UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
_______________
No. 95-30946
(Summary Calendar) _______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC LAWAYNE THOMAS, also known as Earl L Thomas,
Defendant-Appellant.
_______________________________________________
Appeal from the United States District Court For the Middle District of Louisiana (95 CR 28 B) _______________________________________________ May 1, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Eric Lawayne Thomas pleaded guilty to one count of possession
with intent to distribute cocaine base and one count of
distribution of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). The district court sentenced Thomas to two concurrent
terms of 228 months and a five year supervised release. On appeal,
Thomas raises several points of error.
Thomas contends that the government impermissibly manipulated
* Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. his sentence by delaying his arrest until he had sold over five
hundred grams of crack cocaine to the undercover agent, in order to
"ratchet-up" his base offense level.1 We have yet to recognize the
claim of sentence factor manipulation2 in this circuit, but instead
have evaluated these claims under the due process "outrageous
conduct" standard.3 See United States v. Tremelling, 43 F.3d 148,
151-52 (5th Cir.) (declining to recognize claim of sentence
manipulation, but instead applying due process test to determine if
the government had impermissibly manipulated the amount of drugs),
cert. denied, ___ U.S. ___, 115 S. Ct. 1990, 131 L. Ed. 2d 876
(1995). The record in this case supports the district court's
finding that the government did not engage in "outrageous" conduct
and that Thomas's willing participation in the escalating series of
drug transactions constituted conduct properly considered in
determining Thomas's base offense level. See United States v.
Evans, 941 F.2d 267, 273 (5th Cir.) (holding that a defendant who
actively participated in a series of drug transactions may not
avail himself of the defense of outrageous government conduct),
cert. denied, 502 U.S. 972, 112 S. Ct. 451, 116 L. Ed. 2d 468
(1991); see also United States v. Shephard, 4 F.3d 647, 649 (8th
1 Thomas engaged in a series of five transactions in which he sold crack cocaine to an undercover agent in increasingly greater amounts, culminating in the final sale of 246.6 grams of crack cocaine. 2 Sentencing factor manipulation "occurs when a defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment." United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994) (internal quotation marks omitted). 3 See United States v. Washington, 44 F.3d 1271,1279-80 (5th Cir.) (declining to address the viability of sentence manipulation claims), cert. denied, ___ U.S. ___, 115 S. Ct. 2011, 131 L. Ed. 2d 1010 (1995).
-2- Cir. 1993) (recognizing legitimate government purpose in prolonging
operation beyond initial transaction for the purpose of
"establishing guilt beyond a reasonable doubt, probing the depth
and extent of a criminal enterprise, determining whether a
conspiracy exists, or tracing the drug deeper into the distribution
hierarchy"), cert. denied, ___ U.S. ___, 114 S. Ct. 1322, 127 L.
Ed. 2d 671 (1994).
Thomas next contends that the district court improperly
considered a prior adjudication in determining his criminal history
classification. According to the presentence report, Thomas
pleaded guilty to a Louisiana state drug charge. The conviction
was later set aside, pursuant to a Louisiana statute, after Thomas
successfully completed a probationary period. Thomas argues that
this conviction should not have been considered in calculating his
criminal history because it was "expunged" from his record. See
U.S.S.G. § 4A1.2(j) ("sentences for expunged convictions are not
counted"). Thomas, however, presented no evidence to rebut the
findings in the presentence report that this conviction had merely
been set aside following a probationary period. The district court
relied on the probation officer's research concerning the
disposition of Thomas's prior sentence, and we will not disturb the
district court's finding absent evidence to the contrary. See
United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996)
(requiring defendant to demonstrate that district court's
sentencing information was "materially untrue" in order to prevail
on appeal); see also, United States v. Caswell, 36 F.3d 29, 31 (7th
-3- Cir. 1994) (declining to accept defendant's contention that prior
conviction had been expunged because the record contained no
evidence that the conviction had been expunged). Thomas pleaded
guilty to the state drug charge. Although his conviction was later
set aside, § 4A1.2(f) expressly allows the district court to
consider "a diversionary disposition resulting in a finding or
admission of guilt . . . even if a conviction is not formally
entered." U.S.S.G. § 4A1.2(f); see also United States v. Giraldo-
Lara, 919 F.2d 19, 23 (5th Cir. 1990) (holding that defendant's
guilty plea in deferred adjudication proceeding is properly
considered in calculating criminal history). Accordingly, the
district court did not err by considering Thomas's prior
adjudication in calculating his criminal history classification.
