F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 7 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee/Cross-
Appellant,
v.
Nos. 98-2012 and 98-2031
ELEUTERIO GARCIA,
Defendant-Appellant/Cross-
Appellee.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-96-004 MV)
John L. Sullivan, Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg,
LLP, Santa Fe, New Mexico (Mark H. Donatelli, Rothstein, Donatelli, Hughes,
Dahlstrom, Cron & Schoenburg, LLP, Santa Fe, New Mexico and Michael W.
Lilley of Las Cruces, New Mexico, with him on the briefs), for Defendant-
Appellant/Cross-Appellee.
Richard A. Friedman, Attorney, Appellate Section of Criminal Division of the
Department of Justice, Washington, D.C. (John J. Kelly, United States Attorney
for the District of New Mexico and Mick I.R. Gutierrez, Assistant United States
Attorney for the District of New Mexico with him on the brief) for Plaintiff-
Appellee/Cross-Appellant.
Before PORFILIO, BALDOCK and EBEL, Circuit Judges.
EBEL, Circuit Judge.
This appeal involves the defendant’s challenge to the district court’s denial
of a motion for judgment of acquittal based on an entrapment defense and denial
of motions for a new trial, as well as the government’s cross-appeals on several
sentencing issues. We affirm the district court’s judgment, except for the district
court’s two-level reduction based on the minor participant provision of the
Sentencing Guidelines, on which we reverse and remand.
On December 14, 1995, Defendant-Appellant/Cross-Appellee Eleuterio
Garcia was arrested for trafficking cocaine, and was later charged with possession
of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), and 18 U.S.C. § 2. At trial, his sole defense was that paid government
informant Saul Horcasitas entrapped him. The jury returned a guilty verdict, and
Garcia’s post-trial motions for judgment of acquittal and for a new trial were
denied.
At sentencing, the district court adjusted downward Garcia’s base offense
level by six levels, pursuant to the safety valve, acceptance of responsibility, and
minor participant provisions of the Sentencing Guidelines. The district court then
departed downward an additional seven levels, finding Garcia’s commission of
the crime to be a single act of aberrant behavior. In total, Garcia’s offense level
dropped from twenty-eight to fifteen, which, when combined with his criminal
history category of I, established a guideline imprisonment range of eighteen to
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twenty-four months. Garcia was sentenced to eighteen months in prison. The
government cross-appeals the downward departure, as well as the acceptance of
responsibility and minor participant adjustments.
I. Entrapment as a Matter of Law
Garcia argues that he was entrapped as a matter of law, and that the district
court thereby erred in denying his motion for judgment of acquittal. The denial of
a motion for judgment of acquittal based on entrapment is reviewed de novo,
viewing all the evidence and drawing all reasonable inferences in the light most
favorable to the government. See United States v. Lampley, 127 F.3d 1231, 1242
(10th Cir. 1997), cert. denied, 118 S. Ct. 1098 (1998).
“Entrapment exists as a matter of law only if the evidence of entrapment is
uncontradicted. When a jury has found that no entrapment existed, we can alter
that finding on legal grounds only ‘where the holding should be made without
choosing between conflicting witnesses nor judging credibility. . . . Accordingly,
we review only whether sufficient evidence exists to support the jury’s verdict.’”
United States v. Martinez, 979 F.2d 1424, 1429 (10th Cir. 1992) (quoting United
States v. Dozal-Bencomo, 952 F.2d 1246, 1250 (10th Cir. 1991)) (citations
omitted). Once the defense of entrapment is properly raised, the government has
the burden of proving that the defendant was predisposed to commit the crime.
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United States v. Duran, 133 F.3d 1324, 1327 n.2 (10th Cir. 1998). The
“entrapment defense has two parts: (1) the lawfulness of the government’s
conduct, and (2) the defendant’s predisposition to engage in the criminal
activity.” Lampley, 127 F.3d at 1242. Garcia’s claim of entrapment as a matter
of law focuses on the second element, predisposition. Garcia contends that the
government failed in its burden to prove that he was predisposed to commit a
criminal act prior to being approached by the government. “Predisposition to
commit a criminal act may be shown by evidence of similar prior illegal acts or it
may be inferred from defendant’s desire for profit, his eagerness to participate in
the transaction, his ready response to the government’s inducement offer, or his
demonstrated knowledge or experience in the criminal activity.” Duran, 133 F.3d
at 1335 (internal quotations and citations omitted). As a result, although
Jacobson v. United States, 503 U.S. 540, 549 (1992), requires that the defendant’s
predisposition be viewed at the time the government agent first approached the
defendant, inferences about that predisposition may be drawn from events
occurring after the two parties came into contact. See Duran, 133 F.3d at 1336
(finding sufficient evidence of predisposition where defendant, inter alia,
“bragged” to the government informant “about being able to obtain drugs”);
United States v. Mendoza-Salgado , 964 F.2d 993 , 1003 (10th Cir. 1992)
(“[Defendant’s] solicitous telephone discussions with [the government agent]
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regarding defendant’s ability to supply cocaine, his express interest in handling
future drug purchases and his attendance at the preliminary meeting between [his
supplier] and agents exemplifies a profound eagerness to engage in the illegal
activity.”).
