United States v. Ira Marvin Dickey

LEAVY, Before REINHARDT and *, Judges, Circuit and KING District Judge.

LEAVY, Judge: Circuit 4, 1989, January On Ira Marvin violating was indicted on three counts of currency possession federal laws: of an engraved plate printing of counter- (18 477), printing feit bills U.S.C. $20 § (18 471), counterfeit bills U.S.C. $20 § possession of three counterfeit bills $100 (18 472). 27, 1989, February U.S.C. On § Dickеy pleaded guilty to the second count indictment; remaining the two sentencing. counts were dismissed at appellant’s coopera- As the result of the tion, recommended a down- period sentence to a ward his months’ incarceration. twelve 3553(e); Sentencing U.S.C. § Comm’n, Manual, 5K1.1 Manual”). (Oct. 15, 1988) (“Guidelines ‍​‌​‌​‌​‌​‌‌‌​‌‌‌​‌‌​​‌‌​‌‌​‌‌​​‌‌​‌​‌‌​​‌​‌‌‌​​‌‍Dickey argued for an additional downward departure based on both “aberrant behav- (i.e., anything like he had never done ior” before) a defense of this any period entrapment, and asked Community be served in a cоnfinement * sitting by designation. King, Senior United The Honorable Samuel P. Hawaii, Judge for the District of District Moreover, (9th Cir.1990)). (“CTC”) the ex- Treatment Center a district-court chooses accepted the tent to which The district court probation. fixing and sen- exercise its discretion recommendation government’s appeal. not reviewable on year’s imprison- departure is also to one tenced Vizcarra-Angulo, 904 probation, from 'years’ three ment and Cir.1990). 22, (9th Because the appeals. now For the rea- F.2d 23 which below, cоmplains only about the extent of forth we dismiss sons set sentence, departure in his appeal, part, and affirm in and remand downward this portion jurisdiction to consider this single of aber- we lack clarification on the issue appeal. id.' of his rant behavior. Ill Dickey At outset we note that Dickey’s argument is that the dis- second period incarcer- his twelve month served to exercise its discretion trict court failed ation, argues that this and the determining whether his actions con- thereby rendered moot. We dis- appeаl is which, light in stituted aberrant behavior agree. offender, would of his status as a first may imposed a sentence When departure pro- CTC warrant consequences for a defen have collateral in turn This contention is based bation. sentencing, any possible future dant in district appellant’s argument that the sentence, even if al appeal from such a erroneously believed that the Guide- court served, ready is not moot. United States provide for downward lines do not Mares-Molina, 770, 913 F.2d 773 n. 3 v. on aberrant behavior. tures bаsed Cir.1990); (9th Monteneg v. under the Guidelines that It is clear (9th 425, F.2d 431 n. 8 Cir. ro-Rojo, 908 offense” and “first “aberrant behavior” 1990). appellant was sen Because the synonymous. The make are not imprisonment in excess tenced to a term of possibility of defen due allowance sixty dаys, any possible future sentenc being dant a first offender. See Guide in would result ing under the Guidelines Manual, I, A, Introduction, Part Ch. lines history criminal automatic increase of his 4(d) (“[T]he as fol para. Guidelines work single points instead of score two offender”); respect in to а first lows Unit had he been sen

