United States v. Hines , 50 F. App'x 130 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-5011
SHAMAR RASHI HINES,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-01-239)
Submitted: September 30, 2002
Decided: November 8, 2002
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
Tanya L. Davis, BELSER & PARKE, Asheville, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
2 UNITED STATES v. HINES
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Shamar Rashi Hines was convicted by a jury of being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1) (2000) (Count One),
distribution of 50.8 grams of cocaine base (crack), 21 U.S.C.
§ 841(a), (b)(1)(A) (2000) (Count Two), and possession with intent to
distribute 125.8 grams of crack, 21 U.S.C. § 841(a), (b)(1)(A) (Count
Three). The district court imposed the statutory maximum sentence of
120 months for Count One and a concurrent sentence of 375 months
for Counts Two and Three. Hines appeals his conviction, alleging that
the district court erred in refusing to instruct the jury on his defense
of entrapment. He also appeals his sentence, contending that the dis-
trict court clearly erred in denying him an adjustment for acceptance
of responsibility, U.S. Sentencing Guidelines Manual § 3E1.1 (2001),
and in increasing his sentence within the guideline for obstruction of
justice. Hines further claims that his sentence violates the Eighth
Amendment and that the federal sentencing scheme denied him an
individualized sentencing and due process of law. We affirm in part
and dismiss in part.
Hines sold a firearm to an undercover officer of the Bureau of
Alcohol, Tobacco, and Firearms (ATF). He subsequently sold 50.8
grams of crack to the officer and arranged to sell four ounces of crack
to him. Hines and John Inman, a co-defendant who was carrying the
four ounces of crack, were arrested when they arrived for the sale.
Dallas Kelly, the confidential informant who put the ATF officer in
touch with Hines reportedly had known Hines since childhood. At
trial, Hines insisted that he was innocent of the firearm charge and the
second drug offense because he had not actually touched either the
firearm or the four ounces of crack, and thus had not possessed them.
He also requested an entrapment instruction, arguing that, while he
had been trying to straighten out his life since his release from prison
about eight months earlier, Kelly had repeatedly asked him to become
UNITED STATES v. HINES 3
involved in selling guns and drugs. Hines’ mother and girlfriend testi-
fied that Kelly and Hines were in frequent contact. However, Kelly
began to work as a confidential informant for the ATF only two
weeks before Hines sold the gun to the undercover officer. From
Hines’ first monitored conversation with the ATF officer through his
arrest, he displayed no hesitation or reluctance to deal with the offi-
cer. In fact, before the firearm sale, Hines informed the officer that
he could not obtain either of the guns he first promised, but said he
had a different firearm available and named a price. After the sale,
Hines offered the officer a magazine and ammunition for the weapon,
which the officer bought.
The district court’s refusal to give an entrapment instruction is a
legal issue reviewed de novo. United States v. Phan, 121 F.3d 149,
154 (4th Cir. 1997). Entrapment is an affirmative defense which has
two elements: government inducement and lack of predisposition by
the defendant to commit the crime. United States v. Sligh, 142 F.3d
761, 762 (4th Cir. 1998). The defendant must first produce some evi-
dence, "more than a scintilla," that the government induced him to
commit the crime. Id. (quoting United States v. Daniel, 3 F.3d 775,
778 (4th Cir. 1993)). "Inducement . . . involves elements of govern-
ment overreaching and conduct sufficiently excessive to implant a
criminal design in the mind of an otherwise innocent party. Solicita-
tion, by contrast, is the provision of an opportunity to commit a crimi-
nal act." Daniel, 3 F.3d at 763. "Mild forms of persuasion" are not
inducement, id. at 779, but "certain kinds of persuasion or appeals to
sympathy can be considered inducement for purposes of an entrap-
ment defense." United States v. Squillacote, 221 F.3d 542, 569 (4th
Cir. 2000) (citing United States v. Montanez, 105 F.3d 36, 39 (1st Cir.
1997), and United States v. Jackson, 700 F.2d 181, 191 (5th Cir.
1983)), cert. denied, 532 U.S. 971 (2001).
