UNITED STATES of America, Plaintiff-Appellee, v. Julio ROLON, Rodolfo Ortiz, Defendants-Appellants.
Nos. 11-10391, 11-10496
United States Court of Appeals, Eleventh Circuit.
Oct. 28, 2011.
445 Fed. Appx. 314
Non-Argument Calendar.
Sheryl Joyce Lowenthal, Attorney at Law, Miami, FL, for Defendants-Appellants.
Before HULL, WILSON, and BLACK, Circuit Judges.
PER CURIAM:
Defendants Julio Rolon and Rodolfo Ortiz appeal their multiple convictions and consecutive life sentences stemming from their firearm offenses and their plans to rob a stash house containing 25 kilograms of cocaine. After review of the briefs and record, we affirm as to all convictions and
I. BACKGROUND
On July 31, 2009, Defendants Rolon and Ortiz, both with extensive prior felony convictions, were arrested after they agreed to participate in, and took substantial steps toward completing, a “reverse sting” home invasion robbery. A confidential informant (“CI“) alerted law enforcement that Ortiz was seeking help to rob a marijuana grow house, and Miami-Dade police and federal authorities began investigating Ortiz. Law enforcement discovered that defendant Ortiz‘s robbery target was not actually a marijuana grow house, and law enforcement then staged a false raid on the house to deter Ortiz‘s robbery.
A. Recorded Calls for Another Robbery
Thereafter, the CI made a recorded phone call to defendant Ortiz explaining that the CI knew someone who could arrange another home invasion robbery. defendant Ortiz agreed to meet with the CI and the CI‘s contact, who, unbeknownst to Ortiz, was an undercover Miami-Dade police detective (the “undercover detective“).
Defendant Ortiz brought defendant Rolon to the meeting with the CI and the undercover detective. At that meeting, which was audio and video recorded, the undercover detective told Ortiz and Rolon that he was a cocaine courier. The detective told the pair that (1) he typically transported between 20 and 25 kilograms of cocaine per delivery; (2) he had not been paid for his recent deliveries; and (3) he wanted to rob the house where he brought his deliveries (the “stash house“) without arousing suspicion that he had participated in the robbery.
Defendants Ortiz and Rolon asked a number of questions, including whether there was cash in the stash house, whether the house was guarded, who was guarding it, and how many and what type of guns the guards would be carrying. Defendant Ortiz advised the undercover detective that he would bring in a third man to help with the robbery, that he and his associates were “professionals,” and that each of them would be armed and wearing police badges. Defendant Rolon specifically stated that (1) he would bring either a .9 millimeter Glock or an AR-15 assault rifle and (2) he would not hesitate to “blow up someone‘s head” if necessary. Ortiz, Rolon, the CI, and the undercover detective agreed that the undercover detective and the CI would take half of the cocaine at the stash house and that Ortiz, Rolon, and their third accomplice would split the other half among them.
In the following days, defendant Ortiz and the CI made several telephone calls, all recorded, during which they planned the second meeting with the undercover detective and Ortiz discussed his preparation for the robbery. At the second meeting, defendant Ortiz assured the undercover detective that Ortiz had previously committed home invasion robberies and that Ortiz and his associates would use two-way radios to communicate.
On July 31, 2009, the day of the planned robbery, the CI placed a recorded phone call to Ortiz and told him to meet the CI at a gas station. The undercover detective observed the gas station from across the street. Defendants Ortiz and Rolon arrived approximately 20 minutes later and provided the CI with a black t-shirt with the letters “DEA” printed on the front, a black ski mask, a pair of black latex gloves, and other police apparel. Ortiz and Rolon then followed the CI to a warehouse, where they believed the CI was picking up a vehicle. When they arrived, law enforcement surrounded the vehicles and apprehended Ortiz and Rolon.
Police recovered similar items—including a Ruger .357 Magnum revolver—from the car of codefendant Federico Dimolino, the third accomplice.
