully served his sentences. § 13-3408(D).

As a result, Monaco urges us to adopt the federal doctrine of sentence entrapment or sentence

factor manipulation and adjust his sentences accordingly. Whether a trial court can use a

particular factor in sentencing is a question of law, which we review de novo. See State v.

Tschilar, 200 Ariz. 427, ¶32, 27 P.3d 331, ¶32 (App. 2001).

¶4            Several federal circuit courts have adopted the doctrines of either “sentence

entrapment” or “sentence factor manipulation.” “Sentencing entrapment . . . occurs when ‘a

defendant, although predisposed to commit a minor or lesser offense, is entrapped in[to]

committing a greater offense subject to greater punishment.’” United States v. Staufer, 38 F.3d

1103, 1106 (9th Cir. 1994), quoting United States v. Stuart, 923 F.2d 607, 614 (9th Cir. 1991);

see also United States v. Berg, 178 F.3d 976, 981 (8th Cir. 1999). Sentence factor manipulation

occurs when the government engages in improper conduct that has the effect of increasing a

defendant’s sentence. United States v. Lacey, 86 F.3d 956, 963 n.5 (10th Cir. 1996); United

States v. Connell, 960 F.2d 191, 194 (1st Cir. 1992). Sentencing entrapment focuses on the

defendant’s predisposition to commit crimes, and sentencing factor manipulation focuses on the

government’s conduct. United States v. Sanchez, 138 F.3d 1410, 1414 (11th Cir. 1998).

¶5            The sentencing entrapment or manipulation doctrine developed in response to

perceived abuses of the restrictive scheme of the federal sentencing guidelines. Staufer, 38 F.3d

at 1106-07. These guidelines set forth narrow sentencing ranges determined by both the severity

of the offense and the defendant’s criminal record. These ranges are required by statute to be no

more than six months or twenty-five percent of the minimum, unless the minimum exceeds thirty

years. 28 U.S.C. § 994(b)(2). And a judge must impose a sentence within that narrow range if

                                               3
the case is “an ordinary one.” Koon v. United States, 518 U.S. 81, 92, 116 S. Ct. 2035, 2044,

135 L. Ed. 2d 392, 409 (1996). But a judge may depart from the range when the case is atypical

and involves aggravating or mitigating circumstances that the United States Sentencing

Commission did not adequately consider when it created the guidelines. 18 U.S.C. § 3553(b)(1).

Although the commission provides guidance on what factors make a case atypical, see United

States Sentencing Guidelines (U.S.S.G.) §§ 5H1.1 through 5H1.12; 5K2.0 through 5K2.23, a

sentencing court is not constrained to these factors; a court may depart from the guidelines based

on any circumstance not considered by the commission so long as the circumstance is consistent

with the sentencing factors established by Congress. Koon, 518 U.S. at 94-96, 116 S. Ct. at

2045, 135 L. Ed. 2d at 410-11; United States v. Pacheco-Osuna, 23 F.3d 269, 271 (9th Cir.

1994).

¶6             The Eighth and Ninth Circuits have held that a court may legally rely upon

sentencing entrapment to depart from the sentencing range in the guidelines. Staufer, 38 F.3d at

1108; Berg, 178 F.3d at 981. The Staufer court in particular was concerned that the federal

sentencing scheme would not ensure that defendants would be sentenced on the basis of their

culpability because of abuse of the sentencing scheme by government agents. Staufer, 38 F.3d at

1106-07.   The court stated that “courts can ensure that the sentences imposed reflect the

defendants’ degree of culpability only if they are able to reduce the sentences of defendants who

are not predisposed to engage in deals as large as those induced by the government.” Id. at 1107.

The court then found that the commission had considered this public policy concern of sentence

entrapment as reflected in the amendment application note to U.S.S.G. § 2D1.1 on reverse sting

operations. Thus, the court concluded, allowing a judge to depart from the sentencing range after



                                                4
finding that the government had engaged in sentencing entrapment is consistent with the sentencing

factors prescribed by Congress. Id.

¶7             Based on the above analysis, the Ninth Circuit has subsequently held that if a

defendant proves by a preponderance of the evidence that the law enforcement officer engaged in

sentencing entrapment, a district court may reduce the prescribed sentences in one of two ways.

United States v. Riewe, 165 F.3d 727, 729 (9th Cir. 1999); United States v. Parrilla, 114 F.3d

124, 127 (9th Cir. 1997). First, the court may grant a downward departure from the sentencing

range under the federal guidelines. Riewe, 165 F.3d at 729. Second, the court may apply only

the penalty provision for the lesser offense that the defendant was predisposed to commit rather

than the offense that the defendant was induced to commit. Id. This second option allows the

court to circumvent 21 U.S.C. § 841(b), which creates a statutory minimum sentence requirement

for drug-related offenses. See id.

