Unpublished Disposition, 894 F.2d 410 (9th Cir. 1990)

MEMORANDUM^** 

Darlene Marie Jensen appeals from her conviction of conspiracy to distribute cocaine, distribution of cocaine, and distribution of cocaine in excess of 500 grams. She challenges these convictions on the basis of entrapment, outrageous governmental conduct, and prosecutorial misconduct.

Jensen also appeals from the sentence of 63 months. She argues that the minimum sentencing guidelines violate due process and that the Sentencing Reform Act of 1984 is unconstitutional because it violates the principle of separation of powers. We affirm.

* Jensen argues that the Sentencing Reform Act of 1984 is unconstitutional because it violates the principle of separation of powers and Article III. She also argues that the Act threatens the impartiality and independence of the judiciary, improperly expands the function of the Executive Branch, and impermissibly locates the Commission within the Judicial Branch.

The decision of the United States Supreme Court in Mistretta v. United States, 109 S. Ct. 647 (1989) specifically rejected each of these contentions and controls in this matter. Jensen's contentions are without merit.

II

Jensen also argues that the mandatory minimum sentence provisions are unconstitutional as applied in her case. We addressed identical arguments in prior cases.

* In her motion submitted prior to sentencing, Jensen contended that the guidelines violate due process by limiting unduly a defendant's right to present relevant evidence or mitigating circumstances for consideration by the court in determining the appropriate sentence. We rejected this argument in United States v. Kidder, 869 F.2d 1328, 1334 (1989).

Jensen's Presentence Report enumerated the mitigating circumstances in her case and the judge reduced the sentencing level accordingly. Like the defendant in Kidder, Jensen's real objection is that the guidelines do not permit the judge to impose a sentence below the minimum. We specifically rejected this argument in Kidder, and we reject it here.

B

Jensen further argues that the minimum guidelines violate due process because they are not "rationally related" to the government's legitimate interest of providing greater punishment to larger scale drug dealers. She argues that they do not take into consideration whether a defendant's involvement was central or "minor." She urges that her "minor" involvement distinguishes her case from that of Zavala-Serra in United States v. Zavala-Serra, 853 F.2d 1512 (9th Cir. 1988). We find nothing on which to distinguish Jensen's situation from similar cases in which we rejected this argument.

Jensen's second drug transaction involved 1,002 grams of 99% pure cocaine and 997 grams of 94% pure cocaine. Zavala imported 2,000 grams of 86% pure cocaine and was held not to be a minor figure in a drug sale conspiracy. Id. at 1517.

Our holding in Kidder is even more closely analogous because Kidder, like Jensen, received the minimum sentence. He was identified as the "source of supply for a substantial proposed drug transaction" and so was found not to have played a peripheral role in a transaction involving 997 grams of 93% pure cocaine and 979 grams of 88% pure cocaine. Kidder, 869 F.2d at 1335. Jensen was the source of supply for a nearly identical drug transaction. Because there is no basis for discriminating between the cases, her claim is without merit.

III

Jensen also appeals from her conviction. She raised a defense of entrapment in the court below. The jury was instructed on this defense, and found that the government proved beyond a reasonable doubt that Jensen was not entrapped. Jensen argues that there was not sufficient evidence for the jury to make this finding.

* We stated the standard of review in United States v. Bonanno, 852 F.2d 434, 438 (9th Cir. 1988) (citations omitted):

When the sufficiency of the evidence is challenged, this court must view the evidence in the light most favorable to the government and decide if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Evidence of entrapment, offered as a defense, is introduced by a plea of not guilty. Sorrells v. United States, 287 U.S. 435, 452 (1932). The existence of entrapment is a factual issue for the jury to determine in finding the defendant guilty or not guilty, and focuses on the defendant's predisposition to commit the crime charged. United States v. So, 755 F.2d 1350, 1354 (9th Cir. 1985).

To prove entrapment, a defendant must convince the jury that she was induced to commit the crime by a government agent and that she was not predisposed to commit that crime. United States v. Busby, 780 F.2d 804, 806 (9th Cir. 1986). Five factors considered in evaluating predisposition include: 1) the defendant's character or reputation; 2) whether the government initially suggested the criminal activity; 3) whether the defendant engaged in the activity for profit; 4) whether the defendant's reluctance to commit the offense was overcome by repeated government inducement; 5) and the nature of the government's inducement. Id. at 807.

B

When viewed in a light favorable to the government, the record contains adequate evidence for a reasonable juror to conclude that Jensen was predisposed to commit the crime and so was not entrapped. Jensen was an admitted drug-user carrying a beeper, and she engaged in the illegal activity in order to make a profit. There is nothing to indicate that Governmental inducement was excessive. We find no merit in this argument.

IV

Jensen argues that outrageous governmental conduct violated her fifth amendment right to due process. She argues that her conviction should be overturned, independently of any determination that she was predisposed to commit an offense, if the government's conduct "shocks the court's sense of justice and violates due process."

* The "outrageous conduct" defense derives from United States v. Russell, 411 U.S. 423 (1973). Such a defense, in order to be successful, must show that "the government essentially manufactured the crime." United States v. Bogart, 783 F.2d 1428, 1436 (9th Cir. 1986) (vacated and remanded as to defendant Wingender, 790 F.2d 802). Outrageous conduct is a bar to prosecution. United States v. Pemberton, 853 F.2d 730, 735 (9th Cir. 1988). While we review de novo whether the government conduct violated the constitution, what the conduct was and what prompted it are factual determinations reviewed under the clearly erroneous standard. Bogart, 783 F.2d at 1434.

This court has found few instances in which government conduct has reached this level. We have not found outrageous conduct when the government "merely infiltrates a criminal organization" or "approaches persons already engaged in or anticipating a criminal activity." So, 755 F.2d at 1353 (citations omitted).

B

The record contains nothing that indicates that the government's conduct exceeded that which is typical of an undercover operation. See United States v. Smith, 802 F.2d 1119 (9th Cir. 1986). We find no evidence of physical or psychological coercion. See Bonanno, 852 F.2d at 437. Therefore, this argument is without merit.

V

Finally, Jensen argues that the conduct of the prosecutor, during the final argument, constituted misconduct which deprived her of a fair trial. She further argues that his remarks "introduced character evidence solely to prove guilt" and violated her fifth amendment rights by referring to evidence not adduced at the trial.

* Claims of prosecutorial misconduct are viewed within the entire context of the trial. United States v. Christophe, 833 F.2d 1296, 1300 (9th Cir. 1987). In order to find reversible error, Jensen must establish that there was misconduct and that she was prejudiced by it. United States v. Berry, 627 F.2d 193, 197 (9th Cir. 1980), cert. denied, 449 U.S. 1113 (1981).

An alleged violation of fifth amendment rights presents a question of law subject to de novo review. See United States v. McConney, 728 F.2d 1195, 1202-04 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

B

The government was obligated to prove Jensen's predisposition to commit the crime because of her entrapment defense. The prosecutor asked the jury to compare Jensen's ability to obtain drugs on short notice to their ability to make the same acquisition. He did not refer to Jensen's conduct in the courtroom, but to her conduct during the drug transaction, conduct that was already in evidence. Therefore, United States v. Schuler, 813 F.2d 978 (9th Cir. 1987) does not apply.

Since evidence relating to Jensen's character or reputation was properly introduced and examined because of her entrapment defense, Busby, 780 F.2d at 807, there is no reason to find that the remark was improper or that this single remark denied Jensen a fair trial.

AFFIRMED.