United States v. Diaz-Maldonado

United States Court of Appeals
For the First Circuit
No. 12-1513
UNITED STATES,
Appellee,
v.
CHRISTIAN DÍAZ-MALDONADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colon, U.S. District Judge]
Before
Howard, Lipez, and Kayatta,
Circuit Judges.
Raymond J. Rigat for appellant.
Jacqueline D. Novas-Debien, Assistant United States Attorney,
with whom Juan Carlos Reyes-Ramos, Assistant United States
Attorney, Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United
States Attorney, were on brief, for appellee.
August 19, 2013
KAYATTA, Circuit Judge. A jury convicted Christian Díaz-
Maldonado ("Díaz"), a Commonwealth corrections officer, on drug and
weapons charges after he provided security for a 2009 drug
transaction staged by the Federal Bureau of Investigation as part
of a sting operation. Díaz now appeals, primarily arguing that the
district court improperly prevented him from presenting an
entrapment defense, but also challenging the sentence imposed.
Finding no errors, we affirm, subject to a limited remand so that
the district court may correct a reference in the written judgment
that is in error, albeit without causing any prejudice to Díaz.
I. Background
The operation that ultimately ensnared Díaz began in
2008. Organized by the FBI and code named "Guard Shack," it sought
to capture corrupt law enforcement officers as they engaged in
illegal activity. Confidential informants ("CIs") working for the
FBI offered targeted officers money to participate in drug
transactions staged and secretly recorded by the FBI.
Díaz became a target of Guard Shack following an
encounter with Héctor Cotto Rivera ("Cotto"), a former police
officer who had become a paid CI when the FBI arrested him on
bribery charges. The two met in 2009 while Díaz was recreating on
Culebra, a small island off the east coast of Puerto Rico. Cotto
witnessed Díaz using drugs and apparently determined that Díaz
would be worth pursuing. Cotto "revealed" to Díaz that he was
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involved in drug transactions and exchanged telephone numbers with
him.
Following this first meeting, Cotto and Díaz spoke
several times, both in person and on the telephone. According to
Cotto, the two discussed on multiple occasions the possibility of
Díaz providing security for a drug transaction. Whether Cotto
undertook this recruitment at the FBI's explicit request or as part
of his general efforts to identify targets for Guard Shack is
unclear, but by early September 2009, agents had decided to pursue
Díaz.
On September 9, 2009, Cotto telephoned Díaz and offered
him $2,000 for "an hour or two hours" of work "provid[ing]
security" for "a street deal." Díaz said that he would not be able
to attend due to a conflict with his regular work schedule, but
when Cotto conveyed that he had some flexibility on the timing,
Díaz agreed to call back the next day to confirm his availability.
Unbeknownst to Díaz, Cotto recorded the entire conversation, using
equipment provided by the FBI.
The following day, September 10, Díaz called Cotto and
said that he would be leaving work early and was able to
participate. He agreed to meet Cotto at 6 p.m. in a garage at the
Plaza Las Américas. Cotto was unable to record the conversation
because he was with others when Díaz called.
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At the agreed-upon time, Díaz and another man targeted in
the investigation, David González Pérez ("González"), met Cotto at
the garage. González –- a former police colleague of Cotto's
ultimately sentenced to 292 months' imprisonment on charges
stemming from Guard Shack -- arrived first, followed soon after by
Díaz. As Cotto later testified, "once [they] were in my car I
introduced them to each other . . . . I explained to them in more
detail that this was a drug transaction, that there was going to be
some kilograms of cocaine, I gave them details that the owner of
the drugs was going to be in the apartment and that they had to
take care . . . of the security, the safety of the owner and of
[me]. Both were armed and they also [each had] a bullet proof
vest."1 Although the FBI had equipped Cotto's cigarette lighter
with a disguised audio-video recorder to capture this conversation,
González apparently was suspicious of the device and disabled it
when he got in the car.
