                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-31-1994

USA v. Raven
Precedential or Non-Precedential:

Docket 93-5578




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                               ___________

                               No. 93-5578
                               ___________


         UNITED STATES OF AMERICA

                      vs.

         DONALD RAVEN

                             Appellant.

                               ___________

          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW JERSEY

                 (D.C. Criminal No. 93-00128-1)

                               ___________

                            ARGUED MAY 12, 1994

           BEFORE:     BECKER and LEWIS, Circuit Judges,
                     and POLLAK, District Judge*.

                      (Filed    October 31, 1994)

                               ___________


Mary Ann Mullaney (ARGUED)
Office of the Federal Public Defender
800 Hudson Square
Suite 350
Camden, NJ 08102

         Attorney for Appellant

*
    Honorable Louis H. Pollak, United States District Judge for
    the Eastern District of Pennsylvania, sitting by
    designation.
Edna B. Axelrod
Glenn J. Moramarco (ARGUED)
Office of United States Attorney
970 Broad Street
Room 502
Newark, NJ 07102

           Attorneys for Appellee

                            ___________

                        OPINION OF THE COURT
                            ___________



LEWIS, Circuit Judge.

           Appellant Donald Raven pleaded guilty to conspiracy to

import heroin into the United States from Thailand in violation

of 21 U.S.C. § 963.   On appeal, he challenges the sentence

imposed by the district court.   We will affirm in most respects,

and remand only for resentencing.

                                 I.

           In early 1993, Raven's grocery business was

experiencing financial difficulty.    Hoping to save his business,

Raven tried to contact Tunde Amosa Taju, a friend who had once
helped Raven find work as a drug courier.      Raven had previously

transported heroin from Thailand to the United States as a

courier, and he sought to make some money this time by either

recruiting couriers for Taju or acting as a courier again

himself.

           When Raven tried to telephone Taju at his home, he was

unaware that Taju had been arrested on drug charges and was in

jail.   Nor did he know or suspect that Taju was cooperating with
the government.   Upon learning of Raven's call, Taju informed the

Drug Enforcement Administration ("DEA") that Raven had tried to

contact him.   The DEA directed Taju to solicit Raven's services

as a courier and to persuade Raven to find other couriers to

assist Taju in importing heroin into the United States.    Taju was

also instructed to set up a meeting between himself, Raven and

DEA Special Agent Gregory Hilton.

          Taju did as he was told.    In mid-February, 1993, at a

hotel in Newark, New Jersey, Taju introduced Hilton to Raven as

someone seeking drug couriers to import heroin from Bangkok,

Thailand, into the United States.    During this meeting, Raven

said that he wanted to help Taju and Hilton and explained his

previous involvement in drug importation.    He also produced his

passport and the passport of Denise Ramirez, whom he had

recruited to act as an additional courier.

          Approximately two weeks later, Raven and Ramirez met

with Hilton and Taju at a diner in Elizabeth, New Jersey.    Hilton

produced an itinerary of the proposed trip to Bangkok from New

York City and agreed to supply Raven and Ramirez with airplane

tickets and expense money to use during their trip.    Hilton told

Raven that he wanted to import a minimum of three to four

kilograms of heroin, which would be hidden in the lining of two

or three suitcases.   Hilton further commented that "it would not

be worth the trip if we didn't bring back at least four

kilograms" (Appendix ("App.") at 50), and Taju said that two or

three suitcases would hold up to eight and one-half kilograms of
heroin.   Raven responded that he would retrieve whatever amount

of heroin Hilton wanted.

           Approximately a week later, Raven and Hilton met again,

this time in a hotel parking lot in Newark.   At this meeting,

Hilton told Raven that his Thailand supplier now wanted to export

as much as eight kilograms of heroin.    Raven continued to express

his willingness to assist, stating that he could supply

additional couriers and reiterating that he would bring back into

the United States whatever quantity of heroin Hilton requested.

Hilton later testified that Raven specifically agreed to

transport eight kilograms of heroin from Thailand to the United

States at this meeting.

           Shortly thereafter, in a conversation on the telephone,

Hilton advised Raven that the supplier in Bangkok had again

increased the amount of heroin they wanted transported.

According to Hilton, Raven agreed this time to transport what

would amount to up to twelve kilograms of heroin.

           The final meeting between Raven, Ramirez and Hilton was

scheduled to take place at a hotel in Elizabeth, where Raven and

Ramirez were going to pick up their airplane tickets and advance

money.    Upon entering the hotel, Raven and Ramirez were arrested.

