DocketNumber： Docket Nos. 303129 and 305625
Citation Numbers： 297 Mich. App. 745
Judges： Owens, Sawyer, Stephens
Filed Date： 7/26/2012
Status： Precedential
Modified Date： 9/9/2022
In these consolidated appeals, in Docket No. 305625, defendant appeals his convictions by a jury of two counts of delivery of less than 50 grams of a controlled substance, in violation of MCL 333.7401(2)(a)(ic) and one count of delivery of 50 grams or more but less than 449 grams of a controlled substance, in violation of MCL 333.7401(2)(a)(iii). In Docket No. 303129, the prosecutor appeals the judgment of sentence, which was a downward departure from the sentencing guidelines. We affirm defendant’s convictions, but vacate the judgment of sentence and remand for resentencing.
I. BACKGROUND
Defendant is a lawful resident alien of Turkish heritage who moved to the United States from Russia to flee ethnic persecution. Although the sentencing guidelines recommended a prison term of 51 to 85 months, the trial court departed downward from the guidelines and sentenced defendant to 363 days in jail with 36 months probation. The court found that defendant would have been automatically deported without a cancellation of deportation hearing if he was sentenced to more than 363 days in jail for his crimes.
Defendant testified that he had a difficult time making friends because he could not speak English, but he was able to befriend Mahmoud Elbast, aka “Moe”, who was a police informant who arranged drug sales to undercover police officers. Defendant reported that Moe was a close friend. He claimed that Moe told him that they could go to parties and meet girls for sex if he had
II. SENTENCING DEPARTURE
The prosecutor argues that the trial court erroneously departed downward from the sentencing guidelines because the court’s stated reason was not a substantial and compelling reason sufficient to justify the court’s departure. We agree.
A sentence imposed within the sentencing range will be affirmed by this Court; however, a trial court must articulate substantial and compelling reasons on the record when departing from the guidelines if the court believes the sentencing range is “[dis]proportionate to the seriousness of the defendant’s conduct and to the defendant in light of his criminal record.” People v Babcock, 469 Mich 247, 255-256, 262; 666 NW2d 231 (2003); see also MCL 769.34(3).
[T]he existence or nonexistence of a particular factor is a factual determination for the sentencing court to determine, and should therefore be reviewed by an appellate court for clear error. The determination that a particular factor is objective and verifiable should be reviewed by the appellate court as a matter of law. A trial court’s determination that the objective and verifiable factors present in a particular case constitute substantial and compelling reasons to depart from the statutory minimum sentence shall be reviewed for abuse of discretion. [Babcock, 469 Mich at 264-265 (quotations marks and citations omitted).]
The sentencing court must explain why its chosen sentence “is proportionate to the seriousness of the
To deviate from the sentencing guidelines, the trial court must articulate substantial and compelling reasons that (1) are objective and verifiable, (2) keenly grab the court’s attention, and (3) are of considerable worth in deciding the terms of the sentence. Babcock, 469 Mich at 257. Substantial and compelling reasons justifying a departure exist only in exceptional cases. Id.
Here, the trial court explicitly stated that its sole reason for departing from the guidelines was to protect defendant’s ability to seek cancellation of deportation proceedings, which would have resulted in both permanent exile from this country and permanent separation from his immediate and extended family.
The trial court interpreted the phrase in 18 USC 3559(a), “maximum term of imprisonment authorized,” as applying to the particular sentencing terms imposed by the trial court. The court mistakenly reasoned that defendant’s conviction would not qualify as a felony under federal law if defendant were sentenced to less than one year in prison for his crimes. This interpretation runs contrary to the clear statutory language of 18 USC 3559(a). The “ ‘maximum’ term of imprisonment authorized’ ” refers to the maximum possible sentence contained in the statute, not the maximum contained in the sentencing guidelines range or the actual sentence imposed by the trial court. United States v Rodriquez, 553 US 377, 391-392; 128 S Ct 1783; 170 L Ed 2d 719 (2008). The trial court’s decision to depart from the guidelines actually had no effect on whether defendant’s conviction would qualify as an “aggravated felony” under federal immigration law. Therefore, the trial court did not have substantial and compelling reasons for making
III. ENTRAPMENT
Defendant argues that the trial court erred by denying his motion to dismiss because the record established that he was entrapped into committing the three drug crimes. We disagree. This Court has adopted the following standard of review when evaluating a claim of entrapment:
Whether entrapment occurred is determined by considering the facts of each case and is a question of law for this Court to decide de novo. The trial court must make specific findings regarding entrapment, and this Court reviews its findings under the clearly erroneous standard. The findings are clearly erroneous if this Court is left with a firm conviction that a mistake was made. [People v Fyda, 288 Mich App 446, 456; 793 NW2d 712 (2010) (citations omitted).]
