5.3 Sentencing Entrapment

Comment 

            Sentencing entrapment is a separate defense from entrapment and, in appropriate cases, an issue for the jury.  “A defendant ‘bears the burden of proving sentencing entrapment by a preponderance of the evidence.’”  United States v. Biao Huang, 687 F.3d 1197, 1203 (9th Cir. 2012) (quoting United States v. Parilla, 114 F.3d 124, 127 (9th Cir. 1997)).  “The district court must make express factual findings regarding whether the defendant has met his burden.”  Id. (citing United States v. Riewe, 165 F.3d 727, 729 (9th Cir. 1999) (per curiam)).  When a defendant contends that he or she was entrapped as to the quantity of drugs involved in the crime, see United States v. Cortes, 757 F.3d 850, 864 (9th Cir. 2014), and United States v.Yuman-Hernandez, 712 F.3d 471, 474-75 (9th Cir. 2013).

            Sentencing entrapment should not be confused with sentencing manipulation.  A defendant may be eligible for a downward departure or variance for sentencing entrapment where he “can show he was predisposed to commit a minor or lesser offense, but was entrapped to commit a greater offense, subject to greater punishment . . . .”  United States v. Boykin, 785 F.3d 1352, 1360 (9th Cir. 2015) (citing United States v. Mejia, 559 F.3d 1113, 1118 (9th Cir. 2009)).  “In contrast, ‘sentencing manipulation’ occurs when the government increases a defendant’s guideline sentence by conducting a lengthy investigation which increases the number of drug transactions and quantities for which the defendant is responsible.”  Id. (citing United States v. Torres, 563 F.3d 731, 734 (8th Cir. 2009)).  Sentencing entrapment focuses on the defendant’s predisposition; sentencing manipulation focuses on the government’s conduct and motives.  Id. at 1360-61. 

Revised Sept. 2018