United States v. Johnny Williams ( 1997 )

No. 96-1043
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri
Johnny Williams *
a/k/a Doctor John, *
*
Defendant - Appellant. *
Submitted: September 11, 1996
Filed: March 28, 1997
Before MAGILL, FLOYD R. GIBSON, and LAY, Circuit Judges.
FLOYD R. GIBSON, Circuit Judge.
A jury convicted Johnny Williams of attempting to possess five or
more kilograms of cocaine with the intent to distribute. See 21 U.S.C. §§
1
841(a)(1), (b)(1)(A), 846 (1994). The district court sentenced Williams
to 121 months imprisonment, followed by five years of supervised release.
Williams raises several issues on appeal. First, Williams contends that
the district court should have suppressed the fruits of the wiretap
surveillance of Williams's telephone line because the government failed to
comply with the minimization requirements of 18 U.S.C. § 2518(5) (1994).
1
The HONORABLE HOWARD F. SACHS, Senior Judge, United States
District Court for the Western District of Missouri.
Second, Williams claims error in the district court's decision to allow the
government to introduce records into evidence without laying a proper
foundation. Third, Williams asserts that the district court's entrapment
instruction prejudiced Williams and prevented him from receiving a fair
trial. Finally, Williams raises three sentencing issues. He contends that
the district court committed error when it calculated Williams's base
offense level at 32, failed to recognize that the government engaged in
sentencing entrapment, and failed to grant Williams his right of allocution
pursuant to Fed. R. Crim. P. 32(c)(3)(C). For the reasons set forth below,
we affirm Williams's conviction and sentence.
I. BACKGROUND
In December 1992 Adriana Roman began transporting cocaine from
Houston, Texas to Kansas City, Missouri. In May 1993 Houston Police
Detective Virgil Price approached Roman because he suspected she was a drug
courier. Roman agreed to act as an informant for the Houston Police
Department. Price later introduced Roman to FBI Agent Marlin Ritzman, and
in June of 1993 Roman agreed to act as an informant for the FBI. Roman
told Ritzman she made the following deliveries of cocaine to Kansas City
from Houston: (1) five kilograms in December 1992; (2) five kilograms in
early January 1993; (3) five kilograms in late January 1993; (4) eight
kilograms in March 1993; and (5) three kilograms in May 1993. Roman told
Ritzman that on each occasion she called either Williams or another drug
dealer upon her arrival in Kansas City. On the occasions that Roman called
Williams, he sometimes directly participated in the transactions, but at
other times, Williams sent a messenger to collect the cocaine from Roman.
2
Based on the information supplied by Roman, the FBI applied for
authorization to conduct surveillance of Williams's telephone line pursuant
to 18 U.S.C. §§ 2510-2522 (1994). On September 15, 1993, the district
court authorized surveillance for a period of thirty days.3
2
Because the
FBI wished to establish Williams's willingness to deal in cocaine, Ritzman
directed Roman to initiate contact with Williams. On September 22 Roman
called Williams and persuaded him to meet her at a Kansas City motel to
discuss a possible cocaine delivery. The FBI video taped the meeting,
during which Williams suggested a delivery of one and one-half to two
kilograms of cocaine. Roman, at the FBI's direction, informed Williams
that because she had to travel to Michigan to visit her son, Williams
should not expect to hear from her for at least a week. Williams responded
that had he known of Roman's plans, she could have delivered the cocaine
to him on her way to Michigan and retrieved the purchase money on her
return trip through Kansas City. He agreed, however, to accept one and
one-half to two kilograms of cocaine as soon as Roman was able to deliver
the controlled substances. After the meeting concluded, Ritzman decided
to attempt a reverse sting4 on Williams and instructed Roman not to
initiate contact with Williams until advised. However, shortly following
the meeting, Roman made unauthorized
2
The HONORABLE JOSEPH E. STEVENS, JR., then Chief Judge of the
United States District Court for the Western District of Missouri
and now Senior United States District Judge for the same court.
3
During the thirty day surveillance period, the FBI
intercepted 219 pertinent conversations and 2,164 nonpertinent
conversations. Of the intercepted conversations, 1,172 were
minimized to avoid the interception of calls which were
noncriminal in nature.