While outlining Díaz and González's duties, Cotto made
the fifteen- to twenty-minute drive to the FBI-controlled apartment
in Isla Verde where the staged transaction was to occur. Upon
arrival, Cotto took Díaz and González up to the apartment, which
the FBI was surveilling from an adjacent unit, and introduced them
to his purported boss, "Eddie." Although he claimed to be a New
1
Díaz apparently brought a vest emblazoned with "Department of
Corrections," and Cotto lent him another. Díaz evidently did not
wear his vest.
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York-based drug trafficker, "Eddie" was in fact Elvin Quinones, an
undercover special agent from the FBI's New York office.
When the supposed buyer arrived, Díaz and González
searched him. Díaz took the buyer's cellphone so that the buyer
could not use it to record the transaction. Díaz gestured to
González that he should lift the buyer's shirt to confirm that the
buyer did not have a concealed weapon or recording device. Once
satisfied that the buyer was unarmed and unwired, Díaz and González
allowed him to enter the living room where the transaction was to
occur.
Quinones then retrieved a suitcase from another room and
placed it in front of the buyer, who opened it and removed two
one-kilogram "bricks" of cocaine. (The bricks were actually high-
quality fakes.) The supposed buyer took the fake cocaine and left
the apartment, escorted to the door by Díaz and González. After
waiting ten minutes for the buyer to leave the area, Quinones
removed from a tissue box $6,000, $2,000 each for Cotto, Díaz, and
González.
After the transaction, Díaz called Cotto and they had
conversations that left Cotto with "no doubt whatsoever that [Díaz]
wanted to return to the apartment." The FBI was only interested in
involving Díaz with another transaction, however, if he could bring
additional corrupt law enforcement officers with him. Díaz
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provided the names of two or three persons, but the FBI did not
invite him to return.
Just over a year after the staged drug transaction, a
grand jury indicted Díaz, González, and fifteen other defendants on
drug and weapons charges. Díaz faced three charges: (i) conspiracy
to possess with intent to distribute cocaine, 21 U.S.C.
§§ 841(a)(1), 846; (ii) aiding and abetting an attempt to possess
with intent to distribute cocaine, id. § 841(a)(1), 18 U.S.C. § 2;
and (iii) possession of a firearm in relation to a drug trafficking
crime, id. § 924(c)(1)(A). Following a five-day trial, a jury
found Díaz guilty on the aiding-and-abetting and firearm-possession
counts, but acquitted him on the conspiracy count. On March 30,
2012, the district court sentenced Díaz to 123 months' imprisonment
-- three months above the 120-month statutory mandatory minimum,
but at the bottom of his guidelines range of 123-138 months. Díaz
then filed a timely notice of appeal.
II. Analysis
A. The entrapment defense
At the beginning of the trial, the government moved in
limine to preclude Díaz from raising an entrapment defense in his
opening statement. The government argued that Díaz lacked
sufficient evidence to raise such a defense. After briefing and
examination of an evidentiary proffer from Díaz's trial counsel,
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the district court granted the government's motion, explaining as
follows:
I don't find that the defense met the burden of
establishing that there is hard evidence to rely on for
the defense of entrapment. . . . Of course if something
develop[s] during trial from which you can later on
present such a request for a jury instruction, that is a
totally separate issue.
In the trial that followed, the only evidence proffered relevant to
the potential defense was the testimony of Cotto, described both
above and in further detail below. At the conclusion of the trial,
the district court adhered to its initial determination that there
was insufficient evidence to support a finding of entrapment by the
jury. The district court therefore rejected Díaz's request that it
instruct the jury on entrapment.
Díaz preserved his objections to both of these rulings
and now presses them on appeal. As a practical matter, the two
issues present only a single question: Did Díaz manage to proffer
at least enough admissible evidence to allow a reasonable jury to
find in his favor? If so, then Díaz was entitled to a jury
instruction on the entrapment defense, Matthews v. United States,
485 U.S. 58, 63 (1988), and the failure to give such an instruction
would require that we vacate the conviction. United States v.
