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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 21, 2003 Decided May 20, 2003
No. 02-3042
UNITED STATES OF AMERICA,
APPELLEE
v.
GREGORIO HINDS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 00cr00173-01)
Howard B. Katzoff, appointed by the court, argued the
cause and filed the brief for appellant.
Mary G. Leary, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Roscoe C. Howard,
Jr., U.S. Attorney, and John R. Fisher, Thomas J. Tourish,
Jr., Thomas C. Taylor, and Roderick L. Thomas, Assistant
U.S. Attorneys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND,
Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Defendant Gregorio Hinds con-
tends that the district court erred in refusing to exclude a
quantity of crack cocaine from the relevant conduct used to
calculate his sentence under the United States Sentencing
Guidelines (U.S.S.G.). We conclude that the provision of the
guidelines upon which Hinds relies, Application Note 12 to
U.S.S.G. § 2D1.1, is inapplicable, and reject his underlying
claim of sentencing entrapment. We therefore affirm the
judgment of the district court.
I
In late 1999, Hinds and his co-defendant, David Rollins,
sold cocaine to an undercover police officer on three occa-
sions. On November 22, 1999, they sold the officer 58.3
grams of powder cocaine (cocaine hydrochloride). On No-
vember 30, 1999, they sold him 60.3 grams of crack cocaine
(cocaine base). And on December 7, 1999, they sold the same
officer 60.6 grams of powder cocaine. All three transactions
were audio- and videotaped.
On November 29, 1999, the day before the second transac-
tion, the undercover officer asked Hinds if he could ‘‘rock up’’
the cocaine — that is, convert the cocaine from its powder
form into crack, a process also known as ‘‘cooking.’’1 That
conversation, which was also recorded, proceeded as follows:
Officer: Can you rock it up or do you know somebody for
me?
Hinds: I can do that for you.
1 See U.S. SENTENCING COMM’N, REPORT TO CONGRESS — COCAINE AND
FEDERAL SENTENCING POLICY 16 (May 2002) (‘‘Crack cocaine is made
by dissolving powder cocaine in a solution of sodium bicarbonate
and water. The solution is boiled and a solid substance separates
from the boiling substance. After the solid substance is dried, the
crack cocaine is broken into ‘rocks’TTTT’’).
3
Officer: You can do that for me?
Hinds: Yeah.
App. at 33. Following the conversation, Hinds asked a friend
for assistance in rocking up the cocaine. Unbeknownst to
Hinds, however, the friend was working as a confidential
government informant, in cooperation with the undercover
police officer. Although the informant declined to perform
the conversion himself, he put Hinds in contact with another
unidentified individual. Hinds brought powder cocaine to
that individual, who cooked it into crack in Hinds’ presence.
On November 30, as the parties had agreed the previous day,
Hinds delivered the crack cocaine to the undercover officer.
Hinds and Rollins were subsequently arrested and indicted
on several charges related to the three drug transactions.
On December 19, 2000, Hinds signed a written plea agree-
ment in which he acknowledged that he was ‘‘accountable for
at least 100 grams but less than 200 grams of cocaine powder
and at least 50 grams but less than 150 grams of cocaine base,
also known as crack.’’ App. at 13. The same day, Hinds pled
guilty to one count of conspiracy to distribute and possess
with intent to distribute cocaine powder and cocaine base, in
violation of 21 U.S.C. § 846. In its Presentence Investigation
Report (PSR), the United States Probation Office determined
that Hinds’ adjusted offense level under the Sentencing
Guidelines was 27, based on relevant conduct that included
the 60.3 grams of crack and 118.9 grams of powder cocaine
that Hinds sold to the undercover officer. PSR ¶¶ 16, 24.2
That offense level, together with a criminal history category
of I, yielded a guidelines sentencing range of 70 to 87 months.
Id. ¶ 46; see U.S.S.G. ch. 5, pt. A.
