United States v. Gomes Fontes

United States Court of Appeals
For the First Circuit

No. 04-2237

UNITED STATES OF AMERICA,

Appellee,

v.

PETER GOMES FONTES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Boudin, Chief Judge,

Lynch and Lipez, Circuit Judges.

Timothy G. Watkins, Federal Defender Office, for appellant.
Nancy Rue, Assistant United States Attorney, with whom Michael
J. Sullivan, United States Attorney, and Rachel E. Hershfang,
Assistant United States Attorney, were on brief, for appellee.

July 20, 2005
 LIPEZ, Circuit Judge. Defendant-appellant Peter Gomes

Fontes ("Fontes") challenges his sentence for drug trafficking

crimes on the ground that the district court's finding that the

government engaged in sentencing factor manipulation entitles him

to a sentence below the statutory mandatory minimum. Specifically,

Fontes assails the district court's ultimate conclusion that his

predisposition to commit the crimes for which he was convicted

prevented the government's misconduct from being "extreme and

outrageous" enough to warrant a sentence below the mandatory

minimum. Discerning no reason to disturb the district court's

considered resolution of this fact-intensive inquiry, we affirm

Fontes's sentence.

I.

On March 31, 2004, Fontes pled guilty to one count of

conspiracy to distribute 50 grams or more of crack cocaine in

violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), and one

count of distribution and possession with intent to distribute

crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A), based on his sale of 59.2 grams of crack to a friend

and drug associate–turned-government informant on January 3, 2003.

During his plea colloquy, Fontes admitted that his offenses

involved the quantity and type of cocaine alleged in the indictment

(at least 50 grams, or approximately two ounces, of crack).

Nevertheless, relying on United States v. Montoya, 62 F.3d 1, 4

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(1st Cir. 1995), Fontes sought a downward departure from the

applicable Guidelines sentencing range and/or a sentence below the

statutory mandatory minimum on the theory that government agents

had engaged in sentencing factor manipulation by instructing the

informant to purchase two ounces of crack cocaine, which carries a

statutory mandatory minimum term of imprisonment of ten years,

rather than the same quantity of powder cocaine, which carries no

statutory mandatory minimum sentence and results in a lower

Guidelines sentencing range. See 21 U.S.C. § 841(b)(1)(A)

(imposing statutory mandatory minimum sentence for violation

involving "50 grams or more of a mixture or substance . . . which

contains cocaine base," but no mandatory minimum sentence for a

violation involving less than 500 grams of cocaine powder);

U.S.S.G. § 2D1.1© (Drug Quantity Table) (2003).

After an evidentiary hearing on August 6 and August 18,

2004, during which the informant and an FBI special agent

testified, the district court found that the government had engaged

in sentencing factor manipulation by ordering the informant to

purchase crack cocaine with the intent of securing a higher

sentence. However, the court concluded that, in light of Fontes's

predisposition to sell crack, the government's conduct was not

"extreme and outrageous," and the court therefore could not impose

a sentence below the statutory mandatory minimum. See Montoya, 62

F.3d at 4 (court may impose sentence below statutory mandatory

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minimum for "sentencing manipulation amounting to 'extraordinary

misconduct'"). The district court declined to consider whether the

government's misconduct nevertheless warranted a downward departure

from the applicable Guidelines sentencing range of 140-175 months

of imprisonment.1 See id. at 4-5 (entertaining possibility that "a

district court may order a discretionary downward departure from

the guideline range on something less than extraordinary

misconduct"). Instead, predicting that the Supreme Court would

soon declare the federal sentencing Guidelines unconstitutional,2

the court imposed a non-Guidelines sentence of 126 months of

imprisonment -- above the statutory mandatory minimum of 120 months

but below the applicable Guidelines sentencing range -- which it

1
Based on the total amount of crack and powder cocaine
involved in Fontes's relevant conduct, the pre-sentence
investigation report (PSR) recommended a base offense level of 32,
a reduction of three levels to 29 for acceptance of responsibility,
and a Criminal History Category of V.
2
The Supreme Court had recently granted certiorari but had not
yet heard oral argument in two consolidated cases in order to
consider the effect of its decision in Blakely v. Washington, 542
U.S. 296, 124 S. Ct. 2531 (2004), on the federal sentencing
Guidelines. See United States v. Booker, 125 S. Ct. 11 (August 2,
2004); United States v. Fanfan, 125 S. Ct. 12 (August 2, 2004). In
January 2005, the Court held that "the Sixth Amendment as construed
in Blakely does apply to the Sentencing Guidelines" and that, "in
light of this holding, two provisions of the Sentencing Reform Act
of 1984 (SRA) that have the effect of making the Guidelines
mandatory [18 U.S.C. §§ 3553(b)(1) and 3742(e)] must be invalidated
in order to allow the statute to operate in a manner consistent
with congressional intent." United States v. Booker, 125 S. Ct.
738, 746 (2005).