¶8             Although Arizona’s sentencing statutes resemble the federal sentencing scheme by

requiring a mandatory minimum sentence for drug-related offenses, Arizona allows for a much

broader discretion within its sentencing range. Our legislature established a presumptive sentence

for each offense and allows a judge to increase the sentence to a stated maximum or to decrease

it to a stated minimum based on aggravating or mitigating factors. For drug-related offenses,

Arizona accords a trial court a range in some cases of eight years rather than the six months under

the federal guidelines. A.R.S. § 13-3419. And, when determining whether to aggravate or

mitigate a sentence, a judge may consider “[a]ny . . . factor that the court deems appropriate to

the ends of justice.” A.R.S. § 13–702(C)(20) and (D)(5); see State v. Alvarez, 205 Ariz. 110,

¶17, 67 P.3d 706, ¶17 (App. 2003). Thus, within the statutory range, a sentencing court has

broad discretion to determine an offender’s sentence.

                                                5
¶9             Although judges have discretion within the statutory range of sentences, Arizona’s

statutory scheme does not allow for departures outside this range. Arizona courts have a duty to

impose a sentence authorized by statute and within the limits set by the legislature. State v.

Kinslow, 165 Ariz. 503, 507, 799 P.2d 844, 848 (1990); see also State v. Jenson, 123 Ariz. 72,

74, 597 P.2d 554, 556 (App. 1979) (trial judge has no discretion to substitute own judgment for

penalty prescribed by legislature). “‘Whether mandatory prison sentences are not appropriate in

every situation is a question for the law-making body, not the courts.’” State v. Jackson, 186

Ariz. 490, 491, 924 P.2d 494, 495 (App. 1996), quoting State v. Molina, 118 Ariz. 250, 251, 575

P.2d 1276, 1277 (App. 1978). Even if a trial court concludes that the mandated sentence is clearly

excessive, the court must still impose the sentence but may allow the defendant to petition the

governor for commutation of the sentence. See A.R.S. § 13-603(L); Jackson, 186 Ariz. at 492,

924 P.2d at 496. Only if a sentence is so severe that it is grossly disproportionate to the offense

and violates the Eighth Amendment may the courts examine the facts of the case and the

circumstances of the offender and reduce the sentence. State v. Davis, ___ Ariz. ___, ¶34, 79

P.3d 64, ¶34 (2003).

¶10            At oral argument, Monaco argued that allowing an officer to continue making drug

purchases without “articulable reasons” would violate the legislative intent contained in the drug

sentencing statutes, which allow some defendants to receive probation. See § 13-3408(C).

Monaco analogized this provision to the Staufer court finding that U.S.S.G. § 2D1.1 provided

legislative intent to allow a district court to depart from the prescribed range if a defendant proved

that the government had engaged in sentence entrapment. See Staufer, 38 F.3d at 1107. But our

legislature also enacted § 13-3408(D), which allows for the aggregation of weights of an illegal

narcotic to meet the threshold amount; if this threshold is achieved, then probation is not available.

                                                  6
We believe that § 13-3408(D) is the best indication of our legislature’s intent regarding multiple

sales, thus, the officer’s investigative conduct did not violate the legislative intent of the drug

sentencing laws.

¶11            As noted above, Arizona courts, including the supreme court, have uniformly held

that, absent a constitutional violation, a trial court is required to sentence a defendant within the

statutory range. Therefore, we are not at liberty to adopt the doctrine of sentence entrapment or

manipulation to allow our trial courts to do otherwise. See State v. Crowley, 202 Ariz. 80, ¶30,

41 P.3d 618, ¶30 (App. 2002) (court of appeals bound by supreme court precedent). And,

because Arizona’s sentencing scheme accords trial courts a greater sentencing range than the

federal guidelines provide federal judges, the public policy concerns that advanced the doctrine

in the federal courts are less compelling, albeit not insignificant, here.

¶12            Furthermore, when determining whether to mitigate or substantially mitigate the

presumptive sentence or whether to impose concurrent or consecutive sentences, our trial courts

are allowed to consider any evidence or circumstance that the court deems relevant, including the

culpability of the defendant. See A.R.S. §§ 13–702(D)(5); 13-702.01; 13-708; see also Tschilar,

200 Ariz. 427, ¶18, 27 P.3d 331, ¶18 (“[T]he trial court[ has] discretion to consider various

factors related to the offense and the offender when it imposes a sentence within the range of

punishment prescribed by the [sentencing] statute.”). Thus, although a court may not depart from

the established statutory ranges, it has full discretion to sentence a defendant within them based

on the evidence presented. Accordingly, the federal sentencing guidelines-based holdings of the

federal courts are inapposite in Arizona. Neither our precedent nor statutory scheme requires or

permits trial courts to apply the doctrines of sentence entrapment or sentence factor manipulation

to sentence a defendant outside the prescribed statutory range.