We are satisfied that Hines failed to show overreaching by the gov-
ernment. The fact that he accepted Kelly’s invitation to crime, even
if Kelly was a longtime friend, does not amount to government
inducement. See United States v. Romo, 914 F.2d 889, 894-95 (7th
Cir. 1990) (use of defendant’s boyfriend as informant who introduced
her to undercover officer was not government inducement). More-
over, Hines’ testimony concerning his own reluctance to engage in
crime is insufficient to counter the recorded trial evidence of his will-
4 UNITED STATES v. HINES
ingness to sell guns and drugs. His predisposition to commit the
crimes was evident, for example, in his willingness to sell a different
firearm when he could not supply the one he first promised, and his
offer to sell the magazine and ammunition.
We next find that the district court did not clearly err in denying
Hines an adjustment for acceptance of responsibility. United States v.
Ruhe, 191 F.3d 376, 388 (4th Cir. 1999) (stating standard). Hines
argues that the assertion of an affirmative defense, such as entrap-
ment, does not preclude an adjustment for acceptance of responsibil-
ity. Although his position has support, see, e.g., United States v.
Garcia, 182 F.3d 1165, 1172-74 (10th Cir. 1999) (affirming adjust-
ment), the district court did not deny the adjustment because Hines
had raised an entrapment defense, nor did it regard that defense as a
barrier to the adjustment. Instead, the court found that Hines had not
accepted responsibility for his conduct because, at trial, he insisted
that he was innocent of the charges in Counts One and Three in that
he had not actually possessed the gun or the crack. The court noted
that Hines had not admitted his guilt, subject to the defense of entrap-
ment.
Hines argues that he was simply confused about the legal meaning
of constructive possession, but the record reveals that the concept of
constructive possession was explained to Hines during the trial and
that he was attempting to establish his factual innocence of Counts
One and Three. Because he put the government to its burden of proof
by denying the essential factual elements of guilt, the district court did
not clearly err in denying him an adjustment for acceptance of respon-
sibility.
Hines argues that the court clearly erred in adding twenty-four
months to his sentence for obstruction of justice.1 He also suggests
that, in so doing, the court punished him for exercising his right to
testify. In fact, the district court did not make an adjustment for
obstruction of justice, but explained that it was imposing sentence
above the lower part of the sentencing range because of Hines’ eva-
sive responses. The court was reluctant to find that Hines had given
1
The 375-month sentence was fifteen months above the bottom of the
guideline range of 360 months to life.
UNITED STATES v. HINES 5
perjured testimony, but expressed scepticism about Hines’ representa-
tion that he had been trying to rehabilitate himself and stay away from
crime. The district court’s decision as to where to impose sentence
within a properly calculated guideline range is not reviewable. United
States v. Jones, 18 F.3d 1145, 1151 (4th Cir. 1994). Consequently, we
lack jurisdiction to review this claim.
Hines contends that a 375-month sentence for offenses involving
"small amounts of crack cocaine" is cruel and unusual and grossly
disproportionate to the crime. He concedes that this court has held
that Eighth Amendment review applies only to sentences of death or
life without parole. United States v. D’Anjou, 16 F.3d 604, 612 (4th
Cir. 1994); United States v. Thomas, 900 F.2d 37, 39 (4th Cir. 1990),
but asks us to reconsider our position on the issue. Because a panel
of this court may not overrule the precedent set by a prior panel of
this court, we reject his argument. Mentavlos v. Anderson, 249 F.3d
301, 312 n.4 (4th Cir.), cert. denied, 122 S. Ct. 349 (2001).
Hines also claims that the federal mandatory minimum sentencing
scheme violates his right to individualized sentencing and due process
of law.2 He recognizes that this court has rejected similar claims. See
United States v. Kratsas, 45 F.3d 63, 69 (4th Cir. 1995) (mandatory
minimum sentence does not deprive defendant of individualized sen-
tencing); United States v. Bolding, 876 F.2d 21, 23 (4th Cir. 1989)
(sentencing guidelines do not deprive defendant of individualized sen-
tencing). Again, he asks us to reconsider our prior decisions, which
we may not do.
We therefore affirm the conviction and sentence. We dismiss that
portion of the appeal which challenges the district court’s discretion-
ary decision as to where to impose sentence within the guideline
range. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED IN PART; DISMISSED IN PART
2
This claim is puzzling as Hines’ sentence was not determined by the
240-month mandatory minimum sentence for Counts Two and Three.
There was no mandatory minimum sentence for Count One.