*

Honorable Leonard I. Garth, Senior U.S. Circuit Judge for

the Third Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-8143.

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,

v.

Kelsey Pierre MILLER, Defendant-Appellant, Cross-Appellee.

Jan. 2, 1996.

Appeals from the United States District Court for the Northern

District of Georgia. (No. 1:93-00037-CR-5), Robert H. Hall, Judge.

Before TJOFLAT, Chief Judge, and DYER and GARTH *

, Senior Circuit

Judges.

DYER, Senior Circuit Judge:

Appellant Kelsey Miller challenges his conviction for

conspiracy to possess with intent to distribute cocaine base

(crack) in violation of 21 U.S.C. § 846. On appeal, Miller argues

his post-trial motion for judgment of acquittal should have been

granted because the government failed to prove predisposition after

he raised the defense of entrapment. The government cross-appeals

the sentence, contending the district court erred in departing

downward on the theory that Miller was trapped into supplying crack

instead of powder cocaine. We affirm the conviction, but reverse

the sentence.

I. BACKGROUND

 At trial the government sought to prove that Miller put

Elbert Frazier, a convicted felon who was acting as a confidential

informant, in contact with two individuals who could supply Frazier
 1

The presence of an entrapment defense necessitates our

review of the facts in the light most favorable to the

government. U.S. v. Brown, 43 F.3d 618, 622 (11th Cir.1995). 

with crack. Miller's defense was that Frazier trapped him into

committing the crime.1

In late December 1992 Frazier had many phone conversations

with Miller, some recorded and some not. The government called

Frazier to testify at trial. He said that sometime between

December 21 and 23, 1992, he called Sonny Ross's pager number to

arrange a drug deal. Miller answered the page, asked what Frazier

needed, and explained that "he was handling everything while Sonny

was out of town." Frazier said he ended that conversation because

he really wanted to speak with Ross. However, because Miller had

asked what Frazier needed and because Frazier had met Miller once

before while attempting to arrange a buy directly with Ross,

Frazier decided he would try to deal with Miller. Frazier called

Miller on December 23 and asked him for a half-kilo of cocaine.

Miller said he did not have it then, but that he could make a phone

call and call Frazier right back. Miller called Frazier back that

day and said he could sell him a half-kilo. Frazier asked for a

price, and Miller responded with $14,000 or $14,500. Frazier asked

if that was the best price available and Miller said it was, adding

that "he wasn't making much off the deal himself." Miller told

Frazier they could do the deal "any time." Frazier suggested that

they wait until after the holidays and Miller agreed.

Frazier called Miller on December 28 to confirm the deal and

ask for a better price. Miller refused to reduce the price and

iterated that he was not making much on the deal.
Frazier made a series of telephone calls to Miller on December

29. In the first of those calls, shortly before noon, Miller

explained he had paged "Buddy" the night before, but had received

no return call. Frazier said he wanted to do the deal that

afternoon and Miller asked for thirty minutes. Frazier called

again at 12:20 p.m. Miller said he had bad news, that "they" were

"talkin' 'bout 14.5" (meaning $14,500, a high price for a

half-kilo), and that they only had "soft" (meaning powder cocaine).

Miller said he could call another contact, but it would take

longer. Frazier asked Miller if he could "cook" (meaning convert

powder to crack), and Miller said he did not know how. In response

to Frazier's questions, Miller assured Frazier that he had

"checked," and that it was "straight."

In the course of several phone conversations the logistics of

delivering the cocaine at a local mall on the afternoon of December

29 were negotiated. During one conversation Miller said, "You can

have your hand on the pistol or what not you know," and, "You see

something go wrong you know you gotta do what you gotta do." The

delivery fell through, however, because the supplier that Miller

had arranged for Frazier to meet was not comfortable with the

location when he arrived, so the supplier and Miller left the mall

without further explanation to Frazier. Frazier was upset that the

deal fell through, and later that day Miller put Frazier in direct

contact with the supplier, who assured Frazier they would still be

able to work the deal. Nevertheless, the supplier sold the

half-kilo to another party.