In a post-arrest statement, Raven said that he was going to the

Orient to pick up heroin and that he expected to make

approximately $60,000 for his efforts.   Raven and Ramirez were

charged with conspiracy to import eight kilograms of heroin in

violation of 21 U.S.C. § 963.
          Raven pleaded guilty to a superseding information

charging him with conspiracy to import an unspecified amount of

heroin in violation of 21 U.S.C. § 963.    The plea and superseding

information came about because although the parties agreed that

Raven had violated 21 U.S.C. § 963, they disagreed as to the

weight of the heroin for which he should bear responsibility.      In

their plea agreement, the parties requested that the court

determine at sentencing the weight to be used in calculating

Raven's offense level pursuant to United States Sentencing

Guidelines ("Guidelines") section 2D1.1.

          At the sentencing hearing, the district court correctly

noted that Raven's base offense level would be the same -- 34 --

if he was found responsible for any amount between three and ten

kilograms of heroin.   See Guidelines §§ 2D1.1(a)(3) and (c)(5).

Next, the district court found that, based on the negotiations

that had occurred, Raven should be held responsible for "three to

four" kilograms of heroin for purposes of sentencing.   This

determination gave Raven a base offense level of 34, which was

adjusted downward to 31 for acceptance of responsibility.

Raven's criminal history category placed him in a sentencing

range that would have been between 108 and 135 months, but the

court recognized that Congress had provided that defendants

convicted of a violation involving more than one kilogram of

heroin face a mandatory minimum sentence of ten years (see 21
U.S.C. § 960(b)(1)(A)), making Raven's adjusted Guideline range

120 to 135 months.   The court sentenced Raven to 120 months'
imprisonment, and this appeal followed.    We have jurisdiction

under 18 U.S.C. § 3742.

                               II.

          Raven advances three challenges to the district court's

sentencing decision:   (1) the district court erred in failing to

properly apply Application Note 12 to Guideline section 2D1.1 in

determining Raven's offense level; (2) the district court erred

in refusing to depart downward on the ground that Raven was the

victim of "sentencing entrapment"; and (3) the district court

erred in finding that Raven was predisposed to import three to

four kilograms of heroin.   Only his first claim requires extended

discussion.

                                A.

          Raven's primary contention on appeal concerns the

district court's quantification of the amount of drugs to be

attributed to him for sentencing purposes in what was obviously

an uncompleted narcotics trafficking arrangement.     Under the

Guidelines, the offense level used to determine a sentence for a

drug offense is based initially upon the weight of the controlled

substance for which the defendant is held accountable.     See

generally Guidelines §§ 2D1.1 et seq.     Application Note 12 to

section 2D1.1 provides, in pertinent part:
          In an offense involving negotiation to
          traffic in a controlled substance, the weight
          under negotiation in an uncompleted
          distribution is used to calculate that
          amount. However, where the court finds that
          the defendant did not intend to produce and
          was not reasonably capable of producing the
          negotiated amount, the court shall exclude
          from the guideline calculation the amount
            that it finds the defendant did not intend to
            produce and was not reasonably capable of
            producing.


Guidelines § 2D1.1, Application Note 12 ("Note 12") (emphasis

added).    It is the meaning of this Note -- and especially its

final sentence, italicized above -- that forms the core of

Raven's dispute with the government and the district court.

Raven contends that the district court erred in applying Note 12,

and that this error resulted in an incorrect base level for his

offense.    We have jurisdiction to review this claim because Raven

"allege[s] the district court committed legal (i.e., procedural)

errors when imposing [his] sentence."    United States v.

Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991).

                                 1.

            The parties agree that in cases involving uncompleted

drug distributions, the government generally bears the burden of

proving the weight of drugs under negotiation, just as it bears

the burden of proving the weight of drugs at issue in any drug

sentencing proceeding.    See United States v. McCutchen, 992 F.2d
22, 25 (3d Cir. 1993).    The parties disagree, however, about

which party bears the burden of proving the applicability of the

final sentence of Note 12, which addresses whether a defendant

intended to produce and was reasonably capable of producing the

negotiated amount of drugs.    Resolving this issue requires two

distinct inquiries.    First, what is the nature of the burden --

does the party with the burden have to demonstrate both intent

and capability (or their lack), or is it sufficient to
demonstrate either intent or capability (or, again, their lack)?

Second, who has the burden -- the government or the defendant?