Defendant Ortiz admitted that he had intended to rob 25 kilograms of cocaine and that he planned the robbery. Ortiz also claimed responsibility for the two loaded handguns found in Rolon‘s car.
B. Indictment and Convictions
In August 2009, a grand jury returned a ten-count indictment against defendants Ortiz, Rolon, and Dimolino. Counts 1 to 5 of the indictment charged Ortiz, Rolon, and Dimolino with (1) conspiracy to possess with intent to distribute 5 kilograms or more of cocaine, in violation of
C. Consecutive Life Sentences
The district court sentenced defendants Ortiz and Rolon to life imprisonment on each of Counts 1, 2, 5, and Counts 8 and 9, respectively, all to run concurrently;4 240 months’ imprisonment on Counts 3 and 4, to run concurrently; and consecutive terms of life imprisonment on Count 6.5 Prior to their crimes in this case, both Ortiz and Rolon had extensive criminal convictions, including multiple violent felonies. Although they raise only a few sentencing issues, we explain at length how their sentences were calculated since both defendants are serving consecutive life sentences.
1. Rolon‘s Sentence
Rolon‘s Presentence Investigation Report (“Rolon‘s PSI“) showed that he had these Florida convictions: (1) four separate convictions in 1990 for aggravated battery (CR89-212), robbery with a deadly weapon (CR89-1901), grand theft in the third-degree of a motor vehicle, possession of burglary tools (89CF12435-0), and aggravated assault with a deadly weapon (89CF12688-0); (2) 1997 convictions for attempted second-degree murder, possession of a firearm in the commission of a felony, and possession of a firearm by a convicted felon (CR97-4069); (3) 2000 convictions for attempted first-degree murder, attempted armed kidnapping, shooting into an occupied vehicle, and use of a firearm during a felony (97-10535); and (4) a 2000 conviction for aggravated battery with a deadly weapon (98-26377). These convictions yielded 12 criminal history points, corresponding to a criminal history category of V. In addition, because Rolon‘s 1990, 1997, and 2000 convictions included at least two “crime[s] of violence,” Rolon was a career offender under the guidelines, which raised his criminal history category to VI. See
Rolon‘s base offense level was 34. Because Rolon‘s offense statutory maximum was life imprisonment on Counts 1 and 2, Rolon‘s career offender status raised his offense level from 36 to 37, yielding a guidelines range of 360 months’ to life imprisonment.
Rolon‘s Count 6 conviction not only triggered a consecutive sentence under
2. Ortiz‘s Sentence
Ortiz received an identical sentence. Ortiz‘s Presentence Investigation Report (“Ortiz‘s PSI“) showed that he had over 20
These convictions yielded eight criminal history points, corresponding to a criminal history category of IV. In addition, because Ortiz‘s 1991 conviction for robbery (F90-6933) and his 1997 conviction for resisting an officer with violence (F96-41769) were “crime[s] of violence,” Ortiz was a career offender under the guidelines, which raised his criminal history category to VI. See
Ortiz‘s base offense level was 34. The district court added a two-level increase for Ortiz‘s leadership role, yielding an adjusted offense level of 36.11 In addition, because Ortiz‘s offense statutory maximum was life imprisonment on Counts 1 and 2, Ortiz‘s career offender status raised his offense level from 36 to 37. See
lon‘s conviction on Count 6, Ortiz‘s conviction on Count 6 carried a minimum consecutive five-year sentence.13 This conviction raised Ortiz‘s guidelines calculation to 420 months’ to life. See
Unlike Rolon, Ortiz‘s conviction on Count 6 did not trigger a mandatory life sentence under
Defendants Ortiz and Rolon appeal their convictions and sentences on multiple grounds.16
II. DISCUSSION
A. Substantive Due Process
Ortiz and Rolon contend that the district court erroneously denied their motions to dismiss the indictment.17 Ortiz‘s
To prevail on a claim of outrageous government misconduct, a defendant must show that, under the totality of the circumstances, the law enforcement technique at issue was so outrageous that it was fundamentally unfair and shocking to the universal sense of justice mandated by due process. See United States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir. 1984). This defense “can only be invoked in the rarest and most outrageous circumstances.” Id. (quotation marks omitted). We consistently have recognized that government infiltration of criminal activity is a permissible means of investigation and repeatedly rejected challenges to the “reverse sting” method of police investigation. See, e.g., United States v. Sanchez, 138 F.3d 1410, 1413 (11th Cir. 1998); United States v. Savage, 701 F.2d 867, 869-70 (11th Cir. 1983); United States v. Rogers, 701 F.2d 871, 872 (11th Cir. 1983). Where the government merely presents a defendant with a routine criminal opportunity of which the defendant is more than willing to take advantage, the government‘s actions do not amount to outrageous conduct warranting dismissal. See Savage, 701 F.2d at 869-70.