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considered to be "fair and just." The court also imposed a five-

year term of supervised release and a special assessment of $200.

Fontes timely appealed, contesting the court's ultimate

conclusion that the government's sentencing factor manipulation was

not "extreme and outrageous" enough to justify a sentence below the

statutory mandatory minimum. See 18 U.S.C. § 3742(a)(1) (defendant

may appeal sentence on ground that it "was imposed in violation of

law").3

II.

We recount the facts as set forth in uncontested portions

of the pre-sentence investigation report and the transcripts of the

sentencing hearing. United States v. Lagasse, 87 F.3d 18, 20 (1st

Cir. 1996). In August and September 2002, the FBI debriefed a

potential informant facing state drug charges who agreed to collect

evidence against his drug associates, including Fontes, whom the

informant had known for more than five years. At the evidentiary

hearing, the informant testified that he began selling drugs in

3
Fontes does not challenge the court's underlying factual
determinations or argue that, absent the alleged legal error, his
sentence was otherwise unreasonable. See Booker, 125 S. Ct. at 765
(federal sentences reviewable on appeal for unreasonableness).
Furthermore, as Fontes was not sentenced under a mandatory
Guidelines regime, he raises no claim of Booker error.
The government filed a notice of appeal on September 24, 2004,
but this court issued an order to show cause on October 7, 2004
observing that the government's notice of appeal appeared to be
untimely. On November 5, 2004, this court granted the government's
motion to voluntarily dismiss the appeal pursuant to Fed. R. App.
P. 42(b).

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1999 or 2000 and that he told FBI agents during interviews that he

and Fontes sold each other powder cocaine on occasion.

On October 22, 2002, the government authorized the

informant to make a controlled purchase of more than four ounces of

powder cocaine from Fontes for $3900 in government funds. Due to

technical and other unexpected difficulties, however, the FBI was

unable to maintain surveillance of the informant or to record the

transaction. According to the FBI agent, the government decided

not to prosecute Fontes for the offense because the informant's

first-hand account of the transaction constituted the only evidence

of the circumstances of the sale.4

FBI agents subsequently learned, by listening to recorded

conversations between the informant and others, that some of

Fontes's drug associates dealt cocaine in the form of crack. The

informant testified that when the agents asked him to explain code

words or slang used during these recorded conversations, he told

them they were references to crack cocaine. In his testimony, the

agent explained that the informant "didn't tell us that any of the

individuals had sold crack. It was something that we learned

during the course of the investigation. The other

defendants . . . were talking about it. And, we [knew] those

4
Fontes's uncharged sale of over four ounces of powder cocaine
to the informant on October 22, 2002 was apparently treated as
relevant conduct, and 123.9 grams of cocaine powder were apparently
included in the PSR's calculation of Fontes's base offense level.
See supra, note 1.

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people to be associates of Mr. Fontes." As the agent put it, "it

became clear to us that this group dealt in crack cocaine."

FBI agents then instructed the informant to make a second

controlled purchase of drugs from Fontes, this time in the form of

crack, rather than powder cocaine. In the informant's words, the

agents told him, "if he comes with the crack, buy it, if he

doesn't, don't buy it." The agent testified that he directed the

informant to purchase two ounces of crack, which the informant

testified was a commonly sold quantity. At this point in the

investigation, the agent testified, "I had no specific information

whether or not Mr. Fontes would sell that product, meaning crack

cocaine. I had no information whether he would or would not." The

agent explained, "I just simply thought he might be amenable to

doing it since . . . two of his associates were."

On December 20, 2002, Fontes and the informant met at a

pizza restaurant to negotiate a price for the second drug

transaction. Although the informant wore a wire to record the

conversation, the tape did not clearly reveal whether the informant

specified to Fontes that he wished to purchase crack rather than

powder cocaine. The informant testified, however, that he told the

agents he had negotiated a deal with Fontes to purchase two ounces

of crack. The agent testified that the informant also reported

that Fontes had shown him a gun during their meeting. On January

2, 2003, the informant spoke to Fontes in a recorded phone call to

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confirm the quantity of drugs and to make arrangements for the sale

the next day. Again, the recording revealed no specific reference

to crack cocaine.