Finally, Thomas alleges that the district court erred by
refusing to consider his § 5K1.1 motion for downward departure;
that the sentencing guidelines related to cocaine base offenses are
unconstitutional;4 and that the district court erred by increasing
his offense level for obstruction of justice. We find these claims
to be without merit. Thomas's argument concerning the § 5K1.1
motion he attempted to file must fail. The plain language of
§ 5K1.1 indicates that to be considered, the government must file
the motion. See U.S.S.G. § 5K1.1 ("Upon motion of the government
. . ."); see also United States v. Harrison, 918 F.2d 30, 32 (5th
4 Thomas contends that the sentencing guidelines violate the Fifth Amendment's equal protection and due process requirements, the Eighth Amendment's prohibition against cruel and unusual punishment, and are unconstitutionally vague and ambiguous.
-4- Cir.
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UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
_______________
No. 95-30946
(Summary Calendar) _______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC LAWAYNE THOMAS, also known as Earl L Thomas,
Defendant-Appellant.
_______________________________________________
Appeal from the United States District Court For the Middle District of Louisiana (95 CR 28 B) _______________________________________________ May 1, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Eric Lawayne Thomas pleaded guilty to one count of possession
with intent to distribute cocaine base and one count of
distribution of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). The district court sentenced Thomas to two concurrent
terms of 228 months and a five year supervised release. On appeal,
Thomas raises several points of error.
Thomas contends that the government impermissibly manipulated
* Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. his sentence by delaying his arrest until he had sold over five
hundred grams of crack cocaine to the undercover agent, in order to
"ratchet-up" his base offense level.1 We have yet to recognize the
claim of sentence factor manipulation2 in this circuit, but instead
have evaluated these claims under the due process "outrageous
conduct" standard.3 See United States v. Tremelling, 43 F.3d 148,
151-52 (5th Cir.) (declining to recognize claim of sentence
manipulation, but instead applying due process test to determine if
the government had impermissibly manipulated the amount of drugs),
cert. denied, ___ U.S. ___, 115 S. Ct. 1990, 131 L. Ed. 2d 876
(1995). The record in this case supports the district court's
finding that the government did not engage in "outrageous" conduct
and that Thomas's willing participation in the escalating series of
drug transactions constituted conduct properly considered in
determining Thomas's base offense level. See United States v.
Evans, 941 F.2d 267, 273 (5th Cir.) (holding that a defendant who
actively participated in a series of drug transactions may not
avail himself of the defense of outrageous government conduct),
cert. denied, 502 U.S. 972, 112 S. Ct. 451, 116 L. Ed. 2d 468
(1991); see also United States v. Shephard, 4 F.3d 647, 649 (8th
1 Thomas engaged in a series of five transactions in which he sold crack cocaine to an undercover agent in increasingly greater amounts, culminating in the final sale of 246.6 grams of crack cocaine. 2 Sentencing factor manipulation "occurs when a defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment." United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994) (internal quotation marks omitted). 3 See United States v. Washington, 44 F.3d 1271,1279-80 (5th Cir.) (declining to address the viability of sentence manipulation claims), cert. denied, ___ U.S. ___, 115 S. Ct. 2011, 131 L. Ed. 2d 1010 (1995).
-2- Cir. 1993) (recognizing legitimate government purpose in prolonging
operation beyond initial transaction for the purpose of
"establishing guilt beyond a reasonable doubt, probing the depth
and extent of a criminal enterprise, determining whether a
conspiracy exists, or tracing the drug deeper into the distribution
hierarchy"), cert. denied, ___ U.S. ___, 114 S. Ct. 1322, 127 L.