          Although we have not directly addressed these

questions,1 they have generated a surprising variety of responses

among our sister circuits.2   Not only have the courts of appeals
1
 .    In United States v. Reyes, 930 F.2d 310 (3d Cir. 1991), a
defendant contended that there was insufficient evidence to
support the district court's findings that his conspiracy
involved more than five kilograms of cocaine and that he was a
leader or organizer. We stated that "[w]ith respect to these
sentencing adjustments, the government bore the burden of
persuasion by a preponderance of the evidence." Id. at 315. At
least one court has interpreted this statement as having
addressed and resolved the issue of who bears the burden of
proving intent and capability in an unconsummated drug
transaction. United States v. Smiley, 997 F.2d 475, 481 n.7 (8th
Cir. 1993). Reyes, however, did not address that issue.

      In United States v. Rodriguez, 975 F.2d 999 (3d Cir. 1992),
we ruled that the defendants in a drug conspiracy could not be
held responsible for the full weight of an alleged "mixture" of
boric acid and cocaine because the cocaine and boric acid simply
were not a "mixture" as described in Guideline section 2D1.1(c)
as interpreted by the Supreme Court in Chapman v. United States,
500 U.S. 453 (1991). Noting that the Guidelines allow sentencing
courts to "look beyond the amount of drugs actually seized and
consider the negotiations" in making a determination of base
level (id. at 1088, citing former Guideline section 2D1.1 n.1,
the predecessor to Note 12 (see infra n.2)), we observed that
"the government produced no evidence of availability to the
defendants of three kilograms of cocaine and that the district
court made no finding that a higher guideline range was justified
by any ability of defendants to deliver in fact three kilograms
of cocaine . . . ." Id. at 1008. However, we did not purport to
decide who bore the burden of persuasion regarding the last
sentence of Note 12 or to elucidate the nature of that burden.
In any event, the result in Rodriguez is wholly consistent with
the result we reach today, since in Rodriguez the defendants'
lack of intent to actually sell three kilograms of cocaine was
uncontested (id. at 1006), and we concluded that the government
had not demonstrated that the defendants had the capability to
produce three kilograms, either (id. at 1008).
2
 .    Most of the decisions interpreting the language at issue in
this case were actually discussing the predecessor to Note 12 --
split,3 but some have been unable to establish a consistent

application of Note 12 even among panels.4   And a panel of the
(..continued)
Note 1 to then-Guideline section 2D1.4. See United States v.
Hendrickson, 26 F.3d 321, 330 (2d Cir. 1994); United States v.
Brooks, 957 F.2d 1138, 1150 (4th Cir. 1992); United States v.
Christian, 942 F.2d 363, 368 (6th Cir. 1991); United States v.
Gessa, 971 F.2d 1257, 1262-63 (6th Cir. 1992) (en banc); United
States v. Ruiz, 932 F.2d 1174, 1183 (7th Cir. 1991); United
States v. Barnes, 993 F.2d 680, 683 (9th Cir. 1993). But see
United States v. Pion, 25 F.3d 18, 24-25 (1st Cir. 1994)
(addressing Note 12); United States v. Legarda, 17 F.3d 496, 499
(1st Cir. 1994) (same), United States v. Tillman, 8 F.3d 17, 19
(11th Cir. 1993) (same). As the Second Circuit noted in
Hendrickson, the Sentencing Commission deleted Guideline
section 2D1.4 and transferred the relevant language of Note 1 of
that section to Note 12 of section 2D1.1, effective November 1,
1992. Hendrickson, 26 F.3d at 330 n.6 (citing Amendment 447 to
the United States Sentencing Guidelines, Guideline Manual,
Appendix C, 269-71). Because the text of Note 1 to former
Guideline section 2D1.4 and the pertinent portion of Note 12 to
current section 2D1.1 are identical, in the text we discuss these
courts' holdings as if they had interpreted the relevant portion
of Note 12.
3
 .    The Ninth Circuit has found that Note 12 allocates the
burden of persuasion to the defendant to prove that he or she
lacked both intent and capacity to produce the drugs under
negotiation. United States v. Barnes, 993 F.2d 680, 683 (9th
Cir. 1993). The Seventh Circuit, by contrast, has found that the
burden is on the government to prove both a defendant's intent
and his or her capacity. United States v. Ruiz, 932 F.2d 1174,
1183-84 (7th Cir. 1991). The Eleventh Circuit has found that the
government bears the burden of persuasion, but that it satisfies
that burden by showing either intent to produce or reasonable
capability of producing the negotiated amount of drugs. United
States v. Tillman, 8 F.3d 17, 19 (11th Cir. 1993); cf. United
States v. Brooks, 957 F.2d 1138, 1150-51 (4th Cir. 1992)
(government did not contest it had burden of persuasion, and
Fourth Circuit found that the negotiated amount should be used
unless defendant lacked both intent and ability to complete
transaction).
4
 .    In United States v. Christian, 942 F.2d 363 (6th Cir.
1991), the Sixth Circuit found that once the government
establishes the negotiated amount of drugs, it is the defendant's
burden to prove that he was not "capable of producing that
amount." Id. at 368. The Christian court did not address
Second Circuit has recently taken the extraordinary step of