Frazier testified he was angry that the buy did not go as
planned, but still wanted to deal with Miller. Later on December

29, Miller called Frazier to advise him that he had been calling

around, but supplies were low. At Frazier's request, Miller called

the original supplier back and arranged another deal, but this time

for a half-kilo of crack. The delivery was successful and Miller

and his alleged co-conspirators, none of whom are parties to this

appeal, were arrested.

After the jury returned a guilty verdict, the defense moved

for a judgment of acquittal on the ground that there was

insufficient evidence to show that Miller was predisposed to engage

in the charged crime. The district court denied the motion. At

sentencing the court was persuaded to reduce the sentence based

upon a partial entrapment theory, which reduced the offense level

to 24, reduced the sentencing range to 61 to 63 months, and

eliminated the minimum mandatory sentence for trafficking crack.

The probation officer had recommended an offense level of 36 based

on 487 grams of crack, enhanced for obstruction of justice, which

would have resulted in a range of 188 to 235 months imprisonment

and a minimum mandatory sentence of 120 months. Miller argued that

the court should treat the 487 grams as powder rather than as crack

because Miller was not predisposed to providing crack until

sufficiently pressured by Frazier, the confidential informant.

Miller was sentenced to 63 months imprisonment and this appeal

followed.

II. STANDARD OF REVIEW

Entrapment is generally a jury question. Therefore,

entrapment as a matter of law is a sufficiency of the evidence

inquiry. When an entrapment defense is rejected by the jury,

our review is limited to deciding whether the evidence was
sufficient for a reasonable jury to conclude that the

defendant was predisposed to take part in the illicit

transaction. Further, a jury's verdict cannot be overturned

if any reasonable construction of the evidence would allow the

jury to find the defendant guilty beyond a reasonable doubt.

Review is de novo, but we must view all facts and make all

inferences in favor of the government.

Brown, 43 F.3d at 622 (citations omitted).

 We review the district court's exercise of authority in

departing downward from the applicable guideline range as a

question of law subject to plenary review. United States v.

Costales, 5 F.3d 480, 483 (11th Cir.1993).

III. DISCUSSION

A. Entrapment

 Miller asserts that the government failed to prove he was

predisposed to enter into a conspiracy to possess and distribute

crack, and thus the district court erred in denying his motion for

judgment of acquittal. "A successful entrapment defense requires

two elements: (1) government inducement of the crime, and (2) lack

of predisposition on the part of the defendant." Brown, 43 F.3d at

623 (citations omitted). Once the defendant adduces evidence

showing inducement, "the burden shifts to the government to prove

beyond a reasonable doubt that the defendant was predisposed to

commit the crime." Id. (citation omitted). The Brown court held

"that the predisposition inquiry is a purely subjective one which

asks the jury to consider the defendant's readiness and willingness

to engage in the charged crime absent any contact with the

government's officers or agents." Id. at 624. The panel refused

to enumerate a list of factors to address when a defendant's

predisposition is at issue because the inquiry into a defendant's
subjective state of mind prior to government inducement is

necessarily a fact-intensive inquiry. Id. at 625. The court,

however, elucidated several guiding principles gleaned from the

cases, some of which are relevant here:

Predisposition may be demonstrated simply by a defendant's

ready commission of the charged crime. Jacobson v. United

States, 503 U.S. 540, 112 S.Ct. 1535 [118 L.Ed.2d 174] (1992);

[United States v.] Andrews, 765 F.2d [1491] at 1499 [(11th

Cir.1985)]. A predisposition finding is also supported by

evidence that the defendant was given opportunities to back

out of illegal transactions but failed to do so. [ United

States v.] Ventura, 936 F.2d [1228] at 1231, 1232 [(11th

Cir.1991)]. Finally, the fact-intensive nature of the

entrapment defense often makes jury consideration of demeanor

and credibility evidence a pivotal factor. See Ventura, 936

F.2d at 1230.

Id.