2 Hinds’ base offense level was 32. See U.S.S.G. § 2D1.1(c)(4).
He received a two-level reduction under the guidelines’ ‘‘safety
valve’’ provisions, U.S.S.G. §§ 2D1.1(b)(6), 5C1.2, and a three-level
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.
See PSR ¶¶ 16, 17, 23, 24. Because the district court found that
Hinds met the safety valve criteria, it sentenced him according to
the guidelines rather than imposing the otherwise-mandatory statu-
tory minimum of 10 years’ imprisonment. See 18 U.S.C. § 3553(f).
4
At sentencing, Hinds disputed the calculation contained in
the PSR. He argued that under U.S.S.G. § 2D1.1, Applica-
tion Note 12, the court was required to exclude the 60.3
grams of crack from the relevant conduct used to calculate his
sentence. If that amount had been excluded, or treated as
powder cocaine, Hinds’ adjusted offense level would have
dropped to 13, resulting in a sentencing range of 12 to 18
months. See U.S.S.G. ch. 5, pt. A.3 The district court
rejected Hinds’ argument, see United States v. Hinds, 190 F.
Supp. 2d 1 (D.D.C. 2002), and subsequently sentenced him to
70 months’ imprisonment, the bottom of the guidelines range.
II
Application Note 12 to U.S.S.G. § 2D1.1 states, in relevant
part:
Where there is no drug seizure or the amount seized
does not reflect the scale of the offense, the court shall
approximate the quantity of the controlled substanceTTTT
TTTT
In an offense involving an agreement to sell a controlled
substance, the agreed-upon quantity of the controlled
substance shall be used to determine the offense level
unless the sale is completed and the amount delivered
more accurately reflects the scale of the offense. For
example, a defendant agrees to sell 500 grams of cocaine,
the transaction is completed by the delivery of the con-
trolled substance — actually 480 grams of cocaine, and
no further delivery is scheduled. In this example, the
amount delivered more accurately reflects the scale of
the offense. In contrast, in a reverse sting, the agreed-
upon quantity of the controlled substance would more
accurately reflect the scale of the offense because the
amount actually delivered is controlled by the govern-
3 The base offense level for at least 100 but less than 200 grams of
cocaine powder is 18. U.S.S.G. § 2D1.1(c)(11). Applying the same
two- and three-level reductions that Hinds received, see supra note
2, would have yielded an offense level of 13.
5
ment, not by the defendant. If, however, the defendant
establishes that he or she did not intend to provide, or
was not reasonably capable of providing, the agreed-
upon quantity of the controlled substance, the court shall
exclude from the offense level determination the amount
of controlled substance that the defendant establishes
that he or she did not intend to provide or was not
reasonably capable of providing.
U.S.S.G. § 2D1.1, cmt. n.12 (emphasis added). Hinds con-
tends that the portion of Note 12 italicized above required the
district court to exclude the 60.3 grams of crack he sold to the
undercover officer from the calculation of his offense level,4
and that the court’s failure to do so constituted reversible
error.
4 It might be argued that Hinds waived this contention at the plea
stage. He entered a plea to conspiracy to distribute both powder
cocaine and crack; signed a plea agreement specifically acknowl-
edging that he was ‘‘accountable for TTT at least 50 grams but less
than 150 grams of cocaine base, also known as crack, which quantity
represents the total amount involved in [his] relevant criminal
conduct,’’ App. at 13; and further agreed not to seek any decreases
in his base offense level other than the two downward adjustments
expressly identified in the agreement, see supra note 2. Cf. United
States v. Calderon, 163 F.3d 644, 646 (D.C. Cir. 1999) (holding that
a defendant’s claim for a downward sentencing adjustment was
barred by her plea agreement not to seek any adjustment not
specified in the agreement). Moreover, at the plea hearing, the
court advised, and Hinds acknowledged, that the relevant conduct
to which he had admitted likely indicated an adjusted offense level
of 27 and a minimum sentence of 70 months’ imprisonment, App. at
53–56, precisely the level and minimum sentence subsequently
calculated by the Probation Office and applied by the court. Al-
though the government’s failure to make the waiver argument in
the district court would not necessarily preclude us from relying on
it here, see In re Swine Flu Immunization Prods. Liability Litig.,
880 F.2d 1439, 1444 (D.C. Cir. 1989) (holding that ‘‘an appellate
court can affirm a district court judgment on the basis of ‘any
grounds which TTT support [it]’ ’’ (alterations in original)), we do not
do so because the government’s appellate brief expressly disclaimed
reliance on the argument, Appellee’s Br. at 20 n.11, and the
defendant therefore has had no opportunity to respond to it.
