1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-31-1994

USA v. Raven

Precedential or Non-Precedential:

Docket 93-5578

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Recommended Citation

"USA v. Raven" (1994). 1994 Decisions. Paper 173.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/173
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 93-5578 

 ___________ 

 UNITED STATES OF AMERICA 

 vs. 

 DONALD RAVEN 

 Appellant. 

 ___________ 

 APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF NEW JERSEY 

 (D.C. Criminal No. 93-00128-1) 

 ___________ 

 ARGUED MAY 12, 1994 

 BEFORE: BECKER and LEWIS, Circuit Judges, 

 and POLLAK, District Judge*.

 (Filed October 31, 1994) 

 ___________ 

Mary Ann Mullaney (ARGUED) 

Office of the Federal Public Defender 

800 Hudson Square 

Suite 350 

Camden, NJ 08102 

 Attorney for Appellant

 

* Honorable Louis H. Pollak, United States District Judge for 

the Eastern District of Pennsylvania, sitting by 

designation. 

Edna B. Axelrod 

Glenn J. Moramarco (ARGUED) 

Office of United States Attorney 

970 Broad Street 

Room 502 

Newark, NJ 07102 

 Attorneys for Appellee

 ___________ 

 OPINION OF THE COURT 

 ___________ 

LEWIS, Circuit Judge. 

 Appellant Donald Raven pleaded guilty to conspiracy to 

import heroin into the United States from Thailand in violation 

of 21 U.S.C. § 963. On appeal, he challenges the sentence 

imposed by the district court. We will affirm in most respects, 

and remand only for resentencing. 

I. 

 In early 1993, Raven's grocery business was 

experiencing financial difficulty. Hoping to save his business, 

Raven tried to contact Tunde Amosa Taju, a friend who had once 

helped Raven find work as a drug courier. Raven had previously 

transported heroin from Thailand to the United States as a 

courier, and he sought to make some money this time by either 

recruiting couriers for Taju or acting as a courier again 

himself. 

 When Raven tried to telephone Taju at his home, he was 

unaware that Taju had been arrested on drug charges and was in 

jail. Nor did he know or suspect that Taju was cooperating with 
the government. Upon learning of Raven's call, Taju informed the 

Drug Enforcement Administration ("DEA") that Raven had tried to 

contact him. The DEA directed Taju to solicit Raven's services 

as a courier and to persuade Raven to find other couriers to 

assist Taju in importing heroin into the United States. Taju was 

also instructed to set up a meeting between himself, Raven and 

DEA Special Agent Gregory Hilton. 

 Taju did as he was told. In mid-February, 1993, at a 

hotel in Newark, New Jersey, Taju introduced Hilton to Raven as 

someone seeking drug couriers to import heroin from Bangkok, 

Thailand, into the United States. During this meeting, Raven 

said that he wanted to help Taju and Hilton and explained his 

previous involvement in drug importation. He also produced his 

passport and the passport of Denise Ramirez, whom he had 

recruited to act as an additional courier. 

 Approximately two weeks later, Raven and Ramirez met 

with Hilton and Taju at a diner in Elizabeth, New Jersey. Hilton 

produced an itinerary of the proposed trip to Bangkok from New 

York City and agreed to supply Raven and Ramirez with airplane 

tickets and expense money to use during their trip. Hilton told 

Raven that he wanted to import a minimum of three to four 

kilograms of heroin, which would be hidden in the lining of two 

or three suitcases. Hilton further commented that "it would not 

be worth the trip if we didn't bring back at least four 

kilograms" (Appendix ("App.") at 50), and Taju said that two or 

three suitcases would hold up to eight and one-half kilograms of 
heroin. Raven responded that he would retrieve whatever amount 

of heroin Hilton wanted. 

 Approximately a week later, Raven and Hilton met again, 

this time in a hotel parking lot in Newark. At this meeting, 

Hilton told Raven that his Thailand supplier now wanted to export 

as much as eight kilograms of heroin. Raven continued to express 

his willingness to assist, stating that he could supply 

additional couriers and reiterating that he would bring back into 

the United States whatever quantity of heroin Hilton requested. 

Hilton later testified that Raven specifically agreed to 

transport eight kilograms of heroin from Thailand to the United 

States at this meeting. 

 Shortly thereafter, in a conversation on the telephone, 

Hilton advised Raven that the supplier in Bangkok had again 

increased the amount of heroin they wanted transported. 

According to Hilton, Raven agreed this time to transport what 

would amount to up to twelve kilograms of heroin. 

