United States v. Jorge Cortes , 757 F.3d 850 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50137
Plaintiff-Appellee,
D.C. No.
v. 3:10-cr-03617-BEN-1
JORGE CORTES, ORDER AND
Defendant-Appellant. AMENDED OPINION
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted
June 5, 2013—Pasadena, California
Filed October 9, 2013
Amended March 17, 2014
Before: Sidney R. Thomas, Barry G. Silverman,
and Raymond C. Fisher, Circuit Judges.
Order;
Opinion by Judge Silverman
2 UNITED STATES V. CORTES
SUMMARY*
Criminal Law
The panel amended an Opinion filed October 9, 2013,
denied the government’s petition for panel rehearing, and
granted the defendant’s petition for panel rehearing, in a case
in which the defendant was arrested in an undercover reverse
sting operation.
In the amended opinion, the panel reversed the
defendant’s convictions for conspiracy to possess with intent
to distribute 5 kilograms or more of cocaine, conspiracy to
affect commerce by robbery and extortion, and possession of
a firearm in furtherance of a crime of violence and aiding and
abetting, and remanded for a new trial.
The panel held that in instructing the jury on an
entrapment defense, the district court erred in its
characterization of the holding of United States v. Spentz,
635 F.3d 815 (9th Cir. 2011), by eliminating the drugs or any
profit from the sale of those drugs as a potential basis for the
inducement. The panel explained that the district court
should have told the jury that the amount of drugs or the
profit that would be derived from their sale cannot on its own
establish an inducement supporting entrapment.
The panel held that sentencing entrapment must be tried
to a jury where the defendant’s argument and the evidence
raise the possibility of changing the applicable statutory
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. CORTES 3
maximum or minimum sentences. The panel explained that
if the defendant presents such evidence in his new trial, he
will be entitled to a jury instruction on sentencing
entrapment.
The panel suggested instructions for both the entrapment
defense and sentencing entrapment.
The panel rejected the defendant’s argument that Hobbs
Act robbery or extortion is limited to the stealing of lawful
property and excludes contraband such as illegal drugs.
COUNSEL
Gary P. Burcham (argued), Burcham & Zugman, San Diego,
California, for Defendant-Appellant.
Laura E. Duffy, United States Attorney for the Southern
District of California, Bruce R. Castetter, Assistant United
States Attorney, Chief, Appellate Section, Criminal Division,
and Timothy D. Coughlin (argued), Assistant United States
Attorney, San Diego, California, for Plaintiff-Appellee.
4 UNITED STATES V. CORTES
ORDER
The Opinion filed October 9, 2013, appearing at 732 F.3d
1078, is amended as follows:
1. At slip op. 4, 732 F.3d at 1082, in the third sentence
of the first paragraph, change “Accordingly, we reverse the
Count 1 conviction and remand for a retrial” to “Accordingly,
we reverse the convictions and remand for a retrial.”
2. At slip op.4, 732 F.3d at 1082, replace the fifth
sentence of the first paragraph, which begins “We also affirm
the Hobbs Act conviction. . . .” with “We also reject Cortes’s
argument that Hobbs Act robbery or extortion is limited to the
stealing of lawful property and excludes contraband such as
illegal drugs.”
3. At slip op. 15, 732 F.3d at 1087, change
“Accordingly, we REVERSE and REMAND for a retrial on
Count 1.” to “Accordingly, we REVERSE and REMAND for
a retrial.”
4. At slip op. 24, 732 F.3d at 1091, in first paragraph,
replace “We express no judgment as to whether. . . .” with
“We express no opinion on whether . . . .”
5. At slip op. 24–25, 732 F.3d at 1092, in carryover
sentence, replace “. . . .to steal the charged quantity of the
controlled substance, which is at least 5 kilograms.” with
“. . . .to steal the quantity of drugs charged in this case, which
is at least 5 kilograms.”
6. At slip op. 25–26, 732 F.3d at 1092, insert between
header and first paragraph: “Cortes argues that Count Two
UNITED STATES V. CORTES 5
should have been dismissed because, he argues, the Hobbs
Act does not extend to contraband. Although we reverse and
remand for retrial due to the instructional issue discussed
above, we consider Cortes’s Hobbs Act argument that his pre-
trial motion to dismiss this count should have been granted.”
7. At slip op. 28, 732 F.3d at 1093, below “4. Attempted
Impeachment of the Confidential Informant,” replace “We
need not review this evidentiary ruling because we are
remanding for a new trial on Count 1.” with “We need not
review this evidentiary ruling because we are remanding for
a new trial.”
8. At slip op. 28–29, 732 F.3d at 1093, below “5.
Sentencing,” replace “Because we are vacating his conviction
. . .his 20-year sentence is moot at this juncture.” with
“Because we are vacating his conviction and sentence, and
remanding for a retrial, Cortes’s appeal of his sentence is
moot at this juncture.”
9. At slip op. 29, 732 F.3d at 1093, replace “We
REVERSE and REMAND for a new trial on Count 1. The
balance of the judgment is AFFIRMED.” with “ We
REVERSE and REMAND for a new trial.”
With these amendments, Appellee United States Of
America’s petition for panel rehearing (Doc. No. 43) is
DENIED and appellant Jorge Cortes’s petition for panel
rehearing (Doc. No. 44) is GRANTED. No further petitions
for rehearing will be entertained in this case.
IT IS SO ORDERED.
