United States v. Therrien

United States Court of Appeals
For the First Circuit

No. 16-1103

UNITED STATES OF AMERICA,

Appellee,

v.

SHERAD THERRIEN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Lynch, Stahl, and Barron,
Circuit Judges.

Larry J. Ritchie for appellant.
Julie M. Karaba, Attorney, United States Department of
Justice, with whom Carmen M. Ortiz, United States Attorney, was on
brief, for appellee.

January 27, 2017
 STAHL, Circuit Judge. A jury convicted appellant Sherad

Therrien on five counts of drug trafficking and one count of being

a felon in possession of a firearm and ammunition. Therrien admits

that he committed these offenses. However, on appeal he disputes

the appropriateness of his convictions and resulting sentence

based on events occurring before, during, and after his trial.

Specifically, Therrien contends that (1) federal authorities

engaged in outrageous misconduct during their investigation of him

and withheld exculpatory evidence before trial, thus violating his

due process rights; (2) the jury discovered and considered

extraneous, unadmitted evidence during its deliberations, thereby

violating his right to a fair trial; and (3) the district court

misapplied the United States Sentencing Guidelines when it refused

to decrease his offense level during sentencing, claiming he should

have at least been sentenced within a range of 51 to 63 months

rather than 63 to 78 months. After careful consideration, we

reject Therrien's various claims of error and affirm his conviction

and sentence.

I. Facts & Background

On June 19, 2014, a federal grand jury sitting in the

District of Massachusetts issued an indictment charging Therrien

with five counts of distribution of cocaine or cocaine base in

violation of 21 U.S.C. § 841(a) and one count of being a felon in

possession of a firearm and ammunition in violation of 18 U.S.C.

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§ 922(g)(1). Before trial, Therrien filed a motion to dismiss the

indictment, arguing that outrageous government misconduct by

federal authorities and other violations of his due process rights

mandated such a result. The district court denied that motion.

United States v. Therrien, 89 F. Supp. 3d 216 (D. Mass. 2015).

Following that denial and after a six-day trial, a jury convicted

Therrien on all counts. The trial judge then sentenced Therrien

to a prison term of 72 months, followed by three years of

supervised release, and ordered him to pay a $600.00 special

assessment. On appeal, Therrien makes three arguments aimed at

either negating these convictions or amending his sentence. We

recite the relevant facts to each argument below.

A. Outrageous Government Misconduct Claims

The crux of Therrien's appeal centers on his

relationship with Officer Jessica Athas, a former member of the

Hampden County Sheriff's Department. Therrien met Athas while he

was incarcerated at the Hampden County House of Correction

("Hampden"), where she was a member of the Gang Intelligence Unit.1

In his original motion to dismiss, the facts of which he

largely reiterates on appeal, Therrien alleged that he and Athas

developed a close relationship, with Athas ensuring that Therrien

received favorable treatment compared to other inmates

1
As part of this unit, Officer Athas was tasked with
identifying each inmate's gang affiliation.

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incarcerated at Hampden.2 He also claimed that after he was

released from prison on February 15, 2013, Athas gave her phone

number to him. Therrien asserted that the pair then engaged in

intimate phone and text message conversations. This courtship of

sorts also allegedly led to in-person meetings, gift exchanges,

and a sexual relationship.3

Therrien also claimed that Athas eventually asked him to

sell drugs and a gun to Perez. Athas purportedly told Therrien

these transactions would "help her career," and in exchange

allegedly agreed to help him get a driver's license and a job. At

trial, Athas articulated a different view of their relationship,

claiming that she had tried to "cultivate" both Therrien and Perez

as informants. Athas admitted to communicating with both men after

their release and after she had been assigned to a joint state-

federal task force with the Drug Enforcement Agency ("DEA") in

November 2013. Perez, unbeknownst to Therrien, also began

cooperating with the Federal Bureau of Investigation ("FBI")

around this time as well. In this capacity, he told the FBI, who

later informed the task force, that he believed Therrien would

sell him drugs and/or a gun.