4
A reverse sting is "an operation in which a government agent
sells or negotiates to sell a controlled substance to a defendant."
U.S. Sentencing Guidelines Manual § 2D1.1, application note 15
(1995).
3
contact with Williams and asked him to send money so she could rent a car
to deliver cocaine to Kansas City. Roman actually made the request for
money because she needed cash to pay rent and other bills. Williams, using
the alias "Charlie Ward," wired Roman two hundred dollars.
On October 13, 1993, Ritzman received approval to attempt the reverse
sting. Roman called Williams on October 13 to confirm delivery for October
14, 1993. As advised by Ritzman, Roman asked Williams if she could bring
five kilograms rather than the previously agreed-upon one and one-half to
two kilograms. Williams approved of Roman's request to deliver five
kilograms of cocaine.
On October 14 the FBI flew Roman to Kansas City and escorted her to
the American Inn where the agents planned to execute the reverse sting.
The FBI had rented three rooms at the American Inn. Roman was to meet with
Williams in one room. The FBI wired another room with audio and video
surveillance equipment, and set up the third room to observe Williams as
he entered and exited the room in which the reverse sting was to take
place. FBI Special Agent Pisterzi obtained five single kilogram packages
of cocaine from the DEA lab in Chicago, which he brought to the hotel for
use in the reverse sting. Ritzman placed the packages of cocaine in a gym
bag, and placed the bag in one of the hotel rooms with Roman. Shortly
after noon, Roman telephoned Williams to tell him she was at the American
Inn. Williams arrived soon thereafter.
Williams entered the hotel room and examined the five kilogram
packages of cocaine. He took one package out of the gym bag. Williams
then resituated the other four packages of cocaine and hid them in the
room. Williams gave Roman two hundred dollars so she could get something
to eat. He then advised her that he would return shortly for the other
four packages of cocaine and that, in
4
the meantime, she should "guard [the cocaine] with [her] life." Williams
exited the room with one package of cocaine and was immediately apprehended
by Ritzman. Ritzman released Williams based on Williams's promise to
cooperate with the FBI. When Williams failed to cooperate, he was indicted
and charged with attempting to possess at least five kilograms of cocaine
with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), 846 (1994). A jury found Williams guilty of the charged
offense, and the district court sentenced Williams to 121 months
imprisonment followed by five years of supervised release.
II. DISCUSSION
A. Minimization of Wiretap Surveillance
Williams contends that all evidence obtained from the wiretap
surveillance should have been suppressed because the government's
procedures did not comply with the minimization requirements of 18 U.S.C.
§ 2518(5) (1994). Subsection five of 18 U.S.C. § 2518 requires that an
order authorizing the interception of wire communications must ensure that
the surveillance will "be conducted in such a way as to minimize the
interception of communications not otherwise subject to interception . .
. ." 18 U.S.C. § 2518(5) (1994). Whether the government complied with the
requirements of section 2518(5) is determined by an objective,
reasonableness standard. See Scott v. United States, 436 U.S. 128, 137-38
(1978); United States v. Macklin, 902 F.2d 1320, 1328 (8th Cir. 1990),
cert. denied, 498 U.S. 1031 (1991).
5
When determining whether the government's surveillance was
reasonable, "a reviewing court must consider a variety of factors,
including the scope of the enterprise, the agent's reasonable expectation
of the content of a call, the extent of judicial supervision, length and
origin of a call, and use of coded or ambiguous language." Macklin, 902
F.2d at 1328 (citations omitted). After a consideration of these factors,
we conclude that the government agents in this case acted reasonably in
efforts to comply with the minimization requirements of section 2518(5).
The order authorizing the wiretap named nine interceptees because at the
outset of the investigation the FBI believed many people were involved in
the drug trafficking. If an intercepted phone call involved one or more
nonnamed interceptees and was noncriminal in nature, the order required the
listening agent to minimize the call. The order also required the FBI to
submit ten-day reports to the authorizing judge to ensure that proper
minimization techniques were being used. Several of the individual phone
calls contested by Williams were extremely short in duration. In these
calls, listening agents barely had ample time to determine whether the
speakers were named interceptees before the calls terminated. Cf. Scott,
436 U.S. at 141-42. The remaining calls challenged by Williams were
ambiguous in nature and included language the agents reasonably could have
believed was coded language referring to possible cocaine transactions.
