FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 11 - CHAPTER 257
Go to Volume 11 Table of Contents  -  Go to Chapter 257 Table of Contents

257.3 Entrapment

    257.3.7 Sentencing Entrapment

    257.3.7.1 "Sentencing Entrapment"

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 11 - CHAPTER 257

    257.3.7.1    "Sentencing Entrapment"

PRACTICE NOTE: "Sentencing entrapment occurs when a defendant, although predisposed to commit a minor or lesser offense, is entrapped into committing a greater offense subject to greater punishment.... Thus, in a reverse sting, where the government sells drugs at an artificially low price in order to permit the targeted buyer to buy a significantly greater quantity than his resources otherwise would have permitted, a downward departure may be warranted....[also], in a case where the government induced a target to sell far more of a controlled substance than had formally been within his practice or resources, that sentence entrapment [has been] applied...." (U.S. v. Ramirez-Rangel (9th Cir. 1997) 103 F3d 1501, 1506.)

    Hence, even though entrapment may not be available for the underlying offense, it is arguably available to bar enhanced culpability and/or sentencing when the government has entrapped the defendant into committing a more serious or enhanced crime than he or she was predisposed to commit. For example, when government conduct overcomes the will of an individual predisposed only to dealing in small quantities of drugs, it may be argued that the defendant should not be liable for the quantity enhancement sentence. (See U.S. v. Connell (1st Cir. 1992) 960 F2d 191, 196 [possibility that sentencing entrapment may be an appropriate basis for sentence reduction]; U.S. v. Stavig (8th Cir. 1996) 80 F3d 1241, 1245-47 [guidelines require district court to determine if government engaged in sentencing entrapment]; U.S. v. Barth (8th Cir. 1993) 990 F2d 422, 424-25 [stating in dicta that although not present in that case, "sentencing entrapment may be legally relied upon to depart under the sentencing guidelines"]; U.S. v. Rogers (8th Cir. 1993) 982 F2d 1241, 1245; U.S. v. Calva (8th Cir. 1992) 979 F2d 119, 122; U.S. v. Parrilla (9th Cir., 1997) 114 F3d 124, 125-28 [recognizing sentencing entrapment as a basis for declining to apply statutory penalty provision for the greater offense that the defendant was induced to commit]; U.S. v. Staufer (9th Cir.1994) 38 F3d 1103, 1106-08 [sentencing entrapment may be legally relied upon to depart from the Sentencing Guidelines]; Commonwealth v. Pezzold (PA 1997) 701 A2d 1363, 1365 [sentencing entrapment doctrine can be used to exclude one of several criminal transactions included in sentencing scheme]; but see United States v. Connell, 960 F2d 191, 196 (1st Cir.1992) [refusing to apply sentencing entrapment]; United States v. Barth (8th Cir.1993) 990 F2d 422, 424; U.S. v. Williams (11th Cir.1992) 954 F2d 668, 673 [rejecting sentencing entrapment as a viable defense].)

    "[W]hen a sufficiently egregious case arises, the sentencing court may deal with the situation by excluding the tainted transaction or departing from the sentencing guidelines [citation]."  (United States v. Barth (8th Cir.1993) 990 F2d 422, 425.) "Drug agents can decide, apparently without any supervision by anybody to negotiate with somebody for an ounce, a pound, a kilo, 100 kilos, a million kilos of a substance and, of course, if the defendant bites at the bait, then that amount chosen by the drug agent will determine his drug sentence." (Staufer, 38 F3d at 1107-8.)

    Some courts have refused to recognize sentencing entrapment or describe it as a due process doctrine and is limited to situations in which the government misconduct could be characterized as outrageous. (See Cook and Hermann, Criminal Defense Checklist (West, 1999) § 4.01(14); see also U.S. v. Davis (9th Cir. 1994) 36 F3d 1424, 1433 [sentence entrapment requires defendant to show that government engaged in outrageous official conduct which overcomes will of person predisposed only to dealing in small quantities for purpose of increasing amount of drugs and resulting sentence of entrapped defendant].)

    The federal circuits are divided on the issue of sentencing entrapment. The Eleventh and the District of Columbia Circuits have rejected the doctrine of sentencing entrapment, while the First, Seventh, Eighth, and Ninth Circuits accept it. (Compare United States v. Sanchez, 138 F3d 1410 (11th Cir. 1998) [rejecting doctrine] with United States v. Searcy, 233 F3d 1096 (8th Cir. 2000) [doctrine accepted as defense; proper analysis focuses on defendant’s predisposition]; but see People v. Barraza (CA 1979) 23 C3d 675 [153 CR 459] [California’s test for entrapment is objective, focusing on the police conduct and disregarding such matters as the suspect’s character and disposition to crime]; People v. Smith (CA 2003) 31 C4th 1207, 1213 [7 CR3d 559] ["entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense" [original emphasis].)

"Sentencing Manipulation and Entrapment," Marcia G. Shein, ABA Criminal Justice Magazine, (Fall 1995, Vol. 10, # 3.)

See FORECITE National™ 257.3.1.1 [Entrapment: Federal Test].