6 UNITED STATES V. CORTES
OPINION
SILVERMAN, Circuit Judge:
Defendant-Appellant Jorge Cortes was arrested in an
undercover reverse sting operation executed by the Bureau of
Alcohol, Tobacco, Firearms and Explosives. ATF agents
fabricated a scheme to steal 100 kilograms of cocaine from a
stash house and arrested the conspirators before the home
invasion occurred. Cortes was ultimately convicted of
conspiracy to possess with intent to distribute 5 kilograms or
more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and
846 (Count 1), conspiracy to affect commerce by robbery and
extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951(a)
(Count 2), and possession of a firearm in furtherance of a
crime of violence and aiding and abetting, in violation of
18 U.S.C. § 924(c)(1)(A)(i) and 18 U.S.C. § 2 (Count 3).
On appeal, Cortes argues that the district court erred in
modifying the entrapment defense instruction to reflect the
holding of United States v. Spentz, 653 F.3d 815, 818–20 (9th
Cir. 2011), cert. denied, 132 S. Ct. 1600 (2012), refusing to
instruct the jury on sentencing entrapment, denying Cortes
the opportunity to impeach the confidential informant’s
credibility, denying a motion to dismiss the Hobbs Act
charge, and sentencing him to an allegedly unreasonable total
of 240 months. We hold today that the district court erred in
its characterization of the Spentz holding. Accordingly, we
reverse the convictions and remand for a retrial. We further
hold that under certain circumstances a sentencing
entrapment instruction must be given to the jury and offer
suggested entrapment and sentencing entrapment instructions
that we believe will provide greater clarity on these
exceedingly subtle points of law. We also reject Cortes’s
UNITED STATES V. CORTES 7
argument that Hobbs Act robbery or extortion is limited to the
stealing of lawful property and excludes contraband such as
illegal drugs. We do not reach the remaining challenges,
which are moot in light of the remand.
I. Background
On August 23, 2010, undercover ATF Special Agent
Richard Zayas met up with a confidential informant who
introduced him to an individual known as “the juvenile” or
alternatively as “Abel.” Zayas told the juvenile that he was
a “disgruntled courier of six to seven kilograms of cocaine for
an organization.” And he informed the juvenile that he would
soon be collecting the drugs from a stash house that contained
approximately 100 kilograms of cocaine and was guarded by
two individuals, one of whom would be armed. Zayas
explained at trial that the drug quantity used in the story was
selected based on the region of operation to enhance the
plausibility of the scheme: “It’s more likely a hundred
kilograms of cocaine wouldn’t be in a stash house in a small
town in Iowa as opposed to San Diego.” According to Zayas,
ATF targeted the juvenile because the confidential informant
led them to believe that the juvenile “was involved with
individuals involved in this type of crime.” The juvenile
informed Zayas that he had an associate with a crew who
could pull off the robbery and had done jobs like this before.
Zayas met that associate, Cortes, the following day,
August 24, 2010. He reiterated the details of the stash house,
including the quantity of drugs inside, underscoring that the
house would only contain drugs, not money. Cortes
announced that the drugs would be split half and half between
Zayas and his group. Zayas told Cortes that he was motivated
8 UNITED STATES V. CORTES
to steal the cocaine, because he believed his boss was not
paying him enough and had been sleeping with his wife.
The next day, Zayas met up with Cortes and other
individuals who had been assembled for the job. There were
ten people present, plus the confidential informant. Cortes
described the plan and introduced Zayas to the other
individuals, so they would know not to hurt him during the
robbery. Cortes instructed Zayas not to speak to the crew
members. Zayas nevertheless informed them that the house
contained 100 kilograms of cocaine, and Cortes scolded him
for speaking to the rest of the crew against his wishes. They
drove to and assembled in a garage, the staging area for the
robbery. Zayas pretended to receive a call from the stash
house, at which point a tactical team created a distraction
using flash-bangs and arrested the entire crew, including
Cortes.
At trial, Cortes testified that he attended the meeting on
August 24, 2010, simply because he wanted to help the
juvenile, and that he was not in desperate need of money. He
testified that he was also motivated to participate because of
Zayas’s story about his wife’s infidelity. Cortes says he was
sympathetic to that tale of woe because the same had
happened to him a few months back. He, however, denied
that any dire financial straits had driven him to participate in
the heist. Additionally, he maintained that he did not have a
crew, had no experience with home invasions, and had
basically lied for the sake of helping his friend, the juvenile.
Cortes filed a motion to dismiss the Hobbs Act count,
arguing that it did not apply to the robbery or extortion of
contraband; the motion was denied. He also filed motions in
limine to secure entrapment and sentencing entrapment
UNITED STATES V. CORTES 9
instructions. The court appears to have concluded that
sentencing entrapment would simply be subsumed within any
entrapment instruction and deferred ruling on whether that
instruction should be given. Ultimately, the court gave the
model entrapment instruction (Ninth Circuit Criminal Jury
Instruction 6.2), which it modified to reflect the then-new
holding of United States v. Spentz, 653 F.3d 815, 818–20 (9th
Cir. 2011). In Spentz, which concerned a similar drug stash
house robbery sting, we said that the defendants could not
merely point to the typical fruits of their crime to establish
governmental inducement: “The drugs and money they would
recover from the robbery were not an alternative, non-
criminal motivation; they were the prototypical criminal
motivation for robbery.” Id. at 819. The instruction in this
case ultimately read as follows:
Now Defendant Jorge Cortes contends that he
was entrapped by a government agent. The
government has the burden of proving beyond
a reasonable doubt that the Defendant Jorge
Cortes was not entrapped. The government
must prove either, one, that the Defendant
Jorge Cortes was predisposed to commit the
crime before being contacted by a government
agency; or two, that Defendant Jorge Cortes
was not induced by the government agents to
commit the crime.
