United States v. Alexis Arce-Negron ( 2009 )

[DO NOT PUBLISH]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).
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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.
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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
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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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