In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-2682 & 09-2470
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
S HAMONTE H ALL AND K ARINDER G ORDON,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 386—David H. Coar, Judge.
A RGUED A PRIL 22, 2010—D ECIDED JUNE 17, 2010
Before K ANNE, W ILLIAMS, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. In the spring of 2008, appellant
Shamonte Hall believed he had stumbled upon a great
criminal opportunity. A disgruntled drug courier asked
if he would help him rob a drug stash house under
armed guard. For the help, the courier told him, Hall
and his crew would get a share of the several kilograms
of cocaine hidden in the stash house, which they could
then sell for a profit.
2 Nos. 09-2682 & 09-2470
It was too good to be true. The drug courier was
actually an undercover agent, the stash house was a
fiction, there were no drugs to steal, and Hall and his
crew were arrested shortly before they could carry
through with the plan. Hall and appellant Karinder
Gordon were charged with various drug and firearm
offenses. At the end of a jury trial, Hall was convicted
on all charges, and Gordon was convicted of being a
felon in possession of a firearm. In these consolidated
appeals, Hall challenges his convictions, arguing that
the district court erred by refusing to instruct the jury
on the affirmative defense of entrapment. Gordon chal-
lenges only his sentence. We affirm in all respects.
The Facts
As part of an undercover investigation targeting indi-
viduals involved in armed home invasions, a confiden-
tial informant introduced Hall to an undercover agent
with the Bureau of Alcohol, Tobacco, Firearms and Ex-
plosives. The purpose of this introduction was for the
agent to present Hall an opportunity to commit an
armed robbery. At their first meeting, the agent told
Hall that he wanted to rob a group of drug dealers he
worked for in the North Chicago area. The agent claimed
to be angry with those dealers because the last time he
had made deliveries for them, he had asked for extra
money to pay for surgery for his son. The dealers had
refused to give him that money, so the story went,
which angered him so much that he decided to steal the
dealers’ cocaine. The dealers, the agent explained, stored
about 10 to 12 kilograms of cocaine under armed guard
Nos. 09-2682 & 09-2470 3
in the garage of a home. After Hall agreed to participate
in the robbery, the agent told Hall to arrange for his
crew to meet with the agent to go over their plan.1 When
the agent met with Hall again, however, none of Hall’s
crew showed up. The agent asked about the crew’s ab-
sence, and Hall claimed that they knew “what’s up.” Hall
and the agent then went over the robbery plan. Before
the meeting concluded, Hall explained that he and his
crew were ready whenever the agent needed them.
On the afternoon of the planned robbery, the under-
cover agent, Hall, Rodney Ray, and appellant Karinder
Gordon retrieved two guns from Gordon’s apartment and
drove to Foss Park in North Chicago to wait for a tele-
phone call from the supposed drug dealers saying
where the drugs were stored. When they arrived at Foss
Park, the agent parked his truck, pretended to get a
telephone call, and walked away. He then gave a signal
to a law enforcement team that arrested Hall, Gordon,
and Ray.
Following their arrest, the three men were charged
with conspiracy to possess cocaine with intent to dis-
tribute, attempted possession of cocaine with intent to
distribute, and possession of a firearm in relation to a
drug trafficking crime. Hall and Gordon were also
charged with being felons in possession of a firearm.
Hall, Gordon, and Ray were tried jointly. The govern-
ment’s primary witness was the undercover agent, who
1
The agent made audio recordings of all of his meetings
with Hall.
4 Nos. 09-2682 & 09-2470
described in detail the undercover sting operation. The
defendants presented no evidence in their defense. The
jury found Hall guilty of attempted possession of cocaine
with intent to distribute, possession of a weapon in fur-
therance of a drug trafficking crime, and being a felon
in possession of a firearm. The jury found Gordon
guilty only of being a felon in possession of a firearm.
Ray was acquitted of all charges.