When a person independent of and before
government contact is predisposed to commit
the crime, it is not entrapment, even if
government agents merely provide an
opportunity to commit the crime.
10 UNITED STATES V. CORTES
In determining whether the defendant was
predisposed to commit the crime before being
approached by government agents, you may
consider the following: one, whether the
defendant demonstrated reluctance to commit
the offense; two, the defendant’s character
and reputation; three, whether the government
agents initially suggested the criminal
activity; four, whether the defendant engaged
in the criminal activity for profit; and five, the
nature of the government’s inducement or
persuasion. However, the amount of drugs or
the profit that would be derived from their
sale does not constitute an inducement
supporting entrapment.
In determining whether Defendant Jorge
Cortes was induced by government agents to
commit the offense, you may consider any
government conduct creating a substantial risk
that an otherwise innocent person would
commit an offense, including persuasion,
fraudulent representations, threats, coercive
tactics, harassments, promise of reward or
pleas based on need, sympathy, or friendship.
The italicized sentence above (emphasis added by us) is the
modification derived from Spentz.
The jury returned a guilty verdict on all three counts.
Cortes was sentenced to 180 months for Count 1, a
concurrent term of 60 months for Count 2, and a consecutive
term of 60 months for Count 3, for a total of 240 months.
UNITED STATES V. CORTES 11
Judgment was entered on May 19, 2012, and Cortes timely
appealed.
II. Jurisdiction and Standard of Review
We have jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742. In reviewing jury instructions, “the
standard of review varies based on the nature of the alleged
error.” United States v. Keyser, 704 F.3d 631, 641 (9th Cir.
2012). We review the language and formulation of a jury
instruction for an abuse of discretion. United States v.
Peppers, 697 F.3d 1217, 1220 (9th Cir. 2012), cert. denied,
133 S. Ct. 1477 (2013). However, “[w]hen jury instructions
are challenged as misstatements of law, we review them de
novo.” United States v. Gonzalez-Torres, 309 F.3d 594, 600
(9th Cir. 2002).
“A criminal defendant is entitled to jury instructions
related to a defense theory so long as there is ‘any foundation
in the evidence’” and the instruction is “supported by law.”
United States v. Doe, 705 F.3d 1134, 1144 (9th Cir. 2013)
(quoting United States v. Burt, 410 F.3d 1100, 1103 (9th Cir.
2005)). “When there is a ‘question whether the district
court’s instructions adequately presented the defendant’s
theory of the case,’ the ‘district court’s denial of a proposed
jury instruction’ is reviewed de novo.” United States v.
Mincoff, 574 F.3d 1186, 1192 (9th Cir. 2009) (citation
omitted); see also United States v. Chao Fan Xu, 706 F.3d
965, 988 (9th Cir. 2013) (“Whether the instructions, taken as
a whole, adequately cover the defense theory is a question of
law reviewed de novo.”); United States v. Castagana,
604 F.3d 1160, 1163 n.2 (9th Cir. 2010) (“We review de novo
the denial of a jury instruction based on a question of law.”).
“The denial of a defendant’s jury instruction due to an
12 UNITED STATES V. CORTES
inadequate factual basis is reviewed for an abuse of
discretion.” Chao Fan Xu, 703 F.3d at 988.
“An error in criminal jury instructions requires reversal
unless there is no reasonable possibility that the error
materially affected the verdict or, in other words, that the
error was harmless beyond a reasonable doubt.” United
States v. Pierre, 254 F.3d 872, 877 (9th Cir. 2001) (citation,
quotation marks, and alteration omitted). Where the error is
the wholesale failure to give an instruction, we must reverse
if the evidence supports giving the instruction: “[a] criminal
defendant is entitled to jury instructions related to a defense
theory so long as there is ‘any foundation in the evidence.’”
Doe, 705 F.3d at 1144 (quoting Burt, 410 F.3d at 1103); see
also United States v. Washington, 819 F.2d 221, 225 (9th Cir.
1987) (“[A] defendant is entitled to an instruction concerning
his theory of the case if the theory is legally sound and
evidence in the case makes it applicable, even if the evidence
is weak, insufficient, inconsistent, or of doubtful
credibility.”).
We review the denial of a motion to dismiss an indictment
de novo. United States v. Haynes, 216 F.3d 789, 796 (9th
Cir. 2000).
Finally, while we review the substantive reasonableness
of a sentence for abuse of discretion, United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008) (en banc), we review a
sentence de novo for any claimed Eighth Amendment
violation, United States v. Meiners, 485 F.3d 1211, 1212 (9th
Cir. 2007) (per curiam).
UNITED STATES V. CORTES 13
III. Discussion
1. Entrapment
Cortes first argues that the district court erred by
modifying the Ninth Circuit Pattern Jury Instruction on
entrapment to add the language inspired by Spentz.
“The entrapment defense has two elements: (1) the
defendant was induced to commit the crime by a government
agent, and (2) he was not otherwise predisposed to commit
the crime.” Spentz, 653 F.3d at 818 (citations and quotation
marks omitted). “Inducement can be any government
conduct creating a substantial risk that an otherwise law-
abiding citizen would commit an offense, including
persuasion, fraudulent representations, threats, coercive
tactics, harassment, promises of reward, or pleas based on
need, sympathy or friendship.” United States v. Williams,
547 F.3d 1187, 1197 (9th Cir. 2008) (citation and quotation
marks omitted). “An inducement consists of an opportunity
plus something else—typically, excessive pressure by the
government upon the defendant or the government’s taking
advantage of an alternative, non-criminal type of motive.”
