Joseph Franklin Ford v. State of Arkansas
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DIVISION III
CACR06-1030
MAY 23, 2007
JOSEPH FRANKLIN FORD
APPELLANT
v.
STATE OF ARKANSAS
APPEAL FROM THE UNION COUNTY
CIRCUIT COURT
[CR-05-381]
H ONORABLE CAROL
ANTHONY, JUDGE
CRAFT ON
APPELLEE
AFFIRMED
A Union County jury convicted appellant Joseph Franklin Ford of four counts of delivery
of a controlled substance, four counts of possession of a controlled substance, and one charge of
possession of drug paraphernalia and recommended sentencing of appellant to a total of one hundred
fifty-three (153) years in the Arkansas Department of Correction. At trial, defense counsel made
a motion to run the sentences concurrently, but the trial judge ran the same consecutively. On
appeal, appellant asserts that the sentence was the result of sentence manipulation by law
enforcement officers who engaged in conduct designed to increase the punishment of appellant and
that the trial judge erred in sentencing appellant to consecutive sentences. We find no error and
affirm.
The charges against appellant arose from four separate sting operations culminating in a
series of four controlled buys facilitated through a confidential informant. A narcotics investigator
with the El Dorado Police Department, Jeff Stinson, testified regarding the facts and circumstances
surrounding the controlled buys. In his testimony, he stated that the officers had enough information
after the first transaction to arrest appellant; however, he further explained that they preferred to
have multiple buys to avoid an anticipated defense by the accused that the transaction was an
isolated incident. He also confirmed that more buys resulted in higher sentences. In response to the
question as to why the officers did not continue to raise the number of transactions to ten (10) buys,
Officer Stinson explained that it was a matter of resources and allocation of those resources.
On appeal, appellant argues that the officer’s explanation supports his argument.
Specifically, he asserts that the trial judge erred in sentencing appellant to consecutive sentences
because the conduct of the law enforcement officials amounted to sentence manipulation in violation
of appellant’s rights under the Eighth Amendment and due process clause of the United States
Constitution. In presenting his argument, appellant acknowledges that the cases he relies upon to
assert error arose in the context of federal courts’ interpretation of the mandatory sentencing
guidelines in the federal sentencing scheme.
Several federal circuit courts, including the Eighth Circuit, have adopted the doctrines of
either “sentence entrapment” or “sentence factor manipulation.”
Sentencing entrapment occurs
when an individual who is predisposed to commit a minor or lesser offense is entrapped into
committing a greater offense subject to greater punishment. U.S. v. Mai Vo, 425 F.3d 511 (8th Cir.
2005). The focus of such a defense is on the defendant's predisposition to commit the crime. United
States v. Searcy, 284 F.3d 938, 942 (8th Cir. 2002). In contrast, sentencing manipulation occurs
when the government engages in improper conduct that has the effect of increasing a defendant’s
sentence. Mai Vo, supra.
The sentencing entrapment or manipulation doctrine developed in response to perceived
abuses of the restrictive scheme of the federal sentencing guidelines. United States v. Berg, 178 F.3d
976 (8th Cir. 1999); United States v. Stuart, 923 F.2d 607 (8th Cir. 1991). These guidelines set
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forth narrow sentencing ranges determined by both the severity of the offense and the defendant’s
criminal record. T hese ranges are required by statute to be no more than six months or twenty-five
percent of the minimum, unless the minimum exceeds thirty years. 28 U.S.C. § 994(b)(2). A judge
must impose a sentence within that narrow range if the case is “an ordinary one.” Koon v. United
States, 518 U.S. 81, 92 (1996). Despite this restriction, a judge may depart from the range when
the case is atypical and involves aggravating or mitigating circumstances that the United States
Sentencing Commission did not adequately consider when it created the guidelines. 18 U.S.C. §
3553(b)(1). Although the commission provides guidance on what factors make a case atypical, see
United States Sentencing Guidelines (U.S.S.G.) §§ 5H1.1 through 5H1. 12; 5K2.0 through 5K2.23,
a sentencing court is not constrained to these factors; a court may depart from the guidelines based
on any circumstance not considered by the commission so long as the circumstance is consistent
with the sentencing factors established by Congress. Koon, 518 U.S. at 94-96.
While recognizing that other federal courts refuse to acknowledge the concept of sentencing
entrapment or sentencing manipulation, United States v. Stavig, 80 F.3d 1241 (8th Cir. 1996), the
Eighth Circuit has held that a court may legally rely upon sentencing entrapment to depart from the
sentencing range in the guidelines.1 Berg, 178 F.3d at 981. The Ninth Circuit in United States v.
Staufer, 38 F.3d 1103 (9th Cir. 1994), has expressed particular concern that the federal sentencing
1
The United States Supreme Court in U.S. v. Booker, 543 U.S. 220 (2005), severed and
excised two specific statutory provisions of the Sentencing Guidelines on constitutional grounds:
the provision that requires sentencing courts to impose a sentence within the applicable
Guidelines range (in the absence of circumstances that justify a departure), see 18 U.S.C.A. §
3553(b)(1) (Supp.2004), and the provision that sets forth standards of review on appeal,
including de novo review of departures from the applicable Guidelines range, see § 3742(e)
(main ed. and Supp.2004) (see Appendix, infra, for text of both provisions). With these two
sections excised (and statutory cross-references to the two sections consequently invalidated),
the remainder of the Act satisfies the Court's constitutional requirements.