On January 3, 2003, the informant picked up Fontes in a

government-provided car rigged with hidden audio and video

recording equipment. At the sentencing hearing, the government

published excerpts from the informant's recording and asked the

informant to describe the events captured on the tape. The

government later submitted a transcript of the audio recording to

the district court at the court's request. The transcript reveals

that when Fontes entered the car, he told the informant that he had

just provided a half-ounce of cocaine powder to someone else and

that he had cooked the powder into crack for that person. During

the evidentiary hearing, the informant explained that certain code

words or slang (i.e., "chef'd") used during his conversation with

Fontes were references to crack or the act of cooking powder

cocaine into crack. According to the informant, Fontes then told

him that they had to drive to another town to pick up the drugs the

informant had ordered, since Fontes had already distributed one-

and-a-half ounces of his two-ounce supply. When Fontes and the

informant arrived at their destination outside an apartment

building, a third person got in the car and handed Fontes a bag

while the informant drove around the block. After dropping off the

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third person at the apartment building, the informant paid Fontes

$1900 in government funds, and Fontes gave him the bag.

The informant quickly realized that the bag contained

powder, not crack, cocaine. According to the transcript of the

taped conversation, he protested, "I wanted it cooked, [the

customer] wanted it cooked." Fontes responded, "You wanted it

chef'd?" and asked the informant, "You don't know how to

chef . . . ?" The informant replied, "Nah, I don't have time,

too." Fontes then told the informant, "Hold up, I'll probably get

a trade," and made a cell phone call. Instead of a trade, Fontes

arranged to drop off the powder back at the apartment building,

where someone would cook it into crack.

According to the transcript, Fontes then said that if he

had known at the outset that the informant wanted to purchase crack

instead of powder cocaine, "I would have had it chef'd." When the

informant countered that he had told Fontes his customer wanted

crack, Fontes replied, "Yo, but I figured you, . . . you could chef

it yourself . . . . " Finally, Fontes lamented that he had had a

half-ounce of crack available when the informant picked him up: "I

had a heezy [a half-ounce] on me too, man, chef'd . . . . " After

dropping the powder cocaine off with the same third person at the

apartment building, Fontes and the informant drove around for about

an hour before returning to the apartment building to pick up the

cocaine, now cooked into crack, which weighed 59.2 grams.

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 During the evidentiary hearing, the FBI agent explained

that the agents instructed the informant to purchase two ounces of

crack in part because the government lacked the funds to make a

second controlled purchase of powder cocaine in a quantity large

enough to dispel suspicion, given the informant's purchasing

history with Fontes. By contrast, the agent explained, "In my

mind, [the informant] didn't deal in crack cocaine with Mr. Fontes

previously. There was no history of large quantities and so, this

was something that was new to us in this investigation." The agent

further elaborated:

At that point, we decided that it was cost
effective to purchase crack. Being aware of
the sentencing guidelines, being aware of the
fact that the previous deal was for an eighth
kilo of cocaine, which cost a lot of money,
and so, what we were trying to do was to make
one transaction, one additional transaction,
get good evidence that would stand to indict
and convict Mr. Fontes, and that's what we
did.

When the court asked the agent, "What do you mean by 'being aware

of the sentencing guidelines?'" the agent replied:

I'm aware of the fact that there are
guidelines that determine what a sentence is
for a particular drug transaction, depending
on what type of drug you are selling or
purchasing, there are different sentences that
are associated with the weights. So, in this
case, there's different guidelines for
cocaine, as opposed to crack cocaine, powder
versus crack.

The court then asked, "So, you're trying to get a higher sentence?"

The agent replied, "That's a part of it."

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 After the witnesses concluded their testimony on August

18, 2004, the court heard oral argument. Given the informant's

history of purchasing only powder cocaine from Fontes and the

agents' lack of information about whether Fontes actually

distributed crack, Fontes maintained that the government's decision

to instruct the informant to purchase crack instead of powder

cocaine in order to procure a higher sentence amounted to

sentencing factor manipulation, even if Fontes later turned out to

have some predisposition to sell crack. The government countered

that the agents legitimately sought to test whether Fontes, like

his associates, would sell crack cocaine, even if they had no

advance knowledge that Fontes was predisposed to sell cocaine in

that form.

