Opinion
CRIMINAL ACTION No. 12-418-1
07-09-2014
UNITED STATES OF AMERICA v. ROBERT LAMAR WHITFIELD
MEMORANDUM
Juan R. Sánchez, J.
On May 22, 2013, a jury convicted Defendant Robert Lamar Whitfield of conspiracy to commit robbery which interferes with interstate commerce, attempted robbery which interferes with interstate commerce and aiding and abetting, conspiracy to possess with intent to distribute five kilograms or more of cocaine, attempted possession with intent to distribute five kilograms or more of cocaine and aiding and abetting, and carrying, and aiding and abetting the carrying of, a firearm during and in relation to a crime of violence and a drug trafficking crime. The charges arose out of Whitfield's involvement in a planned robbery of a purported drug stash house from which he and his codefendants believed at least ten kilograms of cocaine could be stolen.
On July 1, 2014, Whitfield appeared before the Court for a sentencing hearing, during which the Court heard argument from the parties on Whitfield's objections to the Presentence Investigation Report (PSR) and request for a downward departure or downward variance from the advisory sentencing range under the federal Sentencing Guidelines. This Memorandum summarizes the bases for the Court's rulings on Whitfield's objections and request for a downward departure. The Court will address Whitfield's request for a downward variance at the continuation of the sentencing hearing on July 10, 2014.
1. Obstruction of Justice (PSR ¶¶ 36 and 48)
Whitfield objects to the inclusion of a two-level upward adjustment for obstruction of justice pursuant to U.S.S.G. § 3C1.1. Section 3C1.1 directs the court to increase a defendant's offense level by two levels if "(1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to . . . the defendant's offense of conviction and any relevant conduct." Obstructive conduct to which the adjustment in § 3C1.1 applies includes "threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so." U.S.S.G. § 3C1.1 cmt. n.4(A).
The PSR recommends that the Court apply the obstruction of justice adjustment based on information the probation office received from the Government that Whitfield threatened two of his codefendants, Najee Murray and Lafayette Rawls, both of whom were cooperating with the prosecution. See PSR ¶¶ 36, 48. On May 14, 2013, the second day of trial in this case, the Government advised the Court, outside the jury's presence, that it had received information that Whitfield had threatened Rawls at the Federal Detention Center (FDC) the preceding Saturday, and that Whitfield and another codefendant had threatened Murray. The Government sought permission to question both Rawls and Murray about the threats, arguing this evidence was admissible under Federal Rule of Evidence 404(b) to show consciousness of guilt. Although the Court agreed to permit the Government to present testimony from both witnesses, outside the jury's presence, so the Court could determine whether to admit the threat evidence, the Government ultimately declined to present testimony from Murray.
On May 17, 2013, the Court heard testimony from Rawls about an exchange he had with Whitfield at the FDC on May 11, despite the existence of a separation order intended to prevent them from having any contact. Rawls testified that as he was leaving a visit with his family, he saw Whitfield, who was leaving a visit with his attorney, as they were both entering the changing room. Trial Tr. 251-52, May 17, 2013. Rawls thought he heard Whitfield say something about him and said "what you say" or words to that effect. Id. at 252. Whitfield responded something to the effect of "you already know what it is, you all niggers ain't right, your niggers hot," which Rawls understood to be a reference to the fact that Rawls and Murray were cooperating. See id. at 252-54. Rawls told Whitfield he was doing what he had to do to get home to his family, and whatever Whitfield did was on him to get home to his. See id. at 254. According to Rawls, Whitfield then said something to the effect of "it's cool, he know where me and my family was at," which Rawls understood to mean that Whitfield knew where Rawls's family lived and which Rawls took to be a threat to his family. See id. at 254-55. Rawls became angry at Whitfield's comment and told Whitfield he would "knock him the F up." See id. At that point, a guard told Rawls to come back out of the changing area due to the separation order. See id. at 255.
After hearing from Rawls, the Court declined to permit the Government to question Rawls about the exchange before the jury. The Court did not make any specific finding as to whether Whitfield had in fact threatened Rawls in an effort to dissuade him from testifying. Rather, the Court noted the incident occurred only after Rawls spoke to Whitfield and could have been avoided if Rawls had not said anything. See id. at 264-65 (observing Rawls was not "completely not at fault for whatever confrontation occurred in that brief period of time"). The Court also observed the exchange was not preventing Rawls from testifying. Upon review of Rawls's testimony, and given the ambiguity in the language Rawls contends Whitfield used, this Court is not convinced that Whitfield's comments amounted to a threat against Rawls or his family. Because the Court concludes Whitfield's comments to Rawls were too vague and indefinite to constitute a deliberate effort to "threaten[], intimidat[e], or otherwise unlawfully influenc[e]" Rawls, see U.S.S.G. § 3C1.1 cmt. n.4(A), Whitfield's objection to the obstruction of justice adjustment is sustained.
