Case: 16-30737 Document: 00513913510 Page: 1 Date Filed: 03/15/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-30737 FILED
March 15, 2017
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
KENDRICK D. ALEXANDER,
Defendant - Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:14-CR-126-1
Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:*
While gambling at a Baton Rouge casino in June 2014, Kendrick
Alexander met Hai Tran. Unknown to Alexander, Tran was a DEA cooperator.
By August, Alexander was seeking to purchase oxycodone from Tran’s fictional
source of supply—a much riskier gamble, it turned out, than any offered by the
casino. A jury convicted Alexander of attempted possession with intent to
distribute oxycodone. At trial, Alexander admitted that he made that attempt,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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but argued Tran implanted his intent to commit the crime. Alexander claims
the jury acted unreasonably when it rejected this entrapment defense. He also
maintains the district court gave a flawed jury charge, should have granted
him a new trial because of a Brady/Giglio violation, and incorrectly
determined his sentence. Finding no reversible error, we affirm.
I.
In early August, Tran began to record his conversations with Alexander.
On the first recorded call, Tran asked Alexander if he remembered asking
about the “RZ,” a street name for oxycodone tablets. Alexander said yes. In
recorded conversations over the next several days, Alexander and Tran
negotiated a price of $60,000 for 5,000 30-mg tablets, a deal Alexander
expected to make about once per week going forward.
Alexander and Tran planned to complete the oxycodone deal on August
14, and Alexander said he would “have [his] people lined up.” Alexander
mentioned that he was making arrangements with partners and clients. He
also asked Tran about purchasing marijuana, cocaine, and codeine syrup,
which he referred to as “grapes,” “the white,” and “the syrup.” At a recorded
meeting, Alexander said he was ready to complete the deal and brought his
money early. Two days later, as planned, Alexander and Tran met in a parking
lot and Alexander showed Tran a paper bag containing $60,000. They headed
to another location where Alexander was to purchase the oxycodone.
Alexander was arrested on the way and the money was seized.
At trial, Tran and Alexander gave conflicting accounts of their
interactions before Tran’s recording of their conversations. Tran testified that
Alexander was the first to bring up illegal drugs, asking Tran whether he could
get “roxies,” another street name for oxycodone tablets. Tran maintained he
immediately contacted his handler, DEA Agent Chris Abney, about that
conversation and followed instructions to record future interactions.
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Alexander, on the other hand, claimed that shortly after they met, Tran
brought up controlled substances. He asked Alexander if he knew anyone “that
mess with the green,” meaning marijuana, and brought up illegal drugs with
Alexander on four to five occasions, once stating that his supplier could get
“any drug [Alexander] want[ed].” Alexander asserted that on August 5, before
the first recorded call, Tran asked him to meet at the casino and offered to get
him oxycodone tablets—“the hottest thing on the streets”—“for real cheap.”
Tran allegedly offered to get him the tablets for $14 or $15 per tablet, a
bargain, as Tran said they sold on the street for $25 to $30. Alexander said
Tran offered to introduce him to people who could help him sell the tablets.
Alexander testified that, at the time, he did not know what oxycodone was, but
he agreed to make the purchase and negotiated the price down to a bulk rate
of $12 per tablet for 5,000 tablets.
Alexander testified that this was his first drug deal in close to ten years,
a statement the government did not dispute. Alexander had been convicted
once before, in 2001, for possession with intent to distribute cocaine. The
government introduced that conviction into evidence without objection.
The jury also heard about Tran’s extensive history of convictions and
lying. Tran testified that: he was convicted in 1993 for accessory after the fact
to second degree murder; he was convicted in 2001 for drug trafficking; he was
arrested in 2006 for transporting drugs while out of the state in violation of the
conditions of his supervised release; he lied to his probation officer and state
authorities about that arrest, claiming the drugs were not his, and thus
“defrauded the state of Florida into dismissing the charges”; he continued
trafficking while on supervised release; in 2008 he was indicted for federal drug
trafficking, a fugitive for about six months, then arrested and pleaded guilty;
and he submitted a false affidavit in 2008 claiming he had no assets in order
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to obtain a court-appointed attorney while hiding several hundred thousand
dollars in drug proceeds.
Tran began cooperating with the government following his 2008 arrest.
He received a substantial sentence reduction based on that cooperation: facing
a Sentencing Guidelines range of 210 to 262 months, he ended up with a
sentence of 48 months after the government sought a considerable reduction.