Gamache, 156 F.3d 1, 12 (1st Cir. 1998); United States v.
Rodriquez, 858 F.2d 809, 815-16 (1st Cir. 1988).2 If not, i.e., if
2
Customarily, in deciding whether the failure to give a
requested instruction constitutes reversible error we also ask if
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Díaz did not manage to present evidence minimally sufficient to
support a jury finding in his favor, then it would necessarily
follow both that the refusal to give the requested instruction was
correct, and that the order precluding Díaz's counsel from
mentioning the defense in his opening statement was harmless error
at worst. Cf. United States v. Hershenow, 680 F.2d 847, 857-59
(1st Cir. 1982)(refusal to allow a defendant to make an opening
statement was error, but did not prejudice defendant or warrant
reversal); United States v. Teleguz, 492 F.3d 80, 86 (1st Cir.
2007)(no abuse of discretion in barring defendant's closing
argument on entrapment where court correctly ruled that an
entrapment instruction was not warranted).
We therefore turn our attention to this single
controlling question: Was the proffered, admissible evidence
sufficient to raise a jury issue of entrapment? In answering this
question, we review the district court's decision de novo. See
Rodriguez, 858 F.2d at 812; see also United States v.
the instruction "(1) was substantively correct; (2) was not
substantially covered elsewhere in the charge; and (3) concerned an
important point in the case so that the failure to give the
instruction seriously impaired the defendant's ability to present
his defense." United States v. Rose, 104 F.3d 1408, 1416 (1st Cir.
1997). However, in cases involving a standard entrapment
instruction, when an appellant demonstrates that he met his
evidentiary burden and the trial court nonetheless denied him the
requested instruction, we typically assume serious impairment and
require reversal of the conviction. See, e.g., Gamache, 156 F.3d
at 12 (reversing without a Rose analysis); Rodriguez, 858 F.2d at
815-16 (same).
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Dávila-Nieves, 670 F.3d 1, 9 (1st Cir. 2012). Our function, like
that of the district court, "is to examine the evidence on the
record and to draw those inferences as can reasonably be drawn
therefrom, determining whether the proof, taken in the light most
favorable to the defense can plausibly support the theory of the
defense." Gamache, 156 F.3d at 9 (emphasis omitted). We reverse
if there is "some hard evidence" satisfying the defendant's burden.
Dávila-Nieves, 670 F.3d at 9 (citation omitted) (internal quotation
marks omitted).
The entrapment defense arose as a creature of judicial
"inference about congressional intent," rather than as a command in
the express language of the Constitution or of most criminal
statutes. United States v. Luisi, 482 F.3d 44, 52 (1st Cir. 2007).
The defense exists to prevent "abuse[]" of the "processes of
detection and enforcement . . . by government officials" who might
instigate an illegal "act on the part of persons otherwise innocent
in order to lure them to its commission and to punish them."
Sorrells v. United States, 287 U.S. 435, 448 (1932). Government
"officials go too far when they 'implant in the mind of an innocent
person the disposition to commit the alleged offense and induce its
commission in order that they may prosecute.'" Jacobson v. United
States, 503 U.S. 540, 553 (1992) (emphasis in Jacobson) (quoting
Sorrells, 287 U.S. at 442).
-9-
To further this purpose of preventing government abuse,
the courts have adopted a two-part test. First, we look at the
government's conduct to see if it is of the type that would cause
a person not otherwise predisposed to commit a crime to do so. See
Gamache, 156 F.3d at 9. Examples of such "government overreaching"
include "intimidation, threats, dogged insistence," or "excessive
pressure" directed at the target of an investigation by a
government agent. United States v. Vasco, 564 F.3d 12, 18 (1st
Cir. 2009) (citations omitted) (internal quotation marks omitted).