2. Acceptance of Responsibility (PSR ¶¶ 37 and 53)
Whitfield also objects to the probation officer's determination that he is not eligible for a reduction in offense level for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), which directs the court to decrease the offense level by two levels "[i]f the defendant clearly demonstrates acceptance of responsibility for his offense." In determining whether a defendant qualifies for this reduction, a court may consider, inter alia, whether the defendant "truthfully admitt[ed] the conduct comprising the offense(s) of conviction." U.S.S.G. § 3E1.1 cmt. n.1(A). The acceptance of responsibility adjustment "is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse." Id. cmt. n.2. Conviction by trial, however, "does not automatically preclude a defendant from consideration for such a reduction." Id. Rather, "[i]n rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial," for example, where the defendant goes to trial to assert and preserve issues unrelated to factual guilt. Id. "In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct." Id.
Whitfield argues the Court should grant him a reduction for acceptance of responsibility because both prior to and at trial, he acknowledged his factual guilt and truthfully admitted his conduct, and his decision to go to trial on an entrapment defense is in no way inconsistent with his acknowledgement of factual guilt. To the contrary, Whitfield contends that had he not acknowledged his factual guilt, he would have had no basis to raise an entrapment defense.
The Third Circuit addressed the availability of a reduction for acceptance of responsibility for a defendant who goes to trial on an entrapment defense in United States v. Demes, 941 F.2d 220 (3d Cir. 1991). The Court of Appeals held that while "[o]rdinarily a claim of entrapment at trial seems to be the antithesis of the acceptance of responsibility," a defendant who raises such a claim is not categorically precluded from receiving an acceptance-of-responsibility reduction. Id. at 222; see also id. (noting "it is conceivable to hypothesize a case in which a plea of entrapment would not be inconsistent with the acceptance of responsibility"). At the same time, the mere fact that a defendant raising an entrapment defense acknowledges his involvement in the underlying crime does not automatically entitle him to the reduction. See United States v. Garcia, 182 F.3d 1165, 1173 (10th Cir. 1999) (holding "that raising the entrapment defense does not necessarily foreclose the possibility of receiving a reduction for acceptance of responsibility," but also recognizing "that the simple assertion of the entrapment defense coupled with acknowledgement of the underlying criminal activity [does not] automatically entitle[] a defendant to a two-point acceptance of responsibility reduction"); Demes, 941 F.2d at 222-23 (holding the district court did not clearly err in finding a defendant who went to trial on an entrapment defense did not accept responsibility, even though the defendant was "fully debriefed" following his arrest and explained how he obtained the drugs he was charged with distributing).
It is difficult to reconcile Whitfield's entrapment defense with clear acceptance of responsibility on the facts of this case. Immediately following his arrest on July 18, 2012, Whitfield waived his Miranda rights, agreed to be interviewed by Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Special Agent John Bowman, and proceeded to admit that he had been part of a plan to rob the stash house and to steal the ten kilograms of cocaine that were supposedly inside. See Gov't's Ex. 61; see also Gov't's Ex. 62 (form memorializing Whitfield's waiver of his Miranda rights). However, Whitfield thereafter moved to suppress his statement to Agent Bowman, denying he received adequate Miranda warnings and asserting the statement was "the product an overborne will," "the result of implied threats, cajolery and coercion," and "the product of delay, deception, and improper subterfuge on the part of the government agents." See Def.'s Omnibus Pretrial Mot. 13-15, ECF No. 148. Following a suppression hearing, the Court denied the motion, finding no evidence to support Whitfield's claim that his statement was involuntary. See generally Mem. May 8, 2013, ECF No. 220. In particular, the Court found there was no evidence to support Whitfield's claim that when Agent Bowman asked him whether anyone had promised him anything or made any threats to him about cooperating, he told Bowman he had been promised no jail time. See id. at 5. Despite the Court's suppression ruling, Whitfield continued to claim at trial that he had told Bowman he had been promised no jail time if he cooperated. See Trial Tr. 399, 408-09, May 20, 2014.
