In this case we decide whether the trial court must impose the statutory mandatory minimum sentence where the government’s outrageous conduct entrapped or manipulated the defendant so as to escalate the severity of the crime he has committed.
Although we accept the principles underlying sentencing entrapment, we conclude that appellant in this case has not demonstrated that a departure from mandatory sentencing provisions is appropriate.
The facts of this case are relatively simple. Appellant sold one quarter pound of marijuana to a confidential informant (Cl) who was working with state police. After the initial transaction, the Cl attempted to purchase
In a recorded conversation with appellant, the Cl told him that a friend had access to ten pounds of marijuana. The Cl explained that if he and appellant purchased the full ten pounds, they could get the drugs for significantly less than the going price for a single pound purchase. Appellant responded that he could “maybe tak[e] one.” The Cl then told appellant that he was interested in splitting the drugs at five pounds for each of them. Appellant explained that he would have difficulty getting the money for the transaction, but after some discussion, appellant agreed to split the ten pound purchase, explaining that he “could move five.”
Appellant later accompanied the Cl to pick up the drugs. Approximately four and one half pounds of marijuana were delivered to the men by undercover police. Once the transfer took place, appellant promptly was arrested.
Appellant pled guilty to one count of possession with intent to deliver. Related charges filed against him were nol prossed. At the plea hearing, the Commonwealth gave notice of the mandatory one year minimum sentence for possession with intent to deliver over two pounds of marijuana. Counsel for appellant informed the court that he was aware of the mandatory minimum, but did not believe it applied under these facts. At the sentencing hearing, appellant claimed that the conduct of the government constituted sentencing entrapment and/or sentencing factor manipulation, therefore, imposition of the mandatory sentence was inappropriate. Despite appellant’s arguments, the court imposed the mandatory sentence.
Sentencing entrapment or manipulation is a doctrine developed and adopted in several Federal Circuit Courts of Appeal.
Not all federal courts have adopted the doctrine and among those that have, a variety of approaches to the issue have emerged. See United States v. Stavig,
In addition to the federal courts, the Federal Sentencing Commission has recognized the potential for governmental abuse in the sentencing arena. A downward departure from the guidelines explicitly is permitted where a government agent, acting in a reverse sting narcotics scheme, sets the price
After a thorough review of the federal case law regarding sentencing entrapment and manipulation, we are persuaded that sentence reduction is an appropriate and just response to outrageous government conduct designed solely to increase a defendant’s term of incarceration. The right upon which the doctrine is based, due process, requires nothing less. See United States v. Garza-Juarez,
The benefits of reverse sting operations, i.e., ferreting out those who are ready, willing and able to engage in crime, must be balanced against the danger of granting law enforcement officials unlimited power to define the scope of criminal culpability in a given case. The fact that a single officer in the field can determine the amount of drugs in a ease, and, therefore, the length of sentence for a defendant, is a troubling scenario. Such awesome power cannot go unchecked.
While the majority of federal case law addresses sentencing manipulation in the context of downward departures from sentencing guidelines, at least one circuit court is of the opinion that the defense is proper even in the face of mandatory sentencing provisions. See Montoya, supra at 4 (claim of extraordinary misconduct amounting to sentencing manipulation is not limited to request for discretionary guideline departure; it also applies to statutory mandatory minimums).
In Commonwealth v. Logan,
We agree with appellant that the reasoning underlying sentencing entrapment and manipulation is sound and should be adopted by this court. We further believe that it should apply equally to sentencing guidelines cases and mandatory sentencing cases.
With our acceptance of the premise underlying sentencing entrapment and manipulation, we adopt the standard typically applied in such cases, namely, the existence of “outrageous government conduct” or “extraordinary government misconduct” which is designed to and results in an increased sentence for the convicted defendant. This standard presents a heavy burden for the defendant seeking a sentence reduction. Simply put, sentencing entrapmeni/manipu-lation is difficult to prove; it is not established “simply by showing that the idea originated with the government or that the conduct was encouraged by it, ... or that the crime was prolonged beyond the first criminal act ... or exceeded in degree or
Here, the transcript from appellant’s recorded conversation with the Cl leads us to conclude that the government did not behave in an outrageous manner, nor was appellant coerced into buying more marijuana than he was inclined to purchase.
While the specific amount of illicit drugs was not appellant’s idea, his interest in obtaining the proffered amount is clear from the transcript. Appellant needed little urging from the Cl before agreeing to take five pounds of the drug. His reference to another deal which had the potential to generate four thousand dollars toward this purchase, coupled with his insistence that he “could move five,” contradict his argument that he was not predisposed to make such a large purchase. Further, the ease and promptness with which he accepted the Cl’s offer belie his assertion that the government ensnared him in a deal which resulted in a stricter sentence than he deserved.
Despite our general approval of sentencing entrapment principles, appellant’s circumstances do not provide a basis for sentence reduction. Therefore, even if we assume the trial court had authority to depart from the mandatory sentencing scheme prescribed by law, appellant would be afforded no relief.
Judgment of sentence affirmed.
Notes
. The topic was discussed by this court in Commonwealth v. Nelson,