If the government's actions do not rise to this level of wrongful
pressure, the inquiry ends. Id. at 20; see also Rodriguez, 858
F.2d at 814. If the government does overreach, however, we proceed
to a second step and look at the particular person to see if that
person was in any event predisposed to commit the crime. Vasco,
564 F.3d at 18, 20. In other words, Willie Sutton likely could not
have beaten a bank robbery charge with an entrapment defense, even
if the conduct of the government were such as to cause a person not
otherwise predisposed to commit the crime to do so. See United
States v. Acosta, 67 F.3d 334, 337-38 (1st Cir. 1995). The
defendant has the initial burden of production as to both elements
of our two-part test, "measured by the time-honored sufficiency-of-
the-evidence yardstick . . . ." Rodriguez, 858 F.2d at 813-14.
Then, if "the defense is properly in the case, the government is
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obligated to prove beyond a reasonable doubt that no entrapment
occurred." Id. at 815.
To carry his initial burden of production, Díaz points
first to the government's creation and presentation of the
opportunity to commit the crime of conviction. But that is not
enough. United States v. Gendron, 18 F.3d 955, 961 (1st Cir.
1994). Generally, we accept sting operations as an important tool
of law enforcement. See Gamache, 156 F.3d at 9; see also Teleguz,
492 F.3d at 84-85. We expect innocent persons to decline such
opportunities in the absence of some additional importuning by the
government. See Gendron, 18 F.3d at 962.
Díaz also points to repetition in the presentation of the
opportunity. He argues that Cotto "actively solicited" him on at
least five occasions to participate in a drug transaction in
exchange for money. This is not a case, however, in which a
government agent refused to take "no" for an answer and persisted
in recruiting a target on five separate occasions. The record
shows that, over the course of several months, Cotto and Díaz spoke
by phone several times and happened to run into each other on
perhaps as many as several occasions. Cotto first revealed to Díaz
his involvement in drug transactions, and then on several occasions
discussed the possibility of Díaz participating. There is no
evidence that Cotto presented any opportunities during these
occasions, or otherwise expressly sought any commitment from Díaz.
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More importantly, there is no evidence that Cotto in any of these
casual social contacts sought to overbear any resistance to the
idea of a crime. To the contrary, the record paints a picture of
Cotto going forward incrementally, first disclosing his own
criminality, and then raising the possibility of Díaz's
participation in the abstract, encountering no apparent resistance
from Díaz at any point. To rule that such communications could
give rise to an entrapment defense would force government sting
operations to adopt artificially short time schedules, popping the
ultimate question before finding out whether the target is actually
interested in the crime. Such an outcome would work at cross
purposes with the aim of the defense.
Díaz also argues that Cotto improperly played off what
Díaz calls their friendship. Although Díaz's counsel elicited
testimony from Cotto that he and Díaz first met "in a recreational
manner," there was little evidence that the two were friends.
Indeed, virtually the only relevant testimony was Cotto's
description of their relationship as that of "[a]cquaintances."
More to the point, however, Díaz cites no evidence indicating that
Cotto solicited his participation by appealing directly to their
purported friendship. We thus have both a weak tool for improper
importuning and no evidence that that weak tool was even employed.
See United States v. Young, 78 F.3d 758, 761-62 (1st Cir. 1996).
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Díaz, finally and with greatest emphasis, returns to his
repetition argument, this time contending that, in the course of
his September 9, 2009, phone call with Cotto, Cotto repeated his
entreaties sixteen times in order to overcome Díaz's objections.
While our reading of the transcript of the recorded conversation
reveals only four entreaties, the key point is that Díaz's
reluctance as expressed to Cotto related solely to his work
schedule. Indeed, he repeatedly expressed frustration about not
being able to participate: "Damn, . . . tomorrow is Thursday."