For example, in Sanchez, we held that federal agents’ proposing the robbery of a fictitious house purportedly stocked with 50 kilograms of cocaine and 300 pounds of marijuana did not “approach that demonstrable level of outrageousness the case law suggests would be necessary for reversal of these defendants’ convictions.” 138 F.3d at 1414; see also Rogers, 701 F.2d at 872 n. 1 (concluding the government did not act outrageously when, in the face of defendants’ wavering, the government “sweetened” a drug deal by offering to lower the price of drugs, put the defendants up in a hotel room, and furnish them with women).
Similar to Sanchez, the government here merely presented defendants Ortiz and Rolon with a fictitious home invasion opportunity that the defendants readily accepted and pursued. Importantly, Ortiz had planned to rob a marijuana grow house before law enforcement conducted a false raid on his initial robbery target and before the CI introduced Ortiz to the undercover detective who proposed the cocaine stash house robbery. Further, in his meetings with the CI and the undercover detective, Ortiz claimed to have committed home invasion robberies in the past and explained that he and Rolon were “professionals.” After accepting the undercover detective‘s proposal, Ortiz and Rolon actually planned the details of the stash house robbery independent of any specific government suggestion or guidance. Ortiz and Rolon—not the detective—decided to pose as police officers and to arrive armed, and Ortiz and Rolon subsequently procured police apparel and arrived with guns on the day of the robbery. In short, although the government presented a criminal opportunity, Ortiz and Rolon eagerly accepted that opportunity and orchestrated the scheme. In light of the totality of the facts here and our circuit precedent, we conclude that the district court did not
B. Prosecutor‘s Closing Argument
Defendants Ortiz and Rolon each claim that the district court erroneously denied their motions for a mistrial based on allegedly improper statements by the prosecutor during his closing argument. We review each statement separately.
1. Prosecutor‘s Statement that Ortiz was a Convicted Murderer
During his closing statement, the prosecutor called Ortiz a “convicted murderer.” Ortiz did not contemporaneously object to this statement but moved for a mistrial—after the prosecutor had concluded his closing argument and after the jury was excused—on the ground that the statement was improper.
In the absence of a contemporaneous objection, we review for plain error the district court‘s failure to correct an improper closing argument. United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir. 2002). Plain error requires a legal error that is plain and that affects the defendant‘s substantial rights. United States v. Pielago, 135 F.3d 703, 708 (11th Cir. 1998). We review the denial of a motion for a mistrial for abuse of discretion. United States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007).
We first find no error in the district court‘s denial of Ortiz‘s motion for a mistrial based on the district court‘s failure to correct the prosecutor‘s statement that Ortiz was a “convicted murderer.” The prosecutor‘s statement was supported by the record, which contained a certified copy of Ortiz‘s prior conviction for third-degree murder. The government properly sought admission of Ortiz‘s prior murder conviction to rebut Ortiz‘s testimony relating to his entrapment defense, see United States v. Duran, 596 F.3d 1283, 1298-99 (11th Cir. 2010), and the government was entitled to refer to this evidence already introduced at trial. See United States v. Diecidue, 603 F.2d 535, 553 (5th Cir. 1979) (“Unflattering characterizations of defendants are not reversible error when supported by the evidence.“).18 Because the prosecutor‘s statement was not improper, we hold that the district court did not abuse its discretion by denying Ortiz‘s motion for a mistrial on this ground.