6
We conclude that the district court correctly determined
that Application Note 12 is inapplicable to Hinds’ case.5
When considering a challenge to a district court’s sentencing
determination, we review purely legal questions de novo and
give ‘‘due deference to the district court’s application of the
guidelines to the facts.’’ 18 U.S.C. § 3742(e); see United
States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994). In order to
show that he should have been sentenced pursuant to Note
12, Hinds must establish that he ‘‘did not intend to provide’’
or ‘‘was not reasonably capable of providing’’ the agreed-upon
quantity of the controlled substance. U.S.S.G. § 2D1.1, cmt.
n.12. Hinds does not dispute that he intended to provide the
crack: indeed, he expressly agreed to do so, contacted the
informant for assistance with the conversion, brought the
powder to the individual who performed the conversion, and
then delivered the resulting product to the undercover officer.
Hinds does dispute that he was ‘‘reasonably capable of
providing’’ the agreed-upon quantity of crack. That claim,
however, is belied by the fact that he actually provided that
quantity.6 Hinds’ real claim is that he would not have been
5 We reject, however, the government’s contention that Note 12
applies only to differences in drug quantity and not to differences in
type, and hence that it is inapplicable here because Hinds does not
dispute his ability to provide 60.3 grams of cocaine powder. See
United States v. Searcy, 284 F.3d 938, 942 (8th Cir. 2002) (holding
that Note 12 ‘‘logically TTT would apply to [differences in] the type
of drugs’’); United States v. Munoz, 233 F.3d 410, 414–16 (6th Cir.
2000) (applying Note 12 where the defendant substituted a different
drug for the one he had agreed to sell). Application Note 12
expressly refers to the defendant’s inability to provide ‘‘the agreed-
upon quantity of the controlled substance,’’ U.S.S.G. § 2D1.1, cmt.
n.12 (emphasis added), and the narcotics statutes treat powder
cocaine as a different controlled substance from crack, compare,
e.g., 21 U.S.C. § 841(b)(1)(A)(ii), with id. § 841(b)(1)(A)(iii). More-
over, Hinds plainly disputes his ability to produce the quantity upon
which he agreed with the undercover officer, since he contends that
he was incapable of producing any amount of crack at all.
6 That fact also distinguishes this case from United States v.
Munoz, in which the Sixth Circuit ordered a sentence reduction
7
reasonably capable of providing the crack without the assis-
tance of the government informant. He avers that when he
agreed in the recorded telephone conversation to provide the
crack, he did so ‘‘assum[ing]’’ that the informant would cook
the powder for him. App. at 17. According to Hinds, the
informant was the only person he knew who could accomplish
the conversion.7
But the language of the Application Note does not contain
the qualifier underlined above, and there is nothing in the
note’s context to suggest that the Sentencing Commission had
it in mind. To the contrary, the context of the note —
including its introductory sentences and illustrative cases —
indicates that it was designed to guide courts in assessing
culpability where the amount of the drug agreed upon and the
amount of the drug actually delivered were different. In this
case, the two were exactly the same.
We agree with the district court that Hinds’ argument,
‘‘while couched in the language of Application Note 12,’’ is
really just ‘‘the kind of sentencing entrapment or sentencing
factor manipulation argument consistently rejected by’’ this
circuit. Hinds, 190 F. Supp. 2d at 4. As the district court
explained, the essence of Hinds’ argument is his contention
that, but for the request and assistance of the government
and its informant, he would have sold powder rather than
crack and hence should be subject to the less stringent
sentencing guideline provisions applicable to the former. Id.