More extensive wiretapping is reasonable when "the conversations are in the
jargon of the drug trade." Macklin, 902 F.2d at 1328 (citation omitted).
Therefore, the government agents in this case acted reasonably in efforts
to comply with the minimization requirements of section 2518(5).
B. Evidentiary Foundation
6
Williams renews the objection he made at trial that records from two
hotels and Western Union should not have been admitted into evidence
because the government failed to call a custodian of records to lay a
foundation for the business records hearsay exception of Fed. R. Evid.
803(6). Williams contends that the records were significant because they
corroborated Roman's testimony about her previous involvement in
transporting cocaine to Williams from Houston. However, assuming the
records were inadmissible hearsay, any error in admitting the records was
harmless.
An evidentiary error is harmless if, "after viewing the entire
record, the reviewing court determines that no substantial rights of the
defendant were affected, and that the error had no, or only slight,
influence on the verdict." United States v. Mitchell, 31 F.3d 628, 632
(8th Cir. 1994)(citations omitted). After a careful examination of the
record, we determine that any error in the admission of the records had no
effect on Williams's substantial rights and little or no influence on the
verdict. To achieve a conviction the government was required to establish
that Williams attempted to possess five or more kilograms of cocaine with
the intent to distribute the cocaine. See 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), 846 (1994). If the district court had not permitted the
government to introduce the hotel and Western Union records, the remaining
evidence would have nonetheless overwhelmingly established Williams's
guilt. The government introduced, inter alia, (1) Roman's testimony
regarding Williams's previous involvement in cocaine transactions; (2) tape
recorded conversations between Roman and Williams in which Williams alluded
to his prior and intended future involvement in cocaine transactions; and
(3) most significantly, a video tape of Williams's attempted purchase of
five kilograms of cocaine at the American Inn. Consequently, due to the
powerful additional
7
evidence of Williams's guilt, the district's court admission of the
records, if erroneous, had little or no influence on the jury's verdict and
did not affect Williams's substantive rights.
C. Entrapment Instruction
Williams urged the district court to use Eighth Circuit Pattern
Instruction 9.01 to instruct the jury on the law of entrapment. The court
modified Instruction 9.01 by adding a paragraph in an attempt to clarify
the factual predicate required for a finding of entrapment. Williams
argues that the district court abused its discretion in submitting
Instruction J5 to the
5
Instruction J read as follows:
One of the issues in this case is whether Mr.
Williams was entrapped. If Mr. Williams was entrapped,
he must be found not guilty. The Government has the
burden of proving beyond a reasonable doubt that Mr.
Williams was not entrapped.
If Mr. Williams before contact with Adriana Roman in
the summer of 1993 did not have any disposition to commit
the crime charged and was induced or persuaded by Adriana
Roman to commit that crime, then he was entrapped. On
the other hand, if Mr. Williams before contact with
Adriana Roman in the summer of 1993 did have a
disposition to commit the crime charged then he was not
entrapped, even though Adriana Roman provided a favorable
opportunity to commit the crime or made committing the
crime easier or even participated in acts essential to
the crime.
If the proof has persuaded you, beyond a reasonable
doubt, that (1) defendant Williams knew or suspected,
before the summer of 1993, that Adriana Roman had been
engaged in drug trafficking, and (2) defendant thereafter
invited or encouraged her to supply drugs to him, and (3)
defendant Williams was willing to deal in drugs, and did
not require persuasion from Adriana Roman, then he was
not entrapped, even though Adriana Roman presented
defendant with an opportunity to acquire cocaine. If the
proof has not persuaded you beyond a reasonable doubt
that defendant was not entrapped, as that term is here
8
jury because the modified version was confusing and tended to emphasize the
government's version of the facts. We review a district court's
formulation of jury instructions for an abuse of discretion. See United
States v. Parker, 32 F.3d 395, 400 (8th Cir. 1994). Although a defendant
is entitled to have an instruction submitted to the jury provided it is
timely submitted, adequately states the law, and is supported by the
evidence, see United States v. Akers, 987 F.2d 507, 513 (8th Cir. 1993),
"the defendant is 'not entitled to a particularly worded instruction where
the instruction[] given by the trial judge adequately and correctly
cover[s] the substance of the requested instruction.'" Id. (alterations
added)(quoting United States v. Manning, 618 F.2d 45, 48 (8th Cir. 1980)).