Entrapment is a criminal defense, and the defendant bears the burden of establishing entrapment by a preponderance of evidence. People v Johnson, 466 Mich 491, 498; 647 NW2d 480 (2002). The purpose of this defense is to deter abuse of authority by precluding criminal liability for acts that were instigated by the police and committed by those not predisposed to such acts. People v Juillet, 439 Mich 34, 52; 475 NW2d 786 (1991). However, the police do not engage in entrapment merely by providing a defendant with the opportunity to commit a crime or by assisting an ongoing criminal conspiracy. Id. at 52-53. Michigan has adopted a modified objective test when analyzing entrapment, looking primarily at police conduct but also requiring the court to consider “the circumstances of the defen
“Entrapment occurs if (1) the police engage in impermissible conduct that would induce an otherwise law-abiding person to commit a crime in similar circumstances or (2) the police engage in conduct so reprehensible that the court cannot tolerate it.” Fyda, 288 Mich App at 456. This Court must consider several factors in determining whether a defendant was impermissibly induced by the police to commit criminal activity, including (1) whether the police appealed to the defendant based on friendship, (2) whether the defendant had been known to commit the charged crime, (3) whether there was a time lapse between the investigation and the arrest, (4) whether there was an inducement that would make the crime unusually attractive to a law-abiding citizen, (5) whether excessive consideration was offered to the defendant, (6) whether the police guaranteed that the acts were not illegal, (7) whether the government pressured the defendant to commit the crime, (8) whether sexual favors were offered to the defendant, (9) whether the defendant was threatened with arrest unless he or she complied, (10) whether the government acted to escalate the defendant’s criminal culpability, (11) whether the police had control over the informant, and (12) whether the investigation targeted the defendant. Johnson, 466 Mich at 498-499. Even if the police initially entrapped a defendant into committing a crime, “[i]nitial entrapment does not immunize a defendant from criminal liability for subsequent transactions that he readily and willingly undertook.” Id. at 505.
We evaluate each of the three transactions separately to determine whether defendant was entrapped by police. Regarding the first transaction, we find that the record sufficiently establishes that defendant was not entrapped by the police. The court found that Moe was a paid informant for the first transaction. Moe’s prior coaching of defendant may not be attributed to the police because the police only became involved with Moe on the same day of the first transaction. The purpose of the entrapment defense is to deter police misconduct, not the misconduct of uninvolved third parties. The agency relationship between Moe and the police did not exist at the time Moe groomed defendant during the weeks prior to the drug sales. Thus, Moe’s misconduct could not be attributed to the police, because they had no control over him when he committed his reprehensible acts. Aside from Moe’s misbehavior, defendant presented no other evidence that he had been entrapped by the police during this first transaction. Accordingly, the trial court correctly concluded that defendant failed to prove entrapment by a preponderance of evidence.
The record also establishes that defendant was not entrapped by the police during the second transaction.
Likewise, defendant was not induced to commit the third transaction, and the police did not commit any reprehensible conduct. For this transaction, defendant initiated the drug sale by contacting Kraczon and offering to provide larger quantities of cocaine. Accordingly, defendant was not pressured or coerced into either selling drugs or escalating the amounts sold. Defendant’s acts to conceal the drugs, change sale locations, and flee from the police all evince knowledge and awareness of the criminality of his actions. By this time, the police were clearly aware of defendant’s drug-dealing activities, and their investigation was reasonably directed at these activities. In these circum
Affirmed as to defendant’s convictions, but the sentence is vacated and remanded for resentencing.
Although defendant presents other reasons on appeal to depart from the guidelines, the trial court did not rely upon these reasons in making its departure.