After Tran’s release from prison, he continued working as an informant for the
DEA, regularly checking in with Abney. He testified at Alexander’s trial that
he hoped his continued cooperation would lead to a reduction of his brother’s
fourteen-year federal sentence for drug crimes.
Despite this strong impeachment evidence of Tran, the jury found
Alexander guilty. That verdict included rejection of an entrapment defense,
on which the court had instructed the jury over the government’s objection.
Alexander later moved for a new trial on Brady/Giglio grounds. During
trial, defense counsel had sought permission to question Tran about an
information filed against him in Ascension Parish in 2007 for conduct related
to that underlying his 2008 federal conviction. The government had
represented it was not aware of any pending charges. The court allowed
counsel to examine Tran outside the presence of the jury, and Tran said he had
“no idea” what happened with the Ascension Parish case but had no
expectation that it would be dismissed based on his cooperation in Alexander’s
prosecution. Relying in part on the government’s representations, the district
court did not allow defense counsel to question Tran about the state charge.
After trial, Alexander’s counsel continued investigating this matter and
discovered that Abney, who was in court when the parties were disputing the
significance of the Ascension Parish charge, assisted in the search that led to
the state court charges. Alexander also obtained a 2009 letter from a state
detective to the assistant district attorney handling Tran’s case. The letter
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stated that Tran had been charged federally and was cooperating; thus it
requested that charges against Tran’s wife, who had also been charged, be
dismissed. They were, in 2009.
Alexander argued this amounted to Giglio violations because the
government concealed two things about which the defense could have
impeached Tran for bias: (1) state charges remained pending against Tran, and
(2) charges against Tran’s wife had been dismissed as a result of Tran’s prior
cooperation. The government came forward with an explanation of what
happened to Tran’s state court charges: according to an assistant district
attorney, the same state detective who requested that Tran’s wife’s charges be
dismissed also asked the office not to take further action on Tran’s case and,
as a result of inactivity, the state case prescribed in 2011. The record remains
unclear as to whether the state court charges were subsumed in the 2008
federal prosecution of Tran. Although the state apparently did not pursue
charges because of the federal prosecution, the state court charges were not
officially dismissed until after Alexander’s trial. After considering this new
evidence, the district court denied Alexander’s motion for a new trial. It
concluded the evidence was not material on the grounds that (1) it was
cumulative given the extensive challenges the jury heard to Tran’s credibility,
and (2) the strong corroboration the recordings provided of Tran’s testimony.
At sentencing, the district court calculated Alexander’s Sentencing
Guidelines range as 121 to 151 months. Alexander objected to a two level
obstruction of justice enhancement and argued that he should receive a
reduction for acceptance of responsibility. He also requested a downward
departure because the government set a price for the oxycodone below market
value, which meant the deal involved a greater drug quantity, which in turn
increased his Guidelines range. The district court overruled the objections,
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denied the motion for downward departure, and sentenced Alexander to 121
months in prison.
II.
A.
Alexander claims the evidence at trial was insufficient to show that he
was not entrapped. The critical determination in an entrapment defense is
whether criminal intent originated with the defendant or with government
agents. United States v. Theagene, 565 F.3d 911, 918 (5th Cir. 2009). The
government may not “implant in an innocent person’s mind the disposition to
commit a criminal act, and then induce commission of the crime so that the
Government may prosecute.” Jacobson v. United States, 503 U.S. 540, 548
(1992). A valid entrapment defense has two related elements: government
inducement and a lack of predisposition on the part of the defendant to engage
in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63 (1988).
Entrapment operates through a burden shifting regime. Theagene, 565 F.3d
at 918. Before a court will instruct the jury on entrapment, the defendant must
make a prima facie showing of both elements. United States v. Bradfield, 113
F.3d 515, 521 (5th Cir. 1997). A defendant who makes this showing is entitled
to an instruction; the burden then shifts to the government to prove beyond a
reasonable doubt that the defendant was not entrapped. Id. at 521–22.
