Federal Court grants sentencing entrapment argument, imposes sentence below statutory mandatory minimum

In June 2016, United States District Judge Gerald A. McHugh found that imposing the statutorily required mandatory minimum sentence on a defendant who was convicted in a stash house sting case would violate his constitutional right to Due Process of Law.

The defendant had been convicted after a jury trial of conspiracy, Hobbs Act robbery, attempted possession with the intent to distribute over five kilograms of cocaine, and carrying a firearm in furtherance of a drug crime or a crime of violence. He faced a mandatory minimum sentence of 20 years for the drug offense and a mandatory five year consecutive sentence for the firearm offense. The 20-year mandatory minimum was triggered by the quantity of cocaine involved in the case – over 5 kilograms.

However, there were no actual drugs in the case–just as there was no actual robbery in the case. The defendant was the target of a “sting” designed by ATF agents. Such stings have been used by ATF all over the country and have been criticized in numerous judicial opinions and scholarly articles as resulting in overly harsh sentences and disproportionately impacting minority communities.

In this case, an informer introduced the defendant to an undercover ATF agent who proposed a robbery of a drug stash house. Over the course of the ruse, the ATF agent suggested a scenario in which guns would be necessary to complete the robbery and the ATF agent stated the quantity of drugs that the stash house would contain, in this case proposing 8-10 kilograms. There was never an actual stash house with drug dealers and there was never any cocaine. When the defendant showed up with a gun at a prearranged meeting site, he was arrested.

At sentencing, Judge McHugh found that the quantity of drugs in the case was controlled entirely by the undercover ATF agent and that there was no indication that the defendant had ever in the past dealt in such a large quantity of cocaine or that he would have been able to access or deal with such a large quantity of cocaine absent the proposal of the ATF agent.

In an opinion reviewing the status of sentencing entrapment and sentencing manipulation doctrines across all federal jurisdictions, Judge McHugh concluded that a court had the power to ameliorate the harshness of a sentence driven entirely by government conduct. When the government agent is solely responsible for setting the quantity of drugs in a manner that automatically triggers a mandatory minimum sentence, and the evidence indicates that the defendant would have participated in the proposed robbery even with a much lower quantity of drugs, the statutorily required sentence becomes divorced from the level of the defendant’s culpability. The arbitrariness of the mandatory minimum sentence is increased by the role of the prosecution in choosing to pursue the mandatory sentence for one co-defendant, but not the other, resulting in unwarranted disparities.

Quoting from the United States Supreme Court that the “touchstone of due process is protection of the individual against the arbitrary action of government,” Judge McHugh concluded that imposing the drug-quantity driven mandatory minimum sentence would violate the substantive due process rights of the defendant. Judge McHugh considered the mandatory sentencing scheme for a lower drug quantity and imposed a sentence of 19 years instead of the 25 years the defendant was otherwise facing.

The defendant was represented in post-verdict motions and at sentencing by KRMF lawyer Susan Lin. The case is United States v. McLean, No. 13-cr-487 (E.D.Pa.).

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