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10/16/97 COMMONWEALTH PENNSYLVANIA v. DAVID W.

October 16, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID W. PETZOLD, JR., APPELLANT



Appeal from the Judgment of Sentence December 17, 1996, In the Court of Common Pleas of Carbon County, Criminal, No. 69 CR 1996. Before Webb, J.

Before: Beck and Hudock, JJ., and Cercone, P.j.e. Opinion BY Beck, J.

The opinion of the court was delivered by: Beck

OPINION BY BECK, J.:

Filed October 16, 1997

In this case we decide whether the trial court must impose the statutory mandatory minimum sentence where the government's outrageous conduct entrapped or manipulated the defendant so as to escalate the severity of the crime he has committed.

Although we accept the principles underlying sentencing entrapment, we conclude that appellant in this case has not demonstrated that a departure from mandatory sentencing provisions is appropriate.

The facts of this case are relatively simple. Appellant sold one quarter pound of marijuana to a confidential informant (CI) who was working with state police. After the initial transaction, the CI attempted to purchase additional drugs from appellant without success. Appellant explained that he was "laying low" because he suspected he was being investigated by law enforcement. Ultimately, police decided to do a reverse sting operation wherein the CI would provide a marijuana source to appellant.

In a recorded conversation with appellant, the CI told him that a friend had access to ten pounds of marijuana. The CI explained that if he and appellant purchased the full ten pounds, they could get the drugs for significantly less than the going price for a single pound purchase. Appellant responded that he could "maybe take one." The CI then told appellant that he was interested in splitting the drugs at five pounds for each of them. Appellant explained that he would have difficulty getting the money for the transaction, but after some Discussion, appellant agreed to split the ten pound purchase, explaining that he "could move five."

Appellant later accompanied the CI to pick up the drugs. Approximately four and one half pounds of marijuana were delivered to the men by undercover police. Once the transfer took place, appellant promptly was arrested.

Appellant pled guilty to one count of possession with intent to deliver. Related charges filed against him were nol prossed. At the plea hearing, the Commonwealth gave notice of the mandatory one year minimum sentence for possession with intent to deliver over two pounds of marijuana. Counsel for appellant informed the court that he was aware of the mandatory minimum, but did not believe it applied under these facts. At the sentencing hearing, appellant claimed that the conduct of the government constituted sentencing entrapment and/or sentencing factor manipulation, therefore, imposition of the mandatory sentence was inappropriate. Despite appellant's arguments, the court imposed the mandatory sentence.

Sentencing entrapment or manipulation is a doctrine developed and adopted in several Federal Circuit Courts of Appeal. *fn1 It occurs when "a defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment." United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994). It often is asserted in narcotics matters, typically reverse sting cases, in which government agents determine the amount of drugs a target will purchase. Sentencing entrapment or manipulation is similar to traditional notions of entrapment in that it requires extraordinary misconduct by the government. United States v. Egemonye, 62 F.3d 425 (1st Cir. 1995). However, it differs from classic entrapment in that it is not a complete defense to criminal charges and, therefore, cannot serve as a basis for acquittal. Instead, it provides a convicted defendant the opportunity for a reduced sentence, typically in the form of a downward departure from the sentencing guidelines. See United States v. McClelland, 72 F.3d 717 (9th Cir. 1995), cert. denied, U.S. , 116 S. Ct. 1448 (1996). It also can be used to exclude one of several criminal transactions included in a sentencing scheme. See United States v. Connell, 960 F.2d 191 (1st Cir. 1992). It may even provide relief from a mandatory sentence. See United States v. Montoya, 62 F.3d 1 (1st Cir. 1995).

Not all federal courts have adopted the doctrine and among those that have, a variety of approaches to the issue have emerged. See United States v. Stavig, 80 F.3d 1241, 1245 n. 3 (setting forth those circuits that have accepted the sentencing entrapment defense and those that have not); United States v. Kaczmarski, 939 F. Supp. 1176, 1180-81 (E.D. Pa. 1996) (comparing cases which apply various forms of sentencing entrapment and manipulation).

In addition to the federal courts, the Federal Sentencing Commission has recognized the potential for governmental abuse in the sentencing arena. A downward departure from the guidelines explicitly is permitted where a government agent, acting in a reverse sting narcotics scheme, sets the price for drugs at a substantially below-market value, thereby leading a defendant to purchase a significantly greater amount than his or her available resources would have allowed. Stavig, (supra) , at 1246 (citing to Federal Sentencing Guideline Application Notes). Further, where a defendant is not capable of producing an amount of drugs negotiated by government agents, the court must exclude from its guidelines calculation the amount the defendant was unable to produce. Id.

After a thorough review of the federal case law regarding sentencing entrapment and manipulation, we are persuaded that sentence reduction is an appropriate and just response to outrageous government conduct designed solely to increase a defendant's term of incarceration. The right upon which the doctrine is based, due process, requires nothing less. See United States v. Garza-Juarez, 992 F.2d 896, 904 (1993) (due process violated where government conduct is excessive, flagrant, scandalous, intolerable and offensive), cert. ...


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