The government points out the evidence showed, inter alia, the following: Robert MacFarlane told Jack Coker that his people wanted four kilograms; Todd Wright and Mustakeem discussed four kilograms, and the price per kilogram was based on that amount; and that during a discussion about the details of the purchase of the cocaine, Mustakeem said that he "first wanted to buy a kilo and see how everything works, like, and if everything is okay, we come back tomorrow."
Based upon the trial record as set forth by the government, the government has demonstrated by at least a preponderance of the evidence that Mustakeem was a full participant in the conspiracy and reasonably foresaw the full quantity of narcotics involved (four kilograms). For this reason, the Court applied the sentencing guidelines, in particular, sections 1B1.3 and 2D1.1, in a manner consistent with the later amendments, by sentencing him for the distribution of narcotics by the conspiracy that was "within the scope and in furtherance of the activity [Mustakeem] agreed to undertake." Collado, 975 F.2d at 992.
Thus, Mustakeem was sentenced for his own conduct, the scope of his own agreement and the "reasonable foreseeable" conduct of his co-conspirators. For these reasons, the Court did not misapply the guidelines or the amended commentary, and did not violate Mustakeem's due process liberty interests.
B. Sections 2D1.1 and 1B1.3 of the Sentencing Guidelines are Applicable in a "Reverse-Sting" Operation
Mustakeem next contends that the provisions of the Sentencing Guidelines are inapplicable to a reverse-sting operation especially when the Government, rather than the accused or his confederates, establishes the specific amount of the substances involved in the transaction.
Mustakeem has not cited any authority, nor has the Court through its own independent research, found any authority binding upon the Court which dictates that the Sentencing Guidelines are inapplicable in a "reverse sting" operation. Moreover, as the Court explained in its Memorandum Opinion of March 4, 1991, reverse sting operations were mentioned during the legislative debate regarding the "Omnibus Drug Initiative Act of 1988," 134 Cong. Rec. S15990 (daily ed. October 14, 1988), indicating Congress' intention for the sentencing guidelines to apply to reverse sting operations. For these reasons, the Court will reject Mustakeem's argument and finds that the Sentencing Guidelines clearly apply in a "reverse sting" operation.
C. Section 2D1.1 is Applicable to Mustakeem's Sentencing Because He Engaged in An Action Which Was "Intended to Produce or Reasonably Capable of Producing Such Substances"
Lastly, Mustakeem asserts that the provisions of section 2D1.1 are inapplicable to the instant conspiracy because Mustakeem did not produce any controlled substances or engage in any acts which were "intended to produce or reasonably capable of producing such substances". In making this argument, Mustakeem assigns too literal a meaning to the term "produce."
In addressing the language of Note 12 of section 2D1.1, courts have not hesitated to interpret that language according to context. United States v. Raven, 39 F.3d 428, 436 (3d Cir. 1994). See also United States v. Brooks, 957 F.2d 1138, 1151 (4th Cir. 1992) (language in question applied to a purchaser because the note "speaks of 'traffic in a controlled substance,' . . . a term sufficiently broad to encompass the purchase and sale of controlled substances"); United States v. Tillman, 8 F.3d 17, 19 (11th Cir. 1993) (in a case where defendant was a seller of drugs, "to 'produce' means to obtain or deliver, as well as to manufacture").
In Raven, the Third Circuit analyzed the phrase at issue in the context of a defendant who had been convicted of conspiring to transport drugs. In its analysis, the court stated "it seems obvious, then, that the word 'produce' must vary according to context. . . . When the defendant is a drug buyer, Note 12 would address the quantity of drugs that the defendant intended to purchase and was reasonably capable of purchasing." Raven, 39 F.3d at 437 (emphasis added).
When sentencing Mustakeem, the Court applied section 2D1.1 in a manner consistent with the later amendments and with Third Circuit precedent. Mustakeem was sentenced based on the quantity of drugs that he intended to purchase and was reasonably capable of purchasing.
For the foregoing reasons, Mustakeem's supplemental petition to correct his sentence pursuant to 28 U.S.C. § 2255 will be denied only as to the challenge seeking to vacate, set aside or correct sentence based on a constitutional right to due process of law.
ORDER OF COURT
AND NOW, this 14th day of April, 1995, it is hereby
ORDERED that Defendant's Supplemental Motion to Vacate, Set Aside or Correct Sentence (Document No. 150) is hereby DENIED as to that portion which seeks to revised Mustakeem's sentence based on a due process challenge.
Donald J. Lee
United States District Judge