We find there is sufficient evidence to prove that Garcia was predisposed to
distribute narcotics. The government’s paid informant, Saul Horcasitas, testified
that three weeks after he moved into the trailer next door to Garcia, it was Garcia
who first suggested to Horcasitas that he should sell cocaine. Additionally,
Garcia’s vocabulary and manner of dealing with Horcasitas demonstrates
knowledge and experience in illicit drug trades. During two taped telephone
conversations between Garcia and Horcasitas, Garcia demonstrated knowledge of
the drug trade when he understood Horcasitas’ use of code words. Horcasitas
talked to Garcia in code, using phrases like “animals” (cocaine), “bundles”
(kilograms), and “papers” (money), and Garcia had no problem understanding
Horcasitas’ lingo. In fact, Garcia even used code words, stating in one
conversation that he wanted to look “at the papers to see if I like them, to see if
they work on the roof.” Police Officer Mike Mulliniks testified that such code is
used by people “familiar with dealing in drugs,” and it is not unreasonable for a
jury to find that someone who understands such code is predisposed to deal drugs.
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See Mendoza-Salgado , 964 F.2d at 1003 (“‘code words’ to describe drugs and
related matter further exemplifies . . . understanding of the narcotics trade”).
Other evidence admitted at trial sufficiently establishes Garcia’s
predisposition. DEA Agent James Baker testified that the amount of cocaine
involved in the transaction, 2.987 kilograms, is “consistent with more
sophisticated operators.” Moreover, Garcia had a conversation with Horcasitas in
which Garcia refused to transport the cocaine from Las Cruces, New Mexico to
Hatch, New Mexico. Garcia’s refusal to transport the cocaine to Hatch from Las
Cruces reasonably could be interpreted as evincing a sophisticated understanding
of the risks of transporting drugs, because Border Patrol checkpoints are
positioned between the two cities. Garcia also knew to ensure his security by
insisting that the drug deal occur on his home turf; that the transaction be
completed quickly at the time Garcia, not the buyers, demanded; and that the
locations for the drug deal frequently change. Finally, Garcia was apparently
experienced enough to maintain a cool, calm, and collected businesslike demeanor
throughout the entire drug transaction.
Given this evidence, and all reasonable inferences which can be drawn in
the government’s favor, the district court did not abuse its discretion in denying
the motion for judgment of acquittal. A jury reasonably could find that the nearly
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three kilogram cocaine deal involving Garcia resembled a sophisticated drug
transaction that someone predisposed to drug trafficking would commit.
II. Motion for a New Trial
Garcia filed a motion for a new trial on the ground that the verdict was
against the weight of the evidence with regard to his sole defense of entrapment.
The district court denied the motion, and Garcia appeals, arguing that the district
court totally failed to weigh any evidence. A district court’s denial of a new trial
based on the weight of the evidence is reviewed for abuse of discretion. United
States v. Evans, 42 F.3d 586, 593 (10th Cir. 1994). Though the district court’s
reasoning could have been more explicit, the district court did not abuse its
discretion.
