United States v. Mark William Paul Staufer

38 F.3d 1103 63 USLW 2298 UNITED STATES of America, Plaintiff-Appellee, v. Mark William Paul STAUFER, Defendant-Appellant. No. 93-50173. United States Court of Appeals, Ninth Circuit. Submitted June 6, 1994 * . Decided Oct. 26, 1994. Peter M. Furguson, Santa Barbara, CA, for defendant-appellant. Mary C. Andreus, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee. Appeal from the United States District Court For the Central District of California. Before: D.W. NELSON, BEEZER and KOZINSKI, Circuit Judges. Opinion by Judge D.W. NELSON; Dissent by Judge BEEZER. D.W. NELSON, Circuit Judge: OVERVIEW 1 Mark William Paul Staufer was convicted after a jury trial on a one count indictment, charging him with possession with intent to distribute "LSD" (lysergic diethamide acid). He raises a variety of claims on appeal, challenging both his conviction and his sentence. We conclude that his challenges to his conviction are without merit. Based on the district court's factual findings, however, we are persuaded that he is entitled to a downward departure on the basis of sentencing entrapment. Accordingly, we vacate his sentence and remand. FACTUAL AND PROCEDURAL BACKGROUND 2 In August…

• Opinion by Judge D.W. NELSON; Dissent by Judge BEEZER.

OVERVIEW

Mark William Paul Staufer was convicted after a jury trial on a one count indictment, charging him with possession with intent to distribute “LSD” (lysergic diethamide acid). He raises a variety of claims on appeal, challenging both his conviction and his sentence. We conclude that his challenges to his conviction are without merit. Based on the district court’s factual findings, however, we are persuaded that he is entitled to a downward departure on the basis of sentencing entrapment. Accordingly, we vacate his sentence and remand.

FACTUAL AND PROCEDURAL BACKGROUND

In August 1992, Mark Staufer was introduced to Agent Michael Daul, a Drug Enforcement Administration (“DEA”) agent acting in an undercover capacity and posing as someone interested in purchasing LSD. The meeting was initiated and arranged by a person named Scott, who Staufer had known as an acquaintance for approximately two *1105 years. Staufer did not know, however, that Scott had been convicted and sentenced to federal prison for more than ten years and was working for the government as a confidential informant (“Cl”). The U.S. Attorney’s office…

dissenting in part:

The court’s opinion recognizes that the jury determined that Staufer was guilty of possession with intent to distribute lysergic diethamide acid and that Staufer did not prove facts sufficient to sustain an entrapment defense. I concur in parts II through V of the court’s opinion which accepts the jury verdict and affirms the conviction.

I dissent from part I which vacates Staufer’s sentence and holds that Staufer is entitled to a downward departure on the basis of “sentencing entrapment.”

Because the government had nothing to do with the supply side of this drug transaction, Staufer alone is responsible for the drugs he was prepared to deliver. Although I agree that “sentencing entrapment” theoretically provides a legal basis for downward departure, I believe that the nature of this ground is properly defined by United States Sentencing Guidelines § 2D1.1, comment, n. 17. The note permits downward departure only in reverse sting operations. Even then, the sentencing court must find that the government agent “set a price for the controlled substance that was substantially below the market value of the controlled sub-stance_” The district court properly re…