 The final meeting between Raven, Ramirez and Hilton was 

scheduled to take place at a hotel in Elizabeth, where Raven and 

Ramirez were going to pick up their airplane tickets and advance 

money. Upon entering the hotel, Raven and Ramirez were arrested. 

In a post-arrest statement, Raven said that he was going to the 

Orient to pick up heroin and that he expected to make 

approximately $60,000 for his efforts. Raven and Ramirez were 

charged with conspiracy to import eight kilograms of heroin in 

violation of 21 U.S.C. § 963. 
 Raven pleaded guilty to a superseding information 

charging him with conspiracy to import an unspecified amount of 

heroin in violation of 21 U.S.C. § 963. The plea and superseding 

information came about because although the parties agreed that 

Raven had violated 21 U.S.C. § 963, they disagreed as to the 

weight of the heroin for which he should bear responsibility. In 

their plea agreement, the parties requested that the court 

determine at sentencing the weight to be used in calculating 

Raven's offense level pursuant to United States Sentencing 

Guidelines ("Guidelines") section 2D1.1. 

 At the sentencing hearing, the district court correctly 

noted that Raven's base offense level would be the same -- 34 -- 

if he was found responsible for any amount between three and ten 

kilograms of heroin. See Guidelines §§ 2D1.1(a)(3) and (c)(5). 

Next, the district court found that, based on the negotiations 

that had occurred, Raven should be held responsible for "three to 

four" kilograms of heroin for purposes of sentencing. This 

determination gave Raven a base offense level of 34, which was 

adjusted downward to 31 for acceptance of responsibility. 

Raven's criminal history category placed him in a sentencing 

range that would have been between 108 and 135 months, but the 

court recognized that Congress had provided that defendants 

convicted of a violation involving more than one kilogram of 

heroin face a mandatory minimum sentence of ten years (see 21 

U.S.C. § 960(b)(1)(A)), making Raven's adjusted Guideline range 

120 to 135 months. The court sentenced Raven to 120 months' 
imprisonment, and this appeal followed. We have jurisdiction 

under 18 U.S.C. § 3742. 

II. 

 Raven advances three challenges to the district court's 

sentencing decision: (1) the district court erred in failing to 

properly apply Application Note 12 to Guideline section 2D1.1 in 

determining Raven's offense level; (2) the district court erred 

in refusing to depart downward on the ground that Raven was the 

victim of "sentencing entrapment"; and (3) the district court 

erred in finding that Raven was predisposed to import three to 

four kilograms of heroin. Only his first claim requires extended 

discussion. 

A. 

 Raven's primary contention on appeal concerns the 

district court's quantification of the amount of drugs to be 

attributed to him for sentencing purposes in what was obviously 

an uncompleted narcotics trafficking arrangement. Under the 

Guidelines, the offense level used to determine a sentence for a 

drug offense is based initially upon the weight of the controlled 

substance for which the defendant is held accountable. See

generally Guidelines §§ 2D1.1 et seq. Application Note 12 to 

section 2D1.1 provides, in pertinent part: 

 In an offense involving negotiation to 

traffic in a controlled substance, the weight 

under negotiation in an uncompleted 

distribution is used to calculate that 

amount. However, where the court finds that 

the defendant did not intend to produce and 

was not reasonably capable of producing the 

negotiated amount, the court shall exclude 

from the guideline calculation the amount 
that it finds the defendant did not intend to 

produce and was not reasonably capable of 

producing. 

Guidelines § 2D1.1, Application Note 12 ("Note 12") (emphasis 

added). It is the meaning of this Note -- and especially its 

final sentence, italicized above -- that forms the core of 

Raven's dispute with the government and the district court. 

Raven contends that the district court erred in applying Note 12, 

and that this error resulted in an incorrect base level for his 

offense. We have jurisdiction to review this claim because Raven 

"allege[s] the district court committed legal (i.e., procedural) 

errors when imposing [his] sentence." United States v. 

Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991). 

1. 

 The parties agree that in cases involving uncompleted 

drug distributions, the government generally bears the burden of 

proving the weight of drugs under negotiation, just as it bears 

the burden of proving the weight of drugs at issue in any drug 

sentencing proceeding. See United States v. McCutchen, 992 F.2d 

22, 25 (3d Cir. 1993). The parties disagree, however, about 

which party bears the burden of proving the applicability of the 

final sentence of Note 12, which addresses whether a defendant 

intended to produce and was reasonably capable of producing the 

negotiated amount of drugs. Resolving this issue requires two 

distinct inquiries. First, what is the nature of the burden -- 

does the party with the burden have to demonstrate both intent 

and capability (or their lack), or is it sufficient to 
demonstrate either intent or capability (or, again, their lack)? 

