Docket 186095 | Mich. Ct. App. | Jun 16, 1997
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Tony Michael EALY, Defendant-Appellant.
Court of Appeals of Michigan.
*169 Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., Joyce F. Todd, Chief, Appellate Div., and Anica Letica, Asst. Pros. Atty., for People.
Hatchett, DeWalt & Hatchett by Elbert L. Hatchett, Pontiac, for defendant-appellant.
Before FITZGERALD, P.J., and MacKENZIE and A.P. HATHAWAY[*], JJ.
PER CURIAM.
Defendant pleaded guilty to one count of delivery of more than 225 grams but less than 650 grams of cocaine, M.C.L. § 333.7401(2)(a)(ii); M.S.A. § 14.15(7401)(2)(a)(ii), one count of delivery of more than 50 but less than 225 grams of cocaine, M.C.L. § 333.7401(2)(a)(iii); M.S.A. § 14.15(7401)(2)(a)(iii), and three counts of delivery of less than 50 grams of cocaine, M.C.L. § 333.7401(2)(a)(iv); M.S.A. § 14.15(7401)(2)(a)(iv). He was sentenced to consecutive prison terms of 20 to 30 years, 10 to 20 years, and 1 to 20 years for the respective convictions. Defendant appeals as of right. We affirm.
Defendant's convictions arose out of a series of five cocaine sales made to an undercover police officer. In each sale, the officer offered to purchase an amount of cocaine and defendant set the price. The first two sales involved one-half of one gram, the third sale involved an eighth of an ounce, the fourth involved two ounces, and the final sale involved 250 grams of cocaine. The officer testified that he purchased greater amounts of cocaine from defendant to determine how much defendant could deliver and to assist in locating defendant's source.
Defendant contends that the police committed "sentencing entrapment" by wrongfully inducing him to participate in offenses involving escalating amounts of cocaine and exposing him to greater penalties. The trial court found no sentencing entrapment, instead concluding that the increase in the *170 amount of drugs involved was "good and proper police work." We agree with the trial court.
In Michigan, entrapment is analyzed according to a two-pronged test, with entrapment existing if either prong is met. The court must consider whether (1) the police engaged in impermissible conduct that would induce a law-abiding person to commit a crime in similar circumstances, or (2) the police engaged in conduct so reprehensible that it cannot be tolerated. People v. Fabiano, 192 Mich. App. 523" court="Mich. Ct. App." date_filed="1992-01-21" href="https://app.midpage.ai/document/people-v-fabiano-2185389?utm_source=webapp" opinion_id="2185389">192 Mich.App. 523, 525, 482 N.W.2d 467 (1992); People v. Juillet, 439 Mich. 34" court="Mich." date_filed="1991-10-01" href="https://app.midpage.ai/document/people-v-juillet-1992950?utm_source=webapp" opinion_id="1992950">439 Mich. 34, 475 N.W.2d 786 (1991). Entrapment will not be found where the police do nothing more than present the defendant with the opportunity to commit the crime of which he was convicted. People v. Butler, 444 Mich. 965, 966, 512 N.W.2d 583 (1994).
Although the issue of sentencing entrapment has not been addressed in Michigan, federal courts have considered the issue. In United States v. Staufer, 38 F.3d 1103" court="9th Cir." date_filed="1994-10-26" href="https://app.midpage.ai/document/united-states-v-mark-william-paul-staufer-681068?utm_source=webapp" opinion_id="681068">38 F.3d 1103, 1106 (C.A.9, 1994), quoting United States v. Stuart, 923 F.2d 607" court="8th Cir." date_filed="1991-01-16" href="https://app.midpage.ai/document/united-states-v-earl-samuel-stuart-and-jerome-olen-hayden-554086?utm_source=webapp" opinion_id="554086">923 F.2d 607, 614 (C.A.8, 1991), the court indicated that sentencing entrapment occurs "when a defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment." See also United States v. Stavig, 80 F.3d 1241" court="8th Cir." date_filed="1996-04-10" href="https://app.midpage.ai/document/united-states-v-mikkel-h-stavig-715821?utm_source=webapp" opinion_id="715821">80 F.3d 1241, 1245 (C.A.8, 1996) ("[S]entencing entrapment may occur where outrageous government conduct overcomes the will of a defendant predisposed to deal only in small quantities of drugs, for the purpose of increasing the amount of drugs and the resulting sentencing imposed against that defendant.") and United States v. Garcia, 79 F.3d 74" court="7th Cir." date_filed="1996-03-22" href="https://app.midpage.ai/document/united-states-v-rodolfo-garcia-also-known-as-rafael-guereca-714908?utm_source=webapp" opinion_id="714908">79 F.3d 74, 75 (C.A.7, 1996).