rejecting the note's language, finding that it "obscured" the

government's obligation in every drug conspiracy case involving

unconsummated transactions to prove a defendant's intent to

produce the negotiated amount.5

(..continued)
whether the defendant must prove both lack of intent and lack of
capability, but because intent was not contested by the
defendant, the necessary inference of the Christian court's
holding is that the defendant would have been entitled to
sentencing according to a lesser amount of drugs if he had proven
a lack of ability to produce the negotiated amount. However,
Christian's vitality is put in question by the Sixth Circuit's
subsequent ruling in United States v. Gessa, 971 F.2d 1257 (6th
Cir. 1992) (en banc). Without explicitly overruling Christian,
the Sixth Circuit, sitting en banc, nevertheless reached
conclusions directly contrary to those of the Christian panel.
According to Gessa, the government has the burden of proof, see
Gessa, 971 F.2d at 1266 n.7 (majority) & 1280 (Krupansky, J.,
dissenting), but the government's burden would be met by showing
either a defendant's intent or his or her reasonable capability
to produce the negotiated amount of drugs (id. at 1265). Other
courts have also issued conflicting opinions. In United States
v. Legarda, 17 F.3d 496 (1st Cir. 1994), the First Circuit ruled
that the government bears the burden of proving both intent and
capability to produce the negotiated amount of drugs. Id. at
499-500. However, in United States v. Pion, 25 F.3d 18 (1st Cir.
1994), another panel, without referring to Legarda, subsequently
ruled that Note 12 is conjunctive -- that is, the district court
should base its sentence on the negotiated amount unless it found
that the defendant lacked both the intent and capability to
produce that amount. Pion, 25 F.3d at 25. Finally, a recent
panel of the Second Circuit frankly acknowledged that prior
panels of that court had reached differing results on the issue
of whether the last sentence of Note 12 should be read as
conjunctive or disjunctive. United States v. Hendrickson, 26
F.3d 321, 335-36 (2d Cir. 1994).
5
 .    In Hendrickson, the Second Circuit rejected the plain
language of the application note because it had "enmeshed the
base offense determination in quandaries of form to the exclusion
of substance." Hendrickson, 26 F.3d at 336. Instead, the court
ruled that the government bears the burden of proving the
defendant's "intent to produce the contested quantities of
narcotics" in every case, but that "failure to produce" -- that
          We turn first to the question of what must be proven

before a court may discount the negotiated amount in an

unconsummated drug transaction and instead impose a sentence

based on some lesser amount.   This issue is straightforward:   as

Note 12 clearly states, the sentencing court must find "that the

defendant did not intend to produce and was not reasonably

capable of producing the negotiated amount," and again the amount

to be excluded is limited to the amount "the defendant did not

intend to produce and was not reasonably capable of producing."

Note 12 (emphasis added).   In other words, the final sentence of

Note 12 is conjunctive, not disjunctive:   for a defendant to be

sentenced on a lesser amount, the sentencing court must find both

lack of intent and lack of reasonable capability.6   Accord, e.g.,

United States v. Pion, 25 F.3d 18, 24-25 (1st Cir. 1994); United

States v. Brooks, 957 F.2d 1138, 1151 (4th Cir. 1992); United

States v. Barnes, 993 F.2d 680, 682 (9th Cir. 1993); United

States v. Tillman, 8 F.3d 17, 19 (11th Cir. 1993).

