United States v. Jorge Cortes
732 F.3d 1078
9th Cir.2013Background
- Cortes was arrested in an undercover ATF reverse-sting fabricating a stash-house robbery of 100 kg cocaine.
- Cortes participated after being introduced by a confidential informant to “the juvenile” and others.
- The government charged Cortes with conspiracy to possess with intent to distribute 5 kg+ cocaine, conspiracy under Hobbs Act, and firearm possession in furtherance of a crime of violence.
- A Spentz-based entrapment instruction was given with a modification stating drugs/profit do not constitute inducement; Cortes challenged this, among other things.
- The jury found Cortes guilty on all counts; he was sentenced to 240 months total, leading to an appeal and remand for Count 1 to retrial.
- The district court later remanded Count 1 for retrial and considered entrapment/sentencing-entrapment issues in light of Yuman-Hernandez and Alleyne.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to a Spentz-based entrapment instruction | Cortes argues Spentz requires correct framing of inducement. | Only a precise Spentz-based form should be used, not the mischaracterization given. | Reversed on Count 1 for misstatement of Spentz; remand for retrial. |
| Whether sentencing entrapment must be submitted to the jury | Sentencing entrapment could lower the mandatory minimum/max under 21 U.S.C. § 841. | Court should have ruled on whether to instruct; evidence may support; not previously decided. | Remanded to determine if sentencing entrapment applies and requires a jury instruction. |
| Hobbs Act applicability to contraband theft/extortion | Contends Hobbs Act doesn’t reach contraband theft. | Hobbs Act broadly covers robbery/extortion affecting interstate commerce, including contraband. | Affirmed Hobbs Act conviction; contraband robbery/extortion within scope. |
| Impact of Alleyne/Yuman-Hernandez on entrapment framework | Appellate developments require jury-determined quantity issues if affecting sentences. | Court should apply existing framework; not prejudiced. | Sentencing entrapment must go to jury when it could change mandatory minimum/maximum; remand. |
Key Cases Cited
- United States v. Spentz, 653 F.3d 815 (9th Cir. 2011) (entrapment instruction framing; disallowed relying on typical fruits as inducement)
- United States v. Kessee, 992 F.2d 1001 (9th Cir. 1993) (entrapment instruction required where repeated govt. inducement plus dire need)
- United States v. Sotelo-Murillo, 887 F.2d 176 (9th Cir. 1989) (entrapment where government pressure and non-criminal motive present)
- United States v. Williams, 547 F.3d 1187 (9th Cir. 2008) (definition of inducement includes government conduct creating substantial risk)
- United States v. Busby, 780 F.2d 804 (9th Cir. 1986) (five-factor test for predisposition to commit crime; reluctance key)
- United States v. Yuman-Hernandez, 712 F.3d 471 (9th Cir. 2013) (sentencing entrapment in reverse-sting stash-house context; framework for capability/intent)
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (facts increasing mandatory minimum are elements; jury issues warranted)
- United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (Apprendi-related jury-evaluation of drug quantity)
- Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393 (2003) (broad statutory interpretation guidance; not directly cited in this summary)