United States v. Boykin, No. 13-10248 (9th Cir. 2015)
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Defendant was convicted of five counts of distribution of methamphetamine, one count of distribution of cocaine, and one count of conspiracy to distribute. On appeal, defendant challenged the sufficiency of the evidence on Count Six, one of the counts for distribution and challenged his sentence. The court found that the evidence was sufficient to convict defendant of Count Six where there was sufficient evidence for a rational jury to find that defendant aided and abetted the distribution of methamphetamine. The court concluded that the district court did not clearly err by not finding the FBI memo at issue to be a basis for a charge of sentencing manipulation. Although the court is deeply troubled by the participation of a law enforcement officer, the investigation fell just shy of constituting outrageous government conduct. Here, there was evidence that the government extended its investigation to build a stronger case against defendant. Of particular concern was that the government’s first two confidential sources were both convicted of serious offenses during the period they were acting as confidential sources against defendant. Thus, it was reasonable for law enforcement to extend the investigation with more controlled purchases by a more credible confidential source. Further, the existence of the FBI memo did not require the district court to conclude that the investigators extended the investigation solely to enhance defendant’s potential sentence. The court also concluded that it was not an abuse of discretion for the court to determine these incidents were properly calculated in
determining defendant’s criminal history. Finally, the district court did not err in applying a two-level sentencing enhancement for firearm possession and the court rejected defendant's argument that the drug quantity attributed to him was unforeseeable. Accordingly, the court affirmed the sentence.
Court Description: Criminal Law. The panel affirmed a conviction for one count of distribution of methamphetamine (Count 6) and the sentence imposed for five counts of distribution of methamphetamine, one count of distribution of cocaine, and one count of conspiracy to distribute. The panel held that there was sufficient evidence to support the conviction on Count 6, as to which the jury was instructed on an aiding and abetting theory of liability. The panel explained that a rational jury could have found that the defendant and his brother collaborated on the drug transaction at issue, considering all of the evidence, including the conspiracy and the fact that the defendant and his brother collaborated on multiple drug transactions in person and by phone. The panel found deeply troubling the conduct of the involved law enforcement agencies, but held that the improprieties do not warrant reversal of the district court’s denial of a downward departure for sentencing manipulation. The panel held that it was reasonable for law enforcement to extend the investigation to build a stronger case with more controlled purchases by a more credible confidential source, and that the existence of an ambiguous FBI memo did not require the district court to conclude that the investigators UNITED STATES V. BOYKIN 3 extended the investigation solely to enhance the defendant’s sentence. The panel found it was not an abuse of discretion for the district court to find the defendant’s criminal history to be accurately stated, and held that the district court did not err in applying an enhancement for firearm possession. The panel rejected the defendant’s argument that the drug quantity attributed to him was unforeseeable. Because the defendant may move the district court for relief under Sentencing Guidelines Amendment 782, the panel declined to remand the case on those grounds.
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