Entrapment exists "where the evidence establishes that the government
agent originated the criminal design, the agent implanted in the mind of
an innocent person the disposition to commit the offense, and the defendant
then committed the criminal act at the urging of the government agent."
United States v. Hulett, 22 F.3d 779, 781 (8th Cir.)(citation omitted),
cert. denied, 115 S. Ct. 217 (1994). Williams asserts that the last
paragraph of Instruction J "improperly emphasized factual contentions
raised by the government," and therefore made it less likely that the jury
would find the government entrapped Williams. We disagree. Instruction
J's final paragraph presented a relatively neutral clarification of the law
of entrapment based on the facts of the case. When considered in its
entirety, the instruction essentially asked the jury to determine "whether
[Roman] caused or induced [Williams] to commit a crime he was not
explained, then you must find the defendant not guilty.
9
otherwise predisposed to commit." Id. (citation omitted). Because the
district court's entrapment instruction adequately stated the law of
entrapment and covered the substance of Williams's requested instruction,
we find that the district court did not abuse its discretion in submitting
Instruction J to the jury.
D. Sentencing Issues
1. Weight Calculation
The sentencing court found that Williams was responsible for at least
five but not more than fifteen kilograms of cocaine and accordingly
calculated his base offense level at 32. See U.S. Sentencing Guidelines
Manual § 2D1.1(c)(4) (1995). The court sentenced Williams to 121 months
imprisonment, which was within the guidelines range of 121-151 months.
Williams contests the weight calculation, arguing that he did not intend
to purchase nor was he reasonably capable of purchasing five kilograms of
cocaine. See id., application note 12.
We review factual findings by the sentencing court for clear error
and reverse only "if we are left with the definite and firm conviction that
the sentencing court erred." United States v. Garrido, 995 F.2d 808, 812
(8th Cir.)(citation omitted), cert. denied, 510 U.S. 926 (1993). We review
the sentencing court's application of the Sentencing Guidelines de novo.
See United States v. Stavig, 80 F.3d 1241, 1245 (8th Cir. 1996). We may
affirm the sentencing court's decision on any ground supported by the
record. See Garrido, 995 F.2d at 813.
The Presentence Investigation Report (PSI) prepared by the probation
officer recommended that the sentencing court hold
10
Williams accountable for twenty-eight kilograms of cocaine that were part
of the same course of conduct as the charged offense. See id. § 1B1.3. Had
the district court followed this recommendation, Williams's base offense
level would have been 34, requiring a sentence of 151-181 months. See id.
§ 2D1.1(c)(3). The court, however, found that Roman's testimony was not
sufficiently reliable to attribute twenty-eight kilograms of cocaine to
Williams as relevant conduct. Furthermore, the cocaine used in the reverse
sting was "a shade short of the five kilograms" because it was not weighed
separately from its wrappings. Nonetheless, the district court estimated
that Williams was responsible for between five and fifteen kilograms of
cocaine. The sentencing court based this estimation on two alternative
theories. First, the court adduced that Williams could be held accountable
for between five and fifteen kilograms of cocaine because although Roman's
testimony regarding relevant conduct was not entirely reliable, it
sufficiently established that Williams was at least 5% culpable for the
previous twenty-eight kilograms, which placed Williams at or above the five
kilogram threshold. Alternatively, the court reasoned that Williams should
be held responsible for five kilograms of cocaine because that was the
amount he intended to purchase from Roman.
Williams asserts that the sentencing court committed clear error when
it set his base offense level at 32 based on his prior relevant conduct.
