On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 07-cr-00054) District Judge: Honorable David Stewart Cercone.
The opinion of the court was delivered by: Hardiman, Circuit Judge.
Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.
James Sed appeals his judgment of conviction, claiming the Pennsylvania State Police violated his Fourth Amendment rights when they arrested him in Ohio. Sed also claims the District Court erred when it failed to reduce his sentence because of "sentencing entrapment" or "sentencing factor manipulation."
In 2006 Sed became the subject of a Pennsylvania State Police investigation into cocaine trafficking by Mark Grannison. Believing that Grannison supplied crack cocaine to Sed, the State Police twice arranged for an informant named Tyrone Offie to solicit Sed to sell drugs to State Trooper Michael Poulos, who was acting undercover.
The first controlled purchase occurred on April 21, 2006. On that date, Sed was traveling by car with his girlfriend, Stacie Hickman, when they met up with Poulos and Offie, who were traveling in an unmarked police van. During this initial meeting, Poulos "fronted" Sed $2400 to purchase two ounces of cocaine and Sed in turn placed a call to his supplier (Grannison). Soon after Grannison returned Sed's phone call, the two vehicles proceeded to the parking lot of Alisa's Café in Sharon, Pennsylvania, very near the Ohio border. Although there had been discussion about the deal occurring in Trumbull County, Ohio, Poulos explained to Offie that the recording device they were using in the investigation was authorized for use only in Pennsylvania. In response to Poulos's demand that they remain in Pennsylvania, Offie told Sed that he refused to enter Ohio because he was facing criminal charges there. Consequently, Poulos and Offie waited in the parking lot of Alisa's Café while Sed took the $2400 Poulos had given him and rode with Hickman into Ohio to meet Grannison. Meanwhile, Pennsylvania State Troopers monitoring the situation observed Sed and Hickman meet with Grannison at the South Side Market in Ohio before returning to Pennsylvania to deliver almost 47.1 grams of crack cocaine to Poulos.
Six days later, intending to do a "buy bust," Poulos asked Sed to meet him at the Shenango Valley Mall in Hermitage, Pennsylvania so he could buy a larger quantity of crack cocaine. Unwilling to "front" the $5250 necessary to make the purchase, Poulos told Sed he wanted to meet Sed's supplier (Grannison) at the mall. Sometime after that conversation, Sed called Poulos and changed the location of the deal to a gas station at the Hermitage Plaza, a few miles from the Shenango Valley Mall. In anticipation of the deal, Poulos had assembled a "take-down" team composed of Pennsylvania State Police and local police from Sharon, Pennsylvania who stationed themselves near the gas station to make the arrest. That plan was foiled, however, when Sed insisted that the deal transpire in the same manner as the first deal. In light of this change in plans, the take-down team proceeded to the state line. Some officers established surveillance at the South Side Market in Ohio where Sed had met Grannison on April 21, while others watched the parking lot at Alisa's Café where Sed had delivered the crack cocaine to Poulos.
After they left the gas station at the Hermitage Plaza, Poulos and Offie followed Sed and Hickman to Alisa's Café. When they arrived there, Sed exited his vehicle, went to Poulos's van, obtained $5230 for the deal*fn1 , and said he would be right back. Sed and Hickman then drove to the South Side Market in Ohio to meet Grannison. Before Sed returned with the crack cocaine, Poulos saw Grannison drive a green Buick LeSabre into the parking lot of Alisa's Café to have a look at Poulos before returning to the South Side Market. Upon Grannison's return, Sed entered the green Buick LeSabre, and the two left the South Side Market. When the police believed Grannison and Sed had re-entered Pennsylvania, they stopped Grannison's car and seized 124 grams of crack cocaine. Sed was arrested and taken to the Sharon Police Department. It was later determined that Grannison's car was stopped in Ohio, less than one hundred yards from the Pennsylvania border.
Some ten months after the two controlled purchases, a four-count indictment was filed against Sed, Hickman, and Grannison. Sed was charged with: (1) conspiracy to distribute and possess with the intent to distribute fifty (50) grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), and 846 (Count 1); (2) distribution or possession with the intent to distribute five (5) grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), and 18 U.S.C. § 2 (Count 2); and (3) possession with the intent to distribute fifty (50) grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii), 846, and 18 U.S.C. § 2 (Count 3).
Before trial, Sed filed a motion to suppress evidence, claiming the arrest violated his Fourth Amendment right to be free from unreasonable searches and seizures. The District Court denied Sed's motion, and the case proceeded to trial by jury. Sed presented an entrapment defense, testifying that he had a history as a drug user and was not predisposed to sell drugs, but began selling crack cocaine only after an ...