[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2559
UNITED STATES,
Appellee,
v.
ANTONIO CORTES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Raymond E. Gillespie on brief for appellant.
Michael J. Sullivan, United States Attorney, and Michael D.
Ricciuti, Assistant U.S. Attorney, on Motion for Summary
Disposition for appellee.
JANUARY 28, 2002
Per Curiam. The government has asked for summary
disposition of this appeal pursuant to Local Rule 27(c). The
government has shown that Antonio Cortes’s claim of sentencing
factor manipulation, the only issue he raises on appeal, is
without merit. “[Se]ntencing factor manipulation is a claim
only for the extreme and unusual case.” United States v.
Montoya, 62 F.3d 1, 4 (1st Cir.1995). A defendant cannot make
out a case of undue provocation simply by showing that the idea
originated with the government or that the conduct was
encouraged by it, or that the crime was prolonged beyond the
first criminal act, or exceeded in degree or kind what the
defendant had done before. Id. at 3-4. “What the defendant
needs in order to require a reduction are elements like these
carried to such a degree that the government's conduct must be
viewed as `extraordinary misconduct.’” Id. at 4. Cortes fails
to meet the heavy burden necessary to prevail on an assertion of
sentencing factor manipulation. The scope of the transaction,
150 kilograms of cocaine, never changed during the course of
negotiations between the coconspirators and the undercover
agents. Nor did the price of $16,000 per kilogram, $3,000 per
kilogram payable on delivery, deviate at any time during the
negotiations. The only element that changed was the method of
the down payment upon delivery, from cash to the promissory note
on a store Cortes purported to own. Because Cortes fails to
make a showing of a “extraordinary misconduct,” his sentencing
factor manipulation claim fails.
The government’s motion for summary disposition is therefore
GRANTED, and the district court’s judgment is AFFIRMED.
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