          The more difficult question, however, is who bears the

burden of persuasion on the issues of intent and capability.    To
(..continued)
is, lack of ability -- "is relevant only to the extent it
suggests an absence of intent or agreement." Id. at 337.
6
 .    The issue dividing the Hendrickson panel (see supra n.5) is
not present and need not be decided here. We note, however, that
insofar as Note 12 states that the sentencing court must find
"that the defendant did not intend to produce and was not
reasonably capable of producing the negotiated amount) (to reduce
drug quantity) the majority opinion in Hendrickson contains a
useful insight: although a conspiracy is defined by the parties'
agreement, so that the critical factor is the intent to produce
(or carry) the drugs, lack of ability might well bear upon the
existence of intent and on the scope of the agreement.
resolve this issue, we start with the uncontroversial principle

that the government bears the burden of establishing the amount

of drugs for which a defendant shall be held responsible in an

unconsummated drug transaction.    McCutchen, 992 F.2d 22, 25 (3d

Cir. 1993); accord, e.g., United States v. Hendrickson, 26 F.3d

321, 332 (2d Cir. 1984); United States v. Ruiz, 932 F.2d 1174,

1184 (7th Cir. 1991).   Thus, even in a case implicating the final

sentence of Note 12, the government must first prove the amount

of drugs that was the object of the conspiracy -- that is, the

amount that was negotiated.    The government can meet this burden

by referring to the presentence investigation report, which, if

"unchallenged by the defendant is, of course, a proper basis for

sentence determination."   United States v. McDowell, 888 F.2d

285, 290 n.1 (3d Cir. 1989).   Alternatively, the government may

present evidence at the sentencing hearing establishing the

amount of drugs that the parties had settled upon (which, in

fact, it did in this case).

          Once the government makes its prima facie showing that

a particular amount of drugs was negotiated, the defendant who

wishes to be found responsible for a lesser amount of drugs must

come forward with evidence supporting the proposition that he or

she lacked both the intent and the reasonable capability to
produce the drugs in question.    As we explained in McDowell, "the

party challenging" the government's prima facie case at a

sentencing hearing "has the burden of production, under

Rule 32(c), to come forward with evidence that tends to indicate"

that the evidence relied upon by the government "is incorrect or
incomplete."    McDowell, 888 F.2d at 290 n.1.7   In order to meet

this burden of production, the defendant may cast a different

light on the government's evidence, elicit evidence of his or her

own during cross examination of any witnesses offered by the

government, or present other evidence suggesting lack of intent

and lack of reasonable capability.

          The ultimate burden of persuasion, however, does not

shift to the defendant in a case implicating the final sentence

of Note 12.    To the contrary, as explained above, that burden

remains at all times with the government.    Thus, if a defendant

puts at issue his or her intent and reasonable capability to

produce the negotiated amount of drugs by introducing new

evidence or casting the government's evidence in a different

light, the government then must prove either that the defendant

intended to produce the negotiated amount of drugs or that he or

she was reasonably capable of doing so.8




7
 .    Although McDowell was specifically addressing a defendant's
challenge to a presentence investigation report, the discussion
of a defendant's burden of production applies with equal force in
the current context.
8
 .    We do not imply that the government must necessarily
introduce further evidence to meet this ultimate burden. For
example, it is not hard to envision situations in which a court
could easily conclude that the defendant's theory is mistaken or
that his or her evidence does not undermine the government's
evidence of the amount of drugs involved in the unconsummated
transaction. We merely emphasize that the ultimate burden of
persuading a court that the defendant intended to produce or was
capable of producing the amount the government claims was
negotiated rests with the government.
          Distributing the burdens of production and persuasion

in this manner most closely adheres to the language, logic and

intent of Note 12.   We recognize that the last sentence of Note

12 could be read as an exception to the general rule that courts

should use the weight of drugs under negotiation to determine a

defendant's base offense level.   Under that reading, the first

part of Note 12 would establish a defendant's base offense level,

and its last sentence would result in a reduction to the base

offense level, as a mitigating factor, in certain circumstances.

If this interpretation were adopted, the defendant would properly

bear the burden of proving entitlement to a reduction in offense

level under McDowell, where we explained that:
          [T]he burden of ultimate persuasion should
          rest upon the party attempting to adjust the
          sentence. Thus, when the Government attempts
          to upwardly adjust the sentence, it must bear
          the burden of persuasion. This prevents the
          criminal defendant from having to "prove the
          negative" in order to avoid a stiffer
          sentence. . . . Conversely, when the
          defendant is attempting to justify a downward
          departure, it is usually the defendant who
          bears the burden of persuasion.

McDowell, 888 F.2d at 291 (citation omitted).

          However, it is more reasonable to read Note 12, in its

entirety, as addressing how a defendant's base offense level may

be determined in the first instance when a drug transaction

remains unconsummated, for it is important to bear in mind that

calculating the amount of drugs involved in criminal activity

neither aggravates nor mitigates a defendant's sentence; rather,

it provides the starting point (a "base offense level," in
Guidelines terminology) from which a district court can proceed

to make adjustments for factors that do, indeed, aggravate or

mitigate the sentence.   Thus, given that the government bears the

burden of establishing the amount of drugs for which a defendant

should be held accountable, the government should likewise be

required to prove a defendant's intent or capability to produce a

negotiated amount of drugs if those issues are called into

question by the defendant.