We typically see entrapment raised on appeal when the trial court
refused to instruct the jury on the defense. See, e.g., Theagene, 565 F.3d at
917–18. Because that instruction was given here, and the jury rejected the
defense, Alexander faces a heavier burden than a defendant alleging error in
a failure to instruct on entrapment. He must show the jury irrationally
concluded he was not entrapped. United States v. Rodriguez, 43 F.3d 117, 126
(5th Cir. 1995). His challenge is even greater because, although sufficiency of
the evidence is typically reviewed de novo, “a defendant must specify at trial
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the particular basis on which acquittal is sought so that the Government and
district court are provided notice.” United States v. McDowell, 498 F.3d 308,
312 (5th Cir. 2007). Alexander moved for acquittal but did not argue he was
entrapped as a matter of law, instead asserting entrapment turned on a
credibility determination within the province of the jury. We thus review only
for whether the evidence supporting the jury’s verdict “was so tenuous that a
conviction would be shocking.” See United States v. Batiste, 275 F.3d 45, 45
(5th Cir. 2001) (per curiam) (quoting United States v. Pierre, 958 F.2d 1304,
1310 (5th Cir. 1992)).
The jury was entitled to reject the entrapment defense if it found either
that Alexander was not induced or that he was predisposed (of course, if there
was no inducement, he was necessarily predisposed). United States v. Wise,
221 F.3d 140, 154 (5th Cir. 2000). The evidence is sufficient to support both
findings.
First, a reasonable jury could find Alexander was predisposed to commit
the crime. Predisposition focuses on “whether the defendant was an ‘unwary
innocent’ or instead an ‘unwary criminal’ who readily availed himself of the
opportunity to perpetrate the crime.” Id. (quoting United States v. Brace, 145
F.3d 247, 254 (5th Cir. 1998)); Bradfield, 113 F.3d at 522. Alexander’s “active,
enthusiastic participation” after being approached by Tran is sufficient to
allow a jury to find predisposition. See Rodriguez, 43 F.3d at 126–27; Wise,
221 F.3d at 154. Once Alexander agreed to purchase oxycodone, he negotiated
a low purchase price, agreed to purchase 5,000 tablets per week, and began
making arrangements with dealers to sell the tablets. He also asked Tran
about purchasing cocaine, marijuana, and codeine syrup. This participation
was more active and enthusiastic than that we have found sufficient to prove
predisposition in other cases. Theagene, 565 F.3d at 917, 919 (after agreeing
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to bribe an IRS official, continuing to pay the agreed upon cash amounts was
sufficient); see also Rodriguez, 43 F.3d at 120, 127.
“Other factors that may tend to prove predisposition include desire for
profit; demonstrated knowledge or experience with the criminal activity under
investigation; the character of the defendant, including past criminal history;
whether the government first suggested criminal activity; and the nature of
the inducement offered by the government.” United States v. Reyes, 239 F.3d
722, 739 (5th Cir. 2001). A rational jury could conclude that Alexander was
motivated by profit. He negotiated a low price for a bulk order of the tablets,
and there is no other apparent motive. He demonstrated knowledge of drug
trafficking by contacting partners and dealers to distribute the tablets and
using slang terms for controlled substances in recorded conversations. See id.
at 740.
Tran and Alexander accuse each other of initiating the criminal activity.
The jury was entitled to credit Tran’s testimony and reject Alexander’s. See
United States v. Mora, 994 F.2d 1129, 1137 (5th Cir. 1993) (explaining that
even when a defendant’s testimony of entrapment is uncontradicted, it “cannot
by itself establish entrapment as a matter of law because, absent unusual
circumstances, the jury is almost always entitled to disbelieve that
testimony”). In any case, who initiated the criminal activity is just one factor
in the analysis. See United States v. Gilmore, 590 F. App’x 390, 397–99 (5th
Cir. 2014) (per curiam).
Alexander argues the government improperly relied on his prior
conviction to prove predisposition. It is true that Alexander’s 2001 conviction
alone would not have supported his conviction. The Supreme Court has held
“a nine-year-old sales conviction and a five-year-old possession conviction are
insufficient to prove [a] petitioner had a readiness to sell narcotics” in the
absence of other evidence. Sherman v. United States, 356 U.S. 369, 375 (1958).
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But here, unlike in Sherman, the government presented the additional
evidence of predisposition discussed above. That is consistent with our caselaw
recognizing criminal history may be considered with other factors in
establishing predisposition. Reyes, 239 F.3d at 739.
Second, a reasonable jury could have concluded that the government’s
involvement did not rise to the level of inducement, or “creative activity of law
enforcement officials in spurring an individual to crime.” United States v.
Gutierrez, 343 F.3d 415, 420 (5th Cir. 2003) (quoting Bradfield, 113 F.3d at
522). To be inducement, government involvement must be “more substantial
than simply providing an opportunity or facilities to commit the offense.”