That is, indeed, an argument that this court has consistently
rejected.
In United States v. Walls, for example, the defendants
alleged that they converted powder cocaine into crack be-
where the defendant never provided the agreed-upon drug, deliver-
ing a different drug instead. 233 F.3d at 415.
7The government disputes that Hinds would have been unable to
provide the crack in the absence of the informant, and the district
court also expressed skepticism on this point. See Hinds, 190
F. Supp. 2d at 4. The court, however, apparently accepted the
defendant’s assertion arguendo for purposes of resolving the appli-
cability of Note 12, and we do so as well.
8
cause the undercover agents to whom they were selling
demanded it; in fact, one agent testified that he had insisted
on the delivery of crack because he wanted to subject the
defendants to more severe sentences. 70 F.3d 1323, 1328–29
(D.C. Cir. 1995). The defendants claimed that this constitut-
ed ‘‘sentencing entrapment,’’ and that they should be sen-
tenced as if they had distributed powder rather than crack.
But the court rejected that claim, noting that the Supreme
Court ‘‘has warned against using an entrapment defense to
control law enforcement practices of which a court might
disapprove.’’ Id. at 1329 (citing United States v. Russell, 411
U.S. 423, 435 (1973)); see also United States v. Shepherd, 102
F.3d 558, 566 (D.C. Cir. 1997) (‘‘In Walls, this court rejected
the contention that insistence by government agents that
cocaine be delivered in crack form constitutes ‘sentencing
entrapment.’ ’’). Instead, Walls emphasized that the ‘‘main
element in any entrapment defense is TTT the defendant’s
‘predisposition’ — ‘whether the defendant was an ‘‘unwary
innocent’’ or, instead, an ‘‘unwary criminal’’ who readily
availed himself of the opportunity to perpetrate the crime.’ ’’
70 F.3d at 1329 (quoting Mathews v. United States, 485 U.S.
58, 63 (1988)); see also United States v. Glover, 153 F.3d 749,
756 (D.C. Cir. 1998) (holding that even if the government had
chosen to contract for a drug purchase within 1000 feet of a
school to increase the defendant’s sentencing exposure, the
‘‘usual elements of the entrapment defense — inducement
and lack of predisposition — would still have to be shown’’ to
make out a viable claim). The Walls court found that ele-
ment lacking because the defendants’ predisposition was
clear:
Persons ready, willing and able to deal in drugs —
persons like [the defendants] — could hardly be de-
scribed as innocents. These defendants showed no hesi-
tation in committing the crimes for which they were
convicted. Alone, this is enough to destroy their entrap-
ment argument.
70 F.3d at 1329.8
8Those courts that have considered sentencing entrapment argu-
ments in the context of Application Note 12 have similarly relied on
9
As in Walls, the district court here concluded that the facts
of Hinds’ case showed that he ‘‘was not induced by a govern-
ment agent to do something he was not otherwise disposed,
or at least willing, to do.’’ Hinds, 190 F. Supp. 2d at 4.
Regardless of whether he personally possessed the ability to
convert powder into crack or knew others who could do so —
a skill that can hardly be described as rocket science9 — he
‘‘showed no hesitation’’ when the undercover agent asked him
to provide the drugs in crack form. Walls, 70 F.3d at 1329.
Rather, he ‘‘readily agreed,’’ Glover, 153 F.3d at 757, immedi-
ately responding, ‘‘I can do that for you,’’ App. at 33. And as
in Walls, that fact alone destroys Hinds’ sentencing entrap-
ment claim. See Walls, 70 F.3d at 1329; see also Shepherd,
102 F.3d at 566–67.
Hinds argues that his case is distinguishable from Walls
because, unlike the defendants there, he would not have been
able to convert his powder into crack but for the informant’s
active involvement. But this, too, is merely an incomplete
entrapment defense in disguise. As in many undercover
sting operations, what the government informant did here
was to facilitate the defendant’s commission of a crime. And
whether such facilitation rises to the level of entrapment
again depends on whether the government induced the defen-
dant to commit a crime for which he lacked predisposition.