United States v. Poehlman, 217 F.3d 692, 701 (9th Cir. 2000)
(citation and quotation marks omitted).
As to the second requirement, the defense of entrapment
fails “[i]f the defendant is predisposed to commit the crime.”
United States v. Smith, 802 F.2d 1119, 1124 (9th Cir. 1986).
We have identified five factors to determine whether a
defendant was predisposed:
[T]he character or reputation of the defendant,
including any prior criminal record; whether
14 UNITED STATES V. CORTES
the suggestion of the criminal activity was
initially made by the Government; whether
the defendant was engaged in the criminal
activity for profit; whether the defendant
evidenced reluctance to commit the offense,
overcome only by repeated Government
inducement or persuasion; and the nature of
the inducement or persuasion supplied by the
Government.
United States v. Busby, 780 F.2d 804, 807 (9th Cir. 1986)
(citation omitted). “Although none of these factors is
controlling, the defendant’s reluctance to engage in criminal
activity is the most important.” Id.
Here, the court granted Cortes’s request to instruct the
jury on the entrapment defense. However, the court modified
the model Ninth Circuit instruction to eliminate the drugs or
any profit from the sale of those drugs as a potential basis for
the inducement. In 2011, we said in Spentz that defendants
could not rely on the “potentially large reward” as
governmental inducement to commit a robbery, because that
was “the product of the crime they agreed to commit.”
653 F.3d at 819. “The drugs and money they would recover
from the robbery were not an alternative, non-criminal
motivation; they were the prototypical criminal motivation
for robbery.” Id. To comply with Spentz, the district court
instructed the jury that “the amount of drugs or the profit that
would be derived from their sale does not constitute an
inducement supporting entrapment.”
Cortes argues Spentz contradicts our prior cases that did
allow an entrapment instruction to go to the jury even when
UNITED STATES V. CORTES 15
the purported inducement to commit the crime was a
pecuniary reward. In United States v. Kessee, 992 F.2d 1001
(9th Cir. 1993), we held that the district court should have
given an entrapment instruction where the defendant faced
“repeated suggestions” by the undercover informant to sell
drugs and only caved after he “lost both his jobs, and did not
know where he would get the money for rent and food for his
family.” Id. at 1003–04. Kessee concerns what is minimally
necessary to require giving an entrapment instruction to the
jury, while Spentz concerns what the jury may not find
constitutes entrapment. They are distinguishable. In Spentz,
“the only evidence of inducement that defendants offer[ed]
[was] the size of the potential pay-out from the robbery,” i.e.
the typical fruits of a robbery, without any additional
motivation or evidence of inducement. 653 F.3d at 820. In
Kessee, the defendant presented such additional evidence,
including repeated government entreaties to sell drugs and the
defendant’s dire financial straits. 992 F.2d at 1003–04.
In United States v. Sotelo-Murillo, 887 F.2d 176 (9th Cir.
1989), where we reversed the district court and required an
entrapment instruction be given, the defendant, a prospective
cocaine buyer, offered to negotiate the sale of heroin to
undercover DEA informants. Id. at 177–78. He arranged the
delivery of heroin to undercover DEA agents and was
arrested and convicted for distribution. Id. At trial, the
defendant argued the DEA’s undercover informant, Correa,
entrapped him, and he was induced to commit the crime in an
attempt to recoup money he had previously loaned Correa.
Id. at 178. According to Sotelo, Correa had strung him along,
promising him that he was working a variety of jobs in order
to pay him back. Id. The government’s informant engaged
16 UNITED STATES V. CORTES
in repeated entreaties, id. at 180–81, and, according to the
defendant, finally overcame his resistance:
Sotelo also contends that Correa later
approached him with the story that he had
some friends who were big Colombian sellers.
Correa allegedly asked Sotelo to pose as a
purchaser of drugs. Sotelo testified that he
initially refused, but ultimately relented when
informed that it was the only way to get his
money back.
Id. at 178. Sotelo claimed that Correa wanted to stage a fake
drug transaction so he could pocket a $25,000 advance
commission and use that to repay him. Id. at 180. Granted,
the alleged motivation was to profit from the drug
transaction, but other factors distinguish this from Spentz,
including: (1) repeated pressure by a government agent or
informant that overcame alleged resistance; (2) a series of
proposals made by the informant; and (3) a non-criminal
motivation of reimbursement, such that the typical criminal
motivation (obtaining the drugs) was not the sole basis for the
claimed impermissible inducement. We concluded that the
jury could have reasonably found the government had
“tak[en] advantage of an alternative, non-criminal type of
motive.” Poehlman, 217 F.3d at 701 (citation and quotation
marks omitted). In this way, Spentz can be reconciled with
prior precedent.
Where does this leave us? A defendant arguing
entrapment must put forward evidence of inducement that is
above and beyond ordinary criminal motivation. An
entrapment instruction may remind the jury that it cannot rest
a finding of inducement solely on the hope of reaping the
UNITED STATES V. CORTES 17
typical fruits of the crime. That is the teaching of Spentz.
However, evidence of inducement can include government
pressure or persuasion in whatever form it takes. This is our
longstanding entrapment law. See Williams, 547 F.3d at
1197; Busby, 780 F.2d at 807.