                                                 7
¶13            Our decision not to apply the doctrines of sentence entrapment or manipulation has

substantial support from other jurisdictions. Other federal circuits have rejected these doctrines.

United States v. Williams, 954 F.2d 668, 673 (11th Cir. 1992) (“[A]s a matter of law, we reject

[the defendant’s] sentence entrapment theory.”); United States v. Garcia, 79 F.3d 74, 76 (7th Cir.

1996) (“We now hold that there is no defense of sentencing manipulation in this circuit.”). And

other state courts have found, as we have, that allowing a trial court to depart from the mandatory

minimum sentence is either in conflict with or unnecessary under their state’s statutory scheme.

See People v. Graves, 113 Cal. Rptr. 2d 708, 714 (Ct. App. 2001) (no need for specific basis for

departure since California courts do not follow the same guidelines as federal courts); Kelley v.

State, 821 So. 2d 1255, 1257 (Fla. Dist. Ct. App. 2002) (state sentencing statutes do not permit

trial judges to avoid minimum mandatory provisions); Commonwealth v. Garcia, 659 N.E.2d 741,

745 (Mass. 1996). Some jurisdictions have also declined to adopt a sentence manipulation

defense, relying instead on established standards for outrageous government conduct claims.

United States v. Lacey, 86 F.3d 956, 963 (10th Cir. 1996) (arguments presented as “sentencing

factor manipulation” or otherwise should be analyzed under outrageous conduct standard); State

v. Soto, 562 N.W.2d 299, 305 (Minn. 1997) (court declined to adopt doctrines of sentencing

entrapment and sentencing manipulation in absence of egregious police conduct).

¶14            Monaco also argues that a trial court should have the authority to depart from the

mandatory sentence under the Due Process Clause of Arizona’s Constitution. Ariz. Const. art.

II, § 4. But under Arizona law, “investigatory conduct violates a defendant’s due process rights

only when it approaches ‘coercion, violence, or brutality to the person.’” State v. Walker, 185

Ariz. 228, 239, 914 P.2d 1320, 1331 (App. 1995), quoting Irvine v. California, 347 U.S. 128,

133, 74 S. Ct. 381, 383, 98 L. Ed. 561, 569 (1954). As the court noted in Walker, “[p]recedent

                                                8
dictates that we refrain from applying the general due process constraint to bar a conviction except

in the rare instance of ‘[p]olice overinvolvement in crime’ that reaches ‘a demonstrable level of

outrageousness.’” Id., quoting Hampton v. United States, 425 U.S. 484, 495 n.7, 96 S. Ct. 1646,

1653 n.7, 48 L. Ed. 2d 113, 127 n.7 (1976).

¶15            The officer’s investigation of Monaco did not rise to the level of “coercion,

violence, or brutality to the person,” nor was the conduct “outrageous.” See United States v.

Mosley, 965 F.2d 906, 911 (10th Cir. 1992) (it is not outrageous for government to induce

defendant to continue criminal activity). At oral argument, Monaco conceded that the Ninth

Circuit in Staufer had stopped short of finding any due process violation based on sentence

entrapment. Monaco also was unable to cite any other case in which a court construed similar

investigative conduct as a violation of a defendant’s due process right. Monaco’s claim, therefore,

does not come within the protection of the Due Process Clause.

                                      DUTY TO ARREST

¶16            Monaco next argues that the investigating officer breached his duty under A.R.S.

§ 11-441(A)(2) to arrest Monaco after the first sale of cocaine. Section 11-441(A)(2) provides that

a sheriff shall arrest and take before a magistrate for examination all persons who attempt to

commit or who have committed a public offense.1 But the purpose of such a duty is the prompt

and orderly administration of criminal justice, cf. Wilson v. City of Tucson, 8 Ariz. App. 398,

401-02, 446 P.2d 504, 507-08 (1968); this duty does not create an individual right to be arrested,

as Monaco seems to contend. Cf. Hoffa v. United States, 385 U.S. 293, 310, 87 S. Ct. 408, 417,

17 L. Ed. 2d 374, 386 (1966) (“There is no constitutional right to be arrested. . . . Law


       1
        The undercover officer was actually an employee of the City of Tucson, and not the
county sheriff’s department.

