United States v. Grant , 9 F. App'x 992 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 7 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-3345
(D.C. No. 00-40012-01)
MICHAEL DUANE GRANT, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, PORFILIO, and ANDERSON, Circuit Judges.
After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant was apprehended selling drugs at a sting operation across the
street from the Washburn University campus. He pled guilty to distributing 11.7
*
This order and judgment is not binding precedent, except under the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.
grams of crack cocaine within 1000 feet of a school, 21 U.S.C. §§ 841(a)(1), 860,
and received a sentence of 70 months’ imprisonment and 8 years’ supervised
release. 1 He argues that, by selecting a location near the university for the sting
operation and offering favorable prices for sales completed there, government
officers engaged in outrageous conduct with the purpose of entrapping him into
an offense carrying inflated sentencing consequences. Upon review of the record
and our case law on the related defenses of sentencing entrapment/outrageous
government conduct, we affirm defendant’s sentence for substantially the reasons
stated in the district court’s order of October 20, 2000.
In United States v. Lacy , 86 F.3d 956 (10th Cir. 1996), this court held that
allegations of improper government efforts designed to inflate sentencing should
be analyzed as a claim of outrageous conduct, which focuses on the government’s
1
The court determined defendant’s Base Offense Level (BOL) pursuant to
U.S.S.G. § 2D1.2 (“Drug Offenses Occurring Near Protected Locations.”). Under
§ 2D1.2(a)(1), the BOL was “ 2 plus the offense level from § 2D1.1 applicable to
the quantity of controlled substances directly involving a protected location,” i.e.,
2 + 26 = 28. After reductions for acceptance of responsibility and cooperation
under § 3E1.1(a), (b), the offense level fell to 25. There were no enhancements.
Given defendant’s criminal history, the Guidelines directed a sentence of 70 to 87
months, and the court chose the minimum. The supervised release was statutorily
mandated. See § 860(a) (adopting sentencing provisions of § 841, but doubling
maximum prison and minimum supervised release terms); § 841(b)(1)(B)
(mandating 4-year term of supervised release for drug type/quantity here). We
note § 860 is a separate substantive offense, not a mere enhancement relating to
§ 841(a)(1). United States v. Smith , 13 F.3d 380, 382-83 (10th Cir. 1993); accord
Watterson v. United States , 219 F.3d 232, 236 (3d Cir. 2000).
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behavior, rather than as a species of entrapment, which looks instead to the
defendant’s criminal predisposition. Id. at 963 & n.5; see also United States v.
Eads , 191 F.3d 1206, 1212 (10th Cir. 1999). Accordingly, the following review
principles control here:
Defendants have the burden of proving outrageous government
conduct, . . . and we review this issue de novo, with factual findings
reviewable under the clearly erroneous standard. The outrageous
conduct defense . . . is an extraordinary defense that will only be
applied in the most egregious circumstances. In order to prevail, the
defendant must show that the challenged conduct violated notions of
fundamental fairness and is shocking to the universal sense of
justice.
United States v. McKissick , 204 F.3d 1282, 1294 (10th Cir. 2000) (quotations and
citations omitted).
Defendant relies on three facts to establish outrageous conduct here: (1) the
government selected a location within the statutory 1000-foot radius of the school
to set up its sting operation, when the lessor offered other properties to rent which
were farther away; (2) the government instructed its informant/buyer to ask that
sales take place at the selected location and, if a seller hesitated, to say that he
had no transportation to go elsewhere; and (3) the government had its informant
offer to pay favorable prices to attract sellers. These facts do not demonstrate the
kind of egregious circumstances necessary to warrant relief under the standards
set out above.
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Nothing in the record indicates the government selected the location
because it was near a school. The evidence shows only that the government
rejected a few suggested alternatives because they were located in heavy drug
trafficking areas and would likely lead to quicker exposure of the sting operation.
There was also no evidence that encouraging sales at the sting location reflected
anything other than the intent to make use of the videotape set-up installed there
to record the transactions. Finally, as to price manipulation, the record on appeal
includes general, conclusory references by counsel to offers of “more than the
going rate,” R. Vol. 1, doc. 55 at 4, “a great deal more than what was the going
rate,” R. Vol. 3 at 6, and “a little better than market price,” id. at 8. Our cases
have rejected outrageous conduct claims based on financial inducement, even
when substantial incentives were offered to those in fairly desperate straits. See
United States v. Sandia , 188 F.3d 1215, 1220 (10th Cir. 1999); United States v.
Mosley , 965 F.2d 906, 913 (10th Cir. 1992). Relief might be available if it were
“clear from the record that the price was shockingly cheap [or expensive, if the
government acts as buyer],” Mosley , 965 F.2d at 913, but we lack evidence, or
even allegations, rising to that level here. Further, there is no evidence that
defendant’s initial reluctance to do business at the sting location turned on its
proximity to the school–and there certainly are other reasons a dealer might prefer
to operate from a location of his own choice.
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We have repeatedly stated that “[i]t is not outrageous for the government
. . . to induce a defendant to repeat, continue, or even expand previous criminal
activity.” United States v. Gell-Iren , 146 F.3d 827, 831 (10th Cir. 1998) (quoting
United States v. Pedraza , 27 F.3d 1515, 1521 (10th Cir. 1994)). While the sting
location used by the government had the effect of raising the stakes involved for
defendant (after an initial crack sale to the informant at defendant’s residence),
and the lure of extra profit may have played a role in inducing him to repeat or
expand his criminal activity, the facts of this case still fall within the wide range
of permissible government conduct. See generally Mosley , 965 F.2d at 910 (in
assessing outrageous conduct claims, “[w]ide latitude is accorded the government
to determine how best to fight crime”).
The judgment of the United States District Court for the District of Kansas
is AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
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