We do not envy the district court’s task here. Our
decisions in this area have not been a model of clarity. In
principle, a Spentz instruction was proper, but the actual
phrasing erred in stating the holding. Again, the district court
instructed the jury that “the amount of drugs or the profit that
would be derived from their sale does not constitute an
inducement supporting entrapment.” This language slightly
overstated Spentz’s holding. Instead, the court should have
told the jury that the amount of drugs or the profit that would
be derived from their sale cannot on its own establish an
inducement supporting entrapment. We believe the
instruction can be further clarified and offer the following
guidance on how to communicate this exceedingly subtle
point of law to the jury. We suggest supplementing the
model entrapment instruction roughly along the following
lines:
It is not entrapment if a person is tempted into
committing a crime solely on the hope of
obtaining ill-gotten gain; that is often the
motive to commit a crime. However, in
deciding whether a law enforcement officer
induced the defendant to commit the crime,
the jury may consider all of the factors that
shed light on how the officers supposedly
18 UNITED STATES V. CORTES
persuaded or pressured the defendant to
commit the crime.1
Accordingly, we REVERSE and REMAND for a retrial.
2. Sentencing Entrapment
Cortes next argues that the district court erred in refusing
to instruct the jury on sentencing entrapment, which is a
separate affirmative defense to the quantity element of the
drug charge under 21 U.S.C. § 841. “Sentencing entrapment
occurs where ‘a defendant, although predisposed to commit
a minor or lesser offense, is entrapped in committing a greater
offense subject to greater punishment.’” United States v.
Briggs, 623 F.3d 724, 729 (9th Cir. 2010) (quoting United
States v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994)). “[I]t
is impermissible for the government to ‘structure sting
operations in such a way as to maximize the sentences
imposed on defendants’ without regard for the defendant’s
culpability or ability to commit the crime on his own.”
United States v. Schafer, 625 F.3d 629, 640 (9th Cir. 2010)
(quoting Staufer, 38 F.3d at 1107). “[A]ctive government
involvement” or undue government pressure is required to
1
As this suggested instruction makes clear, we do not believe that
Spentz excludes from consideration the proceeds of a crime. Cortes,
however, appears to argue that the district court’s Spentz-modified
entrapment instruction violated the Due Process Clause. We review this
vague contention for plain error because it was raised for the first time on
appeal. United States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008).
We will affirm unless “(1) there has been an error in the proceedings
below; (2) that error was plain; (3) it affected substantial rights; and (4) it
seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” Id. There was no plain due process error. United States v.
Olano, 507 U.S. 725, 734 (1993).
UNITED STATES V. CORTES 19
establish this defense. Id. “In those cases where sentencing
entrapment occurs, the amount of drugs used in calculating
the defendant’s sentence should be reduced by the amount
that ‘flow[s] from [the] entrapment.’” Briggs, 623 F.3d at
729 (quoting United States v. Naranjo, 52 F.3d 245, 250 (9th
Cir. 1995)).
We have never held that sentencing entrapment is a jury
question, but the Supreme Court’s precedent and our own
make clear that it must be. See United States v. Williams,
478 F. App’x 364, 366 (9th Cir. 2012) (Silverman, J.,
dissenting). “[W]e have held that drug types and quantities
triggering higher statutory maximum sentences under
21 U.S.C. § 841(b) are jury questions under Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000).” Id. (citing United States v. Buckland, 289 F.3d 558,
568 (9th Cir. 2002) (en banc)). It therefore stands to reason
that any defenses to those drug types and quantities must be
submitted to the jury as well, when the proffered defense has
the potential to change the statutory maximum or minimum
sentences.
The origins of sentencing entrapment lie in cases that pre-
date Apprendi, and that explains why it was typically
addressed during sentencing. In Staufer, we wrote that
“[s]entencing entrapment or ‘sentence factor manipulation’
occurs when ‘a defendant, although predisposed to commit a
minor or lesser offense, is entrapped in committing a greater
offense subject to greater punishment.’” 38 F.3d at 1106
(quoting United States v. Stuart, 923 F.2d 607, 614 (8th Cir.
1991)). Following Apprendi, however, “sentencing
entrapment” is a bit of a misnomer, since the drug quantity is
an element of the offense, not a sentencing enhancement or
factor. A jury must decide whether the defendant would have
20 UNITED STATES V. CORTES
sold, bought, or robbed that quantity but for the government
manipulation or pressure.2
The Sentencing Guidelines contain guidance for the judge
on “sentencing entrapment” but these instructions come into
play only insofar as the Guidelines calculations are
concerned, not as to substantive statutory elements that must
be tried to a jury or in a bench trial. In drug offense cases
under 21 U.S.C. § 841, the drug quantity is an element of the
offense that must be tried to the jury, but if the jury rejects the
sentencing entrapment defense, the now-advisory Guidelines
will nevertheless allow the court in its discretion to factor in
governmental manipulation in its calculation of the applicable
sentencing range. Application Note 12 to United States
Sentencing Guidelines Manual (2011) § 2D1.1 addresses
governmental manipulation of the quantity of drugs involved
in a reverse sting operation in which the defendant is either
the seller or buyer:
If . . . the defendant establishes that the
defendant did not intend to provide or
purchase, or was not reasonably capable of
providing or purchasing, 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
2
The government argues that United States v. Carranza, 289 F.3d 634
(9th Cir. 2002), stands for the proposition that sentencing entrapment is
not an affirmative defense that must be submitted to the jury, but that case
is wholly inapposite. Carranza merely held that the prosecution does not
have to prove that the defendant knew of the type and quantity of the
controlled substance and noted that Apprendi did not change that
longstanding rule. Id. at 643–44.