After argument, the court concluded: "I don't think given

the fact of the predisposition of Mr. Fontes to sell crack that I

can say [the government engaged in] extreme and outrageous conduct.

But I think it's extremely troubling. I think it's wrong and

troubling for the government to try and quadruple" the defendant's

sentence.5 The court continued: "I don't think that's a legitimate

law enforcement goal. And, I am taking it into account in where

I'm going to sentence him. But I don't think it's extreme and

5
The applicable GSR for an offense involving more than 50
grams of crack (after accounting for Fontes's relevant conduct and
other factors), as we have noted, was 140-175 months of
imprisonment, while the GSR for an offense involving the same
quantity of powder cocaine is 37-46 months of imprisonment.

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outrageous because of the very strong evidence of predisposition to

sell. That tape is devastating." Nevertheless, the court found

that the FBI agent "basically admitted that they were trying to get

a higher sentence."

The court then imposed a non-Guidelines sentence of 126

months of imprisonment, which it found to be "fair and just." The

court explained, "[t]hat takes into account the mandatory minimum,

which I don't think I can go below because I don't think it's

extreme and outrageous conduct. On the other hand, because I find

it so troubling, I am not going up as high as requested by the

government." Addressing Fontes directly, the court then gave its

rationale for imposing a sentence six months higher than the 120-

month statutory mandatory minimum term of imprisonment: "[O]ne of

the reasons [the FBI] was so out to get [you], if you will, [is]

because you had a gun at the . . . [pizza] restaurant" where Fontes

and the informant met on December 20, 2002. "You used guns. It

wasn't the first time, it was the second or third time that you

used it. . . . I am worried that you are going to be a

recidivist."6

Finally, the court noted that if the Guidelines were

upheld as constitutional, the applicable GSR would be based on a

6
As we have discussed, the FBI agent testified at the
evidentiary hearing that the informant reported that Fontes showed
him a gun during the meeting at the pizza restaurant. Fontes does
not contest the court's determination that he "used guns" more than
once.

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total offense level of 29 and a Criminal History Category of V,

resulting in a sentencing range of 140-175 months of imprisonment.

The court indicated that if the case were remanded for sentencing

pursuant to the Guidelines, it would consider a downward departure

from that range based on the government's misconduct, but in no

event would it impose a sentence below the statutory mandatory

minimum "because I can't say with that level of predisposition that

it's extreme and outrageous." The court nevertheless admonished:

"I think when you quadruple someone's sentence based on the

situation where his track record with this particular informant was

all powder and he thought it was powder, I think he -- basically

you are talking your best friend into [selling] crack, the whole

thing is troubling."

In its statement of reasons issued on August 20, 2004,

the court reiterated its factual findings and legal conclusions:

Based on the FBI agent's testimony, I find
that the primary motivating factor for the
decision by the FBI agent to order the
informant to buy 2 ounces of crack (rather
than powder, as in the earlier transaction [of
October 22, 2002]) was to procure the highest
possible penalty. . . . There was no
investigative purpose to ordering crack (i.e.,
finding the source of the drugs or scope of
the conspiracy). . . .
On the other side of the ledger, as the
videotaped conversation in the car
demonstrated, the defendant had a
predisposition to sell crack and had sold it
before. However, the FBI did not know about
any prior sales of crack by the defendant, or
that the defendant had a reputation of selling

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 crack. It only knew some of his friends sold
crack. . . .
On balance, I conclude that the
defendant has not proven extreme and
outrageous conduct, largely because of the
defendant's predisposition. . . .

(capitalization omitted.)7

III.

Sentencing factor manipulation takes place "where

government agents have improperly enlarged the scope or scale of

[a] crime." Montoya, 62 F.3d at 3. Such claims may arise where

the government employs undercover agents in sting operations.

United States v. Barbour, 393 F.3d 82, 86 (1st Cir. 2004). We have

recognized the court's power to impose a sentence below the

statutory mandatory minimum as an equitable remedy for sentencing

factor manipulation by the government. United States v. Capelton,

350 F.3d 231, 246 (1st Cir. 2003). Because, however, "[b]y

definition, there is an element of manipulation in any sting

operation," United States v. Connell, 960 F.2d 191, 194 (1st Cir.

1992), we have stressed that this form of relief for sentencing

factor manipulation is reserved for only "the extreme and unusual

case," Montoya, 62 F.3d at 4.