"Damn. The thing is that . . . I can't accept it . . . . I can't
assure you, because I don't know at what time I will be out [of
work]." A review of the transcript as a whole makes plain that the
nature of the objection Cotto sought to overcome was not the type
of which the entrapment defense is solicitous.
In reaching this conclusion, we do not entirely disregard
the possibility that a target who does not want to commit a crime
might raise a scheduling objection as a "polite way" of declining
to get involved. Cf. United States v. Joost, 92 F.3d 7, 13 (1st
Cir. 1996) (finding reversible error in the denial of an entrapment
instruction when the defendant claimed a strategy, "corroborated by
the evidence," of "inventing excuses" to avoid participating in
criminal activity). Here though, Cotto secured no commitment to
participate in the crime during the call. Instead, the prospect of
a scheduling conflict remained extant, which left Díaz the out of
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simply telling Cotto the following day that he could not resolve
the conflict. The sting went forward only because Díaz, left to
his own devices, decided to tell Cotto that he could make it. On
such a record, there is simply nothing in the government's actions
that one might label the type of overreaching conduct that could be
called wrongful inducement within the meaning of the entrapment
defense. See Sorrells, 287 U.S. at 442.
To summarize: the government's confidential informant,
Cotto, approached a corrections officer, Díaz, whom Cotto observed
using drugs. Cotto disclosed to Díaz that Cotto was involved in
drug transactions. In response, Díaz agreed to exchange telephone
numbers. The two then discussed on several occasions the concept
of Díaz providing security for a "street deal," with no evidence
that Díaz required much convincing. When Cotto then made a
specific proposal, Díaz voiced a scheduling objection, and Cotto
changed the details of the proposal to meet those objections,
repeating the request and saying he needed the help, which Díaz
agreed to supply after determining that he could fit it in his
schedule. On these facts, our holding is that Díaz did not produce
evidence sufficient to generate a need for the jury to decide if
the government overreached.
In focusing at this stage of the analysis on Díaz's
apparent disposition as manifest to the government, we are not
leaping forward to the second part of the entrapment test, which
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examines Díaz's actual predisposition. Rather, we are evaluating
the nature of the government's conduct by considering precisely
what hurdles the government's tactics were aimed at overcoming.
Five calls to a person who expresses no interest in the crime may
raise the types of concerns about improper government inducement
that the entrapment defense works to deter. Comparable persistence
in overcoming practical objections by one seemingly comfortable
with the idea of committing a crime may, as here, warrant no
deterrence.
Our conclusion that Díaz failed to generate enough
evidence to raise a jury issue reflects in great part the fact that
the entrapment defense is a difficult defense to raise and prevail
on. "Because entrapment is a judicially created doctrine, courts
have been careful not to contravene congressional intent to punish
those who commit the offense; that, in turn, requires that the
doctrine take into account the practical problems faced by federal
law enforcement." Teleguz, 492 F.3d at 84. Therefore, the
defendant must offer evidence not merely of government inducement,
but of improper government inducement. See id. Similarly, given
the need to avoid having criminal trials turn into diversionary
examinations of "long-permitted operations of law enforcement,"
United States v. DePierre, 599 F.3d 25, 27-28 (1st Cir. 2010),
aff'd, 131 S. Ct. 2225 (2011), defendants may present the defense
only after satisfying their "entry-level burden" of production,
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United States v. Coady, 809 F.2d 119, 122 (1st Cir. 1987); see also
Rodriguez, 858 F.2d at 812. In twenty-two prior appeals to this
circuit challenging a trial court's refusal to give a jury
instruction on entrapment,3 we have overruled the refusal only
three times.4 The record here does not create the occasion for a
fourth.
3
United States v. Guevara, 706 F.3d 38, 46-47 (1st Cir.