Second, who has the burden -- the government or the defendant? 

 Although we have not directly addressed these 

questions,1 they have generated a surprising variety of responses 

among our sister circuits.2 Not only have the courts of appeals 

 

1. In United States v. Reyes, 930 F.2d 310 (3d Cir. 1991), a 

defendant contended that there was insufficient evidence to 

support the district court's findings that his conspiracy 

involved more than five kilograms of cocaine and that he was a 

leader or organizer. We stated that "[w]ith respect to these 

sentencing adjustments, the government bore the burden of 

persuasion by a preponderance of the evidence." Id. at 315. At 

least one court has interpreted this statement as having 

addressed and resolved the issue of who bears the burden of 

proving intent and capability in an unconsummated drug 

transaction. United States v. Smiley, 997 F.2d 475, 481 n.7 (8th 

Cir. 1993). Reyes, however, did not address that issue. 

 In United States v. Rodriguez, 975 F.2d 999 (3d Cir. 1992), 

we ruled that the defendants in a drug conspiracy could not be 

held responsible for the full weight of an alleged "mixture" of 

boric acid and cocaine because the cocaine and boric acid simply 

were not a "mixture" as described in Guideline section 2D1.1(c) 

as interpreted by the Supreme Court in Chapman v. United States, 

500 U.S. 453 (1991). Noting that the Guidelines allow sentencing 

courts to "look beyond the amount of drugs actually seized and 

consider the negotiations" in making a determination of base 

level (id. at 1088, citing former Guideline section 2D1.1 n.1, 

the predecessor to Note 12 (see infra n.2)), we observed that 

"the government produced no evidence of availability to the 

defendants of three kilograms of cocaine and that the district 

court made no finding that a higher guideline range was justified 

by any ability of defendants to deliver in fact three kilograms 

of cocaine . . . ." Id. at 1008. However, we did not purport to 

decide who bore the burden of persuasion regarding the last 

sentence of Note 12 or to elucidate the nature of that burden. 

In any event, the result in Rodriguez is wholly consistent with 

the result we reach today, since in Rodriguez the defendants' 

lack of intent to actually sell three kilograms of cocaine was 

uncontested (id. at 1006), and we concluded that the government 

had not demonstrated that the defendants had the capability to 

produce three kilograms, either (id. at 1008). 

2. Most of the decisions interpreting the language at issue in 

this case were actually discussing the predecessor to Note 12 -- 
split,3 but some have been unable to establish a consistent 

application of Note 12 even among panels.4 And a panel of the 

(..continued) 

Note 1 to then-Guideline section 2D1.4. See United States v. 

Hendrickson, 26 F.3d 321, 330 (2d Cir. 1994); United States v. 

Brooks, 957 F.2d 1138, 1150 (4th Cir. 1992); United States v. 

Christian, 942 F.2d 363, 368 (6th Cir. 1991); United States v. 

Gessa, 971 F.2d 1257, 1262-63 (6th Cir. 1992) (en banc); United 

States v. Ruiz, 932 F.2d 1174, 1183 (7th Cir. 1991); United 

States v. Barnes, 993 F.2d 680, 683 (9th Cir. 1993). But see

United States v. Pion, 25 F.3d 18, 24-25 (1st Cir. 1994) 

(addressing Note 12); United States v. Legarda, 17 F.3d 496, 499 

(1st Cir. 1994) (same), United States v. Tillman, 8 F.3d 17, 19 

(11th Cir. 1993) (same). As the Second Circuit noted in 

Hendrickson, the Sentencing Commission deleted Guideline 

section 2D1.4 and transferred the relevant language of Note 1 of 

that section to Note 12 of section 2D1.1, effective November 1, 

1992. Hendrickson, 26 F.3d at 330 n.6 (citing Amendment 447 to 

the United States Sentencing Guidelines, Guideline Manual, 

Appendix C, 269-71). Because the text of Note 1 to former 

Guideline section 2D1.4 and the pertinent portion of Note 12 to 

current section 2D1.1 are identical, in the text we discuss these 

courts' holdings as if they had interpreted the relevant portion 

of Note 12. 

