UNITED STATES DISTRICT COURT
											
________________ DISTRICT OF TEXAS

________________ DIVISION

UNITED STATES OF AMERICA	                 §
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V.	                                                                 §		NO. 
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MOTION FOR DOWNWARD DEPARTURE

	TO THE HONORABLE DISTRICT JUDGE                 :

	NOW COMES  Defendant,                 by and through his undersigned attorney, and files this Motion for Downward Departure from the Sentencing Guideline Range for his attempted possession with intent to distribute a controlled substance offense,  and would show this Honorable Court as follows.
I
Introduction
	___________ was working as a corrections officer at the __________ in San Antonio, Texas, when he was attacked by three inmates.  (1 R. 169.)1 As a result of the attack, he suffered a hairline fracture and bruises all over his body.  (Id.)  Subsequently, some members of the Texas Syndicate (Syndicate) put the word out that he was under their protection.  (Id.)  Although he suffered no further attacks, __________________ had reason to fear his purported protectors.  The Syndicate is a violent prison gang which originated in prisons in California in the early 1970s in response to the other California prison gangs (notably the Aryan Brotherhood and Mexican Mafia). (1 R. 81.); see also http://davadnai.users.omniglobal.net/ts.html (Last visited August 20, 2003).  The Syndicate is involved in drug trafficking, extortion, pressure rackets, and internal discipline, including executing hits on their own members if they fail to follow the rules.  Id.  
	In January 2002, __________ was approached by an inmate, ___________, who was known to __________ to be an “enforcer” or “soldier” in the Syndicate.   (1 R. 169.) _________ gave ___________ a telephone number and told him to call it.  (Id.) _________ complied.  As a result, __________ agreed to bring into the __________ a small quantity of marijuana and a power drink.  (Id.)  Sometime around when _________ agreed to bring in these items, government agents began working with Inmate ________ on a reverse sting operation directed at _________.   (P.R. 3.) _______ again contacted __________________, and this time __________________ instructed  him to contact his “_______” on the outside. (1 R. 173.)2 ___________ was actually undercover officer  __________________,  who was posing as a member of the Syndicate gang.   (1 R. 80–85.)  
	__________________ did as instructed, and contacted “_______.”  (P.R. 3; 1 R. 57–58, 172.)  __________________ met with _______, who gave him some cigarettes, chewing tobacco and gum to bring into Wakenhut for __________________.  (Exh. 1; P.R. 3; 1 R. 58, 61, 172.)3  Prior to that meeting, __________________ specifically asked ________ over the telephone if their meeting was about drugs, and ______ told __________________ that it was not about drugs.  (1 R. 88.)  At that meeting, however, ________ discussed a plan for __________________ to take a package of heroin into the Wakenhut.  (P.R. 3; 1 R. 58, 62, 172.)  __________________ reacted with surprise and fear at this suggestion.  (Exh. 1.)  __________________ did not agree to take heroin into the Wakenhut, in fact, he specifically refused to do so.  (Exh. 1; 1 R. 62, 74, 172.)  __________________ put off __________, whom he clearly feared, by telling him that he would have to talk to __________________ about this.  (Exh. 1.)  
	After this initial meeting, Inmate _________, who had every incentive to try and make a case against __________________, again insisted that __________________ contact _________.  (172–73.)   There is no indication, however,  that __________________ ever mentioned heroin to __________________.  In fact, Agent __________________ readily acknowledged that because of the nature of this particular sting operation, he could not observe what __________________ might have been telling __________________.  (1 R. 95–97.)  __________________ also acknowledged that inmates in __________________’s position are often looking for a way to reduce their sentence–such as making cases against people, or “turning people in.”  (1 R. 95–96.) 