2013)(applying plain error review); United States v. Dávila-Nieves,
670 F.3d 1, 9, 11 (1st Cir. 2012)(applying de novo review); United
States v. Vasco, 564 F.3d 12, 18, 20 (1st Cir. 2009)(de novo);
United States v. Shinderman, 515 F.3d 5, 13, 15 (1st Cir. 2008)(de
novo); United States v. Teleguz, 492 F.3d 80, 83, 85-86 (1st Cir.
2007)(de novo); United States v. Ramos-Paulino, 488 F.3d 459, 461-
62 (1st Cir. 2007)(plenary review); United States v. Sánchez-
Berríos, 424 F.3d 65, 76-77 (1st Cir. 2005)(de novo); United States
v. Diaz-Diaz, 433 F.3d 128, 136 (1st Cir. 2005)(standard of review
unspecified, probably de novo); United States v. Nishnianidze, 342
F.3d 6, 17-18 (1st Cir. 2003)(plenary); United States v. Baltas,
236 F.3d 27, 36-37 (1st Cir. 2001)(plain error); United States v.
Gamache, 156 F.3d 1, 9, 12 (1st Cir. 1998)(plenary); United States
v. Rogers, 102 F.3d 641, 645-46 (1st Cir. 1996)(de novo); United
States v. Vega, 102 F.3d 1301, 1302, 1307 (1st Cir. 1996)(plenary);
United States v. Young, 78 F.3d 758, 760 (1st Cir. 1996)(plenary);
United States v. Joost, 92 F.3d 7, 12, 14 (1st Cir. 1996)(plenary);
United States v. Hernandez, 995 F.2d 307, 313 (1st Cir. 1993)(plain
error); United States v. Tejeda, 974 F.2d 210, 217-19 (1st Cir.
1992)(de novo); United States v. Panet-Collazo, 960 F.2d 256, 259-
60 (1st Cir. 1992)(de novo); United States v. Morales-Diaz, 925
F.2d 535, 539 (1st Cir. 1991)(unspecified, probably de novo);
United States v. Pratt, 913 F.2d 982, 988-89 (1st Cir.
1990)(plenary); United States v. McKenna, 889 F.2d 1168, 1174 (1st
Cir. 1989)(plenary); United States v. Rodriguez, 858 F.2d 809, 812
(1st Cir. 1988)(plenary).
4
Gamache, 156 F.3d at 12; Joost, 92 F.3d at 14; Rodriguez, 858
F.2d at 815-16.
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B. Consideration of entrapment as a factor at sentencing
Following his conviction, Díaz faced a statutory
mandatory minimum sentence of 120 months. Specifically, each count
of conviction carried a 60-month mandatory minimum. See 21 U.S.C.
§ 841(b)(1)(B); 18 U.S.C. § 924(c)(1)(A)(I). The sentence for the
firearm-possession count, however, was subject to a statutory
mandate that it be served "in addition to" the drug-related aiding-
and-abetting count. See id. § 924(c)(1)(A).5 The guidelines
sentence for Díaz was 123-138 months: 63-78 months on the aiding-
and-abetting count, U.S.S.G. §§ 2D1.1(c)(7), 2X2.1., Ch. 5 p. A
Sentencing Table, and 60 months on the firearm-possession count,
id. § 2K2.4(b).
Díaz, however, sought a downward adjustment for what he
claimed was a minimal role in the offense. See U.S.S.G. § 3B1.2.
5
Díaz also appears to argue that the government engaged in
unfair sentencing manipulation by asking him to bring a gun to the
sting. He has not, however, identified anywhere in the record
where he raised this issue below. (The government viewed this as
part of his imperfect entrapment claim, and argues that it was not
raised below, and so is subject to plain error review.) In this
circuit, a judge "can adjust a sentence downward if the judge
concludes that the government has improperly enlarged the scope or
scale of the crime to secure a higher sentence." United States v.
DePierre, 599 F.3d at 29. Here, Díaz only argues that the
government could have achieved its goal without having an agent ask
him to bring a gun; this hardly suggests the "extreme and unusual
case" for which a factor manipulation reduction is appropriate.
