PEOPLE OF MI V FELIX ERNESTO SOSA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 28, 1999
Plaintiff-Appellee,
v
No. 213737
Genesee Circuit Court
LC No. 90-043068 FH
FELIX ERNESTO SOSA,
Defendant-Appellant.
Before: Cavanagh, P.J., and Holbrook, Jr., and Kelly, JJ.
PER CURIAM.
Defendant pleaded guilty to conspiracy to deliver 650 grams or more of cocaine, MCL
750.157a; MSA 28.354(1), MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i), and was sentenced
to life imprisonment without parole. In a prior appeal, this Court affirmed defendant’s conviction and
sentence but remanded the case for an entrapment hearing. People v Sosa, unpublished opinion per
curiam of the Court of Appeals, issued August 15, 1997 (Docket No. 169934). Following the hearing,
the trial court found that under Michigan law, defendant had not been entrapped. Defendant appeals as
of right from that decision. We affirm.
I. Background Facts
Defendant’s conviction arose out of series of five cocaine sales made between March 19, 1990
and April 3, 1990. For each sale, a state trooper assigned to the drug unit of the Flint Area Narcotics
Group purchased cocaine from Anthony Velez. The first sale for was for one-half ounce, the second
for one ounce, the third for two ounces, the fourth for one ounce, and finally a fifth for 711 grams.
Velez was supplied with the cocaine by defendant. The undercover officer who made the buys testified
that when the investigation began, the police did not know what amounts they could purchase from
Velez. The officer also testified that he did not bring up purchasing a large amount of cocaine until after
Velez informed the officer that Velez was supplying a customer who “was dealing 20 one-ounce bags.”
At the conclusion of the evidentiary hearing on defendant’s claim of entrapment, the trial court
made the following remarks:
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On this record the Court does not find that the police officers’ conduct was
reprehensible. . . .
It would appear that the police did not directly encourage Mr. Sosa to be
involved in drug transactions with Mr. Velez . . . .
Therefore, this Court does not find on this record that Mr. Sosa was entrapped
and being involved in these drug transactions by the police.
I will say for the record that in watching Mr. Sosa, he seems to be a very
respectful person to the law. He has conducted himself in a very professional manner in
this courtroom, and I am very sorry that he was not given an opportunity, if one was not
given, to try and resolve his case with charges that would carry less than life.
[A]lthough I don’t find that there is entrapment, it does bother me that the offense would
be escalated in terms of the sales to an amount that would put him in the position of
having to face life in prison as opposed to some lesser offense that would at least have
given him an opportunity to be released from the prison as sometime in the future.
This Court believes that in these kinds of cases that the Court also ought to be
able to inquire into whether or not the Defendant would have sold the amounts that
were at issue had there not been some conduct that would have brought that about
outside of the Defendant’s conduct itself.
[W]hile the Court agrees that Mr. Sosa was not entrapped in being involved in drug
transactions, this Court does believe that Mr. Sosa would not have been dealing the
amounts that he was dealing if he had not been asked to do so by Mr. Velez who,
obviously, was being asked by the police to provide . . . that amount.
***
[T]o bottom line it, this Court does not believe, at least under the facts of this case, that
the objective test as we use it under entrapment law is really fair to a defendant who has
no prior history of dealing drugs at the level that was caught in this case without the
request of a friend who was probably being requested to present those amounts by a
police officer.
Defendant raises two arguments attacking his conviction, and one attacking his sentence. All of
the arguments focus on the fifth drug sale. We examine each of these arguments separately.