3. The Ninth Circuit has found that Note 12 allocates the 

burden of persuasion to the defendant to prove that he or she 

lacked both intent and capacity to produce the drugs under 

negotiation. United States v. Barnes, 993 F.2d 680, 683 (9th 

Cir. 1993). The Seventh Circuit, by contrast, has found that the 

burden is on the government to prove both a defendant's intent 

and his or her capacity. United States v. Ruiz, 932 F.2d 1174, 

1183-84 (7th Cir. 1991). The Eleventh Circuit has found that the 

government bears the burden of persuasion, but that it satisfies 

that burden by showing either intent to produce or reasonable 

capability of producing the negotiated amount of drugs. United 

States v. Tillman, 8 F.3d 17, 19 (11th Cir. 1993); cf. United 

States v. Brooks, 957 F.2d 1138, 1150-51 (4th Cir. 1992) 

(government did not contest it had burden of persuasion, and 

Fourth Circuit found that the negotiated amount should be used 

unless defendant lacked both intent and ability to complete 

transaction). 

4. In United States v. Christian, 942 F.2d 363 (6th Cir. 

1991), the Sixth Circuit found that once the government 

establishes the negotiated amount of drugs, it is the defendant's 

burden to prove that he was not "capable of producing that 

amount." Id. at 368. The Christian court did not address 
Second Circuit has recently taken the extraordinary step of 

rejecting the note's language, finding that it "obscured" the 

government's obligation in every drug conspiracy case involving 

unconsummated transactions to prove a defendant's intent to 

produce the negotiated amount.5

(..continued) 

whether the defendant must prove both lack of intent and lack of 

capability, but because intent was not contested by the 

defendant, the necessary inference of the Christian court's 

holding is that the defendant would have been entitled to 

sentencing according to a lesser amount of drugs if he had proven 

a lack of ability to produce the negotiated amount. However, 

Christian's vitality is put in question by the Sixth Circuit's 

subsequent ruling in United States v. Gessa, 971 F.2d 1257 (6th 

Cir. 1992) (en banc). Without explicitly overruling Christian, 

the Sixth Circuit, sitting en banc, nevertheless reached 

conclusions directly contrary to those of the Christian panel. 

According to Gessa, the government has the burden of proof, see

Gessa, 971 F.2d at 1266 n.7 (majority) & 1280 (Krupansky, J., 

dissenting), but the government's burden would be met by showing 

either a defendant's intent or his or her reasonable capability 

to produce the negotiated amount of drugs (id. at 1265). Other 

courts have also issued conflicting opinions. In United States 

v. Legarda, 17 F.3d 496 (1st Cir. 1994), the First Circuit ruled 

that the government bears the burden of proving both intent and

capability to produce the negotiated amount of drugs. Id. at 

499-500. However, in United States v. Pion, 25 F.3d 18 (1st Cir. 

1994), another panel, without referring to Legarda, subsequently 

ruled that Note 12 is conjunctive -- that is, the district court 

should base its sentence on the negotiated amount unless it found 

that the defendant lacked both the intent and capability to 

produce that amount. Pion, 25 F.3d at 25. Finally, a recent 

panel of the Second Circuit frankly acknowledged that prior 

panels of that court had reached differing results on the issue 

of whether the last sentence of Note 12 should be read as 

conjunctive or disjunctive. United States v. Hendrickson, 26 

F.3d 321, 335-36 (2d Cir. 1994). 

5. In Hendrickson, the Second Circuit rejected the plain 

language of the application note because it had "enmeshed the 

base offense determination in quandaries of form to the exclusion 

of substance." Hendrickson, 26 F.3d at 336. Instead, the court 

ruled that the government bears the burden of proving the 

defendant's "intent to produce the contested quantities of 

narcotics" in every case, but that "failure to produce" -- that 
 We turn first to the question of what must be proven 

before a court may discount the negotiated amount in an 

unconsummated drug transaction and instead impose a sentence 

based on some lesser amount. This issue is straightforward: as 

Note 12 clearly states, the sentencing court must find "that the 

defendant did not intend to produce and was not reasonably 

capable of producing the negotiated amount," and again the amount 

to be excluded is limited to the amount "the defendant did not 

intend to produce and was not reasonably capable of producing." 

Note 12 (emphasis added). In other words, the final sentence of 

Note 12 is conjunctive, not disjunctive: for a defendant to be 

sentenced on a lesser amount, the sentencing court must find both 

lack of intent and lack of reasonable capability.6 Accord, e.g., 

United States v. Pion, 25 F.3d 18, 24-25 (1st Cir. 1994); United 

States v. Brooks, 957 F.2d 1138, 1151 (4th Cir. 1992); United 

States v. Barnes, 993 F.2d 680, 682 (9th Cir. 1993); United 

States v. Tillman, 8 F.3d 17, 19 (11th Cir. 1993). 

