Opinion
07 Cr. 872 (RPP).
June 5, 2009
OPINION AND ORDER
On April 29, 2008, Defendant Joseph Deacon ("Defendant") pleaded guilty to an Information containing four counts: one count of conspiracy to deal in firearms without a license in violation of Title 18, United States Code, Section 371, one count of dealing in firearms without a license in violation of Title 18, United States Code Section 922(a)(1)(A), one count of possessing a weapon as a felon in violation of Title 18, United States Code, Section 922(g)(1), and one count of distributing over 50 grams of crack cocaine and over 50 grams of heroin in violation of Title 21, United States Code, Sections 812, 841(a)(1), and 841(b)(1)(A). On June 2, 2009, Defendant was sentenced to a term of 60 months on Count One, 60 months on Count Two (to run consecutively with Count One), 120 months on Count Three (to run concurrently with Counts One and Two), and 120 months on Count Four (to run concurrently with Counts One, Two, and Three).
I. OFFENSE CONDUCT
A. Counts One, Two, and Three
On four separate occasions between April 17, 2007 and July 17, 2007, the Defendant sold 14 firearms to two different confidential informants. During the first two buys, in April and May 2007, the Defendant sold nine firearms to one confidential informant ("CI-1"); and during the second two buys, both in July, the Defendant sold five firearms to a second confidential informant ("CI-2"). At the time of the gun sales, the Defendant was a convicted felon, and therefore prohibited from possessing any firearm.
B. Count Four
On August 10, 2007, CI-1 contacted the Defendant and told the Defendant that CI-1 wanted to sell heroin for the Defendant. On August 12, 2007, CI-1 met with the Defendant, and the Defendant gave CI-1 five bundles of heroin on consignment.
On or about August 13, 2007, CI-1 met with the Defendant again. Prior to the meeting, Special Agent Michael Patrick, with the Bureau of Alcohol, Tobacco, Firearms Explosives, gave CI-1 $500 to pay for the five bundles of heroin CI-1 received on August 12, 2007, and $1,000 for an additional ten bundles of heroin to be purchased from the Defendant. A government recording shows that Agent Patrick then instructed CI-1 to get at least 60 grams of crack because "that's 10 years right there with that alone."
During the August 13, 2007 meeting with the Defendant, CI-1 paid him the $1,500 for the five bundles of heroin delivered on August 12, 2007 and for an additional ten bundles, and the Defendant asked that CI-1 take five bundles of heroin on consignment. When CI-1 asked if the Defendant could get him 65 grams of crack as well, Defendant stated, "Sixty-five gram? I ain't selling nar gram." (Court Exhibit 1 at 3.) However, the following day, August 14, 2007, the Defendant obtained 59.6 grams of crack for CI-1 and also gave CI-1 an additional five bundles of heroin on consignment, for a total of over 50 grams of heroin. CI-1 paid the Defendant a total of $2,300 — $500 for the heroin he received the day before and an additional $1,800 for 59.6 grams of crack.
II. DISCUSSION
Defendant argues that the recording of the transaction verifies that he did not deal in crack and that the Government engaged in sentencing manipulation or sentencing entrapment because Agent Patrick suggested to CI-1 that he purchase 60 grams of crack cocaine from the Defendant in order to ensure that he receive a ten year sentence. For following reasons, Defendant's sentence on Count Four was reduced to 120 months from the Guideline range of 151 months to 188 months (and the Presentence Report recommendation of 170 months).
A. Applicable Law
Recognition of the doctrine of sentencing entrapment in the Second Circuit is "unclear." United States v. Caban, 173 F.3d 89, 93 n. 1 (1999). "Sentencing entrapment `normally requires that a defendant convince the fact-finder that government agents induced [him] to commit an offense that [he] was not otherwise predisposed to commit.'" Id. (quoting United States v. Knecht, 55 F.3d 54, 57 (2d Cir. 1995)). Nor has the Second Circuit recognized the doctrine of sentencing manipulation, which occurs `when the government engages in improper conduct that has the effect of increasing the defendant's sentence.'" United States v. Gagliardi, 506 F.3d 140, 148 (2d Cir. 2007) (quoting United States v. Gomez, 103 F.3d 249, 256 (2d Cir. 1997)).
In Gomez, the Second Circuit acknowledged that there could be "`situations in which exploitative manipulation of sentencing factors by government agents might overbear the will of a person predisposed only to committing a lesser crime.'" 103 F.3d at 256 (quoting United States v. Connell, 960 F.2d 191, 196 (1st Cir. 1992)). The Second Circuit has indicated, however, that both sentencing entrapment and sentencing manipulation "would likely require a showing of `outrageous' government conduct." Gagliardi, 506 F.3d at 148 (quoting United States v. Bala, 236 F.3d 87, 93 (2d Cir. 2000));see also Knecht, 55 F.3d at 57.
B. Analysis
The law in this Circuit does not specifically support a departure from the Guidelines sentence in the case at bar. There is not sufficient evidence here that the government's conduct was "outrageous" or caused Defendant's will to be overborne. See id.
Even so, the government agent's conduct here is inappropriate. Agent Patrick's recorded instruction to CI-1 makes clear that the ten year mandatory minimum sentence of 21 U.S.C. § 841(b)(1)(A)(iii) motivated Agent Patrick. He intended to subject the Defendant to that mandatory minimum sentence in contrast to the much lower Guideline sentence for 50 grams of heroin (33 to 41 months at Criminal History Category I), even though the Defendant had not indicated a predisposition to sell crack.
