Circuits are currently split as to whether sentence entrapment and sentence factor manipulation are valid defenses to sentences calculated under the Federal Guidelines. Some circuits allow one defense but not the other, some allow both, and some deny both. Some do not recognize the difference between the defenses, which further complicates the matter [for an excellent summary, see http://sentencing.typepad.com/sentencing_law_and_policy/2010/04/effective-review-of-federal-sentencing-law-on-sentencing-entrapment.html]. I will argue that federal courts should allow sentencing entrapment defenses, but deny sentencing manipulation defenses.

How the Defenses Work

Both defenses arise most commonly in the context of drug sales and money laundering. In the course of sting operations and undercover investigations, undercover agents will engage targets in illegal transactions. Because the Federal Guidelines feature a quantity-based approach to sentencing, the agent’s choices in structuring the transaction (or series of transactions) play a large part in the sentence the offender receives. Accordingly, if this discretion is abused, defendants argue that their sentences should be mitigated. The Turner court best explains the difference between the two defenses. See United States v. Turner, 569 F.3d 637, 641 (7th Cir. 2009). Manipulation occurs when improper behavior increases the sentence. For example, a narc officer could buy dime bags from a street corner dealer for weeks before finally charging him with selling a large quantity of drugs. Entrapment, in contrast, occurs when a government agent encourages the defendant to commit a greater offense than he was predisposed to. If an officer encouraged a marijuana dealer to sell him heroin, this would be sentencing entrapment. In one case, for example, an officer asked a coke dealer to cook the drugs into crack, which increased the Guideline sentence a hundredfold.

Why This Issue Matters

Because the Federal Guidelines are now advisory (US v. Booker, 2005), one wonders why courts still consider this issue. As a practical matter, courts continue to rule on this issue despite the advisory nature of the Federal Guidelines, which alone suggests that the issue is still of consequence. Although guidelines are advisory, they’re still hugely influential as the required starting point for sentence calculations, and judges are required to give reasons for departing from the guideline sentence. A judge will be reversed by an appellate court if she fails to justify departing from the guidelines. Consequentially, the vast majority of sentences fall within the guideline ranges. Though judges have room for discretionary leniency, leaving the matter to judicial discretion merely permits them to consider the issue, whereas recognizing the defense as a matter of law would require judges to consider the merits of the defense as a factor for sentence departure under 18 USCA §3553. Federal Courts Should Not Allow Sentence Manipulation Defenses

First and foremost, sentencing manipulation is not a valid defense because “there is no constitutional right to be arrested at the exact moment that police acquire probable cause.” Turner at 641. More importantly, denial of the defense supports law enforcement by deferring to the choices made by investigators. Recognizing sentence manipulation would run contrary to the way investigations are actually run, because lesser drug dealers are often followed for lengthy periods in order to gather information about targets higher up in the distribution chain. Ultimately, it is for law enforcement officers to decide when enough evidence has accumulated to bring charges. The desire to allow this defense is really a reaction to the quantity-based approach of the Federal Guidelines. We do not like charging a petty corner dealer the same way we punish a higher distributor, and charging the corner dealer with a high quantity offense seems unjust. Imagine that A sells kilos of cocaine, and B purchases one. B breaks the kilo down into small quantities and sells them on the street. If B is arrested on one sale, he will be charged with a far lower sentence than if A is arrested for one sale. However, if an officer waited to buy all of B’s supply, the sentences would be equal, as both would have sold a kilo. Charging them for the same offense seems wrong, because we want to criminalize their role in the distribution chain. Instead, the Guidelines look to punish in proportion to the amounts distributed, perhaps because perfect information regarding retail structures is not always available to courts. For this reason, charging the corner dealer with selling a kilo is permissible, and makes practical sense.

Federal Courts Should Allow Sentence Entrapment Defenses

Sentencing entrapment, on the other hand, does not serve justice, and therefore the defense should be allowed. If a criminal is not predisposed to commit a kind of crime, there is no rational reason to punish the offender for the heightened offense. For example, there is a reason why the law penalizes crack dealers more than coke dealers; asking a dealer to convert the drug in order to put away a dealer does not serve justice. Unlike situations of sentence manipulation, there are no issues of inevitability or aggregation here. Absent police encouragement, the marijuana dealer will remain a marijuana dealer, and thus inducing him to commit a heroin offense serves no just purpose. Although sentencing entrapment is a difficult defense to prove, allowing the defense sends the right message to law enforcement officers. There is a great deal of pressure on law enforcement agencies to appear tough on crime, and to put criminals away for long sentences. While we want to encourage aggressive investigation strategies, we do not want to encourage cracking down on crime for the sake of appearances. Thus, sentencing entrapment should be an available defense.

Why the Difference Matters

The difference between the two defenses delineates the boundaries of investigatory discretion. Courts want to encourage and enable sting operations and long investigations without giving unduly harsh sentences for the sake of appearing tough on crime. At the same time, making the defense available checks the discretion available to sentencing judges. Sentencing entrapment should mitigate a sentence, and sentencing leniency should not rest on the judge’s discretion alone. For this reason, judges should be required to consider issues of sentencing entrapment when calculating a sentence. If the matter were left to the discretion of judges, this would lead to inconsistent sentencing, which was the very harm the Federal Guidelines were designed to cure.

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