point he would receive F.2d 325 n. 4 Carey, v. 895 ed States probation. Man tenced to See Guidelines (7th Cir.1990) (“[T]he Commission ade Mares-Molina, 4Al.l(b), (c); ual, 913 the defendant’s first of quately considered 3; 908 Montenegro-Rojo, at 773 n. F.2d formulating status in the Guide fender appeal Accordingly, n. this F.2d at 431 lines”). Nevertheless, the Guidelines rec jurisdiction over it. moot and we have is not may ognize that a first offense constitute a truly justi single act of aberrant behavior II departure. fying a downward See Guide that, argument is because Dickey’s first A, Mаnual, I, Part Introduction lines Ch. degree cooperation offenders, 4(d) (with respect para. to first by lim- the district court erred government, has not dealt with Commission ... “[t]he iting the extent of its downward single of aberrant behavior that acts in- incarceration only twelve mоnths’ higher of may justify probation still probation. period a lesser of CTC stead of through ‍​‌​‌​‌​‌​‌‌‌​‌‌‌​‌‌​​‌‌​‌‌​‌‌​​‌‌​‌​‌‌​​‌​‌‌‌​​‌‍departures”); fense levels United without merit. This contention is (1st Russell, F.2d 20 Cir. v. 870 States 1989) (“The Sentencing made Commission discretionary re A court’s district permitted atyp departures are sentenсing is not clear depart in fusal not to * * * behav cases[;] ‘aberrant v. ical appeal. States [s]uch reviewable on United Cir.1990) departures appropri (9th may justify ior’ ... 362 Corley, 909 F.2d cases”). Morales, ate (citing v. States reported are several deci- not downward based on aberrant Although there in the mentioning ruling behavior behavior. If the court’s was a dis sions aberrant offenses,1 act, cretionary clearly jurisdic our research has then we lack context of first which only portion Dickey’s two cases have tiоn to entertain this disclosed question appeal. Corley, whether the v. squarely decided See United States 362; particular first offense war- F.2d at v. facts of a Vizcarra- justify- finding Angulo, of aberrant behavior 904 F.2d at 23. On the other rant a hand, departure. ruling if ing a the district court’s was lаw, subject matter of it would be to de these, The first of United States Rus- novo review here. See United sell, the driver of an ar- supra, involved (9th Carvajal, 905 F.2d Cir. who, the result of a bank mored truck 1990). Since we are unable to determine $80,000 error, bag containing in cash had a record from the whether the district court’s literally dumped lap. spontane- in his In a ruling on an its this issue was exercise of temporarily yielded driver ous act the legal ruling, discretion or a must re we money, temptation keep the but the question. mand for clarification on this wrongdo- shortly thereafter confessed his loot, and ing, returned his share of the ‍​‌​‌​‌​‌​‌‌‌​‌‌‌​‌‌​​‌‌​‌‌​‌‌​​‌‌​‌​‌‌​​‌​‌‌‌​​‌‍IV fully subsequent in the investi- cooperated Appeals for the First gation. The Court appellant’s argu The third and final held that the facts of the case war- Circuit ment is that the district court errеd finding ranted a of aberrant behavior but rejecting imperfect entrap his defense of the district court for clarifica- remanded to govern ment. that contends of the lower court’s reasons for the tion printing ment informant “talked him into” imposed. 870 F.2d at 20-21. sentencе money, the counterfeit and that this al leged governmental misconduct constitutes case, Carey, v. The second United States mitigating justifying a factor supra, involved a defendant who had en- departure sentencing. in check-kiting peri- gaged in a scheme over a months. The od of at least fifteen only reported decision to have con- that, Appeals for the Seventh Circuit held precise question rejects this sidered this Russell, in the defen- unlike the situation Streeter, argument. In v. dant’s actions could not be charaсterized (8th Cir.1990), F.2d 781 the Court of 907 they aberrant behavior because consisted that, Appeals Eighth held at Circuit taking place of hundreds of overt acts over pleads guilty a to an least where defendant prolonged period of time. 895 F.2d at offense, argu- seе no warrant “[w]e 325. governmental ... misconduct ment mitigate the sentence of an admit- should Carey may If and be said to Russell at tedly guilty defendant.” Id. what, represent points the terminal on expression might Although called the record is not clear whether lack of a better be of dis- spectrum, then the the district court ruled as matter the aberrant behavior that it from the appeal appear instant to fall some cretion would Unfortunately, it Guidelines because it found uncontro- where between two. imper- support vеrted evidence failed to an is not clear from the record of the sentenc defense, simply entrapment fect or whether it held ing below whether the district court law that it could not so to exercise its discretion in favor as a matter of declined dеpart, need not remand for a clarifica- of a downward further than the we Eighth point. tion on this We find the accepted one recommended and based on question per- treatment of this Dickey’s cooperation, or whether the court Circuit’s holding. agree suasive and with its concluded as a matter of law that it could States, See, 133, — Pozzy, v. United e.g., denied sub nom. Rains United States v. F.2d 902 U.S.-, (1990); (1st Cir.), denied,-U.S.-, L.Ed.2d cert. 111 S.Ct. 112 82 111 137-38 324-25; Carey, Unit- (1990); v. States 895 F.2d 112 L.Ed.2d S.Ct. 316 Russell, (4th Cir.), Sheffer, ed v. cert. States 870 F.2d at 19-20. F.2d 846 entrapment on an prevail portion of a defendant to Accordingly, we DISMISS in- defense, he was he “must show that the extent of dealing with Dickey’s appeal govern- the crime on to commit departure, AFFIRM duced we the downward predis- defense, that he was not agent and we entrapment ment imperfect crime.” United posed for а clarifi- to commit to the district court REMAND (9th Moncini, of aber- ruling question its on cation of Dickey ef- Cir.1989). guilty, By pleading rant behavior. he could not sustain admitted that fectively REINHARDT, Judge, Circuit these ele- proving both of the burden of dissenting part: in concurring in entrapment ‍​‌​‌​‌​‌​‌‌‌​‌‌‌​‌‌​​‌‌​‌‌​‌‌​​‌‌​‌​‌‌​​‌​‌‌‌​​‌‍an not havе ments. He did cannot fact that a defendant defense. The I, II, court’s and III of the join I in Parts entrapment an de- an acquittal obtain However, my in view the because opinion. mean, however, that fense does not a “miti- entrapment is inducing him to com- government’s role not ade- of a kind ... gating circumstance length of is irrelevant to the mit the crime by the quately taken into consideration Even should receive. the sentence he formulating the Sentencing Commission unable to establish though he 3553(b); U.S.S.G. guidelines,” 18 U.S.C. § defense, may well be аble to he entrapment 5K2.0, my col- agree with cannot reluctantly. participated that he show defense, as a conclusion that such leagues’ law, as the can serve a matter never of may have no example, a defendant For departure. Accord- downward basis for a yet the to commit crime predisposition opinion. Part of the ingly, I from IV dissent act- entrapper if the was not be convicted agent. defendant government The ing as a a defense majority holds that entrap- of the prоve both elements must as a entrapment can serve imperfect never Moreover, a we have taken ment defense. from the downward basis a is a of when narrow view someone rather range. My col- sentencing Guidelines long-time paid a Even govеrnment agent. the leagues’ cannot be based conclusion held not to has been government informant of the Guidelines provision that fact no entrap- agent purposes of an an be such depar- expressly authorizes v. Bus- ment defense. See defense. imperfect entrapment ture for an Thus, (9th Cir.1986). 804, 806 by, 780 F.2d all, departure is point whole of a After the no who has precedents, someone under our the which to deal circumstances crime, a and who to commit predisposition inad- into or do not take account Guidelines by the commit that crime is induced to it then I take into account.1 equately take paid government suggestions of a repeated as a matter majority believes that that the en- be to an will not entitled informant2 entrapment imperfeсt law the defense the en- although had trapment mitigating factor type of simply is not the defense— salary D.E.A. a full time trapper been on justify ever a that could Clearly be available. the defense would disagree. ture. “entrapped” by a someone who been Eighth Contrary reasoning to the culpable than a will- is less paid informant Streeter, Circuit, see United States v. inducement needs neither ing criminal who that a (8th Cir.1990),the fact crime. to commit his persuasion nor entrapment not made out defendant has or lack thаt reluctance does It seems evident guilt mitigate to defense sufficient or that for reason predisposition one his of question whether dispose of the not complete to a does not amount activity another participation a criminal rеluctant some cir- could under entrapment defense In order for his sentence. mitigate should government a infor- colleagues here was my crimes involved government As nor neither Thus, may properly attorney have take dispute, mant. Guidelines nowhere mitigating fаctor. entrapment prevail as a on an into account him that he could advised was not en- entrapment because he person who 2. The indicates record agent. trapped by commit induced him claims justify a shorter sentence than cumstances willing for a more appropriate DeLORME, L. Ronald participant in the same enthusiastic Plaintiff-Appellant, case whether one This would be the crime. serving primarily incarceration as