One key issue was whether Hall could present an
entrapment defense. Before trial, the government filed a
motion in limine to preclude the presentation of any
evidence or argument regarding entrapment. The
district court granted the motion, but Hall nevertheless
requested that the jury be instructed regarding entrap-
ment. The court denied that request. In a post-trial
motion, Hall moved for a judgment of acquittal and a
new trial, arguing in part that the court had erred by
barring any evidence of entrapment and by denying
his request to instruct the jury on the entrapment de-
fense. The district court denied this motion and sen-
tenced Hall to 175 months in prison. Gordon was sen-
tenced to the statutory maximum prison term of
120 months.
Analysis
I. Defendant Hall—Entrapment Instruction
Hall argues that the district court erred by refusing to
instruct the jury on the entrapment defense. A defendant
is entitled to a jury instruction on his theory of defense
Nos. 09-2682 & 09-2470 5
if: (1) the requested instruction is a correct statement of
the law; (2) the evidence supports the theory of defense
at issue; (3) the defense is not part of the govern-
ment’s charge; and (4) the failure to give the instruction
would deprive the defendant of a fair trial. United States
v. Millet, 510 F.3d 668, 675 (7th Cir. 2007), citing United
States v. Al-Shahin, 474 F.3d 941, 947 (7th Cir. 2007). We
review de novo a district court’s decision not to give
a proffered instruction. Millet, 510 F.3d at 675.
The decisive issue here is whether the evidence sup-
ported the existence of the entrapment defense. To raise
an entrapment defense, a defendant must make a
showing of both elements of that defense: (1) that he was
induced by a government actor to commit the crime
at issue; and (2) that he was not predisposed to
commit that crime. Id., citing United States v. Haddad,
462 F.3d 783, 789-90 (7th Cir. 2006). If the evidence
shows the defendant’s predisposition, the entrapment
defense should be rejected without any inquiry into
government inducement. Millet, 510 F.3d at 675, citing
United States v. Bek, 493 F.3d 790, 800 (7th Cir. 2007).
When analyzing a defendant’s predisposition to
commit a crime, we consider:
(1) the defendant’s character or reputation; (2) whether
the government initially suggested the criminal ac-
tivity; (3) whether the defendant engaged in the
criminal activity for profit; (4) whether the defendant
evidenced a reluctance to commit the offense that
was overcome by government persuasion; and
(5) the nature of the inducement or persuasion by the
government.
6 Nos. 09-2682 & 09-2470
United States v. Blassingame, 197 F.3d 271, 281 (7th Cir.
1999). No individual factor controls the issue of predis-
position, but the most important factor is whether the
defendant was reluctant to commit the offense. United
States v. Kaminski, 703 F.2d 1004, 1008 (7th Cir. 1983),
quoting United States v. Reynoso-Ulloa, 548 F.2d 1329,
1336 (9th Cir. 1977).
The evidence for the defense need not be compelling,
but there must be some evidence to support it. The defen-
dant in a criminal case is entitled to have the jury
consider any defense theory that is supported by the
law and that has some reasonable foundation in the
evidence. United States v. Briscoe, 896 F.2d 1476, 1512 (7th
Cir. 1990), citing United States v. Boucher, 796 F.2d 972, 975
(7th Cir. 1986); see generally United States v. Mathews, 485
U.S. 58, 62 (1988) (defendant is entitled to entrapment
instruction whenever there is sufficient evidence from
which a reasonable jury could find entrapment); United
States v. Evans, 924 F.2d 714, 716 (7th Cir. 1991) (same).
The evidence presented in this trial showed beyond
dispute that Hall was predisposed to commit the crimes
of which he was convicted. In regard to Hall’s character,
we note that he pled guilty to armed robbery in 2003. As
to the second and third factors of the predisposition
analysis, although the government (rather than some
other party) initially suggested the criminal activity,
Hall was certainly willing to participate in the criminal
enterprise for a profit. The drugs were to be split
evenly among the agent, Hall, and Hall’s crew, and Hall
even mentioned that the profits from the drug sales
would be enough for them all to take vacations.