United States v. Fontes, 415 F.3d 174, 180 (1st Cir. 2005).
Sentencing manipulation is a fact-bound, case-by-case inquiry. See
id. at 180-82. By not raising the issue clearly below, Díaz
deprived the district court of the chance to examine the
government's motives in the first instance. On this record, we see
nothing approaching an abuse of discretion, let alone plain error.
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Díaz requested the statutory mandatory minimum sentence of 120
months, three months below the guidelines range. The government,
in contrast, highlighted Díaz's disregard of his oath as a
corrections officer to uphold the law, and sought a sentence at the
"higher end" of the guidelines range of 123-138 months. The
government did not, however, request a particular sentence.
Ultimately the court sentenced Díaz to 123 months.
Díaz now claims that the sentence the district court
imposed is "procedurally unreasonable." We review the
reasonableness of a sentence for abuse of discretion, following a
two-step analysis. United States v. Rivera-Moreno, 613 F.3d 1, 8
(1st Cir. 2010). We first verify that the sentence was
procedurally sound, and we then ensure that it was substantively
reasonable. Id. Among the examples of procedural infirmity is
"failing to consider the § 3553(a) factors," Gall v. United States,
552 U.S. 38, 51 (2007), which guide a sentencing court in reaching
a "sufficient, but not greater than necessary" sentence, 18 U.S.C.
§ 3553(a).
Díaz asserts that by not considering the issue of
"imperfect entrapment," the district court did not give proper heed
to the section 3553 factors. "Imperfect entrapment" has sometimes
been used by other courts as the basis for a downward departure at
sentencing when a defendant demonstrated that he was "pressured
unduly by the government to go forward with [an] offense . . . ."
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United States v. McClelland, 72 F.3d 717, 725 (9th Cir. 1995).
Where, as here, a defendant seeks a downward variance on that
basis, the claim of imperfect entrapment can be thought of as
fairly encompassed in the analysis of the "nature and circumstances
of the offense" under § 3553(a). United States v. Smith, 358 F.
App'x 634, 638 (6th Cir. 2009) (internal quotation marks omitted);
see also id. at 641-42 (Clay, J., concurring in part and dissenting
in part).
Contrary to Díaz's claim that the judge refused to
consider his imperfect entrapment argument, the sentencing hearing
transcript reveals that the district court in fact did consider the
theory and found it inapplicable.6 In making his statement to the
court at his sentencing hearing, Díaz objected that "[a]s far as
why I didn't report [the drug deal to the authorities after it
transpired], it is not fair that the government makes you commit an
offense without a previous investigation, and put[s] you in a very
compromising and difficult situation." The court asked
specifically what Díaz meant by the government "making [him] commit
an offense." Rather than arguing that he was manipulated, or that
he was less blameworthy as a result of the government's entreaties,
Díaz objected that Guard Shack was supposed to catch officers
6
Because we conclude that the district court rejected Díaz's
argument, we need not take up the government's argument on appeal
that he forfeited the issue below.
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already under investigation for corruption, and he had been the
subject of no such investigation.
The district judge reviewed Díaz's sentencing memorandum
and, after hearing from the defendant and the government, explained
the guideline range and then explicitly turned to the section 3553
factors. The court began by considering various factors in Díaz's
favor, including his lack of a criminal history and the probability
that he would "rehabilitate and turn to the right track and live a
law abiding life." As for the alleged entrapment, the court
explained:
In terms of the factors to which [Díaz's] counsel has
made reference in the sentencing memorandum and also
through [Díaz's] allocution in Court, . . . I must point
to the fact that my recollection from the trial in terms
of when . . . [Díaz] was alerted that he was to
participate in a street deal, was prior to him getting to
the apartment in Isla Verde where the drug transaction
was to occur. Even though he alludes to the government
making an individual commit a crime, to the extent that
he clarified and says that based on the fact that he was
not a target of a previous police corruption
investigation, I can understand that. To the extent that
he may equate that to a possible defense of entrapment,
I know that that was a factor that was lingering in some
of the questions of this defendant, and the Court
remained vigilant and based on my evaluation and
assessment of the evidence there was no indicia of a
possible entrapment defense whatsoever in this case and
that is why the instruction was not given.