Williams claims that the sentencing court arbitrarily allocated his level
of culpability and failed to make specific factual findings of his
involvement in the previous transactions as required by Fed. R. Crim. P.
32(c). We agree that the sentencing court arbitrarily allocated Williams’s
level of involvement in the previous transactions. Although the sentencing
guidelines allow for the approximation of the amount of controlled
substances involved in prior relevant transactions, U.S. Sentencing
11
Guidelines Manual §2D1.1, application note 12 (1995), a sentencing court
may not base a quantity determination upon an arbitrary assumption. See
United States v. Lawrence, 915 F.2d 402, 409 (8th Cir. 1990). Similarly,
we hold that a sentencing court may not base a determination of a
defendant’s level of involvement in previous transactions upon an arbitrary
assumption. A sentencing court may not attribute responsibility to a
defendant for quantities of cocaine involved in a previous transaction
“unless the court can conclude the defendant is more likely than not
actually responsible for a quantity greater than or equal to the quantity
for which the defendant is being held responsible.” United States v.
Walton, 908 F.2d 1289, 1302 (6th Cir.)(emphasis in original), cert. denied,
498 U.S. 990 (1990); accord Lawrence, 915 F.2d at 409.
At Williams’s sentencing hearing the court indicated its discomfort
with assessing Williams’s level of involvement in previous transactions.
The court stated:
Well, I think the basic trouble I have is pegging a figure.
. . . If we don’t hold him for the total, then I don’t
think I can rely on the Adriana Roman testimony to say, well,
it was this transaction, and there were a certain number of
kilograms there and so forth.
The closest thing to that is the Paradise Motel. If her
testimony is as confused as I believe it was . . . I am not
comfortable saying, well, I believe he was out at the Paradise
Motel and that there were a certain number of kilograms.
. . . [T]he Eighth Circuit will have to give me some
guidance as to whether I can pick a number out of the air.
Sentencing Tr. at 30-32. Later, the court stated that Williams’s
responsibility for prior transactions “[could] not be fairly estimated.”
Id. at 88. Nonetheless, the court determined that
12
Williams could be held accountable for between five and fifteen kilograms
of cocaine because Roman's testimony regarding relevant conduct
sufficiently established that Williams was at least 5% culpable for the
previous transactions. Such an arbitrary allocation of a defendant’s
involvement in previous transactions is impermissible.
Nevertheless, we conclude that five kilograms was the appropriate
weight of cocaine to attribute to Williams under application note twelve
of section 2D1.1 because that is the amount of cocaine Williams agreed to
purchase from Roman. U.S. Sentencing Guidelines Manual § 2D1.1,
application note 12 (1995).
The relevant portion of application note twelve provides:
In an offense involving an agreement to sell a controlled
substance, the agreed-upon quantity of the controlled substance
shall be used to determine the offense level unless the sale is
completed and the amount delivered more accurately reflects the
scale of the offense. . . . In contrast, in a reverse sting,
the agreed-upon quantity of the controlled substance would more
accurately reflect the scale of the offense because the amount
actually delivered is controlled by the government, not the by
defendant. If, however, the defendant establishes that he or
she did not intend to provide, or was not reasonably capable of
providing, the agreed-upon quantity of the controlled
substance, the court shall exclude from the offense level
determination the amount of controlled substance that the
defendant establishes that he or she did not intend to provide
or was not reasonably capable of providing.
Id.
The application note plainly states that in a reverse sting the
agreed-upon quantity of cocaine determines the offense level. Because
Williams agreed to purchase five kilograms of cocaine, he
13
should be sentenced based on that amount. On September 22, 1993, Roman and
Williams met in a motel room to discuss the possibility of future cocaine
transactions. During the meeting, Williams assured Roman that he would be
able to sell the cocaine if she could deliver it to Kansas City. Williams
indicated an interest in purchasing one and one-half to two kilograms of
cocaine, but hinted toward future deals where he would purchase larger
amounts. During a September 25 phone call Roman suggested a purchase price
of $18,000 per kilogram which Williams agreed was a very good price.