          In reaching this conclusion, we reject the suggestion

offered by the government at oral argument that the burden of

persuasion related to the last sentence of Note 12 is best placed

on the defendant because evidence and information about his or

her intent and capability is uniquely in the defendant's hands.

Reasoning such as this has often been the basis for assigning

burdens of proof to various parties in civil cases.   See, e.g.,

United States v. Continental Ins. Co., 776 F.2d 962, 964 (11th

Cir. 1985).9   But in a case such as this, involving a courier

defendant, the government's reasoning simply does not support

imposing the burden of proof on a defendant.   While we can

conceive of a seller or buyer defendant having sole possession of

and access to information about his or her intent and ability to

sell or purchase a certain amount of drugs, the proposition may


9
 .    We note, however, as one commentator has observed, that the
practice of assigning burdens of proof on particular matters to
those who have greater access to the facts in issue "should not
be overemphasized. Very often one must plead and prove matters
as to which [one's] adversary has superior access to the proof."
2 McCormick on Evidence § 337 at 429 (4th ed. 1992).
be rendered less likely when a defendant has been convicted of

transporting (or, in this case, agreeing to transport) drugs for

others.   In the latter category of cases, the government may be

just as able to prove intent and capability as the defendant is

able to prove their absence.   And although the government's

reasoning has some force in cases involving buyer or seller

defendants, we do not believe it overcomes the fundamental

principle that the government bears the ultimate burden to

establish the amount of drugs under negotiation.   Accordingly, we

conclude that the government should be assigned the burden of

establishing not only the negotiated amount of drugs, but also

the defendant's intent or reasonable capability to produce them

if the defendant has put those matters in issue.
                                  2.

           Having established where the burdens of persuasion and

production lie in cases implicating the final sentence of Note

12, as well as the nature of those burdens, we now turn to

Raven's claim of substantive error by the district court in

applying Note 12.     Raven's argument is essentially driven by the

dictionary.   Citing the American Heritage College Dictionary as

authority for the proposition that the term "produce" means "to

bring forth, create, or manufacture," Raven claims that Hilton's

testimony at the sentencing hearing established that Raven

neither intended to "produce" nor was reasonably capable of

"producing" either heroin or money to pay for it.    Appellant's

Reply Br. at 10-11.    Raven notes that Hilton's testimony

established that Raven was neither a buyer nor a seller of heroin

and that he could provide no financing for the scheme.       App. at

58, 63, 68.   This evidence, according to Raven, proves that he

could not "produce" any heroin or any money to pay for the

drugs.10

10
 .    Raven also argues that Hilton's testimony proved that there
was never any heroin to "produce" because Raven was the object of
a DEA "sting" in which there never really was any heroin at all.
App. at 61-62. But the fact that no drugs were really on their
way into the United States as a result of Raven's conspiracy is
simply a happy -- and all too infrequent -- curiosity of this
case. That fact does not decrease the reprehensibility of
Raven's crime: drugs cannot travel from faraway lands to our
cities and neighborhoods without people who are ready, willing,
and able to carry them. Nor does the fact that no drugs were
ultimately involved in the conspiracy permit a court to ignore
the actual amount of heroin -- three to four kilograms -- that
Raven thought he was going to transport, intended to transport,
and was capable of transporting.
          In making this argument, however, Raven assigns too

literal a meaning to the term "produce" and thus unreasonably

constrains Note 12.   We believe that the salutary last sentence

of Note 12 must have some content in the world of courier

sentencing, in order to force the government to demonstrate a

courier's level of culpability when a drug transaction remains

unconsummated and the courier's intent and ability to consummate

the transaction are put in issue.11   However, we agree with the

government that to apply the principle embodied in Note 12, the

focus must shift according to a defendant's role in the offense.

Other courts addressing the language of Note 12 have not

hesitated to interpret that language according to context.     For

example, the Fourth Circuit found that the language in question

applied to a purchaser, because the note "speaks of `traffic in a

controlled substance,' . . . a term sufficiently broad to

encompass the purchase and sale of controlled substances."

Brooks, 957 F.2d at 1151.   Similarly, the Eleventh Circuit,

confronted with a case in which the defendants were to procure

and then sell an amount of drugs to an undercover agent,

concluded that "[i]n this context, to `produce' means to obtain

or deliver, as well as to manufacture."   Tillman, 8 F.3d at 19.

