Monday, October 14, 2013

Case o' The Week: Viva the Apprendi Revolution! (Thirteen Years later . . . ) - Cortes and "Sentencing" Entrapment at Trial

Hon. Judge Barry Silverman
In a welcome and important opinion, Judge Silverman explains the new term for “sentencing entrapment” after Apprendi.


   United States v. Cortes, 2013 WL 5539622 (9th Cir. Oct. 9, 2013), decision available here.

Players: Decision by Judge Silverman, joined by Judges Thomas and Fisher.

Facts: An undercover agent convinced Cortes to rob a (fake) stash house with “100 kilograms” of cocaine. Id. at *1. The agent bemoaned the (fictitious) cartel’s mistreatment of him, and explained that his drug boss had been sleeping with his wife. Id. at *2. Similarly cuckolded, and therefore sympathetic, Cortes allegedly coordinated a group of men to rob the stash house. Id. at *2. He was arrested, convicted, and sentenced to 20 years. Id. at *3. The district court denied Cortes’ request to instruct the jury on sentencing entrapment. Id. at *7.

Issue(s): “Cortes . . . argues that the district court erred in refusing to instruct the jury on sentencing entrapment, which is a separate affirmative defense to the quantity element of the drug charge under 21 U.S.C. § 841.” Id.

Held:We have never held that sentencing entrapment is a jury question, but the Supreme Court’s precedent and our own make clear that it must be.” Id. at *8. “A criminal defendant is entitled to present his sentencing entrapment defense to the jury if the success of that defense would result in a lower statutory sentencing range. That is, if there is some foundation in the evidence that he would be subject to a lesser statutory minimum or maximum sentence if his sentencing entrapment defense were to succeed, the he is entitled to a jury instruction on that defense.” Id. at *9. “'Facts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt.' Alleyne, 133 S. Ct. at 2158. Accordingly, we hold that sentencing entrapment must be tried to a jury where the defendant’s argument and the evidence raise the possibility of changing the applicable statutory maximum or minimum sentences.” Id. at *10.

Of Note: We in the defense bar have been arguing that “sentencing entrapment” should be a defense for the jury since Apprendi – and others felt similarly. (See United States v. Williams, 478 F.App’x 364, 366 (9th Cir. 2012)(Silverman, J., dissenting)). Two regrettable decisions – the Buckland en banc opinion in the Ninth, and the (now-overruled) Harris case in the Supremes – delayed what Judge Silverman now squarely holds is a righteous trial defense. Cortes is a must-read for those who defend federal drug crimes: by endorsing “sentencing entrapment” as a trial defense when mand-mins are involved, it opens up an entirely new realm of possibilities when defending these tough, high-exposure charges. Cortes is a good stash-house decision, but a seminal decision for the defense of federal drug cases.  

How to Use: Sparks from Cortes ignite two immediate and welcome changes. First, because confidential informants are so often central to the claim of sentencing entrapment, Cortes now pushes CI disclosure pretrial, to permit for adequate investigation and preparation for trial. Put differently, the Cortes sentencing entrapment defense now forces the government to deal cases on reasonable terms, or burn their snitches well before trial (while a defendant can still plead and snag two points for acceptance).  
  Cortes also now requires earlier Brady / Giglio disclosure. Dirt on the snitch is material impeachment evidence that goes to a trial defense: sentencing entrapment. Cortes instantly shifted the government’s Brady / Giglio disclosure burden far earlier, to the pretrial context. Modify discovery letters with a cite to Cortes and demands for early CI and Giglio disclosure: this brave new world of Apprendi defenses at trial presents new discovery frontiers ripe for exploration.
For Further Reading: In Cortes, Judge Silverman astutely observes that “following Apprendi, . . . ‘sentencing entrapment’ is a bit of a misnomer.” Id. at *7. Drug quantity is “an element of the offense,” “not a sentencing enhancement or factor,” so this variety of government coercion or enticement is now a straight-up entrapment theory cognizance at trial. Id. For a useful collection of authority on this defense, see the outline here.  

Image of the Honorable Judge Barry Silverman from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


Labels: , , , , , , , , ,


Post a Comment

<< Home