2
Therrien claimed that Athas made sure he had light
supervisory details while he was in Hampden serving another
sentence, and later helped secure his move to another jail.
3
Athas, who Therrien called as a witness at trial, denied
Therrien's allegation that the pair had a sexual relationship.

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 To this end, Therrien claimed that Athas asked him to

sell drugs to Perez on six to eight different occasions, either by

phone or in person. He testified that he initially resisted, but

relented once Athas assured him that he would not get in trouble.

Thereafter, on four different occasions between September 4, 2013

and March 28, 2014, Therrien sold narcotics, and in one instance

a 9-millimeter handgun, to Perez. Law enforcement captured all

four of these transactions on audio and video recordings. Athas

was present in a "backup" or "subsidiary" role for at least the

first two deals.

Though Athas had disclosed some of her meetings, phone

conversations, and text messages with Therrien to her supervisors,

none of them knew the full extent of her and Therrien's personal

relationship. In fact, once Therrien's allegations came to light,

the task force launched an investigation which revealed that Athas

had not been entirely truthful with respect to other of the pair's

communications. For that reason, the Government decided not to

call her as a witness at trial. The investigation also led to her

demotion and, ultimately, her resignation.

Before trial, Therrien filed a motion to dismiss his

indictment based on the federal government's "outrageous

misconduct," claiming that Athas had "used sex and 'feminine wiles'

to induce him to sell drugs." Therrien, 89 F. Supp. 3d at 218.

He also claimed that the federal government had failed to provide

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him with materially exculpatory evidence as required under Brady

v. Maryland, 373 U.S. 83 (1963), which failure in his view was

similarly "outrageous." Therrien again focused on Athas, arguing

that she "withh[eld] the nature of [their] relationship" from the

prosecutor, who in turn did not disclose the evidence to him or

his lawyer. See Therrien, 89 F. Supp. 3d at 219.4 The district

court denied the motion without an evidentiary hearing, holding

that even if it accepted all of Therrien's factual allegations as

true, the allegations did "not rise to the level of egregiousness

the law requires for dismissal of an indictment." Id. at 218.5

B. Jury Taint Claim

As part of his defense, Therrien put his personal cell

phone into evidence, which was present in the jury room during

their deliberations. Shortly after deliberations began, the jury

foreperson sent a note to the district judge which read "[w]e (one

juror) turned on [Therrien's] cell phone and read some text

messages before realizing it might be wrong. Is that okay?" The

4 For the first time on appeal, Therrien puts forward a claim
that Athas's disposal of her work cell phone constituted a due
process violation under Arizona v. Youngblood, 488 U.S. 51, 58
(1988), which states that the government commits a due process
violation when, in bad faith, it destroys potentially exculpatory
evidence. Therrien argues that the cell phone contained
exculpatory text messages which would have aided his defense.
5 At trial, Therrien's put forth an entrapment by estoppel
defense. Specifically, Therrien claimed that he had reasonably
relied on Athas's assurances that he would not be held responsible
for selling drugs, a firearm, and ammunition to Perez.

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judge quickly decided that he needed to "find out" whether the

messages were relevant to the case. He summoned the entire jury

back to open court and warned them to not read any more messages

on the phone. He then dismissed the jury but kept the jury

foreperson for further questioning about the incident. The

foreperson explained that a juror had turned on a cell phone

accompanying other evidence to see whether it was the same phone

that Therrien had used to send text messages to Athas. He also

noted that the juror who turned on the phone had seen a single

text message, one between Therrien and Athas, and that he believed

a transcript of the text had already been admitted into evidence.

The next day, the judge had the juror who turned on the

phone brought into open court for individual questioning. The

juror explained that after turning on the phone, she and one other

juror had seen the text message. She then immediately had turned

the phone off. Summoning all the jurors a second time, the judge

again warned them not to turn on the phone. The judge then sent

the jury back for further deliberations, but this time the juror

who had turned on the phone stayed behind. The juror stated that

she believed the text message she had seen was not already in

evidence because it referred to a drug -- "Molly" -- that had not

been discussed at trial. After hearing this, the judge once again

told the juror to disregard the text message.