 We must now examine the evidence of predisposition presented

to the jury in this case. Miller testified at trial that Frazier

induced him to participate in the deal. He denied asking Frazier

what he needed in their initial telephone conversation. Miller

claimed that after at least ten calls over a two-to-three day

period, and a promise from Frazier of $2,000 to arrange the

transaction, he agreed to ask Sonny Ross to find a cocaine

supplier. Miller alleged that Ross called the supplier, who in

turn contacted Miller. In addition to Miller's testimony, the jury

had the benefit of Frazier's testimony, the most relevant portions

of which are summarized above. The jury was free to afford the

greater weight and credibility to Frazier's testimony, including

his statement that Miller initially asked him what he needed and

that Miller told him he was "handling everything" for Ross. The

jury could reasonably find that ten phone calls and a two-day

hesitation did not demonstrate Miller's lack of predisposition,
particularly when, after Miller decided to be involved, he arranged

for a supplier in his first conversation with Sonny Ross after

Frazier had contacted him. See Brown, 43 F.3d at 624 ("Regardless

of the defendant's ability to engage in criminal acts ... the

prompt commission of the crime at the first opportunity is enough

to show predisposition"). Without question, the jury could reject

Miller's testimony as self-serving.

The jury also heard audiotapes of conversations between

Frazier and Miller, from which they could find Miller was

predisposed to be involved in the drug trade. The tapes

demonstrated Miller's fluency in the language of drug dealing

(e.g., "hard" versus "soft" cocaine); his skill as a negotiator

(e.g., refusing to reduce the price of the cocaine despite

Frazier's repeated requests); his direct access to multiple

sources of drugs by "calling around," including by his own

admission reaching a supplier through Sonny Ross; and his ability

to promptly produce a large quantity of cocaine.

In addition, there was evidence that Miller ignored at least

two opportunities to back out of the transaction. The first

occurred on December 29 when Miller and his supplier left the mall

parking lot because they were uncomfortable with the site.

Although Miller might at that time have refused further involvement

with Frazier on the ground that his supplier no longer had the

cocaine, Miller soon afterwards undertook to find a new supplier.

The second opportunity came during a telephone conversation on

December 31 when Frazier threatened to "find another route" in the

context of questioning Miller on whether the second transaction
would go as planned. Rather than allowing Frazier to go elsewhere,

Miller assured him that the deal was "definite."

We hold there was ample evidence, taken as a whole and

considered in the light most favorable to the government, for a

reasonable jury to find Miller predisposed to conspiring to possess

cocaine with an intent to distribute.

B. Sentencing

The government appeals on the grounds that the district court

improperly departed downward by sentencing Miller for conspiring to

possess powder cocaine rather than crack, which was the substance

delivered and charged in the indictment, and that there was no

factual basis to support the theory of partial entrapment. We need

not reach the second issue because we hold that the district court

exceeded its authority in sentencing Miller based on possession of

powder cocaine.

Miller claims he was trapped into supplying crack because

Frazier expressed "a clear preference ... for crack cocaine thereby

warranting a stiffer penalty." For support, Miller points out that

Frazier set the type and amount of drugs and then asked Miller to

cook it if he could only supply powder. Miller contends the

district court did not depart from the guidelines, but acted to

prevent the government, through Frazier, from manipulating the

mandatory minimum statute and the sentencing guidelines to promote

injustice. At sentencing Miller's counsel argued that the jury's

rejection of the entrapment defense means only that they found he

was not trapped into procuring powder since the evidence showed

that powder was the substance Miller and Frazier first discussed.
On appeal he argues the court could impose a lesser sentence

predicated on finding that Miller was trapped into supplying crack

after he had entered into a conspiracy to procure powder cocaine.

We are unpersuaded by these arguments and hold that the district

court unreasonably departed from the sentencing guidelines.