A motion for new trial should be granted if, “after weighing the evidence
and the credibility of the witnesses, the court determines that ‘the verdict is
contrary to the weight of the evidence such that a miscarriage of justice may have
occurred.’” United States v. Gabaldon , 91 F.3d 91, 93-94 (10th Cir. 1996)
(quoting Evans , 42 F.3d at 593). In its Memorandum Opinion and Order denying
the motion, the district court stated that it “considered the briefs, testimony of
witnesses and [was] otherwise fully informed,” and it then concluded that the
motion for new trial was “not well taken.” The court laid out in detail the
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testimony of Horcasitas, Agent Baker, and Officer Mulliniks, and ultimately
found this testimony to be “directly relevant to the question of inducement and
contradictory to Mr. Garcia’s testimony.” The court concluded that “[b]ecause of
this conflict the Court cannot say that Mr. Garcia was entrapped as a matter of
law.” Although its reasoning was not explicit, we believe the district court
weighed the evidence and considered the credibility of all the witnesses. The
court’s complete description of the evidence pertaining to the entrapment defense,
its express consideration of “the briefs, testimony of witnesses and being
otherwise fully informed,” combined with the court’s explicit rejection of the new
trial motion establish that the court weighed the evidence, and found it not to
support a motion for new trial. Accordingly, Garcia’s appeal on this matter fails.
III. Failure to Hold Hearing Regarding Potential Jury Misconduct
Garcia also asserts that the district court erred in failing to conduct a
hearing regarding potential jury misconduct. The denial of a motion for new trial
based on juror misconduct is reviewed under the abuse of discretion standard. See
United States v. Davis, 60 F.3d 1479, 1482 (10th Cir. 1995).
Garcia alleges that several jurors saw him arrive at the courthouse in a
recent model pickup truck and that they improperly inferred that to afford such an
expensive vehicle, he must have been a drug dealer. Garcia argues that the
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jurors’ observations of him arriving at the courthouse in a luxurious automobile
constitutes external information triggering a presumption of prejudice under
Remmer v. United States, 347 U.S. 227 (1954).
Remmer dealt with a third party offer of a bribe to the jury foreman in
exchange for a favorable verdict. The Supreme Court held that the trial court
erred in not conducting a hearing with the participation of the defendant to
determine the effect of the offered bribe on the jury, and stated: “In a criminal
case, any private communication, contact, or tampering, directly or indirectly,
with a juror during a trial about the matter pending before the jury is, for obvious
reasons, deemed presumptively prejudicial.” Id. at 229. Remmer’s presumption
of prejudice does not apply to Garcia because the jurors’ alleged observations of
Garcia and his pickup truck do not constitute direct or indirect private
“communication, contact, or tampering.” Seeing Garcia arrive at court in his
truck is not extraneous evidence, in the same way that it is not extraneous
evidence when a juror observes the defendant walking down the corridor of the
courthouse between trial dates, or sees the defendant at the grocery store. “To
hold otherwise would require a Remmer hearing based on each of the multiple
ordinary incidental contacts between non-sequestered jurors and virtually any
other person during the course of a trial.” United States v. Brooks, 161 F.3d
1240, 1246 (10th Cir. 1998) (holding Remmer inapplicable where juror spoke
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with security officers during lunch break on first day of trial, without evidence
that their conversations were “about the matter pending before the jury”).
Remmer and its applications in this Circuit thus foreclose us from adopting
Garcia’s arguments. We further observe that, in any event, photographs were
introduced in evidence showing Garcia in this truck. The Remmer presumption is
not applicable and the district court acted within its discretion in refusing to hold
a hearing on the matter.
IV. The Government’s Cross-Appeals from the Sentence
The government raises three issues on cross-appeal. The government
contends that the district court erred in adjusting Garcia’s sentence downward
based on his acceptance of responsibility and minor participant status in the
offense. The government also argues that the district court erred in granting a
downward departure for aberrational behavior. We hold that the district court
erred only in its minor participant downward adjustment; therefore, we affirm in
part and reverse in part.
A. Acceptance of responsibility
At sentencing, the district court granted Garcia a two point reduction for
acceptance of responsibility. The court made a factual finding that:
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The defendant meets the criteria of Section 3E1.1(a) and will receive
a two (2) level reduction for acceptance of responsibility . . . . The
defendant admitted his involvement in the offense since his initial arrest
and throughout the trial. Further, the defendant has given the Government
all the information he knows about the offense. The Court finds it was
appropriate for the defendant having presented an entrapment defense
which admitted the underlying facts, to receive full credit for acceptance of
responsibility.
On cross-appeal, the government argues that the district court erred as a matter of
law in applying the acceptance-of-responsibility credit under U.S.S.G. § 3E1.1
because Garcia went to trial, asserted an entrapment defense, and thereby,
according to the government, refused to acknowledge that he willfully engaged in
drug trafficking. The issue before us is whether asserting an entrapment defense
at trial bars receipt of an acceptance-of-responsibility reduction as a matter of
law. The circuits appear split on this matter, 1 although only the Sixth Circuit has
1
The Third, Sixth, Ninth, and Eleventh Circuits have concluded that the
entrapment defense and the acceptance of responsibility reduction are not
necessarily incompatible. See United States v. Demes, 941 F.2d 220, 222 (3d Cir.
