Defendant-appellant Charles Nunez asserts that we should set aside his conviction for, inter alia, trafficking in destructive devices (in this case, pipe bombs) because the government behaved badly. Secondarily, he mounts claims of trial and sentencing errоr. Because Nunez’s arguments are unpersuasive, we affirm.
I. BACKGROUND
While conducting an ongoing investigation into gang activity in western Massachusetts, the authorities learned of a person called “the Mexican,” who had a reputation for building and distributing pipе bombs in exchange for drugs or money. The government concluded that Nunez was this individual and focused its probe accordingly.
At the authorities’ instigation, a cooperating drug dealer, Jose Colon, approached Nunez and told him that he “needed [some pipe bombs] to blow up [a rival gang].” Nunez acquiesced, but said that the task required raw materials. Colon, Nunez, and an undercover officer thereafter drove to Connecticut and filled Nunez’s shopping list at government expensе.
Nunez constructed the pipe bombs and Colon purchased nine of them for cash. Nunez, literally and figuratively, was hoist by his own petard. After he had been arrested and advised of his rights, he proclaimed that, although “he didn’t mean to hurt anyone,” the piрe bombs were intended “for the gangs” because he “didn’t like the gangs and wanted to hurt gangs.”
The government’s case at trial was compelling. It featured Colon’s testimony and tape-recordings of certain conversations. It also included the testimоny of an FBI explosives expert to the effect that all nine pipe bombs were “destructive device[s]” as defined in 26 U.S.C. § 5845(f). The jury convicted Nunez of possessing unregistered destructive devices, transferring such devices, and being a felon in possession of a firearm. See 26 U.S.C. § 5861(d) & (e) (1994); 18 U.S.C. *38 § 922(g)(1) (1994). At the disposition hearing, Judge Freedman sentenced Nunez to a 120-month prison term. This appeal followed.
II. DISCUSSION
The appellant advances three separate and distinct assignments of error. We deal with each of them in turn.
A. Government Misconduct.
Thе appellant’s flagship argument targets the district court’s denial of his pretrial motion to dismiss the indictment on the ground of egregious government misconduct. The question of whether the government committed misconduct so outrageous as to warrant thе dismissal of charges is a question of law which we review de novo.
See United States v. Hudson,
To the extent that it survives at all, the legal doctrine on which the appellant’s argument hinges is of extremely limited application. The doctrine holds that the government commits outrageous misconduct when it behaves in a manner that violates “fundamental fairness” and “shock[s] ... the universal sense of justice.”
United States v. Santana,
There is no tidy test to detеrmine whether government conduct qualifies as outrageous. Thus, we have acknowledged that “outra-geousness, by its nature, requires an ad hoc determination.” Id. at 6. Here, however, the appellant’s trial counsel raised the point only in a pretrial motion, bereft of any particularized evidentiary submissions and unaccompanied by a request for a voir dire or other evidentiary hearing. Consequently, the motion lacked a sufficient factual predicate, and the district court’s dеnial of it hardly can be faulted. See id. (explaining that “[t]he calculus [for determining the legitimacy of a claim of outrageous government misconduct] must be rooted in the record”).
Even were we disposed to accept the belated factual proffer contained in Nunez’s appellate brief — а proffer which loosely incorporates the trial evidence, but laces that evidence with considerable conjecture — the result would be the same. The appellant complains that the government’s pursuit of him involved the deсision to use a drug dealer to negotiate with a drug addict, and that the relationship between dealer and addict is so one-sided as to undermine the independence of his decision to fill Colon’s request for pipe bombs. Passing the fact that Colon was at most an occasional supplier of drugs to Nunez (who had other, more reliable sources), this version of an addiction defense cannot stand.
See, e.g., United States v. Harris,
Nunez also maintains that the government acted outrageously by becoming overinvolved in the conception and commission of the crime. This asseveration rests on facts such as Colon’s request for the pipe bombs, the escort afforded to Nunez when he purchased the raw materials, and the fact that the government fronted the cost. The record does not bear out the claim that this conduct crossed the line of impropriety.