More fundamentally, although Whitfield admitted at trial that he agreed to participate in the robbery proposed by the undercover agent, his entrapment defense was aimed at minimizing his role in the offense, including his willingness to participate in the offense, his enthusiasm for the opportunity, his involvement in planning how and by whom the robbery would be carried out, his role in ensuring the availability of guns for use in the robbery, and his experience with other similar offenses. For example, Whitfield testified at trial that but for the extraordinary financial reward the undercover agent promised, he would not have agreed to participate in the robbery. See, e.g., Trial Tr. 88, May 21, 2013. Yet the recordings of his interactions with the confidential informant show that Whitfield affirmatively sought out the robbery opportunity before he knew the full scope of the potential payout. See Gov't's Exs. 70A at 3, 80A at 1-2. In these circumstances, the Court finds that although Whitfield admitted his involvement in the conspiracy charged as part of his entrapment defense, he did not "clearly demonstrate[] acceptance of responsibility for his offense," and is therefore not entitled to a two-level reduction pursuant to U.S.S.G. § 3E1.1(a).
For ease of reference, the Court is citing to transcripts of the audio and video recordings of Whitfield's interactions with the confidential informant and the undercover agent. The Court recognizes that the recordings themselves, and not the transcripts, are the evidence in this case.
3. Base Offense Level (PSR ¶ 43)
Whitfield next objects to the base offense level, which the PSR sets at 32 pursuant to U.S.S.G. § 2D1.1. Although the basis for the selection of the base offense level is not clear from the PSR, the probation officer has since confirmed that the base offense level was selected using the drug quantity table in § 2D1.1(c). Because the object of the conspiracy in this case was between 5 and 15 kilograms of cocaine, the base offense level is 32. See U.S.S.G. § 2D1.1(c)(4). Whitfield objects to the use of the drug quantity table to determine his base offense level on the ground that the drug amount at issue in this case is the product of sentencing manipulation, sentencing entrapment, and/or imperfect entrapment. He contends the Court should disregard the drug quantity table and instead use the base offense level for robbery, which is 20 pursuant to U.S.S.G. § 2B3.1(a).
As Whitfield acknowledges, to date, the Third Circuit has "neither adopted nor rejected the doctrines of sentencing entrapment and sentencing manipulation." United States v. Sed, 601 F.3d 224, 229 (3d Cir. 2010). The other federal courts of appeals are divided as to the viability of these defenses. See id. at 229-30 (describing circuit split). As characterized by the Third Circuit, sentencing manipulation (or sentencing factor manipulation) is a due process violation "that 'occurs when the government unfairly exaggerates the defendant's sentencing range by engaging in a longer-than-needed investigation and, thus, increasing the drug quantities for which the defendant is responsible.'" Id. at 231 (quoting United States v. Torres, 563 F.3d 731, 734 (8th Cir. 2009)). Sentencing entrapment, in contrast, "occurs when official conduct leads an individual otherwise indisposed to dealing in a larger quantity or different type of controlled substance to do so, and the result is a higher sentence." Id. at 230 (quoting United States v. Martin, 583 F.3d 1068, 1073 (8th Cir. 2009)); see also United States v. Raven, 39 F.3d 428, 438 (3d Cir. 1994) (noting sentencing entrapment "has been defined as outrageous official conduct [which] overcomes the will of an individual predisposed only to dealing in small quantities for the purpose of increasing the amount of drugs . . . and the resulting sentence of the entrapped defendant" (citation and internal quotation marks omitted)). The defendant bears the burden of proving sentencing manipulation or sentencing entrapment by a preponderance of the evidence. See, e.g., United States v. Black, 733 F.3d 294, 311 (9th Cir. 2013) ("The defendant has the burden of proving sentencing entrapment by a preponderance of the evidence."); Torres, 563 F.3d at 734 ("In order for sentencing manipulation to form the basis for a departure, the defendant bears the burden to prove by a preponderance of the evidence 'that the officers engaged in the later drug transactions solely to enhance his potential sentence.'" (citation omitted)).