1991) (“[I]t is conceivable to hypothesize a case in which a plea of entrapment
would not be inconsistent with the acceptance of responsibility . . . .”); United
States v. Fleener, 900 F.2d 914, 918 (6th Cir. 1990) (“[W]e find that the district
court did not err in considering a reduction for acceptance of responsibility even
though [the defendant] raised an entrapment defense at trial. Such a defense is no
less inconsistent with the Guidelines provision than is a plea of not guilty, which
does not raise an absolute bar to a court’s consideration.”); United States v. Ing,
70 F.3d 553, 556 (9th Cir. 1995) (“The assertion of an entrapment defense is not
necessarily incompatible with acceptance of responsibility.”); United States v.
Davis, 36 F.3d 1424, 1435 (9th Cir. 1994) (“[T]he district court could not have
found that [the defendant] had not accepted responsibility solely because he
presented an entrapment defense at trial.”); Joiner v. United States, 103 F.3d 961,
(continued...)
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1
(...continued)
963 (11th Cir.) (“[The defendant] would not have been barred as a matter of law
from receiving an adjustment merely because he asserted an entrapment defense at
trial, even though some courts have viewed the assertion of an entrapment defense
as the virtual antithesis of acceptance of responsibility. Rather, as with cases
involving any other defense, whether a defendant has accepted responsibility is a
fact-based question which requires the district court to carefully review all of the
evidence bearing on a particular defendant’s contrition.”) (citation omitted), cert.
denied, 520 U.S. 1246 (1997). The First Circuit seems to have reached the same
conclusion. See United States v. Ellis, 168 F.3d 558, 564 (1st Cir. 1999) (“In
some cases, defenses relating to intent may yet qualify for the acceptance of
responsibility reduction.”) (citing Fleener, 900 F.2d at 918).
On the other hand, the Fifth and Eighth Circuits have held that an
entrapment defense and a § 3E1.1 reduction are necessarily incompatible. See
United States v. Brace, 145 F.3d 247, 265 (5th Cir.) (en banc) (“[A]n entrapment
defense is a challenge to criminal intent and thus to culpability. Accordingly, this
is not one of those ‘rare situations’, contemplated by the guideline commentary, in
which a defendant may proceed to trial and still satisfy § 3E1.1(a).”), cert denied,
119 S.Ct. 426 (1998); United States v. Chevre, 146 F.3d 622, 625 (8th Cir. 1998)
(“We believe that ‘[w]here a defendant persists in asserting entrapment, she
cannot also claim acceptance of responsibility.’”) (quoting United States v.
Simpson, 995 F.2d 109, 112 (7th Cir. 1993)).
The D.C. Circuit comes very close to holding that the entrapment defense is
incompatible with acceptance of responsibility, but it has left the door just
slightly ajar on that issue. See United States v. Kirkland, 104 F.3d 1403, 1406
(D.C. Cir.) (“It may be that a situation could be presented in which an entrapment
defense is not logically inconsistent with a finding of a defendant’s acceptance of
responsibility, even though we doubt it (that three of our sister circuits seem to
think so is sufficient reason to be somewhat cautious), but certainly defense
counsel’s argument before the district court did not raise it.”), cert. denied, 520
U.S. 1246 (1997).
The Seventh Circuit appears to be split internally. Compare United States
v. Corral-Ibarra, 25 F.3d 430, 440 (7th Cir. 1994) (finding that an entrapment
defense if pleaded in good faith “may possibly qualify” for a § 3E1.1 reduction,
but in such a case “a determination that a defendant has accepted responsibility
will be based primarily upon pre-trial statements and conduct”), with United
States v. Rector, 111 F.3d 503, 508 (7th Cir. 1997) (“[T]he adjustment [for
(continued...)
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addressed the issue in a case with the same posture as here: an appeal from a
sentencing court’s grant of the reduction. See United States v. Fleener, 900 F.2d
914 (6th Cir. 1990) (affirming the district court’s decision to grant a two-point
reduction for acceptance of responsibility because of the defendant’s pretrial
cooperation with the government on the merits of the offense, notwithstanding the
defendant’s assertion at trial of an entrapment defense). Like the Sixth Circuit,
we hold that a § 3E1.1 reduction is not per se unavailable just because the
defendant chooses to go to trial solely on an entrapment defense.