Bradfield, 113 F.3d at 521. Merely conducting undercover operations or
otherwise employing “artifice and stratagem” is not inducement. Theagene,
565 F.3d at 922 (quoting United States v. Ogle, 328 F.3d 182, 185 (5th Cir.
2003)). Courts instead have found inducement when government agents
harass or threaten a defendant, take “actions designed specifically to take
advantage of the defendant’s weaknesses,” or “persist in encouraging
criminality after a defendant rejects overtures.” Id. (quoting Gutierrez, 343
F.3d at 420); Gilmore, 590 F. App’x at 397–98.
There was more than sufficient evidence for the government to disprove
inducement. If the jury believed Tran’s testimony, which it was entitled to do,
then Alexander independently initiated the drug deal and the government did
no more than “provid[e] an opportunity or facilities to commit the offense.”
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Bradfield, 113 F.3d at 521. 1 But even if the jury believed Alexander’s
testimony that Tran offered him the opportunity to buy drugs on up to five
occasions before he finally accepted the invitation, the jury would be entitled
to conclude that the government’s involvement did not rise to the level of
inducement. There was much less government involvement here than in
Sherman, in which the evidence established entrapment as a matter of law.
There, an informant met the defendant when they were both being treated for
narcotics addiction and, after numerous intimate conversations about personal
experiences with narcotics, the informant repeatedly begged the defendant for
illegal drugs, claiming treatment was not working for him and he was
suffering. 356 U.S. at 373. Because the uncontroverted evidence established
the informant preyed on the defendant’s weakness and appealed to his
empathy, inducement was established as a matter of law. Id. Government
involvement here is also significantly less than in Jacobson, the only other case
Alexander points to in which entrapment was established as a matter of law;
there, uncontested evidence showed two and a half years of “repeated efforts
by two Government agencies, through five fictitious organizations and a bogus
pen pal, to explore petitioner’s willingness to break [a] new law” before the
defendant acquiesced. 503 U.S. at 543.
Sherman and Jacobson are unusual cases in removing the entrapment
question from the jury’s purview. Contrast United States v. Nations, 764 F.2d
1073, 1077 (5th Cir. 1985). In a case similar to this one, we held that the
1Alexander argues this is contrary to Abney’s grand jury testimony. Abney testified
that Alexander attempted to purchase oxycodone from Tran after Tran “told him that he had
a source in California that could provide pretty much anything.” Abney also said, however,
“Alexander approached [Tran] in reference to purchasing narcotics,” and “Alexander had
approached [Tran] about purchasing roxies.” Abney did not testify that Tran initiated the
oxycodone deal. Even if he had, however, the jury would be entitled to credit Tran’s testimony
that Alexander initiated conversations regarding controlled substances.
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question of entrapment was for the jury because “[t]here was not overwhelming
evidence of serious resistance” by the defendant, only contested evidence about
a handful of meetings initiated by the government agent. Id.; see also Gilmore,
590 F. App’x at 399 (holding that although informant initiated conversation
about illegal campaign contributions, thus doing more than “passively
providing a platform for bribery,” evidence of inducement was not sufficient to
warrant an entrapment instruction). That is consistent with our observation
that the “question of entrapment is generally one for the jury, rather than for
the court.” Mathews, 485 U.S. at 63. The jury’s finding that Alexander was
not entrapped was well within its discretion.
B.
Alexander next asserts that the district court erred in telling the jury
that “in determining whether the Defendant lacked predisposition to commit
this crime and was induced to commit the crime, you may consider the
Defendant’s prior conviction for possession with intent to distribute a
controlled substance in 2001.” Alexander alleges the instruction runs afoul of
Sherman because the Supreme Court held that a jury could not find
predisposition from evidence of two prior convictions. 356 U.S. at 375. Yet as
noted, we have held that convictions are a factor that tend to prove disposition.
Reyes, 239 F.3d at 739.
Even assuming that the instruction should not have been given, it was
harmless. An erroneous instruction is not a ground for reversal if, “in light of
the entire record, the challenged instruction could not have affected the
outcome of the case.” United States v. Montgomery, 747 F.3d 303, 308–09 (5th
Cir. 2014) (citations omitted). The evidence was overwhelming that Alexander
was predisposed and not induced to commit the crime. Recordings indicate
that Alexander asked Tran about oxycodone, not the reverse, and show that
Alexander was an active and enthusiastic participant, motivated by profit,
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with ready connections to drug dealers, and familiar with and interested in
purchasing a number of illegal substances. They show no resistance on
Alexander’s part and no threats, coercion, or appeals to sympathy on Tran’s
part. Considering the entire record, we are convinced the instruction did not
affect the outcome of the case.