	__________________ made several unsuccessful attempts to comply with __________________’s instruction that he contact __________________ again.  (P.R. 3; 1 R. 62–63; 173.)  During the time when __________________ was unable to reach Ruben, Inmate __________________ told __________________ that Ruben was “taking care of some business in Houston.”  (1 R. 173.)  __________________ also told __________________ that he had  put out a “hit” on someone in Houston.  (Id.)  When __________________ and Ruben finally met again—the March 26th meeting— Ruben confirmed that he had been in Houston “taking care of business,” thus leaving the very nervous __________________ with the impression that he was dealing with a Syndicate hit man.  (1 R. 103, 108, 118, 173.)   At this meeting, Ruben gave __________________ a package, and said “here is the heroin.”  (1 R. 174.)  __________________ again reacted with surprise and anxiety at the suggestion that he would be dealing with heroin.  (Exhs. 5 and 5A.)4  He specifically told Ruben that he did not want any heroin; he said to Ruben “I don’t want heroin. I told him, ‘goddammit, Ruben,’ okay?.”  ( 1 R. 73, 174.)  
	Agent __________________ (__________________) testified at trial that __________________ said “I don’t want heroin.”  (1 R. 107.)  In response to __________________’s declaration that he did not want to deal with heroin, the agent said “ Look we can do this. We can make some money” and “Maybe we can do this once or twice a month.  We can do this, man.”   Id.  The agent acknowledged, that he was “being persistent” and “trying to convince” __________________ to take heroin into the Wakenhut.  Id.    __________________ again tried to put off __________________ by telling him everything is going to be okay, and he also asked Ruben if they could just “die it down for a little bit.”  (Exhs. 5 and 5A; 1 R. 73, 174.)  Ruben agreed, but nonetheless,  gave __________________ the package of heroin, which __________________ took along with the $500. (Id.)  
	__________________ never delivered the package as instructed.  He was arrested when he arrived at Wakenhut.  __________________ was tried and convicted for attempted possession of more than 100 grams of heroin with intent to distribute, in violation of 21 U.S.C. §§ 841, 846.  The Probation Officer prepared a presentence report in which she calculated __________________’s  guideline range at 78 to 97 months’ imprisonment.  (P.R. 11.)  __________________ moves for a downward departure from this range based on sentencing entrapment and manipulation by the government agents. Specifically, the coercive circumstance under which __________________ came to possess the purported heroin removes this case from the heartland of attempted possession with intent to distribute heroin offenses.  The government’s conduct in orchestrating a sting operation, using an agent posing as a feared member of a violent prison gang, supports __________________’s departure request.  In addition, a downward departure is appropriate given the undercover agent’s persistence in requesting __________________’s cooperation with the heroin distribution scheme despite his repeated refusals.  And finally, the agent’s intentional selection of a specific drug quantity and type solely for the purpose of “ratcheting up” __________________’s eventual sentence supports a downward departure.
II
Argument and Authorities
	The sentencing court may depart from the applicable guideline range when it “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b); see also U.S.S.G. §5K2.0, p.s. (same). The Sentencing Commission “did not adequately take into account cases that are, for one reason or another, ‘unusual.’” United States v. Rodriguez-Montelongo, 263 F.3d 429, 432 (5th Cir. 2001) (quoting Koon v. United States, 518 U.S. 81, 93 (1996)). The Guidelines enumerate certain factors that can never be a basis for departure. See Rodriguez-Montelongo, 263 F3d 429, 432; see also U.S. Sentencing Guidelines Manual § 5H1.10 (prohibiting consideration of race, sex, national origin, creed, religion, and socio-economic status); id. § 5H1.12 (prohibiting consideration of lack of guidance as a youth); id. § 5H1.4 (prohibiting downward departure for drug or alcohol dependence). Aside from the limited number of categorical prohibitions, however, the Sentencing Commission did “not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.” U.S. Sentencing Guidelines Manual ch. 1, pt. A, intro. cmt. 4(b); see also Koon, 518 U.S. 81, 93.  “When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.”   United States v. Hemmingson, 157 F.3d 347, 360 (5th Cir. 1998) (quoting U.S.S.G. Ch.1, Pt. intro. comment. 4(b)).  
III
The Conduct of Government Agents in this Case, Amounting to Sentencing Entrapment Supports a Downward Departure