Nos. 09-2682 & 09-2470 7
Regarding the nature of the government inducement,
we disagree with Hall’s contention that the govern-
ment preyed on his pity for the undercover agent’s ficti-
tious sick son. The agent claimed to have a sick son
who had previously needed surgery, but he never said
that he needed money to pay for that surgery. Rather, the
agent made clear that he wanted to rob the drug dealers
because, by failing to give him extra money when he
was trying to pay for his son’s surgery, the dealers
had disrespected him and “pissed me off.” In any
event, we do not accept the theory that Hall acted out
of compassion. It is not as if Hall ever offered to share
his cut of the expected profits to help pay for the
fictional surgery. If Hall had been acting out of anything
other than greed, he might have offered to give the
agent a larger share of the profits rather than dividing
the drugs evenly among the entire crew. A modern-day
Robin Hood he was not. The agent merely provided a
plausible cover story to explain his own motives. Hall
was not subjected to any unusual or unfair persuasion.
We also disagree with Hall’s contention that the
sizeable potential profit from the proposed robbery of
cocaine was an extraordinary inducement. We rejected a
similar argument in Millet, which also involved a
planned heist of illegal drugs. In that case, the defendant
stood to make several hundred thousand dollars in
profits from his planned robbery of a large quantity of
drugs. We concluded that the potential profits were “in
stark contrast to the classic example of extraordinary
inducement,” in which extraordinary profits are prom-
ised for the commission of a minor crime. Millet, 510
8 Nos. 09-2682 & 09-2470
F.3d at 677, quoting Evans, 924 F.2d at 717. Here, as
in Millet and Evans, Hall was offered “an opportunity
to enter the drug trade . . . on the usual terms,”
through the acquisition of “a source of supply, in whole-
sale quantities.” See Evans, 924 F.2d at 717 (affirming
refusal to give entrapment instruction). In other words,
Hall was presented with the same temptation faced by
any person contemplating the robbery of a drug stash
house: the chance to acquire quickly a large amount of
drugs that could be resold for a big profit. It only
further undercuts Hall’s “extraordinary inducement”
argument that he planned to split the stolen cocaine
evenly four ways (with his crew and the undercover
agent) and planned to sell his own share of the drugs
not for an extraordinary price or even an ordinary
price, but for what he perceived to be a below-market
price.
We find nothing in the record to support the most
important factor in our predisposition analysis: whether
Hall was reluctant to participate in the proposed heist.
When the agent first approached Hall to see if he was
interested in the proposed robbery, Hall insinuated that
he and his crew would “go in there [and] kill every-
body” so that they would not have to worry about “reper-
cussions.” Asked if he would commit the robbery,
Hall responded not with hesitance or reluctance but
with an unambiguous “Hell yeah.” And when asked if
the crew would have trouble going in “blastin’, ” Hall
responded: “No, if you got [the] right price, you can get
a motherfucker knocked off.” As if those statements were
not enough, Hall showed his lack of reluctance when
Nos. 09-2682 & 09-2470 9
he said that “when it’s ready to go down there ain’t
gonna be no hesitation about it.” Hall’s own recorded
words made clear that he was ready to commit the
robbery even if it meant that he had to take a few lives
in the process.
In an attempt to support his reluctance argument,
Hall notes his slow responses to the agent’s telephone
calls, his late arrivals for meetings with the agent, and
his crew’s general state of unpreparedness on the day
of the planned heist. Our review of the record, however,
indicates that Hall was not so much a reluctant robber
as an incompetent one. When asked about his crew’s
failure to show up for their earlier meeting, Hall
reassured the agent that he and his crew “definitely
were in.” And Hall never indicated that he wanted to
back out, even when he had trouble finding Gordon
(who had the crew’s guns) on the day of the planned
robbery. Rather, Hall guided the agent to a number of
different locations in an attempt to find Gordon, and
after doing so, led them back to Gordon’s apartment to
pick up the weapons. Hall’s persistence in the face of
difficulties shows his lack of reluctance; a person who
was truly reluctant to commit a crime would take ad-
vantage of a ready excuse to withdraw from a criminal
enterprise. See United States v. Theodosopoulos, 48 F.3d
1438, 1447 (7th Cir. 1995) (noting that defendant’s failure
to abandon a criminal transaction “when it encountered
trouble spots” is evidence of a lack of reluctance). These
events do not show that Hall actually had second
thoughts about the planned robbery, but even if he did,
such “second thoughts following initial enthusiasm
10 Nos. 09-2682 & 09-2470
do not establish entrapment.” Evans, 924 F.2d at 716
(affirming refusal to give entrapment instruction), citing
United States v. Marren, 890 F.2d 924, 931 (7th Cir. 1989)
(same).
