US v. Arthur Lange, 11th Cir, filed 7/17/17: Sentence Manipulation
I chose to focus on this case because this is an issue that I’ve seen arise in other contexts as well. For example, in SC, a defendant can be charged with trafficking say, cocaine, if he attempts to purchase more than 28 grams of the substance. Any less, and he cannot be charged with that offense. And trafficking cocaine carries a mandatory minimum sentence of 25 years, so this is a serious issue. So, what I’ve seen is that a law enforcement agent (like a confidential informant) will set up a buy where the defendant is asked to purchase more than 28 grams. Maybe the defendant only wants 10 grams, but the CI will offer “a discount” for more weight– that kind of thing. It’s a practice that I find problematic, but it persists. In other words, law enforcement will set up the buy at a weight level that triggers the particular statute, even if the defendant’s desires were something below that weight.
This issue persists in the federal arena, too. In this case, the government set up 5 discrete buys. It arranged multiple transactions in part of a sting operation. Lange ended up pleading guilty to five counts of unlawful possession of a firearm, three counts of distributing Xanax, and two counts of distributing methamphetamine and Xanax. He was sentenced to 130 months’ imprisonment. On appeal, Lange raised the issue of sentencing manipulation.
Here, the Court reviewed the issue under the plain error standard because plea counsel did not raise the issue at the plea. That makes little difference here because this Court would not grant relief on this issue under any standard, in my opinion. So, the doctrine of sentencing manipulation asks “whether the manipulation inherent in a sting operation, even if insufficiently oppressive to support an entrapment defense, or due process claim, must sometimes be filtered out of the sentencing calculus.” United States v. Sanchez, 138 F.3d 1410, 1414 (11th Cir. 1998). “[T]o bring sting operations within the ambit of sentencing factor manipulation, the government must engage in extraordinary misconduct.” United States v. Ciszkowski, 492 F.3d 1264, 1271 (11th Cir. 2007). Then, “[t]his Court has never reduced a sentence on the basis of sentencing factor manipulation, see United States v. Docampo, 573 F.3d 1091, 1097-98 (11th Cir. 2009), so no binding precedent requires this Court to countenance sentencing factor manipulation as a legitimate defense.”
Well, so there.
The Court goes on to say that Lange does not identify any precedent that establishes that cops have a duty to arrest someone as soon as a single illegal transaction has occurred or that sting operations that engage in multiple transactions is extraordinary misconduct. So, without that, this claim is not getting any love from the Eleventh Circuit. This appears consistent with how these sorts of claims have been treated elsewhere, but I will remain vigilant looking for the black swan.
And here, a kitten for each gun sale.