With regard to sentencing manipulation, Whitfield argues the Court should refuse to apply U.S.S.G. § 2D1.1 to determine his base offense level "[i]f the government's motive in purporting there to be a 'stash' of 5 kilograms or more of cocaine was made simply to arbitrarily enhance the seriousness of the case for sentencing guidelines purposes." Def.'s Sentencing Mem. 13. In support of this argument, Whitfield asserts that the fact that the Government selected as the object of the robbery drugs of a type (cocaine) and amount (ten kilograms) that would trigger a ten-year statutory mandatory minimum penalty suggests the sting was deliberately designed to produce huge sentences for those involved.
At trial, the undercover agent testified that ATF selected the ten-kilogram cocaine quantity used in this case in consultation with the Drug Enforcement Administration and Philadelphia Narcotics, based on information from those agencies about the drug quantities they were seeing in their investigations in the Philadelphia region. Trial Tr. 69-70, May 14, 2014. In other words, ATF based the drug quantity for its sting "on what's actually going on out in the streets" so as to make the robbery scenario believable. Id. at 70. On cross-examination, the undercover agent acknowledged he was aware that five kilograms of cocaine would trigger the ten-year mandatory minimum penalty, but he denied that the statutory penalty played a role in the selection of the drug quantity used in this case. See id. at 217-19.
It is true, as Whitfield suggests, that in fictitious stash house robbery cases like this one, the selection of the quantity of drugs purportedly available to be stolen can significantly impact the Sentencing Guidelines range for the offense. Where drug quantities in excess of those necessary to trigger statutory mandatory minimum penalties are involved, by selecting the drug quantity, the Government is also in effect selecting the minimum sentence defendants targeted in the sting will face. The Court appreciates that the Government's "virtually unfettered ability to inflate the amount of drugs supposedly in the house and thereby obtain a greater sentence for the defendant" creates a risk of manipulation. See United States v. Briggs, 623 F.3d 724, 729 (9th Cir. 2010). Because the Government had a reasonable basis for selecting the ten-kilogram quantity it chose in this case, however, the Court cannot find that the Government deliberately manipulated the drug quantity to increase the sentence.
With regard to sentencing entrapment, Whitfield argues the Court should decline to apply U.S.S.G. § 2D1.1 because "the quantity of the fictitious drugs was contrived solely for the purpose of serving as an extraordinary inducement, one guaranteed to induce individuals to engage in an act of robbery." Def.'s Sentencing Mem. 13. The problem with this argument is that Whitfield's "extraordinary inducement" theory is not supported by the evidence in this case.
First, as the Government notes, Whitfield's argument that he agreed to participate in the robbery only because of the extraordinary monetary reward the ten kilograms of cocaine represented is belied by evidence showing Whitfield volunteered for the robbery before he knew what the intended target was. When the confidential informant called Whitfield on June 13, 2012, in an effort to get in touch with another individual about a "situation" (i.e., a robbery, according to the undercover agent), Whitfield interjected "that's what I do too." Gov't's Ex. 70A at 3; Trial Tr. 73, 89, May 14, 2013. Likewise, when Whitfield met with the confidential informant a week later and learned the informant's "peoples got a little thing on some work[,] . . . something to take," Whitfield sought the opportunity for himself, responding "[l]et me do it. I can knock it out, son." Gov't's Ex. 80A at 1-2. During the meeting, Whitfield learned (or suspected) the robbery involved "chumpies," i.e., kilogram quantities of cocaine, and expressed his willingness to go in and take the drugs, saying "as long as he [i.e., the undercover agent] know where it's at like if can say, yo it's upstairs in the bedroom or . . . he know it's in there I'm gonna go hard, I'm gonna get that sh-t. . . . As long as the information's good, I knock that sh-t down. . . . That's what I do." Id. at 2, 6; Trial Tr. 74, 95-97, May 14, 2013.
Second, Whitfield has not shown he was predisposed to commit only some lesser offense. When he learned from the undercover agent that the robbery target was a drug stash house from which at least ten kilograms of cocaine could be stolen, Whitfield expressed no hesitation about participating, but proceeded to offer suggestions for how the robbery could be committed, to tout his past experience committing similar crimes, and to assure the undercover agent he and his associates had the ability to move the agent's share of the drugs and to cash him out. See Gov't's Ex. 81A; see also Trial Tr. 117-19, 125, May 14, 2013 (undercover agent's testimony that Whitfield described having committed prior robberies of drug dealers and stash houses). Although Whitfield argued at trial that he was merely a "two-bit drug dealer, swindler and braggart," Trial Tr. 252, May 21, 2013, in his interactions with the confidential informant and the undercover agent, Whitfield sought to portray himself as an experienced robber of drug dealers. Even if Whitfield overstated his level of experience (or success) robbing stash houses, Najee Murray confirmed that Whitfield had at least some prior experience with such crimes. See Trial Tr. 286-88, 294-96, May 16, 2013 (describing a prior robbery that Murray committed with Whitfield and two other robberies or attempted robberies of drug dealers that Whitfield told Murray about).