11
 .    Thus, we reject the plausible (but unsatisfying) argument,
advanced by the government before the district court, that the
last sentence of Note 12 applies only to drug sellers. App.
at 39. The government does not press this argument before us,
and it seems to us fundamentally unfair that only in cases
involving unconsummated drug transactions by sellers would the
government have to demonstrate that the defendant intended and
was able to complete the negotiated transaction. We do not
believe that the Sentencing Commission intended such a result.
          Because of the variety of schemes that may be employed

to traffic in narcotics, there are a multitude of situations in

which a person's participation may result in the ultimate aim of

a drug deal, which is to put drugs into someone else's hands in

exchange for money.   It seems obvious, then, that the word

"produce" must vary according to context.    "Produce" in the sense

described in Tillman would apply where a defendant is a seller of

drugs.   When the defendant is a drug buyer, Note 12 would address

the quantity of drugs that the defendant intended to purchase and

was reasonably capable of purchasing.    Brooks, supra.   And where,

as in this case, a defendant has been convicted of conspiring to

transport drugs, the proper focus is the quantity of drugs the

defendant intended to transport and was reasonably capable of

transporting.

          Thus, Raven's contention that he had neither money nor

drugs is irrelevant in a courier case.   The wrong being punished

is the conspiracy to import drugs into the United States, and the

issue for determination in the district court was what amount of

drugs Raven intended to and had the capability to transport.
3.
          Raven contends that if we conclude that the issue to be

resolved under the last sentence of Note 12 is whether he had the

intent and capability to transport a negotiated amount of heroin,

we should remand to the district court for a determination of

that issue and for resentencing.    Other circuits which have

addressed the language in the final sentence of Note 12 have

concluded that a district court must make explicit findings as to

intent and capability.     United States v. Gessa, 971 F.2d 1257,

1263 (6th Cir. 1992) (en banc); United States v. Jacobo, 934 F.2d

411, 416 (2d Cir. 1991).    We agree:   it is necessary that

district courts develop an adequate record for review when intent

and capability are put in issue by the defendant.     Although the

district court did not anticipate our ruling and focus on whether

Raven intended to transport and was reasonably capable of

transporting the negotiated amount of heroin here, and did not

make explicit findings in that regard, that is hardly surprising,

for prescience is a tall order to fill.12    We emphasize, though,

that it is for the district court in the first instance to make

these findings, and while in this case that may be a rather

academic exercise,13 we decline to usurp the district court's
12
 .    Although the district court's ruling is not without
ambiguity, it is clear that the court was not only aware of
Raven's argument that Note 12 required a lower base offense
level, but that it took testimony on the issue and considered
Note 12 in determining that Raven should be held responsible for
three to four kilograms of heroin. See App. at 88-96.
13
 .    There appears to be ample evidence of Raven's intent and
capacity to transport at least three to four kilograms of heroin.
Concerning intent, as the district court found, "three to four
[kilograms of heroin] was the opening salvo and one which was
never rejected or debated." App. at 94. Furthermore, Raven
role and will instead remand for resentencing consistent with

this opinion.

                               B.

          In his second challenge to his sentence, Raven argues

that because the government single-handedly determined the amount

of drugs involved in the conspiracy, the district court should

have departed downward from the otherwise applicable base level.

(..continued)
concedes in his brief that "he demonstrated his willingness to
participate in the plan to import heroin and that he recruited
another for this purpose . . . ." Appellant's Br. at 17-18.
There was also unrefuted testimony that both Raven and Ramirez
knew that they were going to transport the heroin in suitcases
and that three to four kilograms of heroin could be transported
in a single suitcase. See App. at 61, 51. And Raven tacitly
agreed that the trip would not be worthwhile unless at least
three or four kilograms of heroin were brought back to the United
States. App. at 50.

      As for capability, there is no need in this case to inquire
into whether Raven had a source that could supply three to four
kilograms of heroin, as there might be in a case in which the
defendant was proposing to sell heroin to an undercover agent.
Nor is there a need to inquire into whether Raven had a source of
funding sufficiently large to purchase three to four kilograms of
heroin, as there might be in a case in which a defendant was
proposing to purchase heroin from an undercover agent. In a case
such as this, in which a defendant acts as a mere courier
transporting drugs from overseas, there would appear to be
nothing more to the "reasonable capability" inquiry than
determining whether the defendant had a passport, could travel to
the assigned destination, could pick up and carry suitcases, and
could return. Evidence presented at the sentencing hearing
suggested that Raven was an experienced drug courier who had made
runs to Thailand before. Furthermore, the record showed that
Raven's discussions with Taju and Hilton at all times
contemplated at least one suitcase being used for transport, and,
again, testimony indicated that one suitcase could hold three to
four kilograms of heroin. Additionally, the evidence established
that Raven had recruited Ramirez to participate in the
transportation, from which one might infer that the conspirators
could transport at least one suitcase of heroin.
The government's behavior, Raven contends, constituted