The entrapment defense is founded upon the rule of statutory construction
that prohibits literal interpretation of a statute that produces absurd results. In
Sorrells v. United States , 287 U.S. 435 (1932), where the Supreme Court first
1
(...continued)
acceptance of responsibility] is rarely available to those who assert entrapment, a
defense that by its nature tends to preclude the acceptance of responsibility.
Essentially, the problem is that asserting entrapment is a denial rather than an
acceptance of responsibility. A defendant asserting such a defense is saying, in
effect, ‘I did it but it was somebody else’s fault that I did it.’ That is the
antithesis of remorse or acceptance of responsibility.”), overruled on other
grounds by United States v. Wilson, 169 F.3d 418, 428 n.9 (7th Cir. 1999), cert.
denied, No. 98-9497, 1999 WL 350146 (U.S. June 21, 1999), and United States v.
Simpson, 995 F.2d 109, 112 (7th Cir. 1993) (“Where a defendant persists in
asserting entrapment, she cannot also claim acceptance of responsibility.”), and
United States v. Emenogha, 1 F.3d 473, 482 (7th Cir. 1993) (same).
The Second Circuit has noted, but has yet to address the issue. See United
States v. Rosa, 17 F.3d 1531, 1552 (2d Cir. 1994) (expressly refusing to
determine “whether a defendant who claims ‘sentencing entrapment’ may ever
receive the two-point reduction”).
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recognized the entrapment defense, the government’s argument against
recognition of the entrapment defense was tied to the “letter of the statute” under
which the defendant was prosecuted. Id. at 446. The Supreme Court, however,
rejected a literal reading of the criminal statute, and explained:
Literal interpretation of statutes at the expense of the reason of the
law and producing absurd consequences or flagrant injustice has frequently
been condemned. . . .
...
We think that this established principle of construction is applicable
here. We are unable to conclude that it was the intention of the Congress
in enacting this statute that its processes of detection and enforcement
should be abused by the instigation by government officials of an act on
the part of persons otherwise innocent in order to lure them to its
commission and to punish them. We are not forced by the letter to do
violence to the spirit and purpose of the statute.
Id. at 446-48. Thus, the entrapment defense is a creature of statutory
construction that concedes that the defendant’s conduct satisfies the essential
factual elements of guilt, but nonetheless refuses to apply the statute to an
entrapped defendant to avoid creating an absurd result. See also Jacobson , 503 at
553 (reaffirming quoted passage from Sorrells ); Sherman v. United States , 356
U.S. 369, 372 (1958) (“Congress could not have intended that its statutes were to
be enforced by tempting innocent persons into violations.”); United States v.
Russell , 411 U.S. 423, 428 (1973) (“[In Sorrells ,] Mr. Chief Justice Hughes,
speaking for the Court, held that as a matter of statutory construction the defense
of entrapment should have been available to the defendant.”); id. at 433-34
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(“Critics of the rule laid down in Sorrells and Sherman have suggested that its
basis in the implied intent of Congress is largely fictitious . . . . Arguments such
as these, while not devoid of appeal, have been twice previously made to this
Court, and twice rejected by it, first in Sorrells and then in Sherman .”); Ronald J.
Allen et al., Constitutional Criminal Procedure 980 (3d ed. 1995) (“[T]he Court
has consistently reaffirmed that the key to the federal entrapment defense is the
absence of predisposition on the part of the defendant and that the defense exists
as a matter of statutory construction.”).
Given that the entrapment defense emanates from such a rule of statutory
construction, we believe that a sentencing court may apply an acceptance-of-
responsibility reduction to a defendant who asserts the entrapment defense. The
commentary to § 3E1.1 states that conviction by trial “does not automatically
preclude a defendant from consideration for such a reduction.” U.S.S.G. §
3E1.1, cmt. (n.2).
In rare situations a defendant may clearly demonstrate an acceptance of
responsibility for his criminal conduct even though he exercises his
constitutional right to a trial. This may occur, for example, where a
defendant goes to trial to assert and preserve issues that do not relate to
factual guilt ( e.g. , to make a constitutional challenge to a statute or a
challenge to the applicability of a statute to his conduct ). In each such
instance, however, a determination that a defendant has accepted
responsibility will be based primarily upon pre-trial statements and
conduct.
