United States v. Ira Marvin Dickey

924 F.2d 836 UNITED STATES of America, Plaintiff-Appellee, v. Ira Marvin DICKEY, Defendant-Appellant. No. 89-50340. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 7, 1990. Decided Jan. 23, 1991. Knut S. Johnson, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant. Carol C. Lam and Nancy L. Worthington, Asst. U.S. Attys., San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before REINHARDT and LEAVY, Circuit Judges, and KING * , District Judge. LEAVY, Circuit Judge: 1 On January 4, 1989, Ira Marvin Dickey was indicted on three counts of violating federal currency laws: possession of an engraved plate for the printing of counterfeit $20 bills ( 18 U.S.C. Sec. 477 ), printing of counterfeit $20 bills ( 18 U.S.C. Sec. 471 ), and possession of three counterfeit $100 bills ( 18 U.S.C. Sec. 472 ). On February 27, 1989, Dickey pleaded guilty to the second count of the indictment; the two remaining counts were dismissed at sentencing. 2 As the result of the appellant's cooperation, the government recommended a downward departure in his sentence to a period of…

On January 4, 1989, Ira Marvin Dickey was indicted on three counts of violating federal currency laws: possession of an engraved plate for the printing of counterfeit $20 bills ( 18 U.S.C. § 477 ), printing of counterfeit $20 bills ( 18 U.S.C. § 471 ), and possession of three counterfeit $100 bills ( 18 U.S.C. § 472 ). On February 27, 1989, Dickey pleaded guilty to the second count of the indictment; the two remaining counts were dismissed at sentencing.

As the result of the appellant’s cooperation, the government recommended a downward departure in his sentence to a period of twelve months’ incarceration. See 18 U.S.C. § 3553 (e); United States Sentencing Comm’n, Guidelines Manual, § 5K1.1 (Oct. 15, 1988) (“Guidelines Manual”). Dickey argued for an additional downward departure based on both “aberrant behavior” (i.e., he had never done anything like this before) and a defense of imperfect entrapment, and asked that any period of confinement be served in a Community *838 Treatment Center (“CTC”) as part of his probation. The district court accepted the government’s recommendation and sentenced the appellant to one year’s imprisonment and three 'years’ probation, from which Dickey…

concurring in part and dissenting in part:

I join in Parts I, II, and III of the court’s opinion. However, because in my view the defense of imperfect entrapment is a “mitigating circumstance of a kind ... not adequately taken into consideration by the Sentencing Commission in formulating the guidelines,” 18 U.S.C. § 3553 (b); U.S.S.G. § 5K2.0, I cannot agree with my colleagues’ conclusion that such a defense, as a matter of law, can never serve as the basis for a downward departure. Accordingly, I dissent from Part IV of the opinion.

The majority holds that a defense of imperfect entrapment can never serve as a basis for a downward departure from the Guidelines sentencing range. My colleagues’ conclusion cannot be based on the fact that no provision of the Guidelines expressly authorizes a downward departure for an imperfect entrapment defense. After all, the whole point of a departure is to deal with circumstances which the Guidelines do not take into account or inadequately take into account. 1 I take it then that the majority believes that as a matter of law the defense of imperfect entrapment is simply not the type of mitigating factor that could ever justify a downward…