 UNITED STATES V. CORTES 21
the defendant did not intend to provide or
purchase or was not reasonably capable of
providing or purchasing.
Along similar lines, Application Note 14 to United States
Sentencing Guidelines Manual (2011) § 2D1.1 addresses
governmental manipulation of the price of the drugs involved
in a reverse sting operation in which the defendant is the
buyer:
If, in a reverse sting (an operation in which a
government agent sells or negotiates to sell a
controlled substance to a defendant), the court
finds that the government agent set a price for
the controlled substance that was substantially
below the market value of the controlled
substance, thereby leading to the defendant’s
purchase of a significantly greater quantity of
the controlled substance than his available
resources would have allowed him to
purchase except for the artificially low price
set by the government agent, a downward
departure may be warranted.
In this case, Cortes proposed the following sentencing
entrapment instructions that tracked Application Notes 12 and
14:
If the government fails to prove beyond a
reasonable doubt that Mr. Cortes was
reasonably capable of purchasing 5 or more
kilograms of cocaine, then you cannot return
a finding that the applicable quantity of
cocaine . . . was 5 or more kilograms.
22 UNITED STATES V. CORTES
If you find that the government agents set a
price for the controlled substance that was
substantially below the market value of the
controlled substance, thereby leading to Mr.
Cortes’ agreement to acquire 5 or more
kilograms of cocaine when his available
resources would not have allowed him to
purchase 5 or more kilograms of cocaine
except for the artificially low price set by the
government agents, then you cannot return a
finding that the applicable quantity of cocaine
. . . was 5 or more kilograms.
However, these proposed instructions were clearly inapposite:
Cortes was not accused of purchasing drugs but of conspiring
to steal drugs.
The court denied Cortes’s request for a sentencing
entrapment instruction. Confronted with the novel
application of this defense in the context of a fictitious drug
stash house reverse sting, the court did not yet have the
benefit of United States v. Yuman-Hernandez, 712 F.3d 471
(9th Cir. 2013), which was decided over a year after Cortes’s
trial. While the run-of-the-mill drug sting ensnares a
defendant who is selling or buying, in Yuman-Hernandez we
noted that sentencing entrapment is cognizable in a reverse
sting operation involving a drug stash house robbery. Id. at
474–75. Yuman-Hernandez did not address whether
Apprendi requires sentencing entrapment be given to the jury,
but we wrote that sentencing entrapment in this context forces
the factfinder to ask whether the defendant had “the
capability to steal a particular quantity of drugs,” an
admittedly “amorphous concept.” Id. at 474. Writing for the
panel, Judge Goodwin explained as follows:
UNITED STATES V. CORTES 23
Theoretically, nearly any person is capable of
theft. And once a thief gains access to the
drugs, he or she is just as capable of carrying
off one kilogram as ten. Thus, the quantity of
drugs has little relation to capability; in
general, the only meaningfully measurable
capability is typically the capability to
perform the robbery. But the capability to
commit the robbery has little relevance to
determining a defendant’s predisposition to
deal in a given quantity of drugs. In the
context of theft, the chosen quantity of drugs
is divorced from capability, allowing the
government to effectively offer an inordinate
amount for free. In essence, the government
can easily manipulate the capability element
in cases of fictitious robbery.
As a result, it makes little sense to require that
a defendant establish both a lack of intent and
lack of capability in the context of a fictitious
stash house robbery. . . . Thus, in the case of
fictitious stash house robberies, the defendant
need only show a lack of intent or lack of
capability to deal in the quantity of drugs
charged.
Id. at 474–75 (footnote omitted). Not only does sentencing
entrapment provide a defendant with a partial defense when
the complete defense of entrapment fails, but the test is
satisfied in the fictitious stash house context with either a lack
of capability or a lack of intent. In the wake of Yuman-
Hernandez, we now know that when sentencing entrapment
is raised in this context, a proper instruction will ask the jury
24 UNITED STATES V. CORTES
to decide whether the defendant had the capability and the
intent to deal in that fabricated quantity of drugs.3
A criminal defendant is entitled to present his sentencing
entrapment defense to the jury if the success of that defense
would result in a lower statutory sentencing range. That is,
if there is some foundation in the evidence that he would be
subject to a lesser statutory minimum or maximum sentence
if his sentencing entrapment defense were to succeed, then he
is entitled to a jury instruction on that defense. The statutory
range for the charged offense in this case, conspiracy to
possess with intent to distribute 5 kilograms or more of
cocaine, is 10 years to life imprisonment. 21 U.S.C.
§ 841(b)(1)(A). The middle quantity range, from 500 grams
to just shy of 5 kilograms of cocaine, exposes a defendant to
a mandatory minimum of 5 years and a statutory maximum
of 40 years. Id. § 841(b)(1)(B). Finally, an unspecified
amount of cocaine bears no mandatory minimum and exposes
a defendant to a 20-year statutory maximum. Id.
§ 841(b)(1)(C).