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Id. (emphasis added). As the long line of Supreme Court entrapment cases show,
the entrapment defense is just such a “challenge to the applicability of a statute”
to the defendant’s conduct. The defendant, when defending at trial based only on
the entrapment defense, is essentially saying: “I am factually guilty, but it was
the government that induced commission of the crime and planted the criminal
intent. I thereby was entrapped. Therefore, Congress did not intend for this
criminal statute to apply to my conduct.” Thus, the entrapment defense is one of
those “rare situations” contemplated by the Sentencing Guidelines in which a
defendant may go to trial and still receive an acceptance of responsibility
reduction.
We are mindful of this court’s prior statement in United States v. Hansen,
964 F.2d 1017, 1021 (10th Cir. 1992), that it is “difficult for this Court to
envision how the defendant argues that he affirmatively accepted responsibility
for his criminal action when throughout the proceedings he maintained that his
criminal action was not his fault, but rather, it was the result of government
inducement.” Nothing we say today is inconsistent with this statement. We hold
only that raising the entrapment defense does not necessarily foreclose the
possibility of receiving a reduction for acceptance of responsibility, but that does
not mean that the simple assertion of the entrapment defense coupled with
acknowledgment of the underlying criminal activity automatically entitles a
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defendant to a two-point acceptance of responsibility reduction. See also United
States v. Hoenscheidt, 7 F.3d 1528, 1532 (10th Cir. 1993) (no error where
sentencing court acknowledged the entrapment defense “does not necessarily bar”
a § 3E1.1 reduction); United States v. Wallace, No. 97-6190, 1998 WL 13548, at
*5 (10th Cir. Jan. 16, 1998) (unpublished) (“[I]t is possible that a failed
entrapment defense could coexist with an acceptance of responsibility
adjustment.”), cert. denied, 118 S. Ct. 1855 (1998); United States v. Ortegon-
Antillon, No. 94-2139, 1995 WL 511137, at *1 (10th Cir. Aug. 30, 1995)
(unpublished) (“A defendant who forces the government to prove its case at trial
will only rarely warrant a reduction for acceptance of responsibility. One such
rare occasion may arise when a defendant who otherwise expresses remorse,
contrition, or acknowledgment of wrongdoing nonetheless pleads not guilty
because of entrapment.”) (citation omitted). A defendant will need to evidence
acceptance of responsibility, primarily through pre-trial statements and conduct,
before an acceptance of responsibility reduction would be warranted. See
U.S.S.G. § 3E1.1, cmt. 2.
Some courts have suggested that the entrapment defense and U.S.S.G.
§ 3E1.1 are incompatible because the entrapment defense challenges the factual
element of intent. See United States v. Brace, 145 F.3d 247, 265 (5th Cir.) (en
banc), cert. denied, 119 S.Ct. 426 (1998); United States v. Kirkland, 104 F.3d
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1403, 1405 (D.C. Cir.), cert. denied, 520 U.S. 1246 (1997). E ntrapment is indeed
“intertwined” with the issue of intent, United States v. Fadel , 844 F.2d 1425,
1430 (10th Cir. 1988), because the jury is asked to consider “whether that intent
was the result of Government inducement,” Mathews v. United States , 485 U.S.
58, 65 (1988). However, asking whether the defendant’s intent was the result of
government inducement does not challenge the factual element of intent. As the
Supreme Court has clearly stated, “[entrapment] is rooted . . . in the notion that
Congress could not have intended criminal punishment for a defendant who has
committed all the elements of a proscribed offense , but was induced to commit
them by the Government.” United States v. Russell , 411 U.S. 423, 435 (1973)
(emphasis added); see also , Ronald J. Allen et al, Constitutional Criminal
Procedure 999 (3d ed. 1995) (“Typically defendants claiming entrapment do not
challenge the prosecutor’s proof of the elements of the offense.”). In this case,
Garcia was charged with possession of cocaine with intent to distribute. “To
support a conviction of possession with intent to distribute, the evidence must
prove beyond a reasonable doubt the following elements: (1) the defendant
knowingly possessed the illegal drug; and (2) the defendant possessed the drug
with the specific intent to distribute it.” United States v. Carter , 130 F.3d 1432,
1440 (10th Cir. 1997) (internal quotations omitted), cert. denied , 118 S. Ct. 1856
(1998). The entrapment defense challenges neither of these elements. Garcia
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admits that he knowingly possessed cocaine and that he specifically intended to
distribute the cocaine. Instead, Garcia asserted the entrapment defense, which
functions as an “origin-of-intent” defense, conceding that he had the requisite
criminal intent when the crime was committed, but claiming that the requisite
criminal intent was planted by the government. If it is proven that the
government “originate[d] a criminal design, implant[ed] in an innocent person’s
mind the disposition to commit a criminal act, and then induce[d] commission of
the crime,” Jacobson , 503 U.S. at 548, then pursuant to a rule of statutory
construction, the criminal statute does not apply to the defendant, and he or she
should therefore not be punished. 2
Even if the entrapment defense were viewed as challenging the factual
element of intent, under the law of this circuit, we would still affirm the district
court’s acceptance-of-responsibility downward adjustment. In United States v.