2. Prosecutor‘s Statement Regarding Reasonable Doubt
During his closing argument, the prosecutor stated that “juries have been finding defendants guilty for 250 years in this country, all beyond a reasonable doubt.” Defendant Rolon contemporaneously objected to this statement and reserved a motion for a mistrial. The district court sustained the objection, struck the prosecutor‘s statement from the record, and stated that the court would “instruct on reasonable doubt without comment on what juries have done for 200 years.” At that time, the court did not directly instruct the jury to ignore the prosecutor‘s statement.
Defendant Rolon later moved for a mistrial on ground that the prosecutor‘s comment was “over the top.” In denying Rolon‘s motion, the district court explained to Rolon‘s counsel that the court understood the statement merely to mean that reasonable doubt had been the standard for guilt for 250 years. The district court further
Rolon now argues for the first time on appeal that the court exacerbated the prejudicial effect of the prosecutor‘s improper statement by repeating the statement. As noted above, we review the denial of a motion for a mistrial for abuse of discretion. Foley, 508 F.3d at 632. Assuming a prosecutor‘s comments were improper, we reverse only if the comments affected the defendant‘s substantial rights. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). A defendant‘s substantial rights are prejudicially affected if a reasonable probability arises that, but for the remarks, the outcome of the trial would have been different. Id. If the record contains sufficient independent evidence of guilt, any error is harmless. Id.
We find no abuse of discretion in the district court‘s denial of Rolon‘s motion for a mistrial based on the single reasonable-doubt comment. Even if the prosecutor‘s statement was improper, the district court promptly struck the statement from the record and advised that the court would instruct the jury on reasonable doubt. Subsequently, the district court properly instructed the jury on the reasonable doubt standard. Because “[w]e generally presume that jurors follow their instructions,” the district court‘s instruction on reasonable doubt was sufficient to cure any prejudice caused by the prosecutor‘s statement. See United States v. Hill, 643 F.3d 807, 829 (11th Cir. 2011).
We further reject the argument that Ortiz and Rolon were prejudiced by the district court‘s repetition of the prosecutor‘s remark. The district court merely stated that it would instruct the jury on reasonable doubt “without regard” to the historical practice of juries. To the extent the district court repeated the prosecutor‘s statement in sustaining the defendants’ objection, it was to illustrate that the district court‘s instructions would render the prosecutor‘s remark irrelevant. And, as noted above, before the jury deliberated, the district court gave the jury detailed instructions on the meaning of reasonable doubt.
Even assuming some residual prejudicial effect remained, the prosecutor‘s statement did not affect Ortiz‘s and Rolon‘s substantial rights because—in light of the substantial independent evidence of their guilt—no reasonable probability exists that this statement altered the outcome of the trial. See United States v. Adams, 74 F.3d 1093, 1097 (11th Cir. 1996) (holding that improper prosecutorial references did not raise a reasonable probability that, but for the remarks, the outcome would be different due to “sufficient independent evidence establishing guilt“). As we note elsewhere in our discussion, numerous tape-and-video-recorded conversations, abundant physical evidence seized from Rolon‘s vehicle, and Ortiz‘s own inculpatory statements provided ample evidence of Ortiz‘s and Rolon‘s guilt.
