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

October 15, 2013
By Hanging Out with Carl Gunn



  • The Ninth Circuit has long held that what is called “sentencing entrapment” – meaning inducement of a defendant into selling a type and/or larger quantity of drugs than he was predisposed to sell – allows a sentence below the statutory mandatory minimum for that drug type and/or quantity.
  • The Ninth Circuit has just held that Apprendi requires this question of “sentencing entrapment” to be presented to a jury just like the defense of complete entrapment, so long as it affects a statutory maximum or statutory minimum.
  • The test for whether an instruction is required is the same as that for any other defense – whether there is “evidence from which the jury could find,” or “some foundation in the evidence,” that the defendant was entrapped into selling a type and/or quantity of drugs that increased the statutory mandatory minimum or statutory maximum.



A very interesting Ninth Circuit case combining the entrapment defense and Apprendi v. New Jersey, 530 U.S. 466 (2000) came down last week that has already gotten a lot of press out there on the blogosphere and e-mail lists, but I thought I’d add my two cents worth in a blog post. The case is United States v. Cortes, No. 12-50137 (9th Cir. Oct. 9, 2013), which can be found on Westlaw at 2013 WL 5539622 and is attached in slip opinion form here.

The issue presented in Cortes (actually one of the issues) was whether Apprendi’s rule requiring facts that increase a statutory maximum sentence – which in some instances includes drug type and/or drug quantity, see United States v. Buckland, 289 F.3d 558, 568 (9th Cir. 2002) (en banc) – to be found by a jury beyond a reasonable doubt applies to what has come to be called “sentencing entrapment.” This concept was first recognized by the Ninth Circuit in the context of the sentencing guidelines inUnited States v. Staufer, 38 F.3d 1103 (9th Cir. 1994), in which the court held that a sentencing court could depart from the (then mandatory) guideline range if the defendant was induced by the government into selling a quantity of drugs larger than he was otherwise predisposed to sell. See Staufer, 38 F.3d at 1107-08. The court subsequently went a step further in United States v. Naranjo, 52 F.3d 245 (9th Cir. 1995) and United States v. Castaneda, 94 F.3d 592 (9th Cir. 1996) and held that sentencing entrapment can justify refusing to apply the otherwise applicable statutory penalty, i.e., allows a court to go below the statutory mandatory minimum in addition to the guidelines. See Castaneda, 94 F.3d at 595; Naranjo, 52 F.3d at 251 n.14.

Then came Apprendi, which held, as we can all now recite by heart, that any fact which increases a statutory maximum sentence must be found by a jury beyond a reasonable doubt, and, more recently, Alleyne v. United States, 133 S. Ct. 2151 (2013), which finally recognized that Apprendi also applies to facts that increase only statutory mandatory minimum sentences. I’ve from time to time wondered since Apprendi – and had occasional brainstorming sessions with other attorneys about the issue – how this affects the “sentencing defense” of “sentencing entrapment.” Logically, it seems, Apprendi ought to apply to sentencing entrapment, i.e., it ought to require that a jury make the factual findings about sentencing entrapment to the extent it affects a statutory maximum and/or statutory mandatory minimum just as it requires a jury to make the original factual findings about drug type and drug quantity.

Well, I’m not the only attorney who had these thoughts, as evidenced by the Cortes case, where both the trial attorney and the appellate attorney – and, more important, a panel of Ninth Circuit judges – had the same thought. The panel there saw the same logic that some of us attorneys have seen:

We have never held that sentencing entrapment is a jury question, but the Supreme Court’s precedent and our own make clear that it must be. See United States v. Williams, 478 F. App’x 364, 366 (9th Cir. 2012) (Silverman, J., dissenting). “[W]e have held that drug types and quantities triggering higher statutory maximum sentences under 21 U.S.C. § 841(b) are jury questions under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).” Id. (citing United States v. Buckland, 289 F.3d 558, 568 (9th Cir. 2002) (en banc)). It therefore stands to reason that any defenses to those drug types and quantities must be submitted to the jury as well, when the proffered defense has the potential to change the statutory maximum or minimum sentences.

