USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________

No. 94-1666

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN BERIO MONTOYA,

a/k/a JOHN FREDDY MONTOYA,

Defendant, Appellant.

____________________

No. 94-1667

UNITED STATES OF AMERICA,

Appellee,

v.

MARCO VILLEGAS,

Defendant, Appellant.

____________________

No. 94-1668

UNITED STATES OF AMERICA,

Appellee,

v.

GUILLERMO MONTOYA,

Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

___________________

____________________

Before

Selya, Cyr and Boudin,

Circuit Judges.
______________

____________________

Eileen Donoghue, by
_______________

Appointment of the Court, for appellant Ma

Villegas.
Raymond E. Gillespie, by Appointment of the
_____________________

Court, for appell

John Berio Montoya.

Diana L. Maldonado,
____________________

Federal

Defender's

Office,

for appell

Guillermo Montoya.
Jeffrey A. Locke,
_________________

Assistant United

Donald K. Stern, United States

_______________

States Attorney,

Attorney, was on brief for

States.

____________________

July 27, 1995

____________________

with

the Uni

BOUDIN,

case--Marco

Circuit Judge.
_____________

Villegas,

The

Guillermo

three appellants

Montoya

and

John

in this

Berio

Montoya--were indicted for conspiracy to possess cocaine with

intent

to

distribute.

were

distribute

21 U.S.C.

sentenced

to

and

for possession

841, 846.

mandatory

imprisonment, as well as

with

intent

to

After guilty pleas, they

minimum terms

of

10

years'

supervised release and the ordinary

special

assessment.

ground that

They

appeal

their

sentences on

the government manipulated upward

the

the amount of

cocaine for which they were held responsible.

The underlying facts are

1992,

largely undisputed.

In August

the FBI began a reverse sting operation in Boston, its

undercover

agent (Antonio

Dillon)

purporting to

act as

high-volume wholesaler of cocaine seeking new distributors in

the area.

On August 26, 1992,

Dillon met with Villegas who

on behalf

of Guillermo

Montoya and

his brother Hernan

seeking a

new source of supply of cocaine.

was

Like many of the

subsequent encounters, this meeting was taped by the FBI.

Villegas

said

account, selling 15

paying between

that the

to 25

$19,500 and

Montoyas

were,

kilograms of cocaine

$20,000 per

by their

own

a week

and

kilogram.

He also

said

that he

had

been in

Montoyas for six years.

September 7

Jersey

the

was

with

the

Villegas made similar statements at

meeting, although

supplier

cocaine business

providing

he there

the

said that

brothers

a New

cocaine

at

-3-3-

$16,000-18,000 per

kilogram.

Villegas also

offered to rent

his garage to store the cocaine.

On

September

18,

1992,

Dillon

Montoya

and

John

Berio

Guillermo

restaurant.

purchase

Dillon

said that

met

with

Montoya

he would

Villegas,

at

Boston

require a

minimum

of 10 kilograms, with a down payment equal to three

kilograms and payment

delivery.

Dillon

of the balance in 15

to 20 days after

requested $19,500 per kilogram; Guillermo

Montoya

balked; and

$17,000

per

Dillon

kilogram.

ultimately offered

Guillermo Montoya

a price

said

he

of

would

consider buying 10 kilograms with a down payment of $50,000.

There were subsequent meetings

first three months

Guillermo Montoya

of 1993.

got the down

in December 1992 and the

Pleading a

shortage of

payment reduced to

cash,

a $5,000

advance for expenses (paid by John Berio Montoya

1993) and a

$20,000 initial

kilograms.

In

in February

payment on delivery

March meeting,

Villegas

of the

and

10

Guillermo

Montoya discussed the possibility after the first purchase of

increasing

the

kilograms.

sales from

On

March

30,

10-15 kilograms

1993,

the

10

per week

to 20

kilograms

were

delivered and the appellants were then arrested.

At

sentencing,

determination

offense

level

transaction.

in

each

the

should

The

appellant

pre-sentence

be

report

premised

appellants

-4-4-

did

objected

on

not

that

to

the

the

base

10-kilogram

dispute

that

10

kilograms had been ordered and delivered,

nor claim that the

$17,000 price was below the market price.

But they said that

the

government

had

manipulated

the

quantity

upward

by

reducing

the down payment from $50,000 to $25,000.

Based on

Dillon's

original proposal

payment,

appellants urged

that each

of

one-third

down

appellant should be

only for three or four kilograms.

held liable

At

court

the close

of the

found that

factors.