Williams sent Roman $200 to enable her to transport the cocaine to Kansas
City. Roman called Williams on October 13 to inform him that she had the
cocaine and would be arriving in Kansas City the next day. However, she
asked Williams if she could bring five kilograms rather than the previously
agreed-upon one and one-half to two kilograms. Williams immediately
responded that a five kilogram amount was acceptable. On October 14
Williams met Roman at the motel to complete the transaction. When Roman
displayed the five kilogram packages of cocaine, Williams instantly
embraced her. Williams asked Roman several questions to solidify the terms
of the deal. He asked if the price was still $18,000 per kilogram, if each
package actually weighed a kilogram, and how much compensation Roman
expected for transporting the cocaine. Williams gave Roman clear
directions that he would take one kilogram right away and would return
later that afternoon for the other four packages. Williams instructed
Roman that until he returned, she should guard the other four kilograms
"with [her] life." Williams admitted at trial that he planned on returning
for the remaining four kilograms. Trial Tr. at 453. Based on his own
words and actions, Williams agreed to purchase five kilograms of cocaine.
Therefore, application note twelve requires that he be sentenced based upon
that amount.
14
Williams also contends that the sentencing court erred when it failed
to make specific factual findings of his involvement in previous
transactions as required under Fed. R. Crim. P. 32(c)(1). Because
Williams’s sentence is affirmed based only upon the amount of cocaine
involved in the reverse sting transaction, rather than past relevant
transactions, any error the sentencing court may have made in failing to
make specific factual findings under Rule 32(c)(1) amounted to harmless
error. See United States v. Beatty, 9 F.3d 686, 690 (8th Cir.
1990)(applying harmless error analysis to improper factual findings under
Rule 32).
Williams argues that the last sentence of application note 12 applies
to reverse sting operations and that therefore his sentence should not be
based on five kilograms of cocaine because he did not intend to purchase
nor was he reasonably capable of purchasing that amount. Prior to the 1995
amendment to application note 12, the language of the note did not specify
whether it applied to reverse sting operations.6 This Court, though,
interpreted the previous version of application note twelve as applying to
reverse stings, see Stavig, 80 F.3d at 1246; United States v. Nichols, 986
F.2d 1199, 1204 (8th Cir. 1993), including the portion of the note which
stated that a defendant would not be sentenced based on the full
6
The previous version of note twelve read in relevant part:
In an offense involving negotiation to traffic in a
controlled substance, the weight under negotiation in an
uncompleted distribution shall be used to calculate the
applicable 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.
U.S. Sentencing Guidelines Manual § 2D1.1, application note 12
(1994).
15
amount of controlled substances involved if he "did not intend to produce
and was not reasonably capable of producing" the negotiated amount. U.S.
Sentencing Guidelines Manual § 2D1.1, application note twelve (1994); see
Stavig, 80 F.3d at 1246; Nichols, 986 F.2d at 1204. Although the 1995
amendment to note twelve explicitly clarifies that the agreed-upon quantity
of cocaine controls the weight determination in a reverse sting operation,
the amendment renews speculation as to whether a sentencing court is
required to exclude from consideration "the amount of controlled substance
that the defendant establishes that he or she did not intend to provide or
was not reasonably capable of providing." U.S. Sentencing Guidelines
Manual § 2D1.1, application note 12 (1995).
Currently, only the Court of Appeals for the Second Circuit has ruled
on whether the last sentence of note twelve applies to reverse stings.