C. Ortiz‘s Closing Argument
Ortiz claims that the district court erred by precluding his counsel from analogizing the government‘s case to the movie Minority Report in his closing argument. Before the district court, Ortiz sought to analogize his arrest and prosecution to the “Precrime” law enforcement unit depicted in that movie that, in the words of Ortiz‘s
We review for abuse of discretion a court‘s decision to limit a party‘s closing argument. United States v. Williams, 526 F.3d 1312, 1320 (11th Cir. 2008). In closing argument, a party is entitled to make all legal arguments supported by the facts. Id. However, a party may not argue inaccurate or inapplicable theories of law. Id.
Here, the district court did not abuse its discretion by prohibiting Ortiz‘s counsel from referencing Minority Report. Ortiz‘s theory of law—that he was arrested only because the government “anticipated” that he would later commit a crime—was plainly inapplicable to Ortiz because it was not supported by the evidence, the government‘s theory of prosecution, or even by Ortiz‘s own entrapment defense. The trial evidence showed that Ortiz planned to rob a marijuana grow house even before he met the undercover detective. Audio and video recordings documented Ortiz‘s meetings with Rolon, the CI, the undercover detective, and codefendant Dimolino and illustrated their resulting conspiracy to rob the detective‘s fictitious stash house. Authorities recovered guns, ammunition, and police paraphernalia from Rolon‘s car (in which Ortiz was riding) after the pair were arrested on the way to the robbery. This evidence showed that Ortiz was arrested only after committing the crimes for which he was charged.
Ortiz claims that he was trying to argue only that the government cannot arrest people for crimes they have not yet committed. But this argument is inapplicable to Ortiz‘s entrapment defense, which presumes that the defendant has committed the charged crime. Even if this argument were applicable to Ortiz‘s defense, the record shows that Ortiz‘s counsel remained free to make this argument without reference to Minority Report. Indeed, after the district court sustained the government‘s objection to the movie analogy, Ortiz‘s counsel argued to the jury that “the Government used a plan that ... was to take Mr. Ortiz from the community because the prediction under their scenario was he eventually ... would commit a crime in the future.” “That,” he explained, “is entrapment.”
D. Entrapment Jury Instruction
As to his entrapment defense, Ortiz requested a jury instruction on entrapment that followed the
We review jury instructions de novo to determine whether they misstated the law or misled the jury. United States v. Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000).
We reject Ortiz‘s argument that the district court‘s entrapment instruction, which followed the 13.2 pattern instruction nearly verbatim, was erroneous. An entrapment defense consists of “two elements: (1) government inducement of the crime, and (2) lack of predisposition on the part of the defendant.” United States v. Padron, 527 F.3d 1156, 1160 (11th Cir. 2008). Both pattern jury instructions 13.1 and 13.2 accurately state these elements. See United States v. Schlaen, 300 F.3d 1313, 1316 (11th Cir. 2002) (rejecting as meritless an identical challenge in which a defendant argued that the district court should have given Eleventh Circuit pattern entrapment instruction 12.1 rather than pattern instruction 12.2).21 The additional language of pattern instruction 13.2 merely tells jurors that they may not consider the moral valence of the government‘s pretending to be part of a criminal enterprise. This is an accurate statement of the law. Because the moral character of the government‘s tactics are irrelevant to whether the government induced a crime or whether the defendant was predisposed to commit a crime, the 13.2 pattern instruction does not preclude a jury from concluding that a defendant was entrapped. Here, as in any case involving an entrapment defense, the jury could have concluded that Ortiz was entrapped even had they found that the government acted immorally. The entrapment instruction in 13.2 was not error.
E. 18 U.S.C. § 924(c)(1)(A) Jury Instruction
Defendants Ortiz and Rolon argue that the district court erroneously instructed that the jury could convict them under
As noted earlier, Count 5 was a conspiracy offense regarding firearms, while Count 6 was the substantive offense as to the same firearms. Count 5 of the indictment charged Ortiz and Rolon with conspiring to “use and carry a firearm” during a crime of violence and a drug trafficking crime, in violation of
During their deliberations, the jury sent the district court a note asking this: “In the Indictment, the language for Counts 5 and 6 are ‘use and carry.’ In the verdict, # 5 and # 6 read ‘used or carried.’ Please explain the discrepancy between the conjunctions and and or” (emphasis in original). Over Ortiz‘s and Rolon‘s objections, the district court responded as follows:
The statute in question refers to “uses or carries” and does not require that both must be proven. The government has charged both in the indictment but only has to prove that the defendant “used” or “carried” a weapon as specified in the instructions. You will note that the jury instructions provide that “the government has to prove only one of those ways, not both. If you find either “use” or “carry” in relation to the crimes charged in Counts 1-4, that is sufficient.
