United States v. Eric Wagner, 06-1644.  Eric Wagner was charged with eight counts of selling a firearm to a convicted felon in violation of 18 U.S.C. § 922(d)(1) and eight counts of distributing marijuana in violation of 21 U.S.C. § 841(a)(1). On October 20, 2005, Wagner pleaded guilty to one count of selling a firearm to a convicted felon and one count of distributing marijuana. The remaining counts were dismissed.

Wagner contends that the district court erred in applying the U.S.S.G. § 2K2.1(b)(5) enhancement for two reasons, : (1) the evidence at sentencing was insufficient to establish that he transferred a firearm with knowledge, intent, or reason to believe that the firearm would be used or possessed in connection with another felony offense; and (2) the government engaged in sentence manipulation by programming the Confidential Informant to make certain statements while purchasing firearms from the defendant in an effort to enhance his sentence.

The 7th Circuit finds that a factual determination is clearly erroneous only if, after considering all of the evidence, the reviewing court is left with the firm conviction that a mistake has been made. Where there are two permissible inferences from the evidence, the district court’s choice between them cannot be clearly erroneous. United States v. Wyatt, 102 F.3d 241, 246 (7th Cir. 1996).

In the case of Wagner, because the district court’s factual determinations are supported by the record and not clearly erroneous, the Seventh Circuit affirmed the district court’s application of the four-level sentencing enhancement pursuant to U.S.S.G. § 2K2.1(b)(5).

Regarding the doctrine of sentencing manipulation, the 7th Circuit finds that a claim of sentencing manipulation "is distinct from a claim of sentencing entrapment, which occurs when the government causes a defendant initially predisposed to commit a lesser crime to commit a more serious offense." United States v. Garcia, 79 F.3d 74, 75 (7th Cir. 1996).

Specifically, "The doctrine of sentencing manipulation states that a judge cannot use evidence to enhance a defendant’s sentence if the government procured the evidence through outrageous conduct solely for the purpose of increasing the defendant’s sentence under the Sentencing Guidelines.  United States v. Messino, 55 F.3d at 1256.

HELD:  There is no defense of sentencing manipulation in the 7th circuit. 

Wagner argues that the government engaged in sentencing manipulation by programming the Confidential Informant to make certain statements that Wagner to lengthen his sentence.  The Seventh Circuit disagreed, stating that although SA Richardson admitted that the government’s decisions to prolong the investigation and direct the CI to make certain statements to Wagner were motivated in part by the desire to increase his sentence, this was not the government’s sole purpose. The record is clear that the government was investigating the sale of guns to prohibited persons. 

Wagner had the opportunity to refuse to sell the CI firearms but failed to do so. Similar to the Garcia case, the government is not the cause of the predicament in which Wagner finds himself; he is.

AFFIRMED

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