 A sentencing court may depart from the recommended range

prescribed by the guidelines only "if the court finds "that there

exists an aggravating or mitigating circumstance of a kind, or to

a degree, not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result in a

sentence different from that described.' " U.S.S.G. § 5K2.0. Here

the district court made no such findings and a careful review of

the record does not reveal any mitigating circumstances justifying

downward departure. At sentencing, the court alluded to Miller's

youth and lack of criminal history, which have been accounted for

in the guidelines. See U.S.S.G. §§ 5H1.1 and 4A1.3. Miller relies

on United States v. Johnson, 956 F.2d 894 (9th Cir.1992), to

justify the departure by analogy, but the case does not support

Miller's position. Johnson involved the possibility of a downward

departure for duress, id. at 899-901, "under circumstances not

amounting to a complete defense," which is expressly authorized by

U.S.S.G. § 5K2.12. In contrast to Johnson, the guidelines do not

authorize a downward departure for entrapment "under circumstances

not amounting to a complete defense." Cf. U.S.S.G. § 5K2.12.

Furthermore, even § 5K2.12 does not authorize departure below a

statutorily required minimum sentence.

 We have held that sentencing entrapment is a defunct
 2

Miller believes there exists a distinction between

sentencing entrapment and manipulation but, notably, he does not

explain the nature of the distinction. Miller argues that he is

entitled to a lesser sentence because the government improperly

manipulated the transaction to obtain a mandatory minimum

sentence and to achieve a higher guideline range. We see no

difference in this context between entrapment and manipulation. 

 3

Application note 17 provides as follows:

If in a reverse sting ... the court finds that the

government agent set a price for the controlled

substance that was substantially below the market value

of the controlled substance, thereby leading to the

defendant's purchase of a significantly greater

quantity of the controlled substance than his available

resources would have allowed him to purchase except for

the artificially low price set by the government agent,

a downward departure may be warranted. 

 4In Williams the appellant argued he had been subjected to

sentencing entrapment based on the facts that the government

allowed two codefendants to keep certain profits made from the

doctrine.2 See United States v. Williams, 954 F.2d 668, 673 (11th

Cir.1992) ("as a matter of law ... we reject the sentence

entrapment theory"); United States v. Markovic, 911 F.2d 613, 616

(11th Cir.1990) ("Entrapment as a matter of law is no longer a

viable defense in this Circuit."); United States v. Struyf, 701

F.2d 875, 877 n. 6 (11th Cir.1983) (the doctrine of entrapment as

a matter of law did not survive ... Hampton v. United States, 425

U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976)). The defense

theory of "partial entrapment" cannot be squared with this

precedent. In reaching this conclusion, we are mindful of

application note 17 to U.S.S.G. § 2D1.1,3

 passed after Williams was

decided. Miller interprets note 17 as calling Williams into doubt

because it indicates the government should not be permitted to

structure reverse sting operations so as to maximize the sentence

to be imposed.4 We need not reach this question, however, because
sale of narcotics and then offered narcotics for sale to

appellant at half the market price. 954 F.2d at 672. 

application note 17 is inapposite. The government was the buyer in

this case, and there are no facts to support an inference that the

government manipulated the price. Furthermore, note 17 does not

undermine the holdings of Markovic or Struyf, neither of which

involved the sale of narcotics at a below-market price.

Evidence showed that discussions between Frazier and Miller

involved both powder and crack so the defense theory must have been

that Miller lacked the predisposition to deal any drugs—powder or

crack. He could not have successfully argued at trial that he

lacked only the predisposition to sell powder cocaine since the

government had evidence that he arranged for a delivery of crack.

The crux of Miller's argument at sentencing, therefore, was that

the court should resurrect the same entrapment defense that the

jury unequivocally rejected at trial. Downward departure for

dealing powder cocaine thus "implicitly undermined the verdict

returned by the jury" and "flies directly in the face of the jury

finding that [the defendant] was not entrapped." See United States

v. Costales, 5 F.3d at 487. The district court used the post-trial

sentencing process to call the verdict into question, which it was

without power to do. See id. at 488. Accordingly, departure from

the recommended sentencing range was neither reasonable nor

consistent with the guidelines. See id.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the conviction, but

REVERSE and REMAND for resentencing consistent with this opinion.