This Court reviews for abuse of discretion a district court‘s response to a jury question. United States v. Lopez, 590 F.3d 1238, 1247 (11th Cir. 2009). Original jury instructions are reviewed de novo. Simpson, 228 F.3d at 1298.
We find no error in either the district court‘s initial instruction or the district court‘s response to the jury‘s question. Our precedent compels this conclusion. First, “the law is well established that where an indictment charges in the conjunctive several means of violating a statute, a conviction may be obtained on proof of only one of the means.” Id. at 1300; see also United States v. Cornillie, 92 F.3d 1108, 1110 (11th Cir. 1996). Second, in Simpson, we considered a challenge to jury instructions regarding
The same rationale applies here. Counts 5 and 6 of Ortiz and Rolon‘s indictment charged in the conjunctive. However, criminal liability under
F. Allen Jury Instruction
A day and a half into their deliberations, the jury returned guilty verdicts for Ortiz on Count 8 and Rolon on Count 9 but left incomplete the verdict form blanks for the remaining counts. At that time, over the defendants’ objection, the district court gave an “Allen”22 charge nearly identical to the Eleventh Circuit pattern Allen in-
Rolon and Ortiz argue that the Allen instruction was inherently coercive because the jury already had deliberated for a day and a half. Moreover, Rolon argues that the charge was especially coercive given the current economy because the charge emphasized the expense that a new trial would impose on the government.
We review a district court‘s decision to give an Allen charge for abuse of discretion, and will find such an abuse only if the charge was inherently coercive. See United States v. Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008). Though we have expressed concern about Allen charges, see United States v. Rey, 811 F.2d 1453, 1457-60 (11th Cir. 1987), we have approved this Circuit‘s pattern Allen charge on numerous occasions. See, e.g., Woodard, 531 F.3d at 1364; United States v. Dickerson, 248 F.3d 1036, 1050 (11th Cir. 2001); United States v. Trujillo, 146 F.3d 838, 846 (11th Cir. 1998). In assessing an Allen charge, we consider the totality of the circumstances, including the language of the charge and the amount of time between its issuance and the jury‘s verdict. Woodard, 531 F.3d at 1364.
In this case, the district court did not abuse its discretion by giving an Allen charge. The district court‘s charge was substantively identical to charges we previously have approved. See, e.g., Dickerson, 248 F.3d at 1050; Rey, 811 F.2d at 1461. The district court instructed the jury that it could take as much time as it needed to deliberate, and the jury returned its verdict four hours later, an interval far in excess of that we previously have held does not indicate impermissible coercion. See Rey, 811 F.2d at 1458 (jury returned verdict 95 minutes after Allen charge). We also reject Rolon‘s conjectural claim that this Allen charge had a coercive effect due to alleged psychological effects of the national economy or the financial condition of the government.
G. Ortiz‘s Classification as a Career Offender
Ortiz next claims that his Florida conviction on August 4, 1997 for “resisting an officer with violence,” in violation of
We review de novo whether a prior conviction qualifies as a “crime of violence” under the sentencing guidelines. United States v. Palomino Garcia, 606 F.3d 1317, 1326 (11th Cir. 2010).