See Mathews, 485 U.S. at 63; Glover, 153 F.3d at 756. As the
Supreme Court recently said in the course of holding that the
impossibility of achieving the object of a conspiracy does not
bar prosecution of the conspirators, there is no reason to
modify ‘‘a different branch of the law’’ — there conspiracy
the defendant’s predisposition as the decisive factor for the success
of the claim. See Searcy, 284 F.3d at 942 (holding that, although
Application Note 12 does require the exclusion of ‘‘the amount of
drugs that flow from sentencing entrapment,’’ the defendant must
establish ‘‘a lack of predisposition to commit the crime’’ to qualify as
having been entrapped); see also United States v. Estrada, 256
F.3d 466, 475 (7th Cir. 2001) (finding it unnecessary to determine
whether Application Note 12 addresses the issue of sentencing
entrapment because the defendant possessed the necessary predis-
position to commit the crime).
9 See supra note 1; see also supra note 7.
10
law, here sentencing law — ‘‘to forbid entrapment-like behav-
ior that falls outside the bounds of current entrapment law.’’
United States v. Jimenez Recio, 123 S. Ct. 819, 823 (2003).10
Finally, Hinds contends that ‘‘the government informant’s
actions in this case constituted egregious government miscon-
duct’’ that warrants exclusion of the crack cocaine from
Hinds’ guidelines calculation. Appellant’s Br. at 20. It is
true that Walls acknowledged that, under certain circum-
stances, government misconduct might give a defendant a
cognizable due process claim:
If the propriety of the agents’ conduct had any signifi-
cance, it would be with respect to the following dictum in
Russell: ‘‘we may some day be presented with a situation
in which the conduct of law enforcement agents is so
outrageous that due process principles would absolutely
bar the government from involving judicial processes to
obtain a conviction.’’
Walls, 70 F.3d at 1329 (quoting Russell, 411 U.S. at 431–32).
That acknowledgment, however, came with two caveats.
First, the court noted that such a claim would go to the
validity of the defendant’s conviction, rather than of his
sentence:
Whatever vitality the outrageous-conduct defense might
have [for setting aside a conviction], and we doubt that it
has much, we conceive of no basis for allowing this
defense, or some variant of it, to reduce a defendant’s
sentenceTTTT [I]f the government’s actions were not so
10 In Jimenez Recio, the police seized a truckload of narcotics and
set up a sting by having the drivers page their contact as if nothing
had happened. The defendants were arrested when they arrived on
the scene and attempted to drive the truck away. The Supreme
Court rejected the contention that, because the seizure rendered
the object of the conspiracy impossible to achieve, the defendants
could not be prosecuted in the absence of evidence that they joined
the conspiracy prior to the seizure. Such a rule, the Court warned,
‘‘would reach well beyond arguable police misbehavior, potentially
threatening the use of properly run law enforcement sting opera-
tions.’’ Jimenez Recio, 123 S. Ct. at 823.
11
outrageous that judicial processes to obtain a conviction
were barred — if, in other words, there were no violation
of the Due Process Clause — it follows that those actions
cannot serve as a basis for a court’s disregarding the
sentencing provisions.
Id. at 1329–30 (internal quotation marks and citation omitted).
Second, Walls held that in order to successfully raise such a
due process claim, a defendant must establish that the gov-
ernment had committed ‘‘ ‘coercion, violence, or brutality to
the person.’ ’’ Id. at 1330 (quoting United States v. Kelly, 707
F.2d 1460, 1476 (D.C. Cir. 1983)). The informant’s actions in
this case — which amounted to nothing more than acceding to
Hinds’ request for help in converting cocaine powder into
crack — plainly do not rise to that level.
III
For the foregoing reasons, we reject the defendant’s at-
tacks on his sentence and affirm the judgment of the district
court.