Gauvin, 173 F.3d 798 (10th Cir. 1999), the defendant was charged with assault
with a dangerous weapon and assault on a federal officer. The defendant “went to
2
The record belies any suggestion that Garcia “admit[ted] and expresse[d]
remorse” only after conviction. U.S.S.G. § 3E1.1, comment. (n.2). The
sentencing court found that Garcia “admitted his involvement in the offense since
his initial arrest.” Likewise, at the evidentiary hearing and sentencing below, the
judge added: “I think Mr. Garcia is entitled to acceptance of responsibility by
virtue of the fact that he has at all times admitted the acts that he has been
accused of by the Government in this case . . . Mr. Garcia has at all times
admitted what he did in this case. He admitted it prior to trial.”
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trial only to contest the legal element of intent. . . . [The defendant] disputed
whether his acknowledged factual state of mind met the legal criteria of intent to
harm or cause apprehension.” Id. at 806. He argued at trial, to no avail, that “he
did not intend, while drunk and scared, to cause injury to others. [He also]
contended that his drunkenness rendered him incapable of forming the requisite
mens rea.” Id. The defendant was convicted, but the district court granted him a
§ 3E1.1 reduction. We affirmed, reasoning that the defendant’s “defense--
essentially a challenge to the applicability of the statute to his conduct, see
U.S.S.G. § 3E1.1, cmt. n.2-- does not as a matter of law preclude application of
the guideline.” Id. If an intoxication defense challenging the mens rea of a crime
does not necessarily foreclose an acceptance-of-responsibility reduction, then
neither does an entrapment defense. Accordingly, the district court’s ruling was
consistent with the law and it committed no error in granting Garcia a § 3E1.1
downward adjustment.
B. Minor participant
The trial court granted Garcia a two level reduction from the base offense
level because he was a “minor participant.” The court explained:
[T]he defendant is viewed as a minor participant. The defendant was
recruited by a paid informant who befriended the defendant and his
pregnant daughter for several months with the goal to ensnare him in this
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illegal activity and who preyed on the defendant’s sympathy for the paid
informant’s seemingly impoverished lifestyle.
A trial court’s determination as to whether a defendant was a minimal or minor
participant is a factual finding that we review only for clear error, “giving due
deference to the court’s application of the sentencing guidelines to the facts.”
United States v. James, 157 F.3d 1218, 1219 (10th Cir. 1998). This court “will
not reverse the district court unless the court’s findings are without factual
support in the record, or if after reviewing the evidence we are left with the
definite and firm conviction that a mistake has been made.” United States v.
Gault, 141 F.3d 1399, 1404 (10th Cir.), cert. denied, 119 S. Ct. 253 (1998). After
reviewing the evidence, we are indeed left with a definite and firm conviction that
a mistake has been made.
Section 3B1.2 states that the trial court should decrease the defendant's
offense level by two levels “[i]f the defendant was a minor participant in any
criminal activity.” “[M]inor participant means any participant who is less
culpable than most other participants, but whose role could not be described as
minimal.” U.S.S.G. § 3B1.2, cmt. (n.3). “A ‘participant’ is a person who is
criminally responsible for the commission of the offense, but need not have been
convicted,” but does not include an undercover law enforcement officer.