The judge then proceeded to discuss her view that
defendant appeared to be in a "very comfortable position" during
the transaction.
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In short, the district court concluded that this was not
a case in which the defendant had a sympathetic but unsuccessful
entrapment defense that might warrant mitigation, though not
acquittal. The court's conclusion was supported by the record, and
demonstrated consideration of "the nature and circumstances of the
offense and the . . . characteristics of the defendant," 18 U.S.C.
§ 3553(a)(1). In so proceeding, the district court did not abuse
its discretion.
C. Error related to sentencing
The final error Díaz claims on appeal concerns two
mistakes by the district court in referring to the counts of
conviction. The court began the sentencing hearing by noting that
it had "reviewed once again the verdict form." The court then
accurately described the jury's verdict:
The record should reflect that the defendant went to
trial as to Count 1 which is the conspiracy to possess
with intent to distribute. The defendant was found not
guilty. However, as to the remaining counts he was found
guilty in counts 2 and 4. Count 2 . . . [charged]
illegal possession with intent to distribute cocaine, and
. . . the jury also found him guilty of the possession of
a weapon in relation to a drug trafficking crime [Count
4].
The court next asked the parties if they had any clarifications
with regard to the presentence report (PSR). The government called
attention to the first paragraph of the PSR; as the government
explained, it "says count 2 of conviction charges the conspiracy,
and that is incorrect." Rather, the government noted, "[c]ount 2
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has to do with the aiding and abetting and attempt to possess with
intent to distribute more th[a]n 5 kilograms." The court agreed,
acknowledging "[t]hat is correct, and it is to be corrected." (The
probation office has since issued an amended report, correcting the
error in the first paragraph of Part A, but still incorrectly
listing count 2 in the offense summary at the beginning of the
report.)
After hearing from the parties, however, the court began
its sentencing analysis by repeating the error in the PSR.
Specifically, the court said that Díaz "was found guilty by jury
trial as to counts 2 and 4 of the indictment in . . . this case,
charging," respectively, "conspiracy to possess with intent to
distribute . . . cocaine," and "knowing possession of a firearm in
furtherance and or in relation to a drug trafficking crime." Díaz
did not object, and the court made the same mistake in entering the
written judgment.
Díaz now argues that the court's errors prejudiced him,
because conspiracy may represent a more serious crime than aiding
and abetting, and, he claims, the court may have sentenced him for
the wrong crime. He concedes that he failed to raise this issue
below, and thus our review is for plain error only. Accordingly,
he must demonstrate "(1) that an error occurred (2) which was clear
or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
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integrity, or public reputation of judicial proceedings." United
States v. Padilla, 415 F.3d 211, 218 (1st Cir. 2005) (en banc)
(citation omitted) (internal quotation marks omitted).
While "losing counsel are entitled to troll through
transcripts to find alleged glitches," the "plain error rule
creates a high threshold where the supposed missteps are ones that
no one noticed at the time or, if noticed, thought worthy of a
timely objection." United States v. Dehertogh, 696 F.3d 162, 170
(1st Cir. 2012). Here, a review of the sentencing transcript as a
whole reveals that the district court was well aware of the counts
of conviction for which it was sentencing Díaz, notwithstanding its
memorialized misspeaking. Accordingly, we affirm the sentence, but
remand the case to the district court to correct its written
judgment.
III. Conclusion
For the reasons stated, we affirm Díaz's conviction and
sentence, and remand the case to the district court for correction
of the judgment.
So ordered.
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