In this case, the police did nothing more than present defendant with the opportunity to commit the crimes of which he was convicted. Although an informant told the police that defendant was capable of supplying a couple of grams of cocaine and defendant initially sold small amounts of cocaine to the undercover officer, defendant did not hesitate in selling the officer increasing amounts and eventually sold him 250 grams of cocaine. See United States v. Walls, 315 U.S.App.D.C. 111, 70 F.3d 1323" court="D.C. Cir." date_filed="1996-02-13" href="https://app.midpage.ai/document/united-states-v-riley-s-walls-sr-united-states-of-america-appelleecross-appellant-v-karen-m-blakney-appellantcross-appellee-709017?utm_source=webapp" opinion_id="709017">70 F.3d 1323, 1329 (1995) (the fact that the defendants showed no hesitation in committing the crime for which they were convicted was sufficient to defeat their sentencing entrapment argument).
There is no evidence that the police continued the purchases merely to enhance defendant's eventual sentence. The undercover officer testified that he purchased greater amounts of cocaine from defendant in order to determine defendant's selling capabilities and to discover the identity of defendant's supplier. Although defendant asserts that he could have been arrested after any of the earlier transactions, the delay in his arrest was justified on the ground that an earlier arrest would have impaired the ability of the police to conduct an ongoing undercover narcotics investigation. See People v. Betancourt, 120 Mich. App. 58" court="Mich. Ct. App." date_filed="1982-10-05" href="https://app.midpage.ai/document/people-v-betancourt-1709083?utm_source=webapp" opinion_id="1709083">120 Mich.App. 58, 62, 327 N.W.2d 390 (1982). See also United States v. Calva, 979 F.2d 119" court="8th Cir." date_filed="1992-10-29" href="https://app.midpage.ai/document/united-states-v-joseph-franklin-calva-594444?utm_source=webapp" opinion_id="594444">979 F.2d 119, 123 (C.A.8, 1992) ("Police ... must be given leeway to probe the depth and extent of a criminal enterprise, to determine whether coconspirators exist, and to trace the drug deeper into the distribution hierarchy."). The trial court did not clearly err in determining that there was no sentencing entrapment in this case.
We also reject defendant's claim that his sentence was disproportionately harsh. People v. Milbourn, 435 Mich. 630" court="Mich." date_filed="1990-09-11" href="https://app.midpage.ai/document/people-v-milbourn-1231473?utm_source=webapp" opinion_id="1231473">435 Mich. 630, 461 N.W.2d 1 (1990). Legislatively mandated sentences, such as the ones in this case, are presumptively proportionate. People v. DiVietri, 206 Mich. App. 61" court="Mich. Ct. App." date_filed="1994-06-23" href="https://app.midpage.ai/document/people-v-divietri-1704543?utm_source=webapp" opinion_id="1704543">206 Mich.App. 61, 63, 520 N.W.2d 643 (1994). A sentencing court may depart from a mandatory minimum sentence where substantial and compelling reasons exist justifying such a departure, however. M.C.L. § 333.7401(4); M.S.A. § 14.15(7401)(4). In this case, defendant failed to present sufficiently substantial and compelling reasons to justify a departure from the mandatory minimum sentences. Although he had a good prior record and steady work history, see People v. Shinholster, 196 Mich.App. 531, 493 N.W.2d 502 (1992), defendant had been unemployed in the months before the drug transactions, was sophisticated enough in his sales to use a pager, and lacked any hesitancy *171 in providing an ever-increasing amount of cocaine to the undercover officer. Under these circumstances, we cannot say that the trial court abused its discretion in not deviating from the mandatory minimum sentences.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.