 The more difficult question, however, is who bears the 

burden of persuasion on the issues of intent and capability. To 

(..continued) 

is, lack of ability -- "is relevant only to the extent it 

suggests an absence of intent or agreement." Id. at 337. 

6. The issue dividing the Hendrickson panel (see supra n.5) is 

not present and need not be decided here. We note, however, that 

insofar as Note 12 states that the sentencing court must find 

"that the defendant did not intend to produce and was not 

reasonably capable of producing the negotiated amount) (to reduce 

drug quantity) the majority opinion in Hendrickson contains a 

useful insight: although a conspiracy is defined by the parties' 

agreement, so that the critical factor is the intent to produce 

(or carry) the drugs, lack of ability might well bear upon the 

existence of intent and on the scope of the agreement. 
resolve this issue, we start with the uncontroversial principle 

that the government bears the burden of establishing the amount 

of drugs for which a defendant shall be held responsible in an 

unconsummated drug transaction. McCutchen, 992 F.2d 22, 25 (3d 

Cir. 1993); accord, e.g., United States v. Hendrickson, 26 F.3d 

321, 332 (2d Cir. 1984); United States v. Ruiz, 932 F.2d 1174, 

1184 (7th Cir. 1991). Thus, even in a case implicating the final 

sentence of Note 12, the government must first prove the amount 

of drugs that was the object of the conspiracy -- that is, the 

amount that was negotiated. The government can meet this burden 

by referring to the presentence investigation report, which, if 

"unchallenged by the defendant is, of course, a proper basis for 

sentence determination." United States v. McDowell, 888 F.2d 

285, 290 n.1 (3d Cir. 1989). Alternatively, the government may 

present evidence at the sentencing hearing establishing the 

amount of drugs that the parties had settled upon (which, in 

fact, it did in this case). 

 Once the government makes its prima facie showing that 

a particular amount of drugs was negotiated, the defendant who 

wishes to be found responsible for a lesser amount of drugs must 

come forward with evidence supporting the proposition that he or 

she lacked both the intent and the reasonable capability to 

produce the drugs in question. As we explained in McDowell, "the 

party challenging" the government's prima facie case at a 

sentencing hearing "has the burden of production, under 

Rule 32(c), to come forward with evidence that tends to indicate" 

that the evidence relied upon by the government "is incorrect or 
incomplete." McDowell, 888 F.2d at 290 n.1.7 In order to meet 

this burden of production, the defendant may cast a different 

light on the government's evidence, elicit evidence of his or her 

own during cross examination of any witnesses offered by the 

government, or present other evidence suggesting lack of intent 

and lack of reasonable capability. 

 The ultimate burden of persuasion, however, does not 

shift to the defendant in a case implicating the final sentence 

of Note 12. To the contrary, as explained above, that burden 

remains at all times with the government. Thus, if a defendant 

puts at issue his or her intent and reasonable capability to 

produce the negotiated amount of drugs by introducing new 

evidence or casting the government's evidence in a different 

light, the government then must prove either that the defendant 

intended to produce the negotiated amount of drugs or that he or 

she was reasonably capable of doing so.8

 

7. Although McDowell was specifically addressing a defendant's 

challenge to a presentence investigation report, the discussion 

of a defendant's burden of production applies with equal force in 

the current context. 

8. We do not imply that the government must necessarily 

introduce further evidence to meet this ultimate burden. For 

example, it is not hard to envision situations in which a court 

could easily conclude that the defendant's theory is mistaken or 

that his or her evidence does not undermine the government's 

evidence of the amount of drugs involved in the unconsummated 

transaction. We merely emphasize that the ultimate burden of 

persuading a court that the defendant intended to produce or was 

capable of producing the amount the government claims was 

negotiated rests with the government. 
 Distributing the burdens of production and persuasion 

in this manner most closely adheres to the language, logic and 

intent of Note 12. We recognize that the last sentence of Note 

12 could be read as an exception to the general rule that courts 

should use the weight of drugs under negotiation to determine a 

defendant's base offense level. Under that reading, the first 

part of Note 12 would establish a defendant's base offense level, 

and its last sentence would result in a reduction to the base 

offense level, as a mitigating factor, in certain circumstances. 

If this interpretation were adopted, the defendant would properly 

bear the burden of proving entitlement to a reduction in offense 

level under McDowell, where we explained that: 

 [T]he burden of ultimate persuasion should 

rest upon the party attempting to adjust the 

sentence. Thus, when the Government attempts 

to upwardly adjust the sentence, it must bear 

the burden of persuasion. This prevents the 

criminal defendant from having to "prove the 

negative" in order to avoid a stiffer 

sentence. . . . Conversely, when the 

defendant is attempting to justify a downward 

departure, it is usually the defendant who 

bears the burden of persuasion. 