C.
Alexander next argues that he is entitled to a new trial based on Giglio
violations. We review de novo the denial of a motion for new trial sought on
Brady or Giglio grounds, but “with deference to the factual findings underlying
the district court’s decision.” United States v. Severns, 559 F.3d 274, 278 (5th
Cir. 2009).
Giglio applies Brady’s disclosure requirement to “evidence affecting the
credibility of key government witnesses.” United States v. Davis, 609 F.3d 663,
696 (5th Cir. 2010). Giglio violations often arise in the context of the benefits
cooperating witnesses expect to receive for testifying. Id. The district court
concluded that the additional impeachment evidence Alexander identified
after trial was not material. Evidence is material in this context when there
is “‘any reasonable likelihood’ it could have ‘affected the judgment of the jury.’”
Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016) (quoting Giglio v. United States,
405 U.S. 150, 154 (1972)). The new evidence must undermine confidence in
the verdict. Id.
Alexander argues the evidence about Tran’s pending state charge from
2007 and the dismissal of his wife’s charge is material because it shows Tran’s
bias toward the government and the incentive for his cooperation. We agree
with the district court, however, that for two reasons the nondisclosures were
not material. First, the evidence was cumulative. “[E]vidence which
impeaches an already impeached witness is by definition cumulative.” United
States v. Sipe, 388 F.3d 471, 489 (5th Cir. 2004). It thus will often not be
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material. Id. As to be expected given the highly factbound nature of the
materiality inquiry, this not a hard-and-fast rule. Cumulative impeachment
evidence can be material when it “changes the tenor” of the witness’s
testimony. Id. For example, in Sipe, although the government disclosed that
witnesses received immigration benefits based on their cooperation, evidence
of additional benefits—which showed the “disturbing” scope of the
government’s control over them—was material when viewed cumulatively
with other suppressed evidence. Id. Further, evidence of dishonesty “does not
render cumulative evidence that the prosecution promised immunity for
testimony.” United States v. Sanfilippo, 564 F.2d 176, 178 (5th Cir. 1977). We
have thus found material evidence showing a key witness falsely testified that
he had not been promised a future benefit. Id.; see also Giglio, 405 U.S. at
155.
The district court chronicled thirteen instances in which Tran’s
credibility was impeached at trial. Those provided powerful reasons to doubt
his veracity based on numerous past convictions, a long history of lying to the
government, his receipt of a significant benefit for providing assistance in a
prior case, and his hope to receive a future benefit based on his testimony in
Alexander’s trial. The suppressed evidence is similar to Tran’s extensive
impeachment baggage revealed at trial and thus does not change the tenor of
the testimony as it did in Sipe. Nor does it show that Tran had an undisclosed
understanding or agreement with the government for a benefit in the
Ascension Parish case in exchange for his testimony like the witness in
Sanfilippo. Further, unlike in Sanfilippo, the suppressed evidence does not
provide the only forward-looking motive for Tran to lie. Tran admitted that he
hoped to gain something by testifying: a sentence reduction for his brother.
Similarly, the suppressed evidence about Tran’s wife’s charges was not the only
evidence of benefits Tran received for past cooperation. The jury heard that
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his sentence had been reduced by about thirteen years. There is no reasonable
likelihood that the jury’s learning that Tran’s wife’s charges were dismissed
based on the same past cooperation would have changed its thinking.
Second, Tran’s testimony was not the only evidence at odds with
entrapment. When “the testimony of the witness who might have been
impeached by the undisclosed evidence is strongly corroborated by additional
evidence supporting a guilty verdict, the undisclosed evidence generally is not
found to be material.” Sipe, 388 F.3d at 478. As discussed above, the
recordings introduced at trial are strong evidence of predisposition; they show
that, from August 5, 2014, onward, Alexander was active, enthusiastic, and
knowledgeable participant in the crime.
