Downward Departures Based on Entrapment

If a reverse sting operation involves government agents selling drugs (as opposed to buying them) to defendants at below market prices which entices them to purchase more than they would otherwise, this may qualify the defendants for a downward departure in the Sentencing guidelines.

Sentencing entrapment occurs when a criminal predisposition exists but government agents engage in originating conduct that increases the defendant’s conduct to a great extent, thereby exposing the defendant to harsher punishment.

What level of enticement by the government is required? Some circuits require conduct that constitutes “outrageous” government conduct that overcomes the will of the defendant. Other circuits have held that it doesn’t need to rise to that level to constitute a downward departure based on entrapment.

The court must evaluate mitigating circumstances that indicate that a defendant would not otherwise engage in such conduct whereby government agents suggest particular offenses to trigger a higher sentence.

There is also a theory for lesser entrapment under the Guidelines 5k2.12 for conduct caused by duress or coercion but is not enough for an entrapment reduction even though it constitutes aggressive encouragement and in some cases origination of wrongdoing. The D.C. Circuit Court recently held that a court must discredit considering non-frivolous factors at sentencing.

The 9th Circuit has stated that evidence of sentencing entrapment must be presented to the jury via jury instructions and that evidence of inducement may include government pressure or persuasion in whatever form it takes.

Skilled counsel at Walk Free Law can adequately present such entrapment theories to a jury even if they rise only to an imperfect entrapment defense.

5k2.12 downward departure for duress or coercion has been upheld in the 9th Circuit where the government added suppressors to the guns to change the nature of the guns sold and was even been granted in a murder-for-hire case where there was found to be imperfect entrapment through the use of a confidential informant as well as encouragement from government agents to complete the crime.