The

predisposed

there

was no

more

triggers

that the appellants

mandatory

minimum

841(b)(1)(A), the

jurisdiction over

claim

district court

Refusals to depart are

district court has

10

years'

district court

tells us that we lack

the appeals, saying

in the

of

The present appeals followed.

the threshold, the government

departure.

were

Since any amount of five kilograms

U.S.C.

imposed this sentence.

their

sentencing

to purchase 10 kilograms and that they could and

imprisonment, 21

At

the district

manipulation of

district judge said

did purchase this amount.

or

sentencing hearing,

that appellants

as

one for

a downward

not reviewable unless the

mistaken its own legal authority

some other mistake of law.

cast

or made

United States v. DeCosta, 37 F.3d

_____________
_______

5, 8 (1st Cir. 1994).

Appellants say that their request was

not limited to a departure from the guideline range, pointing

out that they asked the court to sentence below the statutory
_________

minimum.

-5-5-

This is one of these

in

superficially confusing situations

which "jurisdiction" is

in certain

respects intertwined

with "the merits"; and "the merits" in turn depend on a still

evolving

body

of

case

law.

Under

umbrella

terms like

sentencing entrapment and sentencing factor manipulation, the

circuit courts

have provided

a certain amount

of guidance,

but there are some divisions among the circuits, and--even in

the mainstream--more

criteria

expected,

problem

for

the

than rules.

arises

in

This

is to

be

context

that

is

comparatively recent.

Undercover agents of the state have been "plotting" with

potential

long

defendants since

before.

formerly

But

allowed

in

to a

Elizabethan times,

federal

courts the

sentencing

judge

and probably

broad

made it

latitude

easy

to

account

for

curtailed

any

equity.

by sentencing

This

discretion

has now

been

guidelines and

statutory minimums,

often keyed to amounts of drugs involved

and dollars stolen.

In turn, attention has turned to escape-hatch arguments which

might exclude from

the equation

a portion

of the

criminal

conduct.

Our

agents

own

cases

have concluded

have improperly
__________

that

enlarged the scope

where

government

or scale

of the

crime, the sentencing court "has ample power to deal with the

situation either

the computation of

by excluding the

tainted transaction

from

relevant conduct or by departing from the

-6-6-

[guideline sentencing range]."

F.2d

191, 195

Gibbens,
_______

(1st Cir. 1992).

United States v. Connell, 960

_____________
_______

See also
___ ____

United States v.
_____________

25 F.3d 28, 30-32 (1st Cir. 1994); United States v.

_____________

Brewster, 1 F.3d 51, 55 (1st Cir. 1993).

________

broad principle applies

the guidelines.

We

think that this

to statutory minimums as

well as to

Admittedly, there

there

is also no

entrapment

LaFave

(1986).

&

statute enacting

A. Scott,

this effect.

the familiar

such

decency seems

that

to insist on

to require.

As

should go very slowly

will deter

government

than

said in

before staking out

agents

performance of their investigative duties."

It

courts

much more

this court

1 W.

5.2-5.4

supplementary doctrines,

careful not

But

defense of

Substantive Criminal Law,

__________________________

In creating

Connell, "[c]ourts
_______

rules

statute to

or other defenses like duress or necessity.

have usually been

minimum

is no

from the

proper

960 F.2d at 196.

is no accident that statements condemning sentencing

factor manipulation

are usually

dicta.

defendant cannot

make out a case

of undue provocation simply by

the idea originated

was encouraged by

with the government or

Gibbens, 25
_______

the

that the conduct

it, e.g., Brewster, 1 F.3d at

____ ________

the crime was prolonged beyond

F.3d at 31, or

-7-7-

55, or that

the first criminal act, e.g.,

____

exceeded in degree

defendant had done before.

showing that

E.g., Connell,
____ _______

or kind what

960 F.2d at

195-96.

What the

reduction

are elements like

that

the

defendant needs

government's

"extraordinary misconduct."

The

standard is

order to

require a

these carried to such a degree

_________________

conduct

must

be

viewed

as

Gibbens, 25 F.3d at 31.

_______

high because

sentencing,

in

reduction

at

in

the

guideline

approved by Congress, for

we are

teeth

talking about

of

a statute

or

a defendant who did not

raise or did not prevail upon an entrapment defense at trial.

The standard is

general because

it is designed

for a

range of circumstances and of incommensurable variables.

vast

See
___

Gibbens, 25 F.3d at 31.

_______

The most important of these,

as we

have stressed, is likely to be the conduct of the government,

including the

reasons why

its agents enlarged

the criminal conduct in question.

In other situations,

may

of

going

number

to committing

at sentencing

to

help a

or size

reasonably bright

defendant's

see Connell, 960

___ _______

conduct "overbear[ing]

predisposed only

analogy

See id. at 31 & n.3.

___ ___

the defendant's own predisposition

enter into the calculus,

speaking

the

criminal

F.2d at 196,

of a

crime."