                                                 9
enforcement officers are under no constitutional duty to call a halt to a criminal investigation the

moment they have the minimum evidence to establish probable cause, a quantum of evidence

which may fall far short of the amount necessary to support a criminal conviction.”).

¶17            Imposing an individual right to be arrested in the criminal context based on this

statute would significantly impede an officer’s ability to conduct any type of undercover operation.

The decision of when to arrest a person is not mandated by statute; the government “must be

permitted to exercise its own judgment in determining at what point in an investigation enough

evidence has been obtained.” United States v. Baker, 63 F.3d 1478, 1500 (9th Cir. 1995); see

also Donaldson v. City of Seattle, 831 P.2d 1098, 1103 (Wash. Ct. App. 1992) (when officer has

legal grounds to arrest person, officer has considerable discretion to do so); Wongittilin v. State,

36 P.3d 678, 681-82 (Alaska 2001) (no duty to arrest when arrest is discretionary). Accordingly,

Monaco had no individual right to be arrested after the first narcotics sale.

                                  PREINDICTMENT DELAY

¶18            Monaco additionally argues that he suffered preindictment delay when the officer

failed to arrest him after the first offense. Monaco contends this delay denied him his due process

right to have the trial judge sentence him to a term proportional to his offense.

¶19            To establish that preindictment delay has denied a defendant due process, the

defendant must show that the prosecution intentionally delayed proceedings to gain a tactical

advantage over or to harass the defendant and that the defendant has actually been prejudiced by

the delay. State v. Broughton, 156 Ariz. 394, 397, 752 P.2d 483, 486 (1988). Monaco argues

that the officer, whose actions should be subsumed under the title of the prosecution, intentionally

delayed arresting him in order to gain a tactical advantage during plea bargaining or sentencing.



                                                10
¶20            In United States v. Lovasco, 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752

(1977), the Supreme Court expressly refused to adopt a constitutional requirement that the state

file charges immediately upon securing sufficient evidence to prove a person’s guilt. The Court

held that a court applying the Due Process Clause to preindictment delay has “to determine only

whether the action complained of . . . violates those ‘fundamental conceptions of justice which lie

at the base of our civil and political institutions’ and which define ‘the community’s sense of fair

play and decency.’” Id. at 790, 97 S. Ct. at 2049, 52 L. Ed. 2d at 759, quoting Mooney v.

Holohan, 294 U.S. 103, 112, 55 S. Ct. 340, 342, 79 L. Ed. 791, 794 (1935), and Rochin v.

California, 342 U.S. 165, 173, 72 S. Ct. 205, 210, 96 L. Ed. 183, 191 (1952). The Court further

noted:   “From the perspective of law enforcement officials, a requirement of immediate

prosecution upon probable cause is . . . unacceptable because it could make obtaining proof of

guilt beyond a reasonable doubt impossible by causing potentially fruitful sources of information

to evaporate before they are fully exploited.” Id. at 792-93, 97 S. Ct. at 2049-50, 52 L. Ed. 2d

at 760. And Lovasco makes clear that an investigative delay is fundamentally unlike delay

undertaken by the government solely to gain an improper tactical advantage over an accused; to

prosecute a defendant following an investigative delay is not a deprivation of due process. Id. at

795-96, 97 S. Ct. at 2051-52, 52 L. Ed. 2d at 762-63; see also Broughton, 156 Ariz. at 398, 752

P.2d at 487.

¶21            In this case, the delay between Monaco’s first sale to the officer and the day of his

arrest was less than two months. No fundamental concept of justice that defines “the community’s

sense of fair play and decency” was violated. Under Lovasco, this investigative delay did not

deprive Monaco of his right against preindictment delay. Nor can we conclude that a defendant’s

being convicted of multiple crimes that he or she has committed is the type of prejudice

                                                11
contemplated by the Due Process Clause. See, e.g., Garcia, 79 F.3d at 76 (“[T]he Constitution

does not protect a criminal from himself by requiring the government to arrest the criminal before

he commits another crime.”). Accordingly, we find this argument without merit.

                                          CONCLUSION

¶22            We hold that Arizona’s statutory scheme does not permit us to apply the doctrines

of sentence entrapment or sentence manipulation to allow a trial court to sentence a defendant

outside the statutory range. And because Monaco did not have an individual right to be arrested

after his first sale, and because the investigative delay did not violate Monaco’s due process rights,

we affirm the sentences imposed by the trial court.



                                                   _______________________________________
                                                   JOSEPH W. HOWARD, Judge

CONCURRING:



_______________________________________
J. WILLIAM BRAMMER, JR., Presiding Judge



_______________________________________
M. JAN FLÓREZ, Judge




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