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 Therrien moved for a mistrial, arguing that the trial

judge should have polled each juror individually since it was clear

that more than one juror either saw or discussed the text message.

Therrien's motion also contained a list of questions for the court

to ask the jury regarding how it used the phone, but did not

request a curative instruction. The judge denied the motion,

noting that Therrien had offered the phone into evidence without

limitation and that he "believe[d] the jury w[ould] follow [his]

instruction not to further inquire into it," and gave no further

instruction regarding the phone. Soon after, the jury found

Therrien guilty on all charges.

C. Sentencing

At sentencing, the district court settled on a United

States Sentencing Guidelines ("U.S.S.G.") range of 63 to 78 months.

The court arrived at that range after assigning Therrien a Base

Offense Level ("BOL") of 20 and then adding another four levels

since Therrien "transferred a firearm with knowledge, intent, or

reason to believe that it would be used or possessed in connection

with another felony offense." See U.S.S.G. § 2K2.1(b)(6)(B).

Therrien sought a two-level reduction, arguing that he had accepted

responsibility by admitting he made the charged sales. See id. §

3E1.1(a). The district court rebuffed Therrien, sentenced him to

a prison term of 72 months followed by three years of supervised

release, and imposed a $600.00 special assessment.

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 II. Discussion

We deal with, and reject, each of Therrien's claims of

error in turn.6

A. Outrageous Government Misconduct Claims

When reviewing a trial court's denial of a motion to

dismiss an indictment, this court reviews "legal questions de novo,

any factual findings for clear error, and the court's 'ultimate

ruling' for abuse of discretion." United States v. Parigan, 824

F.3d 5, 9 (1st Cir. 2016) (quoting United States v. Doe, 741 F.3d

217, 226 (1st Cir. 2013)). The district court did not make any

express factual findings, and found Therrien's claim to be

deficient even if all his factual allegations were true. Therrien,

89 F. Supp. at 218. We do as well.

A defendant's claim of outrageous government misconduct

faces a demanding standard, permitting the dismissal of criminal

charges "only in those very rare instances when the government's

misconduct is so appalling and egregious as to violate due process

by 'shocking . . . the universal sense of justice.'" United States

v. Luisi, 482 F.3d 43, 59 (1st Cir. 2007) (quoting United States

v. Russell, 411 U.S. 423, 432 (1973)). We review these claims

holistically, evaluating the "totality of the relevant

6 For purposes of this opinion, we assume that Therrien's
allegations accurately describe the nature and extent of his and
Athas's relationship.

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circumstances" while recognizing that "outrageousness, by its

nature, requires an ad hoc determination" that cannot "usefully be

broken down into a series of discrete components."7 United States

v. Santana, 6 F.3d 1, 6-7 (1st Cir. 1993) (emphasis in original).

Though the defense is theoretically viable, see United States v.

Twigg, 588 F.2d 373, 380-81 (3d Cir. 1978), it is nonetheless

reserved "for only the most egregious circumstances" and should

not be "invoked each time the government acts deceptively or

participates in a crime that it is investigating," United States

v. Sneed, 34 F.3d 1570, 1577 (10th Cir. 1994) (quoting United

States v. Mosley, 965 F.2d 906, 910 (10th Cir. 1992)).