United States v. Gomez, 103 F.3d 249 (2d Cir. 1997). The Second Circuit
concluded that the last sentence of note 12 applies only in conventional
sting operations where the defendant is the supplier rather than the buyer
of controlled substances. Id. at 253-54.7 Prior to the amendment of
application
7
The court reasoned that the plain language of the sentence in
question refers only to a situation in which a defendant does not
intend to or is not reasonably capable of producing controlled
substances, as opposed to a situation in which the defendant does
not intend to or is not reasonably capable of producing the funds
necessary to purchase the controlled substances. See Gomez, 103
F.3d at 253. The court noted that "'[w]here a seller neither
intends nor is able to produce the [agreed-upon] quantity of
narcotics, the Guidelines simply recognize that the crime could not
have been committed as planned. Where the defendant is a buyer,
however, and [agrees upon] a particular quantity, he or she fully
intends to commit the crime as planned.'" Id. (quoting United
States v. Alaga, 995 F.2d 380, 383 (2d Cir. 1993), cert. denied,
510 U.S. 1075 (1994)).
16
note twelve, this Court,8 as well as most other circuit courts of appeals,9
required a sentencing judge to reduce a defendant's sentence by the amount
of controlled substances the defendant did not intend to purchase and was
not reasonably capable of purchasing.10
This panel is split on the issue of whether the last sentence of the
1995 version of note twelve applies to reverse stings. We need not decide
the scope of note twelve’s application in this case, leaving that issue to
another day, because even if we applied the last sentence of note twelve
to reverse sting operations, Williams both intended to and was reasonably
capable of purchasing the agreed-upon five kilograms of cocaine. As noted
by the
8
See Stavig, 80 F.3d at 1246; Nichols, 986 F.2d at 1204;
United States v. Brown, 946 F.2d 58, 60 n.3 (8th Cir. 1991); but
see United States v. Robinson, 22 F.3d 195, 196 (8th Cir. 1994)
(stating uncertainty as to note twelve’s application to reverse
sting operations).
9
See United States v. Naranjo, 52 F.3d 245, 250 n.12 (9th Cir.
1995); United States v. Jean, 25 F.3d 588, 598 (7th Cir. 1994);
United States v. Brown, 985 F.2d 766, 768-69 (5th Cir. 1993);
United States v. Gates, 967 F.2d 497, 500 (11th Cir.), cert.
denied, 506 U.S. 1011 (1992); United States v. Panet-Collazo, 960
F.2d 256, 261 (1st Cir.), cert. denied, 506 U.S. 876 (1992); United
States v. Brooks, 957 F.2d 1138, 1150-51 (4th Cir.), cert. denied,
505 U.S. 1228 (1992). But see United States v. Alaga, 995 F.2d at
383.
10
The current version of note twelve requires the court to
exclude from the offense level determination the amount of
controlled substances either that the defendant did not intend to
produce or was not reasonably capable of producing. U.S.
Sentencing Guidelines Manual § 2D1.1, application note 12 (1995).
The previous version of note 12, however, required the court to
exclude the amount from consideration only when the defendant
could show both that he did not intend to produce and was not
reasonably capable of producing the negotiated amount. U.S.
Sentencing Guidelines Manual § 2D1.1, application note 12 (1994).
We modify our analysis to reflect this change.
17
sentencing court, Williams never declined the five kilogram transaction
and, in fact, seemed "jubilant over the prospect." Sentencing Tr. at 87.
Thus, Williams signaled his intent to proceed as planned. We similarly
conclude that Williams was reasonably capable of purchasing the agreed-upon
five kilograms of cocaine. Williams indicated that he would sell the
cocaine to his contacts and then would pay Roman $18,000 per kilogram from
the proceeds of his sales plus an additional $1,500 per kilogram bonus for
Roman's part in the transaction. When Williams met Roman on Thursday,
October 14 he assured her that he would have half of the money by Saturday.
At all times, Williams appeared to be confident that he would have no
problem selling the cocaine and providing payment at an acceptable time.11
We therefore conclude that, if the last sentence of application note twelve
applies to reverse sting defendants, Williams intended to purchase and was
reasonably capable of purchasing five kilograms of cocaine.
2. Sentencing Entrapment
Williams further argues that the sentencing court should have reduced
the weight of cocaine used to calculate his base offense level because the
government engaged in sentencing entrapment.12
11
We note that “fronting” cocaine on a credit basis is an
accepted practice in the drug trade. See Nichols, 986 F.2d at
1205; United States v. O’Meara, 895 F.2d 1216, 1220-21 (8th Cir.),
cert. denied, 498 U.S. 943 (1990).
12
Williams characterizes the government's conduct as
"sentencing manipulation." However, Williams contends that the
government lured him into purchasing a larger quantity of cocaine
than he was predisposed to purchase before his contact with
Roman. This situation accurately describes sentencing
entrapment, see United States v. Shephard, 4 F.3d 647, 649 (8th
Cir. 1993), cert. denied, 510 U.S. 1203 (1994), while sentencing
manipulation more aptly refers to a scenario in which the
government prolongs an investigation merely to increase the
sentence. Id. We therefore approach Williams's argument as one
alleging sentencing entrapment rather than sentencing
manipulation.
