2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-23-2007

USA v. Jimenez

Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3114

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Recommended Citation

"USA v. Jimenez" (2007). 2007 Decisions. Paper 1759.

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NOT PRECEDENTIAL

IN THE UNITED STATES COURT 

OF APPEALS

FOR THE THIRD CIRCUIT

 

NO. 05-3114

 

 UNITED STATES OF AMERICA

v.

JOSE JIMENEZ

Appellant

 

On Appeal From the United States 

District Court

For the Eastern District of Pennsylvania 

(D.C. Crim. Action No. 04-cr-00063-1)

District Judge: Hon. Eduardo C. Robreno

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 17, 2007

BEFORE: McKEE, AMBRO and STAPLETON,

Circuit Judges

(Opinion Filed: January 23, 2007)

 

 
2

OPINION OF THE COURT

 

STAPLETON, Circuit Judge:

Appellant, Jose Jimenez, pled guilty to distributing approximately 124 grams of

cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). He was sentenced to a

mandatory minimum sentence of 120 months of imprisonment and five years of

supervised release.

The following summary of the information of record is accurate:

On December 2, 2003, at approximately 10:30 a.m., DEA

agents met with Irizarry [a cooperating informant] at a prearranged location in Philadelphia, and instructed him to make

a telephone call to Jimenez regarding the purchase of a

quarter pound of crack cocaine for $3,100 United States

currency. During the conversation, Irizarry asked Jimenez if

he could get him a quarter pound of crack cocaine in 45

minutes. Jimenez stated that he would find it and cook it for

Irizarry. At approximately 10:40 a.m., the DEA agents

searched Irizarry, found nothing, and provided him with

recording devices and $3,100 to purchase the quarter pound of

crack cocaine.

* * *

At approximately 12:13 p.m., an officer observed

Jimenez arrive and park on the west side of Second Street,

south of Master Street. Irizarry exited the undercover vehicle,

and entered Jimenez’ car, which contained Jimenez and an

unknown male. Several moments later, Irizarry exited

Jimenez’ car, entered the undercover vehicle, and stated that

Jimenez did not have the crack cocaine with him, but had to

go “cook it.” Jimenez told Irizarry that he would be back in
3

twenty minutes.

* * *

At approximately 1:50 p.m., officers observed Irizarry park

on the west side of Second Street, south of Master Street, with

two unknown males as his passengers. The officers observed

Irizarry exit the undercover vehicle, and walk over to the

passenger side of Jimenez’ car. Jimenez exited the driver’s

side and met with Irizarry. At approximately 1:53 p.m., the

officers observed Jimenez enter his car and Irizarry enter the

undercover vehicle. The officers took custody of

approximately 124.1 net grams of crack cocaine from Irizarry,

which had been purchased from Jimenez for $3,100.

Br. Appellee at 5-7 (record citations omitted).

Jimenez insists that “he was the victim of sentencing entrapment.” Br. Appellant

at 4. He represents that he initially brought 120 grams of powder cocaine for sale to

Irizarry, that he did not know how to cook to powder cocaine into crack, and that he

would not have gotten someone else to cook it had not Irizarry refused to be satisfied with

powder cocaine. We accept these representations for purposes of our review.

“Sentencing entrapment occurs when an appellant, although pre-disposed to

commit a minor or lesser offense, is entrapped into committing a greater offense subject

to greater punishment.” United States v. Sumler, 294 F.3d 579 (3d Cir. 2002). The

District Court was clearly entitled to conclude that it did not occur here.

Entrapment requires that the government engage in conduct that can reasonably be

expected to overcome, and does overcome, the will of someone not predisposed to

commit a particular offense. Here, the government did nothing more than provide
4

Jimenez with the opportunity to sell crack cocaine, an opportunity that he immediately

seized in the first telephone conversation. He was thus willing from the start to commit

the crime of crack distribution, and he produced it for sale on the same day without any

significant delay. Here, Jimenez was predisposed to distribute crack, and his will did not

need to be overcome. United States v. Walls, 70 F.3d 1323, 1329 (D.C. Cir. 1995).

Jimenez also argues that the sentencing disparity between crack and powdered

cocaine found in 21 U.S.C. § 841(b)(1)(A) and (B) violates his right to substantive due

process. The primary foundation of Jimenez’ argument has been expressly rejected by

the Supreme Court, however:

Petitioners argue that the due process of law

guaranteed them by the Fifth Amendment is violated by

determining the lengths of their sentences in accordance with

the weight of the LSD “carrier,” a factor which they insist is

arbitrary. They argue preliminarily that the right to be free

from deprivations of liberty as a result of arbitrary sentences

is fundamental, and therefore the statutory provision at issue

may be upheld only if the Government has a compelling

interest in the classification in question. But we have never

subjected the criminal process to this sort of truncated

analysis, and we decline to do so now. Every person has a

fundamental right to liberty in the sense that the Government

may not punish him unless and until it proves his guilt beyond

a reasonable doubt at a criminal trial in accordance with the

relevant constitutional guarantees. But a person who has been

so convicted is eligible for, and the court may impose,

whatever punishment is authorized by statute for his offense,

so long as that penalty is not cruel and unusual, . . . and so

long as the penalty is not based on an arbitrary distinction that

would violate the Due Process Clause of the Fifth

Amendment. In this context, . . . an argument based on equal

protection essentially duplicates an argument based on due

process.
5

Chapman v. United States, 500 U.S. 453, 464-65 (1990) (citations omitted).

This Court, as well as every other court that has considered the issue, has

concluded that there is a rational basis for (i.e., no arbitrariness in) the disparity Jimenez

attacks. See United States v. Frazier, 981 F.2d 92, 96 (3d Cir. 1992) (footnote omitted):

There are reasonable grounds for imposing a greater

punishment for offenses involving a particular weight of

cocaine base than for comparable offenses involving the same

weight of cocaine. These grounds include differences in the

purity of the drugs, the dose size, the method of use, the effect

on the user, and the collateral social effects of the traffic in

the drug. Whether the ratio best reflecting these genuine

differences should be calibrated at 5-to-1, 20-to-1, or 100-to-1

is a discretionary legislative judgment for Congress and the

Sentencing Commission to make.

See also United States v. Lawrence, 951 F.2d 751, 755 (7th Cir. 1991); United States v.

Pickett, 941 F.2d 411, 418 (6th Cir. 1991); United States v. Thomas, 932 F.2d 1085 (5th

Cir. 1991); United States v. Turner, 928 F.2d 956, 960 (10th Cir. 1991); United States v.

Buckner, 894 F.2d 975, 978, 980 (8th Cir. 1990); United States v. Cyrus, 890 F.2d 1245,

1248 (D.C. Cir. 1989); United States v. Solomon, 848 F.2d 156, 157 (11th Cir. 1988);

United States v. Collado-Gomez, 834 F.2d 280, 281 (2d Cir. 1987).

The judgment of the District Court will be affirmed.