Cortes was convicted of 21 U.S.C. § 841(b)(1)(A) and
therefore faced a 10-year mandatory minimum and a statutory
maximum of life. Had the jury considered Cortes’s
sentencing entrapment defense and found that he was
entrapped as to the amount, the maximum sentence could
have dropped to 40 years or 20 years, depending on the jury’s
finding, and crucially the mandatory minimum could have
3
We note that a market-value sentencing entrapment instruction based
on Application Note 14 above likely would not make much sense here
since this was not a drug transaction but a conspiracy to take the drugs by
force. There is no evidence that Zayas or anyone else informed Cortes of
the price or value of the cocaine.
UNITED STATES V. CORTES 25
dropped to 5 years or none whatsoever. Cortes was
ultimately sentenced to 180 months or 15 years, less than the
20-year statutory maximum for an unspecified amount of
cocaine. However, the refusal to instruct on sentencing
entrapment may have been prejudicial had the jury agreed he
was entrapped as to the quantity, because the court might
have had to apply a lower mandatory minimum or none at all,
depending on the quantity the jury found to have been
improperly inflated. On June 17, 2013, in Alleyne v. United
States, 133 S. Ct. 2151 (2013), the Supreme Court overruled
Harris v. United States, 536 U.S. 545 (2002), which declined
to extend Apprendi to mandatory minimum sentences. The
Court stated:
Apprendi’s definition of “elements”
necessarily includes not only facts that
increase the ceiling, but also those that
increase the floor. Both kinds of facts alter the
prescribed range of sentences to which a
defendant is exposed and do so in a manner
that aggravates the punishment. 530 U.S., at
483, n. 10; Harris, supra, at 579 (Thomas, J.,
dissenting). Facts that increase the mandatory
minimum sentence are therefore elements and
must be submitted to the jury and found
beyond a reasonable doubt.
Alleyne, 133 S. Ct. at 2158. Accordingly, we hold that
sentencing entrapment must be tried to a jury where the
defendant’s argument and the evidence raise the possibility of
changing the applicable statutory maximum or minimum
sentences.
26 UNITED STATES V. CORTES
The record demonstrates that Cortes introduced evidence
supporting a sentencing entrapment defense under the
standard for reverse stings involving a drug stash house
robbery scheme. Under Yuman-Hernandez, he need only
establish either “a lack of intent or lack of capability to deal
in the quantity of drugs charged.” 712 F.3d at 475.
Additionally, under Briggs, the sentencing entrapment
defense can also succeed if he shows the government
“inflate[d] the amount of drugs supposedly in the house” in
order to “obtain a greater sentence for the defendant.”
623 F.3d at 729. At trial, Agent Zayas testified that the 100
kilogram amount was selected to make the set-up believable
for the geographic area in which the reverse sting was to
occur, not to ratchet up the defendants’ sentencing exposure.
The factfinder could discredit that testimony and conclude
that the drug quantity was set at an “arbitrarily high level” in
order to maximize punishment.
However, the sentencing entrapment defense needs to be
presented to the jury only if that reduction would affect
Cortes’s mandatory minimum or statutory maximum
sentence. See Alleyne, 133 S. Ct. at 2155; Apprendi, 530 U.S.
at 489. Therefore, there must be evidence from which the jury
could find that Cortes lacked the intent or capability to deal
even in 5 kilograms – the amount charged in the indictment
– or that the government inflated the amount of drugs to 100
kilograms to trigger the statutory minimum or maximum. See
21 U.S.C. § 841(b)(1)(A)(ii). If Cortes presents such
evidence in his new trial, he will be entitled to a jury
instruction on sentencing entrapment.4 We express no
4
If no such evidence is presented, Cortes’s sentencing entrapment
defense will be cognizable only during sentencing. Notably, Cortes did
argue below that his Sentencing Guidelines range should be reduced based
UNITED STATES V. CORTES 27
opinion on whether Cortes’s defense will prevail on these
grounds, only that he may be entitled to the jury instruction.
Because the court may have to give a sentencing
entrapment instruction next time around, separate from the
entrapment instruction, we offer the following as a suggested
instruction for this particular drug stash house robbery
context:
Defendant Jorge Cortes also argues that he
was specifically entrapped as to the quantity
of the drugs involved in the staged robbery.
This is a separate and distinct defense from
the entrapment defense I have just described
to you and you must reach this question if you
reject Defendant Cortes’s entrapment defense.
You must decide whether Defendant Cortes
had both the intent and the capability to steal
the quantity of drugs charged in this case,
which is at least 5 kilograms. You must also
decide whether the government inflated the
quantity of drugs to make Cortes’s
punishment more severe. Finally, if you find
that Defendant Cortes was specifically
entrapped as to the quantity of drugs involved,
you must decide what quantity was not a
result of that entrapment.
on sentencing entrapment by the government. Although the district court
credited Agent Zayas’s explanation for why selecting 100 kilograms was
appropriate, it also observed that “for purposes of sentencing, it seems to
me like it’s a little high.” The district court therefore gave Cortes a variant
sentence, although it did not recalculate his Guidelines based on a reduced
drug quantity.
28 UNITED STATES V. CORTES
You will be asked to answer the following
questions:
(1) Did Defendant Cortes lack the intent to
steal that quantity of the controlled substance?
If yes, what quantity did he have the intent to
steal?
(2) Did Defendant Cortes lack the capability
to steal that quantity of the controlled
substance? If yes, what quantity did he have
the capability to steal?
(3) Did the government’s agents inflate the
quantity of drugs in the scheme to make
Defendant Cortes’s punishment more severe?
If yes, what quantity was not inflated?
If the jury answers any of those three questions in the
affirmative, the district court shall sentence the defendant
under the appropriate statutory provision for the quantity the
jury found did not stem from sentencing entrapment.