"sentencing entrapment," which has been defined as "`outrageous

official conduct [which] overcomes the will of an individual

predisposed only to dealing in small quantities' for the purpose

of increasing the amount of drugs . . . and the resulting

sentence of the entrapped defendant."     United States v. Rogers,

982 F.2d 1241, 1245 (8th Cir. 1993), quoting United States v.

Lenfesty, 923 F.2d 1293, 1300 (8th Cir. 1991).     Raven argues that

the district court committed legal error in refusing to depart

downward on this basis or, alternatively, that it failed to

depart because it believed it lacked authority to do so.     Our

review of both contentions is plenary.    See United States v.

Spiropoulos, 976 F.2d 155, 160 n.2 (3d Cir. 1992) (failure to

depart because of mistake of law); United States v. Love, 985

F.2d 732, 734 n.3 (3d Cir. 1993) (failure to depart because of

uncertainty about authority to depart).

          Contrary to Raven's argument that the district court

may have believed that it did not have authority to depart

downward because of entrapment by the government, the court in

fact reached the issue.   Specifically, the court determined that

the government's behavior did not amount to sentence entrapment,

making departure on that ground inappropriate.     App. at 88-91.

We have not as yet had occasion to address the theory of

sentencing entrapment described in Rogers and Lenfesty, and we do
not do so today, but we agree with the district court that Raven

is not a candidate for departure based on that ground even

assuming that the doctrine has vitality in this circuit.     Hilton
testified -- and Raven did not dispute -- that the government

suggested that the conspirators import three to four kilograms of

heroin, instead of some smaller amount, because in Hilton's

experience it was not feasible for suppliers in Thailand or

conspirators in the United States to "set up such a trip and

bring back just one or two kilograms of heroin."    App. at 50.14

And far from being entrapped, Raven was an experienced drug

courier who demonstrated what can only be characterized as a

yeoman's attitude towards this venture.    Hilton testified that

when Raven was told that it would be necessary to import at least

three to four kilograms of heroin in order to make the venture

feasible, Raven responded that "whatever we had to bring back,

there was no problem.    He was ready to bring it back.   He wanted

this to be an ongoing thing.    He wanted to prove his loyalty and

his trust.   He would bring back whatever was over there."   App.

at 51.   Clearly, the district court did not err in refusing to

depart downward for entrapment.

                                  C.

           Finally, Raven contends that the district court erred

in finding that he was predisposed to import three to four

kilograms of heroin.    Since we have found that there was no

entrapment in this case, we need not reach the issue of


14
 .    While it is true that the government later increased (from
four kilograms to eight and then twelve) the amount of heroin
that Raven was to have transported (App. at 54-55, 56-57), we
need not address whether this behavior constituted an instance of
impermissible "ratcheting" because the district court found Raven
responsible for only three to four kilograms.
predisposition.   In any event, reviewing for clear error, see

United States v. Belletiere, 971 F.2d 961, 964 (3d Cir. 1992), we

note that the record indicates that Raven initiated the contact

that led to the importation scheme, and when Taju and Hilton

provided him the opportunity to participate, Raven not only

immediately took it, but continued to demonstrate his

enthusiastic support for the scheme until his arrest.   We find

that the district court did not err here, either.

                                III.

          In conclusion, we do not gainsay that there is often

something potentially troubling about an indictment that charges

that a defendant conspired to traffic in narcotics, where the

pleaded facts show that:   (1) the defendant had no means (money

or contacts) to produce or sell any narcotics, and no means

(money or credit) to buy narcotics; (2) the narcotics transaction

in which he was supposed to be a courier never got off the

ground; and (3) the deal was negotiated with a government

informant and the co-conspirator was only another courier

(recruited by the defendant).   There is, in these circumstances,

no physical evidence of the crime, and not only conviction but

also sentence will turn entirely upon the credibility of the

government (and defense) witnesses.    However, the facts described

in footnote 13 supra appear to be sufficiently concrete that

there is no cause for such concern here.   Of course, we intimate

no view as to what the district court should do on remand.
          For the foregoing reasons, we will remand for

resentencing as discussed in section II.A.3, and will affirm in

all other respects.