Jacobson v. United States, 503 U.S. 540 (1992), as we
interpreted that decision in United States v. Hollingsworth,
27 F.3d 1196, 1199 (7th Cir. 1994) (en banc), does not
establish a lack of predisposition as a matter of law.
Jacobson was a farmer who had ordered child pornogra-
phy only “after the Government had devoted 2 1/2 years
to convincing him that he had or should have the right
to” do so. 503 U.S. at 553. In concluding that Jacobson
had been entrapped, the Supreme Court observed that
he was “an otherwise law-abiding citizen who, if left to
his own devices, likely would have never run afoul of
the law.” Id. at 553-54. In Hollingsworth, we explained
that Jacobson did not (as Hall seems to insist) add an
“ability” element to the entrapment formulation. 27 F.3d
at 1199. Rather, Jacobson recognized only that, to be pre-
disposed to commit a crime, one “must be so situated
by reason of previous training or experience or occupa-
tion or acquaintances that it is likely that if the govern-
ment had not induced him to commit the crime some
criminal would have done so.” Id. at 1200. Hall
might or might not have had all the criminal skills and
organizational competence needed to carry off a suc-
cessful robbery of cocaine, but he certainly had at least
two acquaintances willing to help him when he was
asked to rob a drug stash house. As Hollingsworth made
clear, that fact supports a conclusion that Hall was predis-
posed in a “positional” sense to commit this crime. Id.
Nos. 09-2682 & 09-2470 11
The evidence presented at trial would not have
allowed a reasonable jury to find that Hall was reluctant
to participate in the planned robbery. He jumped at the
chance, and no extraordinary profits were used to induce
his participation. The lack of evidence supporting an
entrapment defense is not surprising. Hall neither
testified in his own defense nor presented any evidence
of his lack of predisposition. He relies on only the gov-
ernment’s evidence to support the defense.2 It would be
unusual for the government’s case-in-chief to reveal a
defendant’s lack of predisposition. See United States v.
Demma, 523 F.2d 981, 985 (9th Cir. 1975) (en banc). Except
in unusual circumstances that we have trouble
imagining, a defendant would seem to need to present
some affirmative evidence of entrapment. See United
States v. Mathews, 485 U.S. 58, 65 (1988), quoting Demma,
523 F.2d at 985. In this case, with only the testimony
and evidence presented in the government’s case, there
simply is no evidence that Hall was not predisposed to
join in the proposed robbery plan. The district court did
not err by refusing to give a jury instruction on entrap-
ment.
II. Defendant Gordon—Sentencing Issues
When reviewing the district court’s sentencing deci-
sions, we engage in a two-step process of review, first
2
Hall was unable to present any evidence on entrapment
because of the district court’s pretrial ruling on the govern-
ment’s motion in limine. He explicitly waived any challenge
to that ruling on appeal.
12 Nos. 09-2682 & 09-2470
determining whether the district court committed any
procedural error, and second examining the sentence
itself for substantive reasonableness. United States v.
Omole, 523 F.3d 691, 697-98 (7th Cir. 2008). We review
for procedural error de novo, while our reasonableness
review is only for an abuse of discretion. United States
v. Hurt, 574 F.3d 439, 442 (7th Cir. 2009).
At Gordon’s sentencing hearing, the parties agreed
that the total Sentencing Guidelines offense level was 32,
with a criminal history category of VI, giving Gordon
an advisory Guidelines sentencing range of 210 to 262
months in prison. The statutory maximum sentence for
Gordon’s offense of conviction was only 120 months.