To reach the same mandatory ten year sentence by a purchase of heroin, CI-1 would have had to request one kilogram from the Defendant, an uncharacteristic request of someone selling street sale quantities. 21 U.S.C. § 841(b).
CI-1 was not instructed to inquire if Defendant was dealing in crack and, if so, in what quantities. Instead, the Agent instructed CI-1 to offer to pay $1,800 for a quantity of crack mandating a ten year sentence at a time when the Defendant had not indicated that he sold crack. Any person familiar with street sales of narcotics is aware that a person selling five and ten bundles of heroin on the streets of Harlem would know where to find crack sellers and be apt to be enticed by the $1,800 purchase price to make the necessary inquiries and accommodate his customer. If government agents routinely engaged in this behavior, many persons without a predisposition to sell crack would be persuaded to deal in crack and consequently face a mandatory minimum ten year sentence. Under these circumstances, such conduct by a law enforcement agent is not appropriate and should be discouraged by the courts and investigative agencies.
In reducing the sentence on Count Four, United States v. Fontes, 415 F.3d 174 (1st Cir. 2005), was instructive. The facts mirror the case at bar: the defendant historically sold cocaine to a confidential informant, and the agent instructed the informant to attempt to purchase two ounces of crack, which requires a sentence of ten years, instead of cocaine because the agent was aware of the sentencing guideline consequences. Id. at 178-79. At an evidentiary hearing before the district court, the agent testified that he suggested the purchase of crack, in part because it would ensure a higher sentence. Id. at 179. The district court did not find that the government engaged in "extreme and outrageous conduct" based on evidence that the defendant had shown a predisposition to sell crack. Nevertheless, due to the agent's "troubling" motive, the court imposed a non-Guidelines sentence, but still observed the statutory mandatory minimum. Id. The First Circuit affirmed, noting that district court properly considered the inappropriate desire of the government agent to increase the defendant's sentence, despite the evidence of defendant's predisposition. Id. at 181-182 ("When an accusation of sentencing factor manipulation surfaces, the judicial gaze should in the usual case, focus primarily — though not necessarily exclusively — on the government's conduct and motives.") (internal quotations omitted).
In addition to Fontes, the Court relies on Koon v. United States, 518 U.S. 81, 93 (1996). The Agent's conduct here removes this case from the heartland of cases considered by the Sentencing Commission, and accordingly, a downward departure is appropriate. Koon, 518 U.S. at 93 (citing to the Guidelines' Introduction and noting that the Commission addressed the "heartland" of cases).
Furthermore, a sentence of 120 months on Count Four is "sufficient, but not greater than necessary" since on each of his prior convictions, the Defendant had not served more than four years in prison. 18 U.S.C. § 3553(a). In view of the investigating agent's conduct and other considerations set forth herein, the Defendant's sentence on Count Four was reduced to 120 months to run concurrently with the concurrent sentences of 120 months on Counts One and Two and 120 months on Count Three.
IT IS SO ORDERED. TRANSCRIPT NAME ORIGINAL LANGUAGE
CASE NAME: U.S. v. Joseph Deacon CD NUMBER: 00063A (portion taken from 00060) DATE: 8/13/2007 PARTICIPANTS: UM1: Unidentified Male UM2: Unidentified Male UM3: Unidentified Male UM4: Unidentified Male CI DEACON ABBREVIATIONS: [U/I] Unintelligible in English [ph] Phonetic Spelling UM1 Yo, yo. UM2 What's up? [clap] UM2 Don't do that. UM1 Huh? UM1 [U/I] [background noises] Alright. UM1 Structures man. Chill I haven't gotten it yo. UM1 [background noise and keys] Give me a match now alright? UM2 Okay, yeah. UM1 Okay. Two thirty. [background noise] [beep beep] UM1 Alright. UM2 [on phone] Yeah. Yeah. Say again? No [U/I] brought me here. [background noise] UM1 You can take a one it's so thick yo. UM2 Say what? DEACON Take one? You want to buy one, I mean do you? UM2 No I'm gonna smoke those. UM1 Man you gotta buy . . . UM1 I told you, where the fuck is Big Ginos [ph] at? UM3 How are you, [U/I] all busy. This is and the other and all that. UM1 Alright cool. UM1 [U/I] I ain't gonna be home for you man. CI Why not, homey what's up, all we did was smoke [U/I] and Bobby Brown. It's like you're out of town. So fucking . . . DEACON [voice overlap] But he was like . . . CI . . . but she think that was [U/I]. But she think it was [U/I] then we, she pulls me back and [U/I] and then . . . UM1 [U/I] fuck you like you [U/I] and then they'll give a fucking [U/I] when you coming back with that. I said fuck it, everyone [U/I]. [U/I] CI Price go down on the hard yet? DEACON Nah, about the same. [U/I] CI Hum? About 60, 65, 60. Know what I'm saying? DEACON Sixty-five gram? I ain't selling nar gram. CI Huh? DEACON I said alright. CI [U/I] DEACON I give you fifty/fifty all day. CI On the hard? On the hard? DEACON On the hard? CI Yeah. DEACON Oh. I wish I was under sixty-five and [U/I]. UM3 Yo. DEACON I already told you like [U/I] man. Good. UM4 [U/I] gonna get some kind of gray. One, two, and three, four . . . Ahh. [whistle] [background noise] You're definitely right about the time of day, yo fucking [U/I]. [U/I] look right? [U/I] you want her coming back at you boy? Fuck her daddy. Okay. It's late go fer [ph]. UM2 That's why I want to do this now. It's night [U/I]. And that's something, you fucking, [U/I] [background noises] [keys] [background noise]