A Nuance of I Was Entrapped At Least This Much

January 17, 2017
By Hanging Out with Carl Gunn


  • Older cases placing the burden of proof for sentencing entrapment on the defendant are based on the general guidelines rule that the burden is on the party seeking an adjustment of the guideline range.
  • The Ninth Circuit’s recent recognition of sentencing entrapment as a jury question in some circumstances means guidelines rules shouldn’t control the burden of proof in those circumstances.
  • The better view when sentencing entrapment is a jury question is that allocation of the burden of proof is the same as for general entrapment, namely, that the government must disprove entrapment beyond a reasonable doubt.



A nuance about the sentencing entrapment defense got highlighted for me when I read Gretchen Fusilier’s briefs in preparing my last post on sentencing entrapment.  In my original post back in 2013, I suggested the burden of proof on sentencing entrapment ought to be the same as the burden of proof on general entrapment, namely, that the government has to disprove the sentencing entrapment beyond a reasonable doubt.  But I noticed Gretchen’s briefs assumed the defendant had to show sentencing entrapment by a preponderance of the evidence, based on cases like United States v. Parilla, 114 F.3d 124 (9th Cir. 1997), that were decided prior to Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Cortes, 757 F.3d 850, 860 (9th Cir. 2013).  So I thought I’d offer some thoughts on this question.  The Cortes case doesn’t say anything about the burden of proof, but I think the better argument is that the general rule placing the burden of proof on the government for trial entrapment should control.

To begin, if you trace Parilla back, you find that it’s based on the general sentencing guidelines rule that places the burden of proof on whatever party’s asking for an adjustment of the sentence.  Parilla cites United States v. Naranjo, 52 F.3d 245 (9th Cir. 1995), for its statement about the burden of proof on sentencing entrapment, and Naranjo cites United States v. Barnes, 993 F.2d 680 (9th Cir. 1993), and United States v. Steward, 16 F.3d 317 (9th Cir. 1994), which also cites Barnes.  And the original opinion – Barnes – bases its holding that the defendant has the burden of proving sentencing entrapment squarely on the general sentencing guidelines rule.

     The Sixth Circuit . . . has held that “once the government satisfies its burden in establishing a negotiated amount, the defendants have the burden of proving they were not capable of producing that amount.”  United States v. Christian, 942 F.2d 363, 368 (6th Cir.1991), cert. denied, 502 U.S. 1045, 112 S. Ct. 905, 116 L. Ed. 2d 806 (1992); (additional citations omitted).  We agree with this approach.  “[T]he burden of proof at sentencing falls on the party seeking to adjust the offense level.”  United States v. Howard, 894 F.2d 1085, 1089 (9th Cir.1990) (holding that the defendant has the burden of proving at sentencing that he was a minor participant).  “[T]he government bears the burden of proof if it is attempting to adjust the offense level upwards, but the defendant bears the burden of proof if he is attempting to lower the offense level.” Id.  Thus, the government bears the burden of proving aggravating factors; the defendant, mitigating factors. Although intent and ability to produce are neither clearly aggravating nor mitigating factors, an analysis of the language of the application note [suggesting departure] leads to the conclusion that combined these are more properly characterized as a mitigating factor for which the defendant bears the burden. . . .  Placing the burden on the defendant is thus consistent with the general rule that the defendant bears the burden of proving elements that have the effect of lowering the offense level.

Barnes, 993 F.2d at 683-84.

Cortes makes clear that, after Apprendi, sentencing entrapment sufficient to affect a statutory maximum is not a sentencing guidelines issue.  Rather, it is “a separate affirmative defense to the quantity element of the drug charge under 21 U.S.C. § 841.”  Cortes, 757 F.3d at 860.  Because drug types and quantities triggering higher statutory maximum sentences are jury questions under Apprendi, “[i]t . . . stands to reason that any defenses to those drug types and quantities must be submitted to the jury as well.”  Id. at 861 (emphasis in original).  Cortes does recognize the issue was typically addressed during sentencing in pre-Cortes cases, but explains this was because “[t]he origins of sentencing entrapment lie in cases that predate Apprendi.”  Cortes, 757 F.3d at 861 (citing United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994)).  The old approach no longer fits after Apprendi and Cortes, and, indeed, there’s no post-Cortes case I’ve found – at least in a search for precedential published opinions – that applies the old sentencing guidelines burden of proof rule to sentencing entrapment that affects a statutory maximum.

What makes the most sense is to treat a partial, sentencing entrapment defense that affects a statutory maximum just like a complete entrapment defense negating all guilt.  The rationale for placing the burden on the government to disprove the complete defense of entrapment is that “the burden always rests upon the prosecution to establish beyond a reasonable doubt not only that the accused committed the crimes charged, but also that in so doing he was not made the victim of a proscribed entrapment.”  Robison v. United States, 379 F.2d 338, 345 (9th Cir. 1967), vacated on other grounds, 390 U.S. 198 (1968).  The same rationale extends to the question of whether the defendant was the victim of a proscribed entrapment on the quantity element that makes him guilty of the greater drug offense carrying the higher statutory penalty.  Just as the government has the burden after Apprendi of proving the quantity element itself beyond a reasonable doubt, it should have the burden of proving the absence of entrapment on that element beyond a reasonable doubt.  It’s a trial question like the general entrapment question, not the sentencing guidelines question the original pre-Cortes sentencing entrapment cases treated it as.