18
Sentencing entrapment occurs "'where outrageous government conduct
overcomes the will of a defendant predisposed to deal only in small
quantities of drugs, for the purpose of increasing the amount of drugs and
the resulting sentence imposed against that defendant.'" Stavig, 80 F.3d
at 1245 (quoting United States v. Aikens, 64 F.3d 372, 376 (8th Cir. 1995),
cert. granted and judgment vacated on other grounds, 116 S. Ct. 1346
(1996)). This is simply not a case where the government overcame the
defendant's predisposition to deal in small amounts of cocaine. The
evidence established Williams’s predisposition to deal in five kilogram
quantities of cocaine.
3. Allocution
Finally, Williams asserts that the case should be remanded for
resentencing because the district court failed to provide him with his
right of allocution as required by Fed. R. Crim. P. 32(c)(3)(C). Rule
32(c)(3)(C) requires the district court, before imposing a sentence upon
the defendant, to address the defendant personally and inquire whether the
defendant wishes to make a statement in mitigation of his sentence.
Failure to comply with this rule mandates remand for resentencing. See
United States v. Walker, 896 F.2d 295, 301 (8th Cir. 1990). However, if,
after imposing the sentence, a trial judge realizes the defendant has not
been afforded his right to allocution, the judge may correct the omission
by reopening the sentencing proceeding and subsequently addressing the
defendant pursuant to Rule 32. See United States v. Barnes, 948 F.2d 325,
331 n.5 (7th Cir. 1991)("[A] trial judge, realizing after sentencing that
the right of allocution has been
19
neglected, may rectify the situation by, in effect, setting aside the
sentence, reopening the proceeding, and inviting the defendant to speak.");
United States v. Pelaez, 930 F.2d 520, 523-24 (6th Cir. 1991)(reversing a
sentence because the district court had no intention of reconsidering the
sentence, even though defendant was given an opportunity to address the
court following sentencing); Gordon v. United States, 438 F.2d 858, 882
(5th Cir. 1971)(affirming the district court's sentence where defendant was
given an opportunity to address the court after the court imposed an
initial sentence but before the sentencing proceeding concluded), cert.
denied, 404 U.S. 828 (1971). This case presents a situation where the
sentencing judge realized his failure to call upon the defendant and
remedied the error by subsequently addressing the defendant and allowing
him to speak in mitigation of his sentence. After the sentencing judge
announced Williams's sentence, the following exchange took place:
[WILLIAMS]: Your Honor, may I say something?
THE COURT: Yes.
[WILLIAMS]: I know the sentence has been --
THE COURT: I am sorry. I have made a serious mistake
in not calling on you before sentencing.
[WILLIAMS]: I am sorry.
THE COURT: No, I am glad that you said you want
to say something, because you are entitled
to address me before sentencing.
So, you tell me anything you want to.
I am not going to read this again, but I
will consider whatever you have to say.
20
Sentencing Tr. at 96. After Williams informed the court of many concerns
he had regarding the investigation of the case, the sentencing judge
addressed Williams's attorney:
THE COURT: Mr. Bath, I did misspeak in reading the
sentencing material before calling on Mr.
Williams. I am sentencing him to the
minimum under my findings.
If there is a desire for me to make
some further record of reconsidering and
sentencing, again after hearing from him,
I would do that.
MR. BATH: No, sir, we don't have that request, Your
Honor.
Sentencing Tr. at 101. We conclude that the sentencing judge corrected his
initial failure to provide Williams's right of allocution by subsequently
allowing Williams to address the court and asking Williams's attorney if
he would like him to re-read the sentence after considering Williams's
testimonial. Therefore, Williams was accorded his right of allocution
pursuant to Rule 32(c)(3)(C), and resentencing is not required.
III. CONCLUSION
For the reasons set forth above, we affirm Williams's conviction and
sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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