Of course, Tran’s testimony is the only evidence contradicting
Alexander’s claims about what happened before August 5. If the jury relied on
Tran’s testimony about that time, additional reasons to discredit him could
have changed its calculus on inducement. Reyes, 239 F.3d at 739. From the
evidence discussed above, however, there is no reasonable probability the jury
would not have found Alexander predisposed to commit the crime even if it
credited his testimony about inducement. Given the quantity and quality of
reasons the jury had not to take Tran at his word even without the undisclosed
evidence, and the strength of other evidence of Alexander’s predisposition, the
undisclosed evidence does not cast sufficient doubt on the verdict to merit a
new trial. See Davis, 609 F.3d at 696–97.
III.
We can more readily resolve Alexander’s challenges to his sentence.
Whether a defendant’s Guidelines range should be lowered for acceptance of
responsibility or increased for obstruction of justice are factbound inquiries to
which we owe the district court deference. United States v. Smith, 804 F.3d
724, 737 (5th Cir. 2015); Brace, 145 F.3d at 264.
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The district court did not err in denying a reduction for acceptance of
personal responsibility. We have previously rejected Alexander’s position that
a defendant who admits engaging in the alleged conduct, but argues
entrapment, has accepted responsibility. Brace, 145 F.3d at 265. Because an
entrapment defense denies the mens rea element, it is the “denial of factual
guilt” that makes a defendant ineligible for an acceptance-of-responsibility
reduction. Id.
Nor did the court err in imposing an enhancement for obstruction of
justice. One way to obstruct justice is to commit perjury, U.S.S.G. § 3C1.1 &
cmt. nn. 1 & 4(B), which the district court found Alexander did when he
testified about how the drug deal was initiated. The court noted that
Alexander’s testimony was contradicted by Tran’s testimony and by the August
5 phone call, which the court found both confirmed that Alexander first
suggested the oxycodone deal and showed that, contrary to Alexander’s claims
at trial, he was familiar with oxycodone. Alexander argues this was error
because Abney testified before the grand jury that, before the oxycodone deal
was initiated, Tran told Alexander he could acquire illegal drugs from
California. Regardless of Abney’s grand jury testimony (and it may not have
been contradictory, see footnote 1), the district court did not clearly err in
relying on Tran’s testimony and the recorded conversations. See Smith, 804
F.3d at 737–38. We defer to the district court’s credibility determination.
Finally, denying Alexander’s motion for a downward departure was not
error. Alexander contends the district court should have granted such a
departure because Tran offered oxycodone at a below market price and said
Alexander needed to buy more tablets to get that price, thus inflating the drug
quantity. We do not have jurisdiction to review the district court’s conclusion
that no downward departure was warranted based on application note 27(A)
to section 2D1.1, which allows a downward departure if the government set a
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price for the controlled substance substantially below market value, “leading
to the defendant’s purchase of a significantly greater quantity of the controlled
substance than his available resources would have allowed.” U.S.S.G. § 2D1.1,
app. n. 27(A). This court has jurisdiction to review a refusal to grant a
departure only if the refusal was based on a legal error; not if the refusal was
based on a determination that the departure was not merited on the facts.
Brace, 145 F.3d at 263. The district court found that the government did not
set the price substantially below market value, crediting the testimony of a
DEA agent who testified that $12 per tablet was market value for a wholesale
quantity of oxycodone tablets. This fact-based decision is not subject to review.
We do have jurisdiction to consider whether the district court imposed a
greater sentence than necessary because it did not consider the impact of
sentencing entrapment. See United States v. Davis, 575 F. App’x 361 (5th Cir.
2014). The district court may depart downward from the Guidelines range
based on mitigating circumstances “of a kind, or to a degree, not adequately
taken into consideration by the . . . guidelines.” 18 U.S.C. § 3553(b)(1);
U.S.S.G. § 5K2.0; see Brace, 145 F.3d at 263. This court has not decided if
sentencing entrapment is a viable defense to a sentence. See United States v.
Stephens, 717 F.3d 440, 446–47 (5th Cir. 2013). We need not do so here. As
we have explained, were we to accept the concept of sentencing entrapment, it
would be cognizable only in cases involving “true entrapment,” or “overbearing
and outrageous conduct” by the government. Id. (quoting United States v.
Tremelling, 43 F.3d 148, 152 (5th Cir. 1995)). For reasons we have already
discussed in detailing the evidence supporting the jury’s finding of no
entrapment as to the offense itself, Alexander has not met that stringent
standard. See id.; Davis, 575 F. App’x at 361.
***
The judgment is AFFIRMED.
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