Therrien points to three categories of cases where the

defendant alleged a due process violation based on outrageous

government misconduct, and he claims that his case presents aspects

of each type. Though almost no court evaluating cases in any of

these categories has found dismissal appropriate, Therrien

continues to suggest that his case presents a unique confluence of

misconduct warranting the doctrine's application. We think not.8

7
In his brief, Therrien cites to and relies on multi-factor
tests used in other circuits to evaluate outrageous misconduct
claims. However, we have noted that this court's holistic approach
to outrageous-misconduct claims differs from other courts'
analyses, which use these multi-factor tests. United States v.
Rivera-Garcia, 527 Fed. App'x 11, 15 n.2 (1st Cir. 2013).
8
For this reason, we need not and do not decide whether an
indictment may be dismissed based on outrageous government
misconduct in the absence of prejudice. See United States v.
Guzman, 282 F.3d 56, 59 (1st Cir. 2002) (recognizing that a showing

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 First, Therrien cites cases where charges of outrageous

misconduct centered on the over-involvement of government agents

in the commission of a crime. See, e.g., Luisi, 482 F.3d at 59;

Santana, 6 F.3d at 5. These cases hold little persuasive weight

here since Athas merely encouraged Therrien to sell illicit goods

and did not "engineer[]" or "direct[] the criminal enterprise from

start to finish." See Sneed, 34 F.3d at 1577. Though Athas knew

of Perez's status as an FBI informant and personally spoke with

both Perez and Therrien before and after the sales took place, she

did not supply Therrien with the drugs or firearm, did not specify

the precise terms of the transactions, and was not physically

present when they took place. See Twigg, 588 F.2d at 380-81

(outrageous misconduct barred conviction where a government agent

set up a drug lab, supplied the key ingredient to make the drugs,

purchased almost all of the other supplies, "was completely in

charge" of the operation, and "furnished all of the laboratory

expertise"). Indeed, Therrien's own active involvement in the

crime undermines his argument: he acquired the drugs and firearm

on his own and, importantly, only communicated with Athas twice

over the seven-month span when the sales took place. See Luisi,

482 F.3d at 59 (noting that "an outrageousness claim might be

of prejudice is "of some moment" and noting that the alleged
misconduct at issue "did not compromise [the defendant's] defense
or prejudice his case").

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defeated if a defendant has been 'too active himself'"(quoting

United States v. Bradley, 820 F.2d 3, 7 (1st Cir. 1987)); United

States v. Nunez, 146 F.3d 36, 38-39 (1st Cir. 1998) (denying an

outrageous misconduct claim despite the government informant

requesting pipe bombs from the defendant, government agents

escorting the defendant to buy the raw materials for the bombs,

and the government supplying the money used to buy the bombs).

Second, Therrien points to cases addressing sexual

relations between defendants and government agents. We have not

previously addressed whether, when, or to what extent a sexual

relationship could form the basis of a successful outrageous

misconduct claim. The courts of appeals that have considered this

sort of claim in similar contexts, however, note that it would

succeed only if the government "consciously set out to use sex as

a weapon in its investigatory arsenal" or at least "acquiesce[d]

in such conduct for its own purposes upon learning that such a

relationship existed." United States v. Cuervelo, 949 F.2d 559,

567 (2d Cir. 1991); accord United States v. Dyess, 478 F.3d 224,

235 (4th Cir. 2007) (adopting Cuervelo standard); United States v.

Nolan-Cooper, 155 F.3d 221, 233 (3d Cir. 1998) (rejecting

outrageous misconduct claim where only one incident of sexual

intercourse occurred between a law enforcement officer and the

defendant which "was not necessarily intertwined with [the

defendant's] offense conduct"); United States v. Simpson, 813 F.2d

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1462, 1466 (9th Cir. 1987) (noting that "the deceptive creation

and/or exploitation of an intimate relationship," on its own, does

not constitute outrageous government misconduct).

Here, besides Therrien's own testimony, there was no

evidence that federal authorities directed Athas, a state law

enforcement officer, to start a sexual relationship with Therrien.

None of Athas's supervisors knew about the extent of her personal

relationship with Therrien, the alleged sexual relationship was of

a limited duration, and it is unclear whether Athas's motive for

entering into any such relationship was for "investigatory"

reasons. In other words, Therrien never alleged that the FBI or

any other investigative agency encouraged, or even "acquiesce[d]"

to, his and Athas's relationship. See Cuervelo, 949 F.2d at 567.