Finally, it is worth noting that Whitfield argued his extraordinary inducement theory to the jury at trial as part of his entrapment defense, which the jury rejected. See Trial Tr. 259, May 22, 2013 (arguing the Government must prove beyond a reasonable doubt that Whitfield was not induced by, inter alia, "[t]he lies about cocaine at all and the extraordinary valuable amount of 10 keys or more" and "the limited risk, the extraordinary, favorable circumstances to obtain this cocaine"); id. at 263 ("But when [Whitfield] learned about the extraordinary monetary opportunity, the promise of—of reward of monetary gain, that was being proposed, he was hooked.").
Given these circumstances, the Court finds Whitfield has not satisfied his burden to show a lack of predisposition to commit the crimes charged in this case. See Black, 733 F.3d at 312 (affirming a district court's rejection of a claim of sentencing entrapment in a phony stash house robbery case where the defendants did not show "that they lacked the intent or capability of taking 22-39 kilograms of cocaine by force"); United States v. Walker, 673 F.3d 649, 659 (7th Cir. 2012) (rejecting claim of sentencing entrapment in a phony stash house robbery case where the defendant "jumped at the opportunity" to participate in the robbery and the government "did not expend any energy coaxing [the defendant's] involvement").
4. Aggravating Role Enhancement (PSR ¶ 47)
Whitfield objects to the inclusion of an aggravating role enhancement pursuant to U.S.S.G. § 3B1.1(a), which directs the court to increase the defendant's offense level by four levels "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." Whitfield argues this adjustment is inapplicable because it was the Government that initiated the robbery scheme and encouraged the inclusion of more and more actors beyond the three-person robbery crew Whitfield initially proposed, and because Najee Murray (not Whitfield) actually recruited most of the additional participants. Whitfield maintains it was the undercover agent and Murray who organized and led the criminal activity in this case, not him.
To qualify as a "participant" in criminal activity, a person must be "criminally responsible for the commission of the offense, but need not have been convicted." U.S.S.G. § 3B1.1 cmt. n.1. The criminal activity in this case clearly involved five or more "participants" because all eight members of the robbery crew were convicted of the offenses charged, either at trial or pursuant to a guilty plea.
Insofar as Whitfield contends he should not be held accountable for the size of the robbery crew because the undercover agent pressured him to include more and more participants, the record does not support this argument. When Whitfield initially met with the undercover agent, he proposed doing the robbery with a total of three people (i.e., himself and his "two man crew"). See Gov't's Ex. 81A at 10. In response, the undercover agent asked whether three would be enough, but Whitfield assured the agent he only needed two others, and the agent did not question Whitfield's judgment or pursue the issue further. See id. at 11-12, 19. When Whitfield next met with the undercover agent a week later, he volunteered that the number of participants had expanded to four: three to commit the robbery and one driver. See Gov't's Ex. 82A at 25-27. By the time of the meeting the day before the robbery was to occur, the robbery crew had expanded yet again, as Whitfield explained the plan was for four crew members to "mob" the stash house. See Gov't's Ex. 83A at 7, 24-25. During each meeting, the undercover agent confirmed the number of individuals Whitfield planned to involve in the robbery, but did not question his judgment on the subject. On the morning of the robbery, Whitfield confirmed there would be at least five participants, advising the undercover agent there would be four individuals going into the stash house and one driver. See Gov't's Ex. 84A at 7. Because the evidence suggests Whitfield intended to involve at least four other individuals in the robbery (for a total of five participants, including himself), and because there is no evidence that the increase in the number of participants from the smaller crew Whitfield originally proposed was the product of government coercion, the Court rejects Whitfield's argument that he should not be held accountable for the size of the robbery crew. See United States v. Colletti, 984 F.2d 1339, 1346 (3d Cir. 1992) (holding the leader of a criminal activity is included in determining the number of participants in the activity for purposes of U.S.S.G. § 3B1.1(a)).
