USA v. Richard Turner, No. 08-2413.
Richard Turner was a drug dealer operating in Chicago Heights, Illinois. He engaged in two drug sales in 2004 that formed the basis of his subsequent indictment, conviction, and sentence. The first occurred on September 30, when, in exchange for $800, Turner sold approximately 25.4 grams of crack cocaine to a government informant. The second sale was on October 7, when Turner sold the same individual approximately 26.4 grams of crack cocaine, again for $800.
Combined, Turner sold a total of slightly less than fifty-two grams of crack cocaine to the government informant.
On January 10, 2008, Turner pled guilty to Count One of the indictment pursuant to a written plea agreement and admitted the facts contained in Count Two. The district court later sentenced Turner to 136 months' imprisonment and five years' supervised release.
On appeal, Turner contends that the district court erred by not considering various mitigating factors when calculating his sentence. We construe all of Turner's arguments as challenges to the substantive reasonableness of the imposed sentence. When, as here, the district court followed proper procedures in determining a sentence within the applicable Guidelines range, we presume that the sentence was reasonable and review only for an abuse of discretion.
Bearing these issues in mind, we now turn to the substance of Turner's arguments, beginning with his claims under the related doctrines of sentencing manipulation and sentencing entrapment.
In United States v. Garcia, 79 F.3d 74 (7th Cir. 1996), we distinguished claims of sentencing manipulation from those of sentencing entrapment. Sentencing manipulation arises "when the government engages in improper conduct that has the effect of increasing a defendant's sentence." Id. at 75.
Sentencing entrapment, meanwhile, "occurs when the government causes a defendant initially predisposed to commit a lesser crime to commit a more serious offense." Id.
In support of his sentencing manipulation claim, Turner states that the government had enough evidence to convict him after the first controlled drug buy on September 30, and that the purpose of the second controlled drug buy was merely to increase his sentence. Turner's sentencing entrapment claim is based on his self-proclaimed status as a small-time, "dime-bag" dealer who was not predisposed to sell the quantity of drugs requested by the informant.
We dispatch first with Turner's sentencing manipulation claim.
As the district judge acknowledged, our circuit does not recognize the sentencing manipulation doctrine. Id. at 76; see also United States v. White, 519 F.3d 342, 346 (7th Cir. 2008); United States v. Veazey, 491 F.3d 700, 710 (7th Cir. 2007). Turner concedes this prece-dent but encourages us to reconsider the court's position, pointing to other circuits that have reached the opposite conclusion. See, e.g., United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007) (recognizing sentencing manipulation as "a viable defense"); United States v. Rizzo, 121 F.3d 794, 801 & n.11 (1st Cir. 1997).
We decline Turner's invitation. There is no constitutional right to be arrested at the exact moment that police acquire probable cause. Garcia, 79 F.3d at 76. We will defer to the discretion of law enforcement to conduct its investigations as it deems necessary for any number of reasons, including, for example, to ensure that there is sufficient evidence to obtain a conviction, to obtain a "greater understanding of the nature of the criminal enterprise," and to ensnare co-conspirators. Id.
Turner's sentencing entrapment argument suffers the same fate, albeit for different reasons. Unlike sentencing manipulation, sentencing entrapment is a doctrine that our court does recognize.
To succeed on such a claim, however, a defendant must pass a high bar, which Turner fails to do. The defendant must show (1) that he lacked a predisposition to commit the crime, and (2) that his will was overcome by "unrelenting government persistence." United States v. Gutierrez-Herrera, 293 F.3d 373, 377 (7th Cir. 2002) (quotations omitted). The government may rebut such claims by demonstrating that the defendant was predisposed to violate the law without " 'extraordinary inducements.' " White, 519 F.3d at 347
In White, the defendant, Juan White, was the subject of a drug investigation and sold 57.2 grams of crack to a repeat customer who, unbeknownst to White, was cooperating with the government. Id. at 344. On appeal, White argued that the government instructed the informant to buy a large amount of cocaine only to trigger a higher sentence. Id. at 346.
We refused to grant relief, stating: "In spite of the fact that the purchase was a departure from [the informant's] previous buying patterns with White, the fact that White, a drug dealer with a history of dealing crack, readily acceded to [the informant's] request undercuts any possible theory of sentence entrapment in this case." Id. at 347.
We see no notable distinctions between this case and White.
Turner has a history of selling crack, which he has admitted to doing for a number of years prior to his arrest. He presents no evidence that the government was unrelenting in its attempts to purchase higher quantities of drugs than he usually sold or engaged in inducements that were otherwise extraordinary. In his brief, Turner offers only that he was "surprised" to receive such a large order, but surprise is certainly no substitute for a lack of predisposition. And at oral argument, Turner's counsel conceded that there were no examples of extra-ordinary inducement or unrelenting pressure. As a result, we find no merit in Turner's claims for sentencing entrapment.
For the foregoing reasons, we AFFIRM Turner's sentence.
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