But

the

not often

arguing only

about the

is

Having crossed

guilt and innocence,

inclination

person

entrapment is

the transactions.

line between

will

a lesser

to ordinary

defendant who

of

or prolonged

has

already

the

such a

been

established, and the extent of the crime is more likely to be

a matter of opportunity than of scruple.

-8-8-

Because

declined

of

the

to create

diversity

of circumstances,

detailed rules as

undue manipulation, Gibbens, 25

to what is

F.3d at 31, but we

we

have

or is not

think it

_______

is useful now to be very candid in saying that garden variety

manipulation

claims

are

largely

waste

of

time.

Nevertheless, where a defendant wants to argue that there has

occurred

sentencing

manipulation

"extraordinary misconduct," we think

be limited to a

it

applies

amounting

that the claim need not

request for a discretionary departure,

to statutory

to

mandatory minimums

as well

that

as to

guideline ranges, and that it is subject to appellate review.

Of

course, the burden of proof is upon the defendant to

show that he is entitled to a reduction.

31-32.

Gibbens, 25 F.3d at
_______

The district court's fact findings on this issue, as

on other fact questions, are subject to the clearly erroneous

standard.

Id.

at 30.

Because

manipulation is

largely a

___

fact-bound

judgment

inquiry,

even

whether the

the

district

court's

government's conduct is

intolerable is not lightly to be disregarded.

United States v. Rosen,

_____________
_____

ultimate

outrageous or

Id. at 32; cf.

___
___

929 F.2d 839, 844 (1st

Cir.), cert.
_____

denied, 502 U.S. 819 (1991).

______

Against this backdrop, we decline to dismiss this appeal

for

lack of

jurisdiction,

little hesitation.

This

but affirm

on

the merits

with

case involves a single transaction,

not a string of crimes prolonged by the government; the price

-9-9-

was

within the market range; and the appellants by their own

recorded admissions

abetters

who

quantities.

had

As in

government; but

or

indication

of any

well established

previously

dealt

in

drug dealers

very

pressure, there

intolerable

pressure.

illegitimate motive

was none,

Nor

on the

or

substantial

most stings, this episode began

as to

outrageous

agents.

were

was

with the

let alone

there

part

an

of the

All that agent Dillon did was to reduce the down payment

in the face of

claims by appellants that they

were short of

cash to make the full down payment originally proposed.

is so far from

government misconduct that we would

not have

written a published opinion but for two considerations.

is the government's jurisdictional

This

One

objection and the need to

make clear the procedural framework in which we will consider

such

claims.

plain

import

And the

of

manipulation is

other is

our

previous

a claim

only for

to make very

explicit the

cases:

sentencing

factor

the

extreme and

unusual

case.

One qualification remains to be mentioned.

said

is directed

to

claims that

the

What we have

district court

must

disregard

because

at sentencing

it

manipulation.

was

the

Quite

a portion

product

of

possibly--we

decide the point--a district

of the

criminal conduct

impermissible

need

not

government

definitively

court may order a discretionary

-10-10-

downward departure from the guideline range on something less

than extraordinary

misconduct.

clear for one narrow

Indeed, this

is made fairly

class of conduct, by U.S.S.G.

2D1.1,

comment. (n.17), which provides:

If, in
finds

a reverse sting
that

. . .

the government

price for the

the

controlled

leading to the
significantly
controlled
resources

that

thereby

defendant's purchase of a
greater

quantity

substance than
would

set by

set a

market value

substance,

have

purchase except for the

price

agent

controlled substance

was substantially below the

of

the court

the

of

the

his available

allowed

him

to

artificially low

government

agent,

downward departure may be warranted.

It

prevent

is

doubtful

that

expressio unius
_______________

defendant

from

seeking

such

concepts

would

discretionary

downward departure in other analogous circumstances--although

_____

not literally within this application note--assuming that the

general precepts for downward

5K2.0

departures were met.

see
___

also
____

United States v. Rivera, 994 F.2d 942 (1st Cir.

_____________
______

1993).

But,

by

is

the

(not-contemplated-by-commission

same

token,

unreviewable.

stringent

refusal

to

test);

U.S.S.G.

depart

We mention departures to

standards

discussed

above

normally

make clear that the

do

not

supplant the

guidelines' own rules for discretionary departures.

That

the

same core

of facts

related but

ultimately different

complexity,

although

outcome.

But

in

one not

addition

might

-11-11-

to two

claims at sentencing

often

to

give rise

the

likely

to affect

different

is a

the

procedural

framework,

there is

manipulation, as

we

with impermissible

the

guidelines,

guidelines, are

for the defendant

criminal history.

a difference

in emphasis.

have stressed,

is primarily

conduct by the government.

and

by

extension

centrally concerned

in light of

Sentencing

By contrast,

departures

with a proper

his own

concerned

from

the

sentence

conduct and his

own

Affirmed.
_________

-12-12-