II. Conviction
A. Entrapment
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In his first attack on his conviction, defendant argues that the trial court erred in concluding that
defendant was not entrapped. We disagree. In Michigan, entrapment is analyzed according to a two
pronged test. “The court must consider whether (1) the police engaged in impermissible conduct that
would induce a law-abiding person to commit a crime in similar circumstances, or (2) the police
engaged in conduct so reprehensible that it cannot be tolerated.” People Ealy, 222 Mich App 508,
510; 564 NW2d 168 (1997). Entrapment exists if either prong of the test is established. Id. Although
the test’s first prong does require that the court consider the circumstances of the defendant rather than
some hypothetical average law-abiding person, the “tests still bars evidence of the defendant’s
predisposition.” People v Juillet, 439 Mich 34, 56; 475 NW2d 786 (1991).1
On the basis of the record before us, we believe that the trial court correctly concluded that
defendant was not entrapped. The police did nothing more than present defendant with the opportunity
to supply the 711 grams of cocaine. Ealy, supra at 510. Velez was not an agent of the police and
there is no evidence suggesting that the police were aware of any improper tactics that may have been
employed to encourage defendant to participate in the offense. See People v Owczarzak, 144 Mich
App 65, 68; 372 NW2d 683 (1985). Nor does the evidence show that the police had any reason to
believe that either Mr. Velez or defendant was hesitant to sell large amounts of cocaine.
B. Due Process
We also reject defendant’s assertion that his due process rights were violated. In United
States v Russell, 411 US 423, 431-432; 93 S Ct 1637; 36 L Ed 2d 366 (1973), Justice Rehnquist
wrote of the possibility that some day the Court could “be presented with a situation in which the
conduct of law enforcement agents is so outrageous that due process principles would absolutely bar
the government from invoking judicial process to obtain a conviction.” We do not believe the conduct
of the police in this case can properly be characterized as “outrageous.” There was nothing
fundamentally unfair about the investigatory techniques employed, id. at 432, nor did defendant have a
due process right to be arrested before he committed the more serious drug offense.
III. Sentence
Finally, defendant argues that the police engaged in sentencing entrapment. Although the
doctrine of sentencing entrapment has never been adopted by a Michigan appellate court, it was
discussed by this Court in Ealy. However, defendant’s argument, which is based on the conduct of the
police, does not appear to us to be a sentencing entrapment argument. Instead, defendant seems to be
arguing the doctrine of “sentence manipulation.” See United States v Shephard, 4 F3d 647, 649 (CA
8, 1993).
Sentencing manipulation occurs when the government engages in improper conduct that
has the effect of increasing a defendant’s sentence. This claim is distinct from a claim of
sentencing entrapment which occurs when the government causes a defendant initially
predisposed to commit a lesser crime to commit a more serious offense. [
United
States v Garcia, 79 F3d 74, 75 (CA 7, 1996) citation omitted).]
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In essence, the two sentence mitigation defenses mirror the two traditional approaches to entrapment.
Because it focuses on the predisposition or mental state of the defendant, sentencing entrapment is a
subjective doctrine in the same vein as the subjective entrapment defense. Conversely, sentencing
manipulation is like the objective entrapment defense in that both focus on the conduct of the police.2
Both the sentencing entrapment and sentencing manipulation defenses are intended to justify a
downward departure from sentencing guidelines. See, e.g., United States v Staufer, 38 F3d 1103,
1106-1107 (CA 9, 1994). In the case at hand, because the sentence is imposed by statute not through
use of Michigan’s sentencing guidelines, application of either doctrine is irrelevant.
In any event, we do not believe the record before us supports the conclusion that the police
engaged in sentence manipulation. Defendant’s assertion that the sole reason the police arranged for the
fifth sale was to increase his sentence upon conviction is not supported by the evidence. Presented with
evidence that Velez was willing to sell a significantly larger amount of cocaine, the police did nothing
more than follow through on this opportunity. Ealy, supra at 511; Shephard, supra at 649.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Donald E. Holbrook, Jr.
/s/ Michael J. Kelly
1
The trial court’s concern involving this case seems to stem from a belief that it should be able to
examine a defendant’s predisposition in cases such as this one.
2
Defendant relies in great part on this Court’s discussion of sentencing entrapment in Ealy. Without
ever adopting the defense, the Ealy Court chose to address that defendant’s claim of sentencing
entrapment. Ealy, supra at 510-511. We note that if an appellate court of this state were to ever
choose to adopt either sentencing mitigation defense, the same policy considerations that justified
adoption of the traditional objective entrapment would most likely direct that court toward adoption of
sentence manipulation and not sentencing entrapment.
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