Insofar as Whitfield contends he does not qualify as a leader or organizer of the criminal activity in this case, the Court disagrees. In determining whether a defendant is a leader or organizer, as opposed to merely a manager or supervisor, of criminal activity, a court should consider a variety of factors, including "the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others." U.S.S.G. § 3B1.1 cmt. n.4. "Evidence of every factor is not a prerequisite to a finding that the defendant is a leader or organizer under § 3B1.1," United States v. Bass, 54 F.3d 125, 128 (3d Cir. 1995); however, "the defendant must have exercised some degree of control over others involved in the commission of the crime," United States v. Phillips, 959 F.2d 1187, 1191 (3d Cir. 1992) (citation omitted). "There can . . . be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy." U.S.S.G. § 3B1.1 cmt. n.4; see also Bass, 54 F.3d at 128 (holding the adjustment does not require "evidence that the defendant is the sole or predominate leader").
In this case, Whitfield was the point of contact between the undercover agent who allegedly had information about the stash house and the robbery crew, participated in series of phone calls and meetings with the confidential informant and the undercover agent in which he was actively involved in planning the robbery, and controlled the flow of information to the robbery crew. Although Whitfield did not recruit all of the other participants directly, he personally recruited both Marlon Graham and Najee Murray, and he directed Murray to recruit others. See Trial Tr. 43, May 21, 2013 (testimony from Whitfield that he wanted Murray to find people who could do the job); Trial Tr. 298-300, May 16, 2013 (testimony of Najee Murray that Whitfield asked Murray to contact Lafayette Rawls and Kareem Long about the robbery and that Murray told Whitfield he would also recruit Frank Thompson). While the undercover agent provided information about the purported stash house, the agent did not dictate the precise manner in which the robbery should be committed, and Whitfield made decisions about various aspects of the robbery plan. See, e.g., Gov't's Ex. 83A at 7 (advising the undercover agent the plan was for four individuals to go into the stash house, three with guns and one to get the cooler of cocaine); id. at 18 (stating, in response to a question from Murray as to whether the robbery crew should shoot the guards inside the stash house, "[i]f we don't gotta do it, we ain't doing that"); id. at 19-20 (rejecting Murray's suggestion that they "use the cop sh-t" and instead stating the plan was to "mob that jawn"); Gov't's Ex. 84A at 7 (devising a code for the undercover agent to use to inform Whitfield whether the stash house door would be locked). Moreover, at the final meeting on the day the robbery was to occur, Whitfield explained the robbery plan to the other participants, instructing them to make sure the undercover agent was not hurt during the robbery. See Gov't's Ex. 84A at 14. Significantly, when questions arose as to whether the participants should use a van the undercover agent had procured and how many of the eight would be going into the stash house, it was Whitfield who answered them. See id. at 17 ("All right, listen, all right listen. . . . Everybody listen. I drive the van, right? I drive the van . . . after y'all come out, I can pull up, throw the doors open and you can hop in that van, ya know what I mean?"); id. (explaining there was only a need for five participants to go into the stash house). In these circumstances, the Court finds Whitfield exercised sufficient control over others to qualify as a leader or organizer of the robbery.
5. Request for a Downward Departure
Finally, Whitfield asks the Court to grant "an extreme downward departure" pursuant to U.S.S.G. § 5K2.0(a)(2) and (a)(3) on essentially the same grounds underlying his claim of sentencing manipulation and sentencing entrapment and also on the basis that the prosecution in this case was the product of racial profiling. Section 5K2.0(a)(2) authorizes the Court to grant a departure from the otherwise applicable advisory Sentencing Guidelines range if a circumstance identified by the Sentencing Commission "is present in the case and has not adequately been taken into consideration in determining the applicable guideline range," or if "there is present a circumstance that the Commission had not identified in the guidelines but that nevertheless is relevant to determining the appropriate sentence." Section 5K2.0(a)(3) authorizes a departure if a circumstance "taken into consideration in determining guideline range . . . is present in the offense to a degree substantially in excess of, or substantially below, that which ordinarily is involved in that kind of offense." Although the Court recognizes it has discretion to grant a downward departure pursuant to § 5K2.0(a)(2) and (a)(3), the Court is not persuaded a departure is appropriate in this case for the reasons set forth above and in the Court's June 27, 2014, Memorandum denying the Defendants' motion for a hearing and discovery on the issue of racial profiling/selective prosecution.
An appropriate order follows.
BY THE COURT:
__________
Juan R. Sánchez, J.