U.S.S.G. § 3B1.1, cmt. (n.1). The three “participants” in Garcia’s crime were
Garcia and the two men who delivered the cocaine to Garcia, Rafael Chavez and
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Dagoberto Torrez, in order for him to sell it to the government’s undercover
buyers. It would be a mistake to conclude both that Garcia is less culpable than
Chavez and Torrez, and that Garcia’s role was minimal. Chavez and Torrez were
the suppliers of the cocaine, and Garcia was the seller who took the active step of
contacting the suppliers to arrange the drug deal. We find it clear error to
conclude that a seller of nearly three kilograms of cocaine who helped orchestrate
its sale by contacting suppliers was a “minor participant.” The fact that the
government “preyed” on Garcia’s sympathy does not diminish his substantial role
in the cocaine transactions at issue. 3
C. Aberrant behavior
At sentencing, the district court granted a downward departure to Garcia
because his crime of conviction was a single act of aberrant behavior. The
district court explained:
3
Garcia contends that he was a “minor participant” because it was the
government and one of the suppliers that “set the price of the cocaine, not Garcia;
that Garcia did not arrange the location; that Garcia did not supply the cocaine,
did not know the purity of the drugs, and did not have any control over the
amount of the drugs that were purchased; and that Garcia did not stand to receive
any financial gain from the transaction and got involved only because of the
friendship he felt toward Horcasitas.” However, this argument, assuming it to be
true, fails to rebut the facts outlined above, which clearly establish that Garcia’s
role was nevertheless not minimal. See U.S.S.G. § 3B1.2, cmt. (n.3). While
Garcia may not have run every facet of the drug deal, his role within it was still
substantial.
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The Court finds that this defendant has a minimal criminal history. The
defendant has numerous letters of support from the community attesting to
his honesty and integrity in the manner which he conducted his business in
Las Cruces, New Mexico for many years. Several letters confirmed the
defendant’s sympathy for people in need. The paid informant used this to
entice this previously law-abiding member of the community. The Court
will depart seven (7) levels, from a base offense level of twenty-two (22),
to a base offense level of fifteen (15). A base offense level of fifteen (15)
and a criminal history category of I establishes a guideline imprisonment
range of eighteen (18) to twenty-four (24) months.
“The aberrance of a criminal act is an encouraged factor for departure.”
United States v. Talk, 158 F.3d 1064, 1072 (10th Cir. 1998), cert. denied, 119 S.
Ct. 1079 (1999). “Under our case law, the aberrant nature of a criminal
defendant’s offense conduct may properly be considered as a mitigating factor in
a downward departure decision.” United States v. Jones, 158 F.3d 492, 500 (10th
Cir. 1998). The “determination of whether an individual defendant’s offense
conduct is aberrational, like the decision to depart, requires consideration of
unique factors not readily susceptible of useful generalization. The district court
is in the better position to determine whether the defendant’s offense conduct is
out of character for that individual. Accordingly, the district court’s resolution of
this largely factual question is due substantial deference.” Id.
The government argues that in order for the aberrational behavior departure
to apply, the offense must be “spontaneous, without substantial planning, and be
completely aberrant from defendant’s background and personality.” As a result,
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the government asserts, Garcia’s “carefully planned” cocaine transaction cannot
be deemed aberrational. However, this circuit has never held that application of
the aberrant behavior downward departure requires the crime at issue to have been
spontaneous. This court focuses “our departure analysis not on the number of
discrete acts undertaken by the defendant, but on ‘[t]he aberrational character of
her conduct.’” Id. (quoting United States v. Pena, 930 F.2d 1486, 1495 (10th Cir.
1991)). In Jones, this court upheld a downward departure based on the aberrance
of a criminal act where a defendant was convicted of possession of a firearm by a
prohibited person and providing false information to obtain a firearm. In Pena, a
downward departure due to the aberrational nature of the defendant’s conduct was
affirmed where the defendant was convicted of driving a car containing drugs
across the border. Neither of the facts in Jones nor Pena evince spontaneity !
what the government posits as a prerequisite to the aberrational behavior factor
for a downward departure.
The government also argues on appeal that the jury’s rejection of the
entrapment defense necessarily amounts to a finding that Garcia was predisposed
to commit the offense, and that such predisposition precludes the aberrational
behavior downward departure. This argument, however, was not raised below and
is unpersuasive, in any event, since the jury, in rejecting the entrapment defense,
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did not have to find Garcia predisposed; rather, the jury, in rejecting the
entrapment defense, could simply have found no inducement by the government.
As a result, the district court’s downward departure based on aberrant
behavior is affirmed.
CONCLUSION
We AFFIRM the district court’s denial of Garcia’s motion for judgment of
acquittal and motions for a new trial. We also AFFIRM the district court’s
application of the acceptance-of-responsibility downward adjustment and aberrant
behavior downward departure. The district court’s application of the “minor
participant” provision is REVERSED, and we REMAND for resentencing in
accordance with this opinion.
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