An Update on If I Wasn’t Completely Entrapped, I Was Entrapped At Least This Much

January 10, 2017
By Hanging Out with Carl Gunn


  • Remember the partial defense of sentencing entrapment; even if a defendant was predisposed or wasn’t induced to sell some amount of drugs, he may be induced and not predisposed to sell a larger quantity.
  • A Ninth Circuit case – United States v. Cortes, 757 F.3d 850 (9th Cir. 2014) – establishes that the question of sentencing entrapment is a jury question if the sentencing entrapment led to a quantity that triggers a statutory mandatory minimum and/or maximum that otherwise wouldn’t apply.
  • Two post-Cortes unpublished opinions illustrate the line to be drawn in judging whether a sentencing entrapment instruction is required.



A few years back I put up a post about the sentencing entrapment case of United States v. Cortes, 732 F.3d 1078 (9th Cir. 2013), subsequently amended on rehearing and republished at 757 F.3d 850 (9th Cir. 2014).  (See “If I Wasn’t Completely Entrapped, I Was Entrapped At Least This Much” in the October 2013 link at the right.)  Sentencing entrapment is a partial defense claiming that, even if the defendant wasn’t induced or was predisposed to sell some quantity of drugs, he was induced and wasn’t predisposed to sell a greater quantity of drugs he ultimately sold.  You may recall (and if you don’t, you can refresh your memory by reading the post or the opinions) that Cortes held that, in some cases, sentencing entrapment is a defense the defendant has a right to have a jury consider, not a mere sentencing issue to be decided by a judge at sentencing.

A colleague on our Central District of California panel here, Gretchen Fusilier, recently e-mailed me about a case she’d won, and I saw she’d won on the Cortes sentencing entrapment issue.  That spurred me to conduct a little research about how, if at all, the law had developed in the area.  I didn’t find a whole lot, but I did find a little that I thought it wouldn’t hurt to share.  I’m also attaching Gretchen’s briefs – here and here – so you can see how she argued the issue in her case.

Initially, the Cortes holding is now ensconced in the Ninth Circuit’s model jury instructions.  There’s not actual instructional language, but there is a comment numbered 6.2A (right after the general entrapment model instruction numbered 6.2) which states:

Sentencing entrapment is a separate defense from entrapment and, in appropriate cases, an issue for the jury.  When a defendant contends that he or she was entrapped as to the quantity of drugs involved in the crime, see United States v. Cortes, 757 F.3d 850, 864 (9th Cir. 2014), and United States v. Yunan-Hernandez, 712 F.3d [471,] 474-75 (9th Cir. 2013).

The Cortes opinion holds that the cases in which the issue is one for the jury are cases where “the success of [the sentencing entrapment] defense would result in a lower statutory sentencing range,” or, put another way, “there is some foundation in the evidence that [the defendant] would be subject to a lesser statutory minimum or maximum sentence if his sentencing entrapment defense were to succeed.”  Cortes, 757 F.3d at 863.  The Cortes opinion also suggests some language for the instruction, see id. at 864, which the Ninth Circuit instructions committee presumably finds satisfactory in light of its citation to the opinion.

I also found a couple of cases that suggest some parameters, though there were only a couple, and they were both unpublished.  One of those cases was the opinion in Gretchen’s recent case – United States v. Roque, ___ Fed. Appx. ___, 2016 WL 6678402 (9th Cir. Nov. 14, 2016).  The court found failure to give a sentencing entrapment instruction was error in that case because, first, “Roque earlier offered to sell an unspecified quantity of methamphetamine but the informant rejected the transaction as too small,” and, second, “Roque also offered to connect the informant with a distributor rather than distribute the drugs directly.”  Id., 2016 WL 6678402, at *1.

On the other side of the coin, the court found it was not error to refuse to give a sentencing entrapment instruction in United States v. Hernandez, 547 Fed. Appx. 839 (9th Cir. 2013).  The court explained:

Here, the evidence did not raise the possibility of a different sentencing range because Hernandez’s theory of defense – that he wanted counterfeit clothing, not drugs – did not include an argument or evidence that he sought a different type or quantity of contraband.

Id. at 841.

These opinions nicely outline the parameters of when a sentencing entrapment instruction is required.  If the defense includes evidence that smaller quantities or different drugs were discussed or possible, then an instruction probably is required.  If it’s an all or nothing defense with no evidence at all of a possibility of different quantities or different drugs, then an instruction probably isn’t required.

So remember this backup defense in your entrapment cases.  If your client wasn’t completely entrapped, maybe he was entrapped at least a little.