Because the calculated range was greater than the
statutorily-authorized maximum sentence, the Guide-
lines range for purposes of our review is not a range
but simply 120 months. U.S.S.G. § 5G1.1. Gordon’s sen-
tence of 120 months is consistent with the Guidelines
and is presumed reasonable on appeal. United States v.
Poetz, 582 F.3d 835, 837 (7th Cir. 2009), citing United
States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008).
Gordon argues that the district court committed proce-
dural error by failing to take into account the 18 U.S.C.
§ 3553(a) factors when imposing its sentence. He also
challenges the reasonableness of his sentence by arguing
that the court should have imposed a lower sentence
in light of his absent father, his violent behavior in high
school, his regular alcohol use, and marijuana’s effect
on his judgment the day he was arrested. Gordon also
objects to the district court’s statement that he had
Nos. 09-2682 & 09-2470 13
already received a “break” because the statutory maxi-
mum sentence was significantly lower than the low end
of the Guidelines range. He claims that this statement
showed that the district court focused only on the
evidence presented against him at trial, rather than the
not-guilty verdicts on all but the felon-in-possession
charge against him.
Gordon’s procedural error argument is without merit.
The district court clearly took the section 3553(a) factors
into account, noting the seriousness of the offense
conduct and the need to protect the community from
Gordon, who had a history of violent crime and had
most recently been found with a loaded 12-gauge shot-
gun in his car. The judge said he believed that Gordon
would not receive any intervention in prison that
might prevent him from resuming his pattern of
violence upon his release, and the judge determined that
a 120-month sentence was necessary. The transcript
shows that Judge Coar gave the case the thoughtful
consideration that is contemplated by section 3553(a).
Furthermore, to the extent that the court based its
sentence on its conclusion that Gordon was a “willing
participant in this scheme to commit this home
invasion . . . to rob these drug dealers,” section 3553(a)(1)
explicitly requires a sentencing court to consider “the
nature and circumstances of the offense.” Gordon
was not arrested for possession of a weapon in a closet
in his home or for possession of a weapon while on a
hunting trip. He was arrested on his way to commit a
violent crime. That fact was critical as the court deter-
14 Nos. 09-2682 & 09-2470
mined an appropriate sentence. Although Gordon was
acquitted on the other counts of the indictment, a
district court applies a lesser preponderance-of-the-
evidence standard when making findings of fact for
sentencing purposes. United States v. Johnson, 342 F.3d
731, 735 (7th Cir. 2003), quoting United States v. Porter,
23 F.3d 1274, 1277 (7th Cir. 1994). We respect the jury’s
determination that the evidence did not show Gordon’s
guilt of the other offenses beyond a reasonable doubt,
but we agree with the district court that the evidence
established Gordon’s involvement in the robbery scheme
by a preponderance of the evidence. The district court
did not err by considering the evidence introduced at
trial when deciding Gordon’s sentence for the unlawful
possession of a firearm.
Gordon complains that his sentence was unreasonable
because the district court failed to take into account
his arguments for a reduced sentence. A sentencing
judge may reject without discussion generic or stock
arguments that defendants make as a matter of course
at sentencing. United States v. Young, 590 F.3d 467, 474
(7th Cir. 2009), citing United States v. Martinez, 520 F.3d
749, 753 (7th Cir. 2008). Gordon’s arguments that he
never knew his father and had a history of youthful
misbehavior are examples of stock arguments that unfor-
tunately do not meaningfully distinguish Gordon from
so many other criminal defendants. The same could be
said of Gordon’s arguments concerning his alcohol and
marijuana use if those arguments had any force
toward mitigation, which they do not.
Nos. 09-2682 & 09-2470 15
The district court committed no error when it con-
sidered and rejected Gordon’s arguments about his
difficult childhood and when it passed over his
remaining arguments in silence. Lacking any other
bases on which to challenge his sentence, Gordon cannot
show that his is that “rare case” in which a within-Guide-
lines sentence should be considered unreasonable. See
United States v. Myktiuk, 415 F.3d 606, 608 (7th Cir. 2005).
Hall’s convictions and Gordon’s sentence are A FFIRMED.
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