McDowell, 888 F.2d at 291 (citation omitted). 

 However, it is more reasonable to read Note 12, in its 

entirety, as addressing how a defendant's base offense level may 

be determined in the first instance when a drug transaction 

remains unconsummated, for it is important to bear in mind that 

calculating the amount of drugs involved in criminal activity 

neither aggravates nor mitigates a defendant's sentence; rather, 

it provides the starting point (a "base offense level," in 
Guidelines terminology) from which a district court can proceed 

to make adjustments for factors that do, indeed, aggravate or 

mitigate the sentence. Thus, given that the government bears the 

burden of establishing the amount of drugs for which a defendant 

should be held accountable, the government should likewise be 

required to prove a defendant's intent or capability to produce a 

negotiated amount of drugs if those issues are called into 

question by the defendant. 

 In reaching this conclusion, we reject the suggestion 

offered by the government at oral argument that the burden of 

persuasion related to the last sentence of Note 12 is best placed 

on the defendant because evidence and information about his or 

her intent and capability is uniquely in the defendant's hands. 

Reasoning such as this has often been the basis for assigning 

burdens of proof to various parties in civil cases. See, e.g., 

United States v. Continental Ins. Co., 776 F.2d 962, 964 (11th 

Cir. 1985).9 But in a case such as this, involving a courier 

defendant, the government's reasoning simply does not support 

imposing the burden of proof on a defendant. While we can 

conceive of a seller or buyer defendant having sole possession of 

and access to information about his or her intent and ability to 

sell or purchase a certain amount of drugs, the proposition may 

 

9. We note, however, as one commentator has observed, that the 

practice of assigning burdens of proof on particular matters to 

those who have greater access to the facts in issue "should not 

be overemphasized. Very often one must plead and prove matters 

as to which [one's] adversary has superior access to the proof." 

2 McCormick on Evidence § 337 at 429 (4th ed. 1992). 
be rendered less likely when a defendant has been convicted of 

transporting (or, in this case, agreeing to transport) drugs for 

others. In the latter category of cases, the government may be 

just as able to prove intent and capability as the defendant is 

able to prove their absence. And although the government's 

reasoning has some force in cases involving buyer or seller 

defendants, we do not believe it overcomes the fundamental 

principle that the government bears the ultimate burden to 

establish the amount of drugs under negotiation. Accordingly, we 

conclude that the government should be assigned the burden of 

establishing not only the negotiated amount of drugs, but also 

the defendant's intent or reasonable capability to produce them 

if the defendant has put those matters in issue. 
2. 

 Having established where the burdens of persuasion and 

production lie in cases implicating the final sentence of Note 

12, as well as the nature of those burdens, we now turn to 

Raven's claim of substantive error by the district court in 

applying Note 12. Raven's argument is essentially driven by the 

dictionary. Citing the American Heritage College Dictionary as 

authority for the proposition that the term "produce" means "to 

bring forth, create, or manufacture," Raven claims that Hilton's 

testimony at the sentencing hearing established that Raven 

neither intended to "produce" nor was reasonably capable of 

"producing" either heroin or money to pay for it. Appellant's 

Reply Br. at 10-11. Raven notes that Hilton's testimony 

established that Raven was neither a buyer nor a seller of heroin 

and that he could provide no financing for the scheme. App. at 

58, 63, 68. This evidence, according to Raven, proves that he 

could not "produce" any heroin or any money to pay for the 

drugs.10

 

10. Raven also argues that Hilton's testimony proved that there 

was never any heroin to "produce" because Raven was the object of 

a DEA "sting" in which there never really was any heroin at all. 

App. at 61-62. But the fact that no drugs were really on their 

way into the United States as a result of Raven's conspiracy is 

simply a happy -- and all too infrequent -- curiosity of this 

case. That fact does not decrease the reprehensibility of 

Raven's crime: drugs cannot travel from faraway lands to our 

cities and neighborhoods without people who are ready, willing, 

and able to carry them. Nor does the fact that no drugs were 

ultimately involved in the conspiracy permit a court to ignore 

the actual amount of heroin -- three to four kilograms -- that 

Raven thought he was going to transport, intended to transport, 

and was capable of transporting. 
 In making this argument, however, Raven assigns too 

literal a meaning to the term "produce" and thus unreasonably 

constrains Note 12. We believe that the salutary last sentence 

of Note 12 must have some content in the world of courier 

sentencing, in order to force the government to demonstrate a 

courier's level of culpability when a drug transaction remains 

unconsummated and the courier's intent and ability to consummate 

the transaction are put in issue.11 However, we agree with the 

government that to apply the principle embodied in Note 12, the 

focus must shift according to a defendant's role in the offense. 