7
As it had during sentencing, the court indicated in its
statement of reasons that if the Guidelines were upheld as
constitutional, it would consider granting a downward departure
from the applicable GSR based on the government's misconduct on
remand.

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 The defendant bears the burden of establishing sentencing

factor manipulation by a preponderance of the evidence. United

States v. Gibbens, 25 F.3d 28, 32 (1st Cir. 1994). The district

court found that burden met when it determined that the FBI agent

"basically admitted that [the agents were] trying to get a higher

sentence," and that this purpose was not "a legitimate law

enforcement goal."

"A determination as to whether improper manipulation

exists is ordinarily a factbound determination subject to clear-

error review." Id. at 30. Having withdrawn its appeal, the

government does not challenge the court's factual determination

that the government harbored an improper motive of exposing Fontes

to a higher sentence when agents instructed the informant to

deviate from his usual practice and purchase crack rather than

powder cocaine from Fontes. Nor does Fontes dispute the court's

determination, based on his statements and actions at the time of

the January 3, 2003 drug deal, that he was predisposed to deal

crack cocaine. Fontes contests only the district court's ultimate

conclusion, based on its findings regarding the government's

misconduct and Fontes's willingness to engage in the crime when

given the opportunity, that the government's actions did not amount

to the "extreme and outrageous" conduct required to authorize a

sentence below the statutory mandatory minimum. "Because

manipulation is largely a fact-bound inquiry, even the district

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court's ultimate judgment whether the government's conduct is

outrageous or intolerable is not lightly to be disregarded."

Montoya, 62 F.3d at 4. Fontes thus carries a heavy burden on

appeal.

Fontes first urges us to hold that once the district

court found that the government agents engaged in sentencing factor

manipulation because of their improper motive to increase Fontes's

sentence, the district court was compelled to find that the

government's misconduct was egregious enough to authorize a

sentence below the statutory mandatory minimum. "Because of the

diversity of circumstances, we have declined to create detailed

rules as to what is or is not undue manipulation." Id. Instead,

such claims "must be approached on a case-by-case basis, albeit

with due regard for the potential dangers of sentencing factor

manipulation." Gibbens, 25 F.3d at 31. Indeed, we have previously

upheld the denial of a sentencing factor manipulation claim, "even

assuming that the agents' motives were mixed and not of crystalline

purity," where the defendant was otherwise "legitimately targeted

and the sting objectively reasonable in extent." United States v.

Egemonye, 62 F.3d 425, 428 (1st Cir. 1995). We therefore decline

to adopt the per se rule Fontes advocates.

Fontes next contends that the district court erred in

considering evidence of his manifest willingness to sell crack to

the informant that was not available to the government at the time

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that it designed the sting operation, and in concluding that this

evidence of his predisposition, captured on tape as the drug deal

unfolded, precluded a finding of sentencing factor manipulation

"extreme and outrageous" enough to warrant a sentence below the

statutory mandatory minimum.8 As Fontes points out, every

defendant raising a sentencing factor claim has necessarily shown

at least some willingness to take the bait. In Gibbens, we did

observe that a defendant's predisposition to commit an improperly

enlarged crime is "of modest relevance" to a finding of sentencing

factor manipulation. 25 F.3d at 31. "When an accusation of

sentencing factor manipulation surfaces, the judicial gaze should,

in the usual case, focus primarily -- though not necessarily

exclusively -- on the government's conduct and motives." Id.;

Montoya, 62 F.3d at 4 ("most important" factor "is likely to be the

conduct of the government, including the reasons why its agents

enlarged or prolonged the criminal conduct in question"). By

treating his predisposition to sell crack as a bar to a conclusion

that the government's misconduct was "extreme and outrageous,"

Fontes argues, the court ignored these directives to focus on the

government's –- as distinct from Fontes's -- misconduct.

We have never stated that a court is precluded from

weighing a defendant's predisposition when evaluating the degree to

8
As we have discussed, Fontes does not dispute the court's
determination that he was predisposed to sell crack cocaine.

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which the government has engaged in sentencing factor manipulation.

"By their nature, sting operations are designed to tempt the

criminally inclined, and a well-constructed sting is often sculpted

to test the limits of the target's criminal inclinations." Id. at

196; see also Egemonye, 62 F.3d at 427 ("Government agents are not

limited to replicating a suspect's largest unsolicited crime.")