Ed. 2d 671 (1994).
Thomas next contends that the district court improperly
considered a prior adjudication in determining his criminal history
classification. According to the presentence report, Thomas
pleaded guilty to a Louisiana state drug charge. The conviction
was later set aside, pursuant to a Louisiana statute, after Thomas
successfully completed a probationary period. Thomas argues that
this conviction should not have been considered in calculating his
criminal history because it was "expunged" from his record. See
U.S.S.G. § 4A1.2(j) ("sentences for expunged convictions are not
counted"). Thomas, however, presented no evidence to rebut the
findings in the presentence report that this conviction had merely
been set aside following a probationary period. The district court
relied on the probation officer's research concerning the
disposition of Thomas's prior sentence, and we will not disturb the
district court's finding absent evidence to the contrary. See
United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996)
(requiring defendant to demonstrate that district court's
sentencing information was "materially untrue" in order to prevail
on appeal); see also, United States v. Caswell, 36 F.3d 29, 31 (7th
-3- Cir. 1994) (declining to accept defendant's contention that prior
conviction had been expunged because the record contained no
evidence that the conviction had been expunged). Thomas pleaded
guilty to the state drug charge. Although his conviction was later
set aside, § 4A1.2(f) expressly allows the district court to
consider "a diversionary disposition resulting in a finding or
admission of guilt . . . even if a conviction is not formally
entered." U.S.S.G. § 4A1.2(f); see also United States v. Giraldo-
Lara, 919 F.2d 19, 23 (5th Cir. 1990) (holding that defendant's
guilty plea in deferred adjudication proceeding is properly
considered in calculating criminal history). Accordingly, the
district court did not err by considering Thomas's prior
adjudication in calculating his criminal history classification.
Finally, Thomas alleges that the district court erred by
refusing to consider his § 5K1.1 motion for downward departure;
that the sentencing guidelines related to cocaine base offenses are
unconstitutional;4 and that the district court erred by increasing
his offense level for obstruction of justice. We find these claims
to be without merit. Thomas's argument concerning the § 5K1.1
motion he attempted to file must fail. The plain language of
§ 5K1.1 indicates that to be considered, the government must file
the motion. See U.S.S.G. § 5K1.1 ("Upon motion of the government
. . ."); see also United States v. Harrison, 918 F.2d 30, 32 (5th
4 Thomas contends that the sentencing guidelines violate the Fifth Amendment's equal protection and due process requirements, the Eighth Amendment's prohibition against cruel and unusual punishment, and are unconstitutionally vague and ambiguous.
-4- Cir. 1990) (holding constitutional § 5K1.1's requirement that
government file motion before district court may depart on grounds
that defendant provided "substantial assistance"). Similarly,
Thomas's contentions concerning the constitutionality of the
sentencing guidelines pertaining to crack cocaine offenses are
foreclosed by Fifth Circuit precedent. See United States v.
Buchanan, 70 F.3d 818, 828 n.9-10 (5th Cir. 1995) (cataloguing
prior decisions rejecting constitutional challenges to sentencing
guidelines applicable to cocaine base offenses), cert. denied, 1996
WL 96864 (Mar. 25, 1996). Finally, Thomas's contention that the
district court erred in enhancing his sentence for obstruction of
justice under U.S.S.G. § 3C1.1 must also fail. The record supports
the district court's finding that Thomas willfully provided false
testimony with the intent to exculpate a woman who was present
during a drug transaction. Such perjury is sufficient to support
a § 3C1.1 enhancement. U.S.S.G. § 3C1.1, comment. (n.3(b)); United
States v. Storm, 36 F.3d 1289, 1297 (5th Cir. 1994), cert. denied,
___ U.S. ___, 115 S. Ct. 1798, 131 L. Ed. 2d 725 (1995).
For the foregoing reasons, we AFFIRM.
-5-