In United States v. Nix, 628 F.3d 1341 (11th Cir. 2010), petition for cert. denied 565 U.S. 881, 132 S. Ct. 258, 181 L.Ed.2d 150 (2011), this Court held that a conviction under
We also reject Ortiz‘s claim that the Supreme Court‘s remand in our unpublished case, United States v. Jackson, 355 Fed. Appx. 297 (11th Cir. 2009), vacated by 562 U.S. 1125, 131 S.Ct. 896, 178 L.Ed.2d 739 (2011), makes any difference. Jackson is not binding precedent. 11th Cir. R. 36-2. In any event, in Jackson, we held that
In Johnson, the Supreme Court held that the Florida offense of battery by “[a]ctually and intentionally touch[ing] another person,”
On remand in Jackson, this Court again held that Florida‘s
H. Reasonableness of Ortiz‘s Life Sentences
Ortiz argues that his life sentences are substantively unreasonable.29 Ortiz claims that at the time the government reverse sting operation began, he had been out of state custody for over a year, was trying to turn his life around, and was attending psychiatric and substance abuse programs. Ortiz argues that because the district court was required to consider these factors under
Our review of the substantive reasonableness of a sentence examines the totality of the circumstances and includes an inquiry into whether the statutory factors in
Ortiz has not established that his life sentences are substantively unreasonable. His first life sentence was within his guidelines range. His second life sentence was consecutive because
I. Rolon‘s Mandatory Life Sentence Under 18 U.S.C. § 3559(c)
Rolon challenges his second, consecutive life sentence on Count 6. Rolon argues, for the first time on appeal, that he should not have been subject to an enhanced mandatory term of life imprisonment under
We review for plain error arguments raised for the first time on appeal. United States v. Bacon, 598 F.3d 772, 775 n. 1 (11th Cir. 2010). Plain error requires a legal error that is plain and that affects the defendant‘s substantial rights. Pielago, 135 F.3d at 708.
The district court committed no reversible error in sentencing Rolon because the mandatory life sentencing provision of
Nor does Rolon‘s claim—that he was convicted of these predicate felonies without the effective assistance of counsel—vitiate these convictions for the purposes of
J. Constitutionality of Rolon‘s Life Sentences
Rolon further argues that his consecutive life sentences are cruel and unusual in violation of the Eighth Amendment. Rolon‘s argument is foreclosed by our precedent holding that a sentence of life imprisonment on drug charges is not per se cruel and unusual. See United States v. Willis, 956 F.2d 248, 251 (11th Cir. 1992); see also Harmelin v. Michigan, 501 U.S. 957, 994, 111 S.Ct. 2680, 2701, 115 L.Ed.2d 836 (1991) (“Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense....“). Importantly, too, Rolon was also convicted of a
III. CONCLUSION
For the foregoing reasons, we AFFIRM all of Ortiz‘s and Rolon‘s convictions and sentences except as to their sentences on Count 5, and we VACATE Ortiz‘s and Rolon‘s sentences as to Count 5, and REMAND to the district court for resentencing on Count 5.
AFFIRMED in part and VACATED AND REMANDED in part.
Appendix A
The district court gave the following entrapment instruction:
“Entrapment” occurs when law enforcement officers or others under their direction persuade a defendant to commit a crime the defendant had no previous intent to commit.
The Defendant has claimed to be a victim of entrapment regarding the charged offense.
The law forbids convicting an entrapped defendant.
But there is no entrapment when a Defendant is willing to break the law and the Government merely provides what appears to be a favorable opportunity for the Defendant to commit a crime.
For example, it‘s not entrapment for a Government agent to pretend to be someone else and offer—directly or through another person—to engage in an unlawful transaction.
You must not evaluate the conduct of Government officers or others under their direction to decide whether you approve of the conduct or think it was moral.
So a defendant isn‘t a victim of entrapment if you find beyond a reasonable doubt that the Government only offered the defendant an opportunity to commit a crime the Defendant was already willing to commit.
But if there is a reasonable doubt about whether the Defendant was willing to commit the crime without the persuasion of a Government officer or a person under the Government‘s direction, then you must find the Defendant not guilty.