The government had informаtion from multiple sources that Nunez previously had sold pipe bombs to gang members. The government therefore did not create the crime, but, rather, conducted a conventional undercover “sting” operation in an attempt to confirm or refute this information.
See, e.g., United States v. Matiz,
We summarize succinctly. Althоugh an occasional early case espoused the doctrine of outrageous government misconduct, we recently described it as “moribund” and predicted that a defense premised upon it will rarely, if ever, bear fruit.
Santana,
B. The Prosecutor’s Summation.
The appellant next posits that the prosecutor’s summation exceeded the bounds of permissible argument and thus violated due process. He cites twenty-two allegedly improper remarks. As his trial counsel did not object contemporaneously to any of these statements, our review is for plain error.
See United States v. Mejia-Lozano,
We have scrutinized the prosecutor’s summation in light of the transcript as a whole and have paid special attention to the twenty-two specific instances spotlighted by Nunez’s appellate counsel. We see no need to recount book and verse. The appellant’s claims cover an array of supposed peccadilloes — for example, vouching for witnesses, mischaracterizing evidence, and invading the jury’s province — but none of them are substantial. The prosecutor gave a vigorous summation, not an unfair one. It is entirely proper for prosecutors to argue their cases zealously as long as they do not stray into forbidden terrain — and the prosecutor’s remarks in this case, taken in context, reflect no more than acceptable zeal. In the last analysis, the appellant confuses hard blows (which аre permitted to a prosecutor) with foul blows (which are proscribed).
If more were needed — and we do not think that it is — we note that, on plain-error review, the defendant has the burden of demonstrating that impermissible statements “likely infected thе jury ... and mere possibilities are not enough.”
United States v. Procopio,
To say more on this point would be supererogatory. Because the statements madе by the prosecutor, whether viewed singly or in the ensemble, did not threaten the fundamental fairness of the trial, we reject this assignment of error.
C. Sentencing.
The appellant’s claim of sentencing error focuses on the district court’s conferment of a fоur-level upward adjustment pursuant to USSG § 2K2.1(b)(5) (1995). An enhancement under section 2K2.1(b)(5) lies if the defendant possessed a firearm or explosive “with knowledge, intent, or reason to believe that it would be used in or possessed in connection with another felony offense.” The appellant offers a host of reasons to support his claim that the district court improperly invoked this guideline. These reasons boil down to three general contentions, namely, (1) that the government adduced no evidеnce to show that Nunez possessed the requisite guilty knowledge; (2) that there was no possible chance that the bombs would be used or possessed in connection with a felony because they were purchased by the government during an undercоver operation; *40 and (3) that the guideline provision requires a showing that the bombs were to be used to perpetrate a specific crime (or, if not, the provision is at least ambiguous in this respect, thus entitling Nunez to the benefit of a “specific crime” intеrpretation under the rule of lenity) — and the government made no such showing.
We start with the appellant’s fact-based contention. Our standard of review is familiar: an appellate court reviews a district court’s factual determinations under the sentencing guidelines for clear error.
See United States v. Brewster,
In computing a defendant’s guideline sentencing range, the sentencing judge is entitled to rely on trial testimony.
See United States v. Ruiz,
The appellant’s “impossibility” theory fares no better. Section 2K2.1(b)(5) focuses on a dеfendant’s state of mind, not on the feasibility of the venture that he proposes to undertake.
See United States v. Gilmore,
This leaves us with the appellant’s statutory arguments. We review a district court’s construction of a sentencing guideline de novo,
see United States v. McDonald,
The appellant argues vociferously that the government must show that the defendant knew, intended, or had reason to believe that the explosive device would be used in connection with some
specific
felony offense. We do nоt agree. The plain language of the provision encompasses other felonies generally, without the additional requirement that some specific offense be identified.
Accord United States v. Cutler,
III. CONCLUSION
We need go no further. The government neither behaved outrageously nor otherwise committed misconduct requiring dismissal of the indictment. Because Nunez was charged appropriately, tried fairly, and punished lawfully, his conviction and sentence must be
Affirmed.