views SULLIVAN, M.D., Secretary Louis W. incapacitative purpose. retributive or Services, of Health and Human A, Introduction, p.s. Pt. ch. U.S.S.G. Defendant-Appellee. matter, (“As sentencing in most practical philosophies may decisions both [of these] No. 89-35661. result.”) with the same ‍​‌​‌​‌​‌​‌‌‌​‌‌‌​‌‌​​‌‌​‌‌​‌‌​​‌‌​‌​‌‌​​‌​‌‌‌​​‌‍A prove consistent Appeals, criminal is one who is both lеss reluctant Ninth Circuit. morally blameworthy than an enthusiastic likely and less to commit other crimes one July 1990 *. Submitted if not incarcerated. Decided Jan. only very cases probable It is rare imperfect entrapment defense

would an departure. And I do

justify a Guidelines necessarily suggest that this is

not mean Nevertheless, rare cases.

one of those is entitled to have the district

defendant policy question. No or

court consider ma-

provision justifies completely the

jority’s decision to foreclose imperfect entrapment

possibility that justify departure.

on occasion notes, majority the record does

As the clearly whether the district disclose not to

court exercised its discretion upon a determination

downward based a defense of

Dickey was not entitled to

imperfect entrapment or whether the dis-

trict court believed that such a serve as the basis for a

could never in my

ture. Because view the latter belief error, I would

would constitute reversible that the district

remand on this issue so necessary

court make the discretion-

ary determination here as well.

* 34(a). Fed.R.App.P. panel appropriate for Circuit Rule 34-4 finds this case submis- argument pursuant Ninth sion without oral

Case Details

Case Name: United States v. Ira Marvin Dickey

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 23, 1991

Citation: 924 F.2d 836

Docket Number: 89-50340

Court Abbreviation: 9th Cir.