3. Hobbs Act
Cortes argues that Count Two should have been dismissed
because, he argues, the Hobbs Act does not extend to
contraband. Although we reverse and remand for retrial due
to the instructional issue discussed above, we consider
Cortes’s Hobbs Act argument that his pre-trial motion to
dismiss this count should have been granted.
We reject Cortes’s argument that Hobbs Act robbery or
extortion is limited to the stealing of lawful property and
UNITED STATES V. CORTES 29
excludes contraband such as illegal drugs. Nothing in
18 U.S.C. § 1951(a) so limits the scope of this statute; nor
does anything in the definitions of “robbery,” id.
§ 1951(b)(1), or “extortion,” id. § 1951(b)(2). The Supreme
Court has stated Congress intended the Hobbs Act to be
broadly construed. See United States v. Culbert, 435 U.S.
371, 380 (1978) (“Our examination of the statutory language
and the legislative history of the Hobbs Act impels us to the
conclusion that Congress intended to make criminal all
conduct within the reach of the statutory language.”); see also
United States v. Lynch, 437 F.3d 902, 908 (9th Cir. 2006) (en
banc) (noting “the very broad scope of the Hobbs Act”). It
covers illegal activities that “in any way or degree” affect
“any article or commodity” that travels in commerce.
18 U.S.C. § 1951(a). We agree with the Second Circuit,
which in United States v. Gotti, 459 F.3d 296 (2d Cir. 2006),
deemed “untenable” the proposition that “one can never
‘extort,’ under the Hobbs Act, illegal property (such as
narcotics) because such property cannot be legally used, sold,
or transferred.” Id. at 325–26. And a number of cases have
already established that interference with illegal interstate
commerce fulfills the interstate nexus requirement of the
Hobbs Act. Lynch, 367 F.3d at 1156–57 (citing additional
cases).
Congress modeled the Hobbs Act after the New York
Penal Code and the Field Code, a 19th Century model penal
code. Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393,
403 (2003). Contrary to Cortes’s argument, New York law
recognized that robbery included the taking of contraband and
McCord v. People, 46 N.Y. 470 (1871) (per curiam), does not
stand for a contrary proposition. In McCord, a police
detective was convicted of obtaining money under false
pretenses after falsely telling a man that he had a warrant for
30 UNITED STATES V. CORTES
his arrest, which prompted the man to give him a gold watch
and diamond ring. Id. at 471. The court reversed the
conviction, reasoning that the law was not meant “to protect
those who, for unworthy or illegal purposes, part with their
goods.” Id. at 472–73 (citation omitted).
But this rule applied only to larceny by false pretenses,
not to robbery. New York’s highest court later recognized
that “the rule as to larceny by false pretense and by trick or
device” announced in McCord differed from “the
common-law rule that stealing property from a thief is the
same as stealing from the true owner.” People v. Tompkins,
79 N.E. 326, 327 (N.Y. 1906) (citation omitted). Indeed, in
defining “personal property” under the larceny statutes, the
Field Code cited to, inter alia, Commonwealth v. Rourke,
64 Mass. 397 (1852), which held that money acquired by the
illegal sale of liquor may be the subject of larceny.
4 Commissioners of the Code, Proposed Penal Code of the
State of New York § 584 (1865) (reprint 1998).
Other state laws were in accord. Though the California
Supreme Court once held that the robbery of liquor during
Prohibition was not punishable, People v. Spencer, 201 P.
130, 131 (Cal. 1921), that decision was overruled less than
nine years later, People v. Odenwald, 285 P. 406, 407 (Cal.
Ct. App.), cert. denied, 286 P. 161 (Cal. 1930), and well
before the Hobbs Act was enacted in 1946. The California
Supreme Court recognized that California had been “the only
jurisdiction” to adhere to the rule that robbery of contraband
was not subject to penal sanction, and since Spencer’s
overruling, “the rule is universal that by prohibiting
possession of an item, the government does not license
criminals to take it by force or stealth from other criminals.”
People v. Dillon, 668 P.2d 697, 704 n.5 (Cal. 1983)
UNITED STATES V. CORTES 31
(concerning robbery of marijuana); People v. Otis, 139 N.E.
562, 562 (N.Y. 1923) (rejecting the position that the theft of
contraband cannot constitute larceny).
Moreover, Congress’s enactment of a statute, 18 U.S.C.
§ 2118, prohibiting the robbery of controlled substances does
not, as Cortes argues, reflect “Congress’ intent to protect only
individuals who lawfully possess controlled substances.” The
legislative history indicates § 2118 was enacted, at least in
part, to address concerns that the Department of Justice was
not prosecuting robberies of pharmacists under the Hobbs
Act. H. Rep. No. 98-644, at 2-4 (1984). Nothing about its
passage suggests Congress intended to shield people who
robbed illegal narcotics dealers from punishment under the
Hobbs Act.
Accordingly, we hold that the Hobbs Act criminalizes
robbery and extortion even when the property at issue is
contraband.
4. Attempted Impeachment of the Confidential
Informant
We need not review this evidentiary ruling because we
are remanding for a new trial.
5. Sentencing
Finally, Cortes claims his 20-year combined sentence is
substantively unreasonable and violates the Eighth
Amendment. Because we are vacating his conviction and
sentence, and remanding for a retrial, Cortes’s appeal of his
sentence is moot at this juncture.
32 UNITED STATES V. CORTES
IV. Conclusion
We REVERSE and REMAND for a new trial.