Other courts addressing the language of Note 12 have not 

hesitated to interpret that language according to context. For 

example, the Fourth Circuit found that the language in question 

applied to a purchaser, because the note "speaks of `traffic in a 

controlled substance,' . . . a term sufficiently broad to 

encompass the purchase and sale of controlled substances." 

Brooks, 957 F.2d at 1151. Similarly, the Eleventh Circuit, 

confronted with a case in which the defendants were to procure 

and then sell an amount of drugs to an undercover agent, 

concluded that "[i]n this context, to `produce' means to obtain 

or deliver, as well as to manufacture." Tillman, 8 F.3d at 19. 

 

11. Thus, we reject the plausible (but unsatisfying) argument, 

advanced by the government before the district court, that the 

last sentence of Note 12 applies only to drug sellers. App. 

at 39. The government does not press this argument before us, 

and it seems to us fundamentally unfair that only in cases 

involving unconsummated drug transactions by sellers would the 

government have to demonstrate that the defendant intended and 

was able to complete the negotiated transaction. We do not 

believe that the Sentencing Commission intended such a result. 
 Because of the variety of schemes that may be employed 

to traffic in narcotics, there are a multitude of situations in 

which a person's participation may result in the ultimate aim of 

a drug deal, which is to put drugs into someone else's hands in 

exchange for money. It seems obvious, then, that the word 

"produce" must vary according to context. "Produce" in the sense 

described in Tillman would apply where a defendant is a seller of 

drugs. When the defendant is a drug buyer, Note 12 would address 

the quantity of drugs that the defendant intended to purchase and 

was reasonably capable of purchasing. Brooks, supra. And where, 

as in this case, a defendant has been convicted of conspiring to 

transport drugs, the proper focus is the quantity of drugs the 

defendant intended to transport and was reasonably capable of 

transporting. 

 Thus, Raven's contention that he had neither money nor 

drugs is irrelevant in a courier case. The wrong being punished 

is the conspiracy to import drugs into the United States, and the 

issue for determination in the district court was what amount of 

drugs Raven intended to and had the capability to transport. 
3. 
 Raven contends that if we conclude that the issue to be 

resolved under the last sentence of Note 12 is whether he had the 

intent and capability to transport a negotiated amount of heroin, 

we should remand to the district court for a determination of 

that issue and for resentencing. Other circuits which have 

addressed the language in the final sentence of Note 12 have 

concluded that a district court must make explicit findings as to 

intent and capability. United States v. Gessa, 971 F.2d 1257, 

1263 (6th Cir. 1992) (en banc); United States v. Jacobo, 934 F.2d 

411, 416 (2d Cir. 1991). We agree: it is necessary that 

district courts develop an adequate record for review when intent 

and capability are put in issue by the defendant. Although the 

district court did not anticipate our ruling and focus on whether 

Raven intended to transport and was reasonably capable of 

transporting the negotiated amount of heroin here, and did not 

make explicit findings in that regard, that is hardly surprising, 

for prescience is a tall order to fill.12 We emphasize, though, 

that it is for the district court in the first instance to make 

these findings, and while in this case that may be a rather 

academic exercise,13 we decline to usurp the district court's 

 

12. Although the district court's ruling is not without 

ambiguity, it is clear that the court was not only aware of 

Raven's argument that Note 12 required a lower base offense 

level, but that it took testimony on the issue and considered 

Note 12 in determining that Raven should be held responsible for 

three to four kilograms of heroin. See App. at 88-96. 

13. There appears to be ample evidence of Raven's intent and

capacity to transport at least three to four kilograms of heroin. 

Concerning intent, as the district court found, "three to four 

[kilograms of heroin] was the opening salvo and one which was 

never rejected or debated." App. at 94. Furthermore, Raven 
role and will instead remand for resentencing consistent with 

this opinion. 

B. 

 In his second challenge to his sentence, Raven argues 

that because the government single-handedly determined the amount 

of drugs involved in the conspiracy, the district court should 

have departed downward from the otherwise applicable base level. 

(..continued) 

concedes in his brief that "he demonstrated his willingness to 

participate in the plan to import heroin and that he recruited 

another for this purpose . . . ." Appellant's Br. at 17-18. 

