United States v. Floyd

375 F. App'x 88

• Court: Court of Appeals for the Second Circuit
• Decided: April 29, 2010
• Docket: 09-0040-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

Defendant John Floyd, who pleaded guilty to two counts of possession of cocaine base with intent to distribute, see 21 U.S.C. § 841(a), challenges his 120-month sentence, the minimum mandated by 21 U.S.C. § 841(b)(1)(A). Floyd asserts (1) abuse of district court discretion in failing to depart from the statutory minimum sentence, and (2) prosecutorial sentencing entrapment or manipulation. We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.

1. Statutory Minimum,

Floyd’s challenge to his receipt of the statutory minimum sentence merits little discussion. A district court’s discretion to depart from the Sentencing Guidelines, see, e.g., United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Jones, 531 F.3d 163, 171 n. 5 (2d Cir.2008), does not extend to mandatory minimum sentences set by Congress, see Kimbrough v. United States, 552 U.S. 85, 107, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (stating that “sentencing courts remain bound by the mandatory minimum sentences prescribed in the 1986 Act” 1 ); United States v. Samas, 561 F.3d 108, 110 (2d Cir.2009) (“[A] district court must impose a statutorily mandated sentence even if the court would reach a different determination if it considered only [18 U.S.C.] § 3553(a).”); United States v. Chavez, 549 F.3d 119, 135 (2d Cir.2008) (same); United States v. Jimenez, 451 F.3d 97, 102 (2d Cir.2006) (same). Accordingly, the district court correctly concluded that it “ha[d] no choice” but to impose the statutory minimum sentence. Sent’g Tr. at 12.

2. Sentencing Entrapment or Manipulation

We similarly identify no merit in Floyd’s sentencing entrapment or manipulation challenge. As Floyd acknowledges, this court has not embraced either theory as a ground supporting sentence reduction. See United States v. Gagliardi, 506 F.3d

140,148-49 (2d Cir.2007); United States v. Bala, 236 F.3d 87, 93 (2d Cir.2000). Even if we were to do so, however, Floyd’s claim would fail.

Floyd complains that the government arranged for him to purchase seventy grams of cocaine base — an amount triggering the ten-year mandatory minimum-after he had already sold an informant thirty grams of cocaine base — triggering a five-year minimum — one month earlier. This record hardly demonstrates that government agents induced Floyd “to commit an offense that []he was not otherwise predisposed to commit.” United States v. Caban, 173 F.3d 89, 93 n. 1 (2d Cir.1999) (internal quotation marks omitted) (defining sentencing entrapment). Floyd’s predisposition to sell seventy grams of cocaine base was in fact evidenced by his willingness and ability to complete the transaction on short notice. Law enforcement efforts to test the scope of a drug dealer’s criminal activities by proposing to purchase increasingly larger quantities of drugs do not constitute “outrageous official conduct,” which would, at a minimum, be necessary to demonstrate sentencing manipulation. United States v. Gomez, 103 F.3d 249, 256 (2d Cir.1997) (noting that “even where [sentencing manipulation] has been approved in theory, its potential application has been limited to outrageous official conduct” (internal quotation marks omitted)).

Floyd nevertheless asserts that “the circumstances of [his] criminal history highlight the government’s unconstitutional role in determining his sentence.” Appellant’s Br. at 14 (capitals omitted). To the extent Floyd’s argument asserts district court error in calculating his criminal history, his challenge is unavailing. Floyd had two prior convictions — one in 2001 for reckless endangerment in the second degree after he led police officers on a high-speed chase in heavy expressway traffic, see N.Y. Penal Law § 120.20; and another in 2006 for criminal possession of a weapon in the fourth degree, see id. § 265.01. These convictions plainly supported two criminal history points, see U.S.S.G. § 4Al.l(c), making Floyd statutorily ineligible for “safety valve” treatment, see 18 U.S.C. § 3553(f)- Thus, the district court “did not have the discretion to award ... only one point under the Guidelines once it had determined, by the process provided by the Guidelines, that [Floyd] had two such points.” United States v. Barrero, 425 F.3d 154,157 (2d Cir.2005).

We have considered Floyd’s other arguments on appeal and conclude that they are without merit. Accordingly, we AFFIRM the judgment of the district court.

1 . The 1986 Act refers to the Anti-Drug Abuse Act of 1986, which prescribes, inter alia, the ten-year mandatory minimum for possession with intent to distribute fifty grams or more of cocaine base that the district court applied in this case. See 21 U.S.C. § 841(b)(l)(A)(iii).