Consequently, we cannot conclude that Athas's alleged conduct was

attributable to the federal government. See Simpson, 813 F.2d at

1467 (concluding that an informant's "initial decision to

establish a deceptive sexual and emotional relationship" could not

"be used to characterize the government's conduct" as outrageous

(emphasis in original)).

Third, Therrien directs us to another set of cases

involving certain defendants' allegations that government agents

physically or psychologically abused them. See, e.g., Santana, 6

F.3d at 4. Therrien specifically argues that Athas's age, position

of authority at Hampden, and repeated assurances that he would not

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get in trouble for selling illicit items to Perez constituted such

abuse. Nevertheless, we do not see how this dynamic implicates

due process concerns since "feelings of 'betrayal' are not the

sort of injuries that constitute a violation of a defendant's

rights under the Due Process Clause." See United States v. Chin,

934 F.2d 393, 399 n.4 (2d Cir. 1991); see also Simpson, 813 F.2d

at 1466 (concluding that the Due Process Clause "does not protect

[an individual] from voluntarily reposing his trust in one who

turns out to be unworthy of it").

Therrien's argument next ventures toward a different

type of outrageous government misconduct, claiming that Athas, and

therefore the federal government, violated his due process rights

after failing to disclose the true extent of her relationship with

Therrien to the prosecution and, in turn, to him. See Brady, 373

U.S. at 87 ("[T]he suppression by the prosecution of evidence

favorable to an accused upon request violates due process where

the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.").

The district court, however, correctly dismissed this argument out

of hand:

To constitute a Brady violation, the material
evidence at issue "must have been either willfully
or inadvertently suppressed by the government."
United States v. Alverio-Melendez, 640 F.3d 412,
424 (1st Cir. 2011). It is well established that
"[i]n general, 'evidence is not suppressed if the
defendant either knew, or should have known of the

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 essential facts permitting him to take advantage of
any exculpatory evidence.'" Ellsworth v. Warden,
333 F.3d 1, 6 (1st Cir. 2003) (quoting United States
v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982), cert.
denied, 459 U.S. 1174 (1983)). Therrien, of
course, had actual knowledge of the nature of his
relationship with Athas. Because he knew of the
essential facts permitting him to take advantage of
the exculpatory information, there is no suppressed
evidence regarding the relationship that the
government was obligated to disclose.

Therrien, 89 F. Supp. 3d at 218.9

Finally, Therrien argues for the first time on appeal

that Athas's disposal of her work cell phone, which he claims

contained exculpatory text messages between him and Athas, also

constituted a due process violation. See Youngblood, 488 U.S. at

58 (holding that the government commits a due process violation

when, in bad faith, it destroys "potentially useful evidence").

The argument, however, lacks merit.

Even assuming that Therrien has not forfeited the claim

and that Athas destroyed her phone in bad faith, a dubious

conclusion based on the record,10 Therrien remained a party to the

text message conversations between himself and Athas. At best, it

9We express no opinion regarding whether a Brady violation,
on its own, may in some cases meet the outrageous government
misconduct standard.
10Athas, for her part, testified that she handed the phone
in to the Hampden Sheriff's Department for decommissioning after
it stopped working in late 2014, and that Hampden's informal policy
was such that Athas had to turn the phone in for disposal anyway
once the DEA, as opposed to the Sherriff's Department, became
responsible for paying her phone bill around the same time.

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remains unclear whether these text messages actually had any

exculpatory value. At trial, Therrien introduced extensive

evidence concerning his relationship with Athas, including her

testimony, his own testimony, and text messages from his own cell

phone. He has not, however, shown on appeal how the text messages

on Athas's phone would differ from this considerable pool of

existing evidence. See United States v. Sepulveda, 15 F.3d 1161,

1195 (1st Cir. 1993) (noting the government's destruction of

"potentially exculpatory evidence" may not violate Brady or

Youngblood if the evidence can be "replicated through other

sources").

Considering everything raised by Therrien, the totality

of these circumstances does not present the rare case where any

government misconduct was sufficiently blatant, outrageous, or

egregious to warrant the dismissal of his indictment.