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scheme would not ensure that defendants would be sentenced on the basis of their culpability
because of abuse of the sentencing scheme by government agents. Staufer, 38 F.3d at 1106-07. The
court stated that “courts can ensure that the sentences imposed reflect the defendants' degree of
culpability only if they are able to reduce the sentences of defendants who are not predisposed to
engage in deals as large as those induced by the government.” Id. at 1107. The court then found that
the commission had considered this public policy concern of sentence entrapment as reflected in the
amendment application note to U.S.S.G. § 2D1.1 on reverse sting operations. Thus, the court
concluded, allowing a judge to depart from the sentencing range after finding that the government
had engaged in sentencing entrapment is consistent with the sentencing factors prescribed by
Congress. Id.
Based on the above analysis, the Ninth Circuit has subsequently held that if a defendant
proves by a preponderance of the evidence that the law enforcement officer engaged in sentencing
entrapment, a district court may reduce the prescribed sentences in one of two ways. United States
v. Riewe, 165 F.3d 727, 729 (9th Cir.1999); United States v. Parrilla, 114 F.3d 124, 127 (9th Cir.
1997). First, the court may grant a downward departure from the sentencing range under the federal
guidelines. Riewe, 165 F.3d at 729. Second, the court may apply only the penalty provision for the
lesser offense that the defendant was predisposed to commit rather than the offense that the defendant
was induced to commit. Id. T his second option allows the court to circumvent 21 U.S.C. § 841(b),
which creates a statutory minimum sentence requirement for drug-related offenses. See id.
Appellant urges us to apply this defense and hold that the decision of the law enforcement
authorities to charge appellant with multiple similar offenses amounted to sentence manipulation. He
contends that the authorities’ decision was solely for the purpose of increasing appellant’s exposure
to a sentence in excess of the statutory maximum which could otherwise have been imposed by the
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court under the law for a single offense. Further, he urges us to find that the trial court’s imposition
of consecutive sentences was an abuse of discretion in violation of appellant’s constitutional rights.
Our supreme court has not adopted the doctrine of sentence manipulation.
Given the
discretion afforded our trial judges in the imposition of sentencing, the statutory sentencing scheme
in Arkansas allows for a much broader discretion within its sentencing range than the federal
guidelines. Under our statutory scheme, it is the court's function to impose a sentence, and it is the
court's obligation to exercise its discretion in the imposition of that sentence. Brown v. State, 82 Ark.
App. 61, 68, 110 S.W.3d 293, 298 (2003) (citing Rodgers v. State, 348 Ark. 106, 71 S.W.3d 579
(2002); Blagg v. State 72 Ark. App. 32, 31 S.W.3d 872 (2000)). A trial court may reduce the extent
or duration of the punishment assessed by the jury if, in the judge's opinion, the conviction is proper
but the punishment assessed is still greater than, under the circumstances of the case, ought to be
inflicted, as long as the punishment is not reduced below the limit prescribed by the law. Brown, 82
Ark. App. at 68, 110 S.W.3d at 298 (citing Richards v. State, 309 Ark. 133, 134, 827 S.W.2d 155,
156; Ark.. Code Ann. § 16-90-107(e) (1987)).
Furthermore, the trial judge clearly exercised his discretion in accepting the jury’s
recommendation for consecutive sentences. Arkansas Code Annotated section 5-4-403 (Repl. 2006)
provides in relevant part:
(a) When multiple sentences of imprisonment are imposed on a defendant convicted of more
than one (1) offense, including an offense for which a previous suspension or probation has
been revoked, the sentences shall run concurrently unless, upon recommendation of the jury
or the court's own motion, the court orders the sentences to run consecutively.
....
(d) The court is not bound by a recommendation of the jury concerning a sentencing option
under this section.
In Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980), our supreme court held that although
the criminal code vests the choice between concurrent and consecutive sentences in the judge, and
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not the jury, there must be an exercise of judgment by the trial judge, and not a mechanical
imposition of the same sentence in every case. Id. Similarly, in Wing v. State, 14 Ark. App. 190, 686
S.W.2d 452 (1985), we stated that in making the decision between concurrent and consecutive
sentences, the trial judge should make it clear that it is his or her discretion being exercised when
entering the sentences and not the jury’s.
The trial judge in this case specifically accepted the jury’s recommendation of consecutive
sentences, noting that the sentences imposed on each count were less than the maximum and that the
approach was consistent with other jury sentences in the county. Under these facts, we cannot say
that the trial court abused its discretion in accepting the jury’s recommendation of consecutive
sentences nor that the imposition of consecutive sentences violated his Eighth Amendment or due
process rights. Accordingly, we affirm.
Affirmed.
G LOVER and M ILLER, JJ., agree.
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