	Prior to the involvement of the government agent in this case, the only controlled substance __________________ had agreed to bring into Wackenhut was a small amount of marijuana.  __________________ had shown no predisposition to engage in an offense of the magnitude orchestrated by the government agent.  To the contrary, upon the agents’s request that __________________ bring heroin into Wackenhut, __________________ repeatedly refused.  __________________’s reluctance to engage in this significantly more serious conduct was overcome by the inherently coercive circumstances set-up by the undercover agent.   The government’s conduct in orchestrating a reverse sting operation, using an agent posing as a feared member of a violent prison gang, supports __________________’s departure request, as does  the  agent’s persistence in requesting __________________’s cooperation with the heroin distribution scheme despite his repeated refusals to do so.  __________________ asks that the Court grant a downward departure from the guideline range based on sentencing entrapment.  
	Sentencing entrapment is the claim that “a defendant, although predisposed to commit a minor or lesser offense, is entrapped into committing a greater offense subject to greater punishment.” United States v. Stuart, 923 F.2d 607, 614 (8th Cir 1991) (describing sentencing entrapment but refusing to find that sentencing entrapment had in fact occurred); United States v. Staufer, 38 F.3d 1103,1106 (9th Cir.1994) (citing the definition in Stuart); see generally Joan Malmud, Defending a Sentence: The Judicial Establishment of Sentencing Entrapment and Sentencing Manipulation Defenses, 145 U. Pa. L.Rev. 1359 (May 1997).5  The focus of the sentencing entrapment defense is the defendant’s mental state—whether he was predisposed to commit the crime to the extent that he did.  Snow, 309 F.3d at 295; Staufer, 38 F.3d 1103, 1106.  
	In Staufer, for example, the district court found that prior to Staufer’s involvement with a confidential informant working with government agents, Staufer, who was convicted of possession with intent to deliver 10, 000 doses of LSD,  had not engaged in any drug deals of a similar magnitude.  Staufer’s prior drug sells were limited to a few doses sold to a friend for $8.  The district court in that case found that Staufer, when approached by a government agent, had  initially wanted to sell only 5000 doses of LSD, but upon the undercover agent’s insistence and his offer of more money, Staufer sold 10,000 doses.  Because the court found that Staufer was not predisposition to committing the crime to the extent charged, and only did so because of the coercive circumstances orchestrated by the government agents, the court granted a downward departure based on sentencing entrapment.  See Staufer, 38 F.3d 1103, 1106.
	In this case, as in Staufer, __________________ was not predisposed to engage in an offense of the severity as the one orchestrated by the government agents.  	Agent __________________, who posed as a “________” of a violent prison gang,  intentionally placed __________________ in a position where he reasonably feared for his safety, and when __________________ said he would not deliver heroin, the agent persisted in his requests that he do so.  The agent acknowledged that he heard __________________ say “I don’t want heroin.”  (1 R. 107.)  In response to __________________’s declaration that he did not want to deal with heroin, the agent said “ Look we can do this. We can make some money” and “Maybe we can do this once or twice a month.  We can do this, man.”   Id.  The agent acknowledged, that he was “being persistent” and “trying to convince” __________________ to take heroin into the Wakenhut.  Id.  
	The agent also acknowledged that he intentionally portrayed himself to __________________ as a member of the Texas Syndicate.  (1 R. 101.)  The agent recounted how he told __________________ that he “had been in Houston taking care of business” and how he “was just out here taking care of [his] carnales.”  Id.  The agent also verified that incarcerated members of the Texas Syndicate can give orders to their members on the outside, and that those outside members will execute those orders, including even committing a “hit” if instructed to do so.  (1 R. 102-3.)  When the agent was asked whether he left __________________ with the impression that when he had been in Houston carrying out a hit for the Syndicate, the prosecution objected that the question called for speculation.  (1 R. 108.)  However, any speculation on that point was clarified by the statement __________________ gave to the police upon his arrest.  He stated that he believed that the guy who had given him the package—the person who unbeknownst to __________________ when he made the statement was in fact Agent  __________________— had been involved in a hit in Houston at inmate __________________’s orders.  (1 R. 173-74;Exh. 11.)  These exceptional circumstances, that compelled __________________ to commit a more serious offense than he was otherwise predisposed to commit, remove this case from the “ heartland” of attempted possession with intent to deliver heroin cases.  As such, a downward departure is appropriate.
IV
The Conduct of Government Agents in this Case, Amounting to Sentencing Factor Manipulation Supports a Downward Departure