B. Jury Taint Claim

Therrien next maintains that the trial court did not

adequately inquire into the existence and extent of any prejudice

he suffered after at least two jurors viewed a text message on his

phone. The trial court abused its discretion, he continues, by

denying Therrien's motion for a mistrial without conducting such

an inquiry. We disagree.

Where "a colorable claim of jury taint surfaces during

jury deliberations, the trial court has a duty to investigate the

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allegation promptly." United States v. Bradshaw, 281 F.3d 278,

289 (1st Cir. 2002). In these circumstances, the trial court is

tasked with determining whether a taint-producing event actually

occurred and, if so, the extent or pervasiveness of the resulting

prejudice. See United States v. Boylan, 898 F.2d 230, 258 (1st

Cir. 1990). If the trial court finds both a taint-producing event

and a significant potential for prejudice, it must then consider

possible measures to alleviate that prejudice. Bradshaw, 281 F.3d

at 289. If the potential for prejudice remains too high even after

the trial court's best efforts, then the court must grant any

resulting motion for a mistrial. Id.

Granting a defendant's request for a mistrial is "a last

resort, only to be implemented if the [jury] taint is

ineradicable." Sepulveda, 15 F.3d at 1184. When reviewing the

denial of a mistrial request, we therefore "consider the totality

of the circumstances to determine whether the defendant has

demonstrated the kind of clear prejudice that would render the

court's denial of his motion for a mistrial a manifest abuse of

discretion." United States v. Trinidad-Acosta, 773 F.3d 298, 306

(1st Cir. 2014) (quoting United States v. Dunbar, 553 F.3d 48, 58

(1st Cir. 2009)). The trial court enjoys similar discretion

regarding how it conducts its inquiry into claims of jury taint.

See United States v. Yeje-Cabrera, 430 F.3d 1, 11 (1st Cir. 2005).

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 We discern no abuse here. Therrien primarily attacks

the trial court's procedural choices, arguing that it should have

(a) polled the entire jury to determine who saw the text message

and assess the degree of any resultant prejudice, or (b) issued a

curative instruction or discharged the juror who viewed the text

message. Nonetheless, these procedures are usually reserved for

far graver and pervasive claims of jury taint.11 Here, the trial

court, after learning about the incident, isolated both the

foreperson and the juror who turned on the cell phone, questioned

each of them about what they had seen on the cell phone and who

else had seen it, and then repeatedly told the jury to disregard

11 See United States v. Lara-Ramirez, 519 F.3d 76, 86 (1st
Cir. 2008) (concluding that the trial court abused its discretion
by granting a motion for a mistrial where, after learning that
some members of the jury may have been consulting a Bible not
entered into evidence during deliberations, the judge did not
ascertain whether any specific portions of the Bible had actually
been read, referred to, or discussed by the jurors); Bradshaw, 281
F.3d at 282, 290-92 (affirming as appropriate, after an unredacted
copy of an indictment charging the defendant with three severed
counts involving "serious malefactions" found its way into the
jury room, the trial court's individual voir dire of each juror,
its dismissal of one juror, and its issuance of a curative
instruction); United States v. Gaston-Brito, 64 F.3d 11, 13 (1st
Cir. 1995) (stating the trial court abused its discretion after it
denied a mistrial motion without conducting any investigation into
whether a non-witness had made an impermissible hand gesture or
whether the jury had seen it); see also Jackson v. United States,
97 A.3d 80, 82-83 (D.C. 2014) (endorsing, after the entire jury
had perused emails, texts, call logs, and contact lists on a cell
phone not admitted into evidence, the trial court's denial of a
mistrial since the judge had assembled and questioned the entire
jury three times to assess existence, extent, and prejudicial
effects of the taint-producing event).

