We may review this claim because sentencing manipulation, if present, is a violation of the Due Process Clause. See United States v. Baber, 161 F.3d 531, 532 (8th Cir. 1998). Torres contends that the district court applied an erroneous test to his request for a downward departure because the district court indicated that it was uncertain whether the test for sentencing manipulation was objective or subjective and relied on an improper factor (delay in investigation) in coming to its conclusion.
The government did not need to produce the firearm used in the shooting to convict Haynes of being a felon in possession of ammunition. See, e.g., United States v. Kelly, 436 F.3d 992, 996 (8th Cir. 2006); cf. United States v. Baber, 161 F.3d 531, 532 (8th Cir. 1998). Evidence that Haynes was the shooter, that the spent shell casings found at the scene came from the shooter's gun, and that the magazine was discarded or ejected from the shooter's gun was sufficient to be credited by a reasonable jury.
Specifically, Sacus focuses on the following aspects of the undercover agents' cover identities: (1) that an agent served more than one year in prison for a felony offense; (2) that an agent belonged to an outlaw motorcycle gang; and (3) that the firearms the agents wanted to buy would be transported out of the country to Mexico.In the context of a downward departure, we have said that in order to succeed on a claim of sentencing manipulation, “the defendant bears the burden to prove by a preponderance of the evidence ‘that the officers engaged in [conduct] ... solely to enhance [the defendant's] potential sentence.’ ” United States v. Torres, 563 F.3d 731, 734 (8th Cir.2009) (quoting United States v. Baber, 161 F.3d 531, 532 (8th Cir.1998) ). Therefore, we will not find sentencing manipulation when there is evidence of legitimate law enforcement goals and purposes.
" Id. To warrant a departure, the defendant must demonstrate by a preponderance of the evidence "that the officers engaged in the later drug transactions solely to enhance his potential sentence." Id. (quoting United States v. Baber, 161 F.3d 531, 532 (8th Cir. 1998)). Moran argues that sentencing manipulation was present because "it was the government, not the [d]efendant or Sarah Rhiner, that drove the amount of the transactions."
Here, the jury heard five individuals testify that Abernathy possessed the .410 shotgun, including Sam Shafer (the person who gave him the gun), Gordon Shafer (present when Abernathy received the gun), Jerome Abernathy and Robert Bialucha (present when Abernathy received the gun and who were threatened by Abernathy with the gun), and Rebecca (who fought with Abernathy over the gun and was also threatened with it). The jury credited their testimony, see United States v. Rayl, 270 F.3d 709, 713 (8th Cir. 2001) (stating that the "issue of witness credibility is virtually unreviewable on appeal because it is preeminently the job of the finder of fact") (internal quotation and citation omitted), and as such there was ample proof Abernathy possessed the firearm, though the shotgun was not entered into evidence. See, e.g., United States v. Baber, 161 F.3d 531, 532 (8th Cir. 1998) (concluding that the evidence was sufficient to support a charge of carrying a firearm even though firearm not entered into evidence). Abernathy also argues his felon-in-possession conviction is invalid because there was no proof of a connection between the firearm and interstate commerce.
Considering all of this evidence, a reasonable jury could have concluded beyond a reasonable doubt that McCloskey struck Alan with an axe, delivering non-fatal blows, despite the fact that the axe was not entered into evidence. See, e.g., United States v. Baber, 161 F.3d 531, 532 (8th Cir. 1998) (evidence sufficient to support a charge of carrying a firearm even though firearm not entered into evidence). Likewise, in the face of the evidence, we could hardly say the jury must have had a reasonable doubt that an axe was used simply because Alan did not die. Such a theory is overly broad; it does not account for factors such as the influence of alcohol on McCloskey and Alan's ability to defend himself.
Snow, 309 F. 3d at 295.United States v. Baber, 161 F.3d 531, 532 (8th Cir. 1998) (quoting United States v. Calva, 979 F.2d 119, 123 (8th Cir. 1992)). See also United States v. Scull, 321 F.3d 1270, 1277 (10th Cir. 2003) (explaining police must be given leeway to determine whether a criminal enterprise exists); United States v. Baker, 63 F.3d 1478, 1500 (9th Cir. 1995) ("[S]ince the government bears the burden of proving its case beyond a reasonable doubt, it must be permitted to exercise its own judgment in determining at what point in an investigation enough evidence has been obtained.").
In a similar case dealing with sentencing entrapment/manipulation, the Eighth Circuit held on appeal that law enforcement "`must be given leeway to probe the depth and extent of a criminal enterprise, to determine whether coconspirators exist, and to trace the drug deeper into the distribution hierarchy.'" United States v. Baber, 161 F.3d 531, 532 (8th Cir. 1998) (quoting United States v. Calva, 979 F.2d 119, 123 (8th Cir. 1992)); (quoting United States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993)). The record is bereft of any evidence supporting a theory of entrapment. An attorney's performance cannot be deemed deficient if he failed to lodge futile objections.
Nonetheless, defendant argues he was subjected to sentencing entrapment or sentencing manipulation, relying on federal concepts developed in response to perceived abuses in the restrictive scheme of the federal sentencing guidelines. See United States v. Baber, 161 F.3d 531, 532 (8th Cir. 1998) (explaining that to justify a downward departure under the federal sentencing guidelines, a defendant bears the "burden to show that sentencing entrapment or sentencing manipulation occurred" by virtue of officers engaging in "later drug transactions solely to enhance [defendant's] potential sentence"); see also United States v. Calva, 979 F.2d 119, 123 (8th Cir. 1992) (recognizing police "must be given leeway to probe the depth and extent of a criminal enterprise, to determine whether coconspirators exist, and to trace the drug deeper into the distribution hierarchy").