   	In addition to sentencing entrapment, __________________ moves for a downward departure based on sentencing factor manipulation.  While sentencing entrapment focuses on the defendant’s predisposition, sentencing factor manipulation focuses on the government’s conduct.  A sentencing manipulation claim asserts that a defendant should not be sentenced as heavily as strict adherence to the Guidelines would otherwise require because the government acted improperly for the sole purpose of increasing the defendant’s sentence.  See Defending a Sentence: The Judicial Establishment of Sentencing Entrapment and Sentencing Manipulation Defenses, 145 U. Pa. L.Rev. at 1373.  As courts have recognized, the Sentencing Guidelines’ mechanism of boosting sentences based on the cumulation of drug amounts has the potential for abuse by police.  See United States v. Calva, 979 F.2d 119, 123 (8th Cir. 1992) (same).  A sentencing manipulation claim arises when the government “ratchets up a defendant’s drug sales or other conduct merely to increase his sentence.”  Id. at 122; see also United States v. Lacey, 86 F.3d 956, 963 (10th Cir. 1996) (recognizing potential sentencing departure claim where sufficiently egregious government conduct was designed to ratchet up the severity of the transaction for purposes of sentencing); United States v. Sivils, 960 F.2d 587, 598-99 (6th Cir. 1992)(recognizing fundamental fairness defense against a higher sentence where defendant can demonstrate that the government manipulated the dollar amount of cocaine to increase his sentence). 
	The sentencing guidelines specifically recognize the propriety of downwardly departing in  a situation where an agent’s manipulation of the amount of drugs involved leads to a higher sentence.  See  Guideline §2D1.1 , comment. (n.14) (providing for a downward departure where, “in a reverse sting [operation]6. . . , the court finds that the government agent set a price for the controlled substance that was substantially below the market value of the controlled substance, thereby leading to the defendant's purchase of a significantly greater quantity of the controlled substance than his available resources would have allowed him to purchase except for the artificially low price set by the government agent”).
	In __________________’s case, there is strong evidence of sentencing factor manipulation.   Agent __________________ admitted that it was no coincidence that the quantity of “drug” that he selected was 150 grams.  (1 R. 99.)  __________________ knew that for this offense to be a very serious one, the weight had to be over 100 grams.  (Id.)  __________________ also acknowledged that if he had handed over a package the same size of marijuana that this offense would only be a misdemeanor.   (Id.)  __________________ testified that in order to “safely get over the 100-gram quantity,” he preselected 150 grams of the substance he claimed to be heroin.  (Id.)  By the officer’s own testimony it is clear that __________________ selected the quantity and type of substance involved merely to enhance __________________’s eventual sentence.  
	This case is distinguishable from the situation in Calva, where the court rejected the defendant’s sentencing manipulation claim because Calva failed to present evidence that the government’s continued drug purchases were done merely to enhance Calva’s eventual sentence.  979 F.2d 119, 122–23.  In that case, the court noted that the government’s continued drug purchases were properly done “to probe the depth and extent of a criminal enterprise, to determine whether coconspirators exist[ed], and to trace the drug deeper into the distribution hierarchy.”  Calva, 979 F.2d 119, 123 (noting government’s success in snaring Calva’s cocaine supplier, and arresting a coconspirator).  Unlike the instant case, Calva did not involve a reverse sting.  In __________________’s case, because of the “reverse sting” nature of the operation, there was no need for the government agents “to probe the extent of the criminal enterprise,” or “to determine whether coconspirators existed.”  The agent and the CI posed as the drug traffickers, and __________________ was drawn into the operation to act as an isolated middleman in the distribution chain.  Therefore, no legitimate law enforcement purpose existed justifying the agent’s intentional selection of a significantly more serious drug quantity and type than __________________ had previously been suspected of delivering.  This is especially so given __________________’s clear reluctance to engage in this conduct.  
	By Agent __________________’s testimony, it is clear that the choice of drug quantity and type was made with __________________’s eventual sentence in mind.  It was intended to have a punitive effect, to ensure that __________________ would be more severely punished for his prior conduct—bringing in a small quantity of marijuana and other prohibited items such as chewing gum—than the guidelines would have otherwise allowed.7  This is the type of sentencing factor manipulation that warrants a downward departure.  Cf U.S.S.G. §2D1.1 , comment. (n.14) (downward departure warranted in reverse sting operation where government agent sets artificially low price, thereby leading defendant to purchase significantly greater quantity of controlled substance).
VI
Prayer
	 For all these reasons, it is respectfully requested that the Court depart downward from the guidelines.
						Respectfully submitted.

						___________________________
						Attorney for Defendant

CERTIFICATE OF SERVICE
	I certify that I served a copy of the foregoing Defendant’s Motion for Downward Departure on _____________, United States Attorney for the __________ District of Texas (ATTN: Assistant United States Attorney _____________), by hand-delivery at her office at _________________, on _______________.

						Attorney for Defendant