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the texts and not turn the cell phone on again. Given the

circumstances, we are reassured that the trial court's inquiry and

repeated warnings effectively ascertained the extent and degree of

any prejudice suffered by Therrien, mitigated the effects of that

prejudice, and was "appropriate and reasonable." See United States

v. Balsam, 203 F.3d 72, 86 (1st Cir. 2000); see also United States

v. Arias-Montoya, 967 F.2d 708, 714 (1st Cir. 1992) (concluding it

was "highly probable" that the erroneous admission of a defendant's

prior conviction "did not contribute to the verdict against him"

and that the trial court "properly cautioned the jury as to the

limited weight to be given the prior conviction") (emphasis in

original).12

C. Sentencing

Therrien's final argument, that he is entitled to a

reduction in his sentence because he "clearly demonstrate[d]

acceptance of responsibility for his offense," see U.S.S.G. §

3E1.1(a), also lacks merit. Therrien bears the burden of proving

his entitlement to an acceptance-of-responsibility credit, and

"the sentencing court's determination to withhold the reduction

will be overturned only if it is clearly erroneous." United States

v. Franky-Ortiz, 230 F.3d 405, 408 (1st Cir. 2000) (quoting United

12Because we conclude that the trial court's procedures were
appropriate and reasonable, we need not address the Government's
threshold argument that the incident was not clearly prejudicial.

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States v. Ocasio-Rivera, 991 F.2d 1, 4 (1st Cir. 1993)); see also

United States v. Marino, 833 F.3d 1, 8 (1st Cir. 2016) (stating

that clear error "means the judge got things 'wrong with the force

of a 5 week old, unrefrigerated, dead fish'") (quoting In re

O'Donnell, 728 F.3d 41, 46 (1st Cir. 2013)).

Therrien rightly points out that § 3E1.1's commentary

suggests that these determinations "will be based primarily upon

pre-trial statements and conduct." U.S.S.G. § 3E1.1 cmt. n.2.

Similarly, the commentary recognizes that in some "rare

situations" a defendant may stand trial and still receive an

acceptance of responsibility reduction. Id. But while it is

"remotely conceivable . . . that a defendant who goes to trial

with an entrapment defense might still be entitled to such a

reduction," Therrien's "decision to defend himself at trial

through a weak claim of entrapment in no way places him in this

narrow theoretical category." See United States v. Turner, 501

F.3d 59, 74 (1st Cir. 2007); see also United States v. Sánchez–

Berríos, 424 F.3d 65, 79 (1st Cir. 2005); United States v.

Capleton, 350 F.3d 231, 245 (1st Cir. 2003).

Therrien argues that our previous decisions involved

traditional entrapment claims and that his "entrapment by

estoppel" defense somehow warrants a different outcome. This

latter defense, however, only requires that the defendant admit

"that he had been told by a government official that his behavior

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was legal and that he reasonably relied on that advice." United

States v. Bunnell, 280 F.3d 46, 49 (1st Cir. 2002). Though it may

acknowledge that a defendant committed an unlawful act, the defense

still renounces any notion of personal responsibility for those

acts and redirects it to law enforcement. See United States v.

Mikutowicz, 365 F.3d 65, 76-77 (1st Cir. 2004) (holding that

acceptance of responsibility reduction was improper where the

defendant contested the willfulness of his conduct, an "essential

factual element[] of guilt" (quoting U.S.S.G. § 3E1.1 cmt. n. 2)).

For these reasons, we conclude that the district court did not

commit any error, let alone clear error, in denying Therrien a

sentencing reduction for acceptance of responsibility.13

III. Conclusion

Therrien's conviction and his resulting sentence are

AFFIRMED.

13 Therrien suggests that the district court also erred by not
stating why it declined to apply the acceptance-of-responsibility
credit. The answer to this question, however, is clear from the
record: at the sentencing hearing, the district court pointed out
that the "theory of [Therrien's] case" was inconsistent with "what
the jury [had] found." See United States v. Stella, 591 F.3d 23,
28 (1st Cir. 2009) (stating that the district court did not need
to go into detail regarding why it imposed a sentencing enhancement
because "the reason [was] evident from the record").

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