Accordingly, we have noted, "a defendant's predisposition, or the

lack thereof, may have evidentiary significance in the assessment

of the government's motives and conduct. Moreover, one can imagine

different species of sentencing factor manipulation, in some of

which predisposition may be of greater relevance." Gibbens, 25

F.3d at 31 n.3. In particular, because a sentencing factor

manipulation claim may turn on whether government agents

"overb[ore] the will of a person predisposed only to committing a

lesser crime," Connell, 960 F.2d at 196, we have recognized that

some assessment of a defendant's response to an invitation to crime

may be warranted, see, e.g., Egemonye, 62 F.3d at 427 (finding "no

indication that [the defendant] was coerced or pressured" where

defendant accepted offered sale of unprecedented quantity of stolen

credit cards).

The court's consideration of Fontes's predisposition as

evidenced during the sting operation did not displace the central

role of the government's improper motive in the court's analysis.

To the contrary, the court declared repeatedly in no uncertain

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terms, based solely on the government's conduct and the FBI agent's

candid admission, that the government acted improperly when it

directed the informant to purchase crack in order to increase

Fontes's sentencing exposure. In making this determination, the

court squarely focused on the government's conduct and motives at

the time it structured the sting operation, probing its reasons for

structuring a deal for crack instead of powder cocaine. In that

context, the court considered the government's lack of specific

information, in the FBI agent's words, about "whether or not Mr.

Fontes would sell that product," as well as the fact that Fontes's

"track record with this particular informant was all powder and

[Fontes] thought [the drug the informant sought] was powder."9

Having made the determination that the government's

conduct was "wrong and troubling" and that it would "tak[e] it into

account in where I'm going to sentence [Fontes]," the court

properly inquired further to determine the degree to which the

9
Although the court found that the government knew some of
Fontes's associates sold crack, it explicitly distinguished
Fontes's case from that of United States v. Terry, 240 F.3d 65, 71
(1st Cir. 2001), in which we upheld a court's denial of a claim of
sentencing factor manipulation, stating that "[t]he government,
when investigating the business of a drug dealer who by reputation
sells both crack and powder cocaine, is under no obligation to buy
only that product or quantity which would produce the smallest
sentence for the defendant" (emphasis added). We reiterate that
because the government has withdrawn its appeal, we need not
express a view on the correctness of the court's determination that
the government acted with an improper motive by seeking a higher
sentence without specific evidence of actual or rumored crack deals
involving Fontes himself.

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government engaged in misconduct -- that is, whether the

government's misconduct was sufficiently egregious to warrant a

sentence below the statutory mandatory minimum. See Montoya, 62

F.3d at 4 ("in order to require a reduction" below the statutory

mandatory minimum, defendant must show that the government's

conduct was "carried to such a degree that [it] must be viewed as

'extraordinary misconduct'") (quoting Gibbens, 25 F.3d at 31).

In order to discern whether the government applied

"outrageous or intolerable pressure" on Fontes to supply a

different type of cocaine than he was prepared to sell, Montoya, 62

F.3d at 4, the court reasonably considered the limits of Fontes's

own predilection for trafficking in crack cocaine as demonstrated

during the January 3, 2003 drug deal itself. As the transcript of

the taped controlled purchase reveals, when Fontes entered the car,

he stated, unprompted, that he had just provided cocaine to someone

else and that he had helped that person cook it into crack. Later,

when the informant protested that he needed cocaine in the form of

crack rather than powder, Fontes, far from refusing to go through

with the deal, quickly accommodated the informant's needs. While

Fontes expressed surprise and disappointment at the unexpected

request, he displayed no discomfort with the quantity or type of

cocaine requested by the informant. This evidence of Fontes's

predisposition to sell crack was, in the court's words,

"devastating" to his claim of sentencing factor manipulation.

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 Based on what it found to be "very strong evidence" at

the moment of truth that Fontes was ready, willing, and able to

accommodate the informant's need to purchase crack upon request,

the court supportably concluded that the government, while

motivated at least in part by an improper desire to increase

Fontes's sentencing exposure, exerted no undue pressure or coercion

sufficient to "overbear[] the will of a person predisposed only to

committing a lesser crime." Connell, 960 F.2d at 196. The court's

conclusion that the government's conduct was not, in its words,

"extreme and outrageous" enough to warrant a sentence below the

statutory mandatory minimum "is not lightly to be disregarded."

Montoya, 62 F.3d at 4. We apply that principle here. Accordingly,

Fontes's sentence is affirmed.

So ordered.

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