The origins of sentencing entrapment lie in cases that predate Apprendi, and that explains why it was typically addressed during sentencing. . . . Following Apprendi, however, “sentencing entrapment” is a bit of a misnomer, since the drug quantity is an element of the offense, not a sentencing enhancement or factor. A jury must decide whether the defendant would have sold, bought, or robbed that quantity but for the government manipulation or pressure. (Footnote omitted.)

Cortes, slip op. at 16-17, 2013 WL 5539622, at *7 (emphasis in original).

The court did go on to note two caveats, namely, that “the sentencing entrapment defense needs to be presented to thejury only if that reduction would affect [the defendant’s] mandatory minimum or statutory maximum sentence,” and that, as with any defense, “there must be evidence from which the jury could find” that the defendant was entrapped into dealing in a quantity that triggered a higher statutory penalty. Id, slip op. at 23-24, 2013 WL 5539622, at *10 (emphasis in original). See also id., slip op. at 21, 2013 WL 5539622, at *9 (defendant entitled to jury instruction on sentencing entrapment “if there is some foundation in the evidence that he would be subject to a lesser statutory minimum or maximum sentence if his sentencing entrapment defense were to succeed”).At the same time, it noted that the sentencing entrapment “defense” could be raised at sentencing even if there was insufficient evidence of entrapment about the statutory quantity. Id., slip op. at 24 n.4, 2013 WL 5539622, at *10 n.4.

The court also went on to offer suggested jury instruction language for the court to use on the issue. That suggested instruction is longer than I want to quote in this post, but it can be found at pages 24-25 of the linked slip opinion, or page *11 in the Westlaw version. It leaves unaddressed the burden of proof, but that burden ought to be the same as the burden of proof for complete entrapment, which is that the governmentmust disprove the defense beyond a reasonable doubt, see Ninth Circuit Model Instruction 6.2.

Cortes also leaves – or perhaps creates – some interesting questions. One is a question that’s come up in some of my brainstorming sessions with other attorneys, namely, what if one wants the judge – who knows the sentencing impact of the mandatory minimum quantities – to decide sentencing entrapment? The unpublished opinion that Cortes quotes is a dissent arguing that this isn’t allowed, but the majority opinion in that case held it was allowed, albeit in an unpublished and therefore non-precedential opinion. You could get that same benefit by simply waiving jury and having a bench trial instead of a “bench sentencing,” but that means foregoing a jury trial on any other defenses you might want to raise. An e-mail on one of the e-mail lists I’m on has pointed out that you do get the advantage of the higher beyond a reasonable doubt burden of proof that goes with Apprendi.

That then leads to another question that Cortes leaves or creates. How does the requirement of a jury finding and the higher beyond a reasonable doubt burden of proof for the drug quantities that trigger the different statutory penalties (for example, 500 grams and 5 kilograms of cocaine) interact with findings of quantities in between the statutory trigger quantities that impact the sentencing guidelines? What if the jury – or the judge if jury is waived – is not convinced beyond a reasonable doubt that the defendant was not entrapped but the judge thinks he probably wasn’t? Is the quantity the judge uses for guidelines purposes then higher than the quantity he uses for statutory penalty purposes? If that’s the result that comes about technically, you could certainly argue that this inconsistency promotes not respect, but disrespect, for the law and use that as a possible Booker variance argument. See 18 U.S.C. § 3553(a)(2)(A) (listing promoting respect for the law as one of the purposes of sentencing). This could get you some good sentencing leverage, especially when combined with the argument that, as pointed out in Kimbrough v. United States, 552 U.S. 85 (2007), the Sentencing Commission formulated the most serious drug guidelines by “look[ing] to the mandatory minimum sentences set in the [statutes], and did not take account of empirical data and national experience,”id. at 109 (internal quotation omitted).

So there’s still some questions out there, but Cortes (1) confirms what seems to logically follow from Apprendi about sentencing entrapment and (2) creates some new sentencing leverage we should be thinking about. And for even further thoughts, see Steve Kalar’s “Case ‘o the Week” post about Cortes on the Ninth Circuit Federal Public Defender blog, linked here.