There was also unrefuted testimony that both Raven and Ramirez 

knew that they were going to transport the heroin in suitcases 

and that three to four kilograms of heroin could be transported 

in a single suitcase. See App. at 61, 51. And Raven tacitly 

agreed that the trip would not be worthwhile unless at least 

three or four kilograms of heroin were brought back to the United 

States. App. at 50. 

 As for capability, there is no need in this case to inquire 

into whether Raven had a source that could supply three to four 

kilograms of heroin, as there might be in a case in which the 

defendant was proposing to sell heroin to an undercover agent. 

Nor is there a need to inquire into whether Raven had a source of 

funding sufficiently large to purchase three to four kilograms of 

heroin, as there might be in a case in which a defendant was 

proposing to purchase heroin from an undercover agent. In a case 

such as this, in which a defendant acts as a mere courier 

transporting drugs from overseas, there would appear to be 

nothing more to the "reasonable capability" inquiry than 

determining whether the defendant had a passport, could travel to 

the assigned destination, could pick up and carry suitcases, and 

could return. Evidence presented at the sentencing hearing 

suggested that Raven was an experienced drug courier who had made 

runs to Thailand before. Furthermore, the record showed that 

Raven's discussions with Taju and Hilton at all times 

contemplated at least one suitcase being used for transport, and, 

again, testimony indicated that one suitcase could hold three to 

four kilograms of heroin. Additionally, the evidence established 

that Raven had recruited Ramirez to participate in the 

transportation, from which one might infer that the conspirators 

could transport at least one suitcase of heroin. 
The government's behavior, Raven contends, constituted 

"sentencing entrapment," which has been defined as "`outrageous 

official conduct [which] overcomes the will of an individual 

predisposed only to dealing in small quantities' for the purpose 

of increasing the amount of drugs . . . and the resulting 

sentence of the entrapped defendant." United States v. Rogers, 

982 F.2d 1241, 1245 (8th Cir. 1993), quoting United States v. 

Lenfesty, 923 F.2d 1293, 1300 (8th Cir. 1991). Raven argues that 

the district court committed legal error in refusing to depart 

downward on this basis or, alternatively, that it failed to 

depart because it believed it lacked authority to do so. Our 

review of both contentions is plenary. See United States v. 

Spiropoulos, 976 F.2d 155, 160 n.2 (3d Cir. 1992) (failure to 

depart because of mistake of law); United States v. Love, 985 

F.2d 732, 734 n.3 (3d Cir. 1993) (failure to depart because of 

uncertainty about authority to depart). 

 Contrary to Raven's argument that the district court 

may have believed that it did not have authority to depart 

downward because of entrapment by the government, the court in 

fact reached the issue. Specifically, the court determined that 

the government's behavior did not amount to sentence entrapment, 

making departure on that ground inappropriate. App. at 88-91. 

We have not as yet had occasion to address the theory of 

sentencing entrapment described in Rogers and Lenfesty, and we do 

not do so today, but we agree with the district court that Raven 

is not a candidate for departure based on that ground even 

assuming that the doctrine has vitality in this circuit. Hilton 
testified -- and Raven did not dispute -- that the government 

suggested that the conspirators import three to four kilograms of 

heroin, instead of some smaller amount, because in Hilton's 

experience it was not feasible for suppliers in Thailand or 

conspirators in the United States to "set up such a trip and 

bring back just one or two kilograms of heroin." App. at 50.14 

And far from being entrapped, Raven was an experienced drug 

courier who demonstrated what can only be characterized as a 

yeoman's attitude towards this venture. Hilton testified that 

when Raven was told that it would be necessary to import at least 

three to four kilograms of heroin in order to make the venture 

feasible, Raven responded that "whatever we had to bring back, 

there was no problem. He was ready to bring it back. He wanted 

this to be an ongoing thing. He wanted to prove his loyalty and 

his trust. He would bring back whatever was over there." App. 

at 51. Clearly, the district court did not err in refusing to 

depart downward for entrapment. 

C. 

 Finally, Raven contends that the district court erred 

in finding that he was predisposed to import three to four 

kilograms of heroin. Since we have found that there was no 

entrapment in this case, we need not reach the issue of 

 

14. While it is true that the government later increased (from 

four kilograms to eight and then twelve) the amount of heroin 

that Raven was to have transported (App. at 54-55, 56-57), we 

need not address whether this behavior constituted an instance of 

impermissible "ratcheting" because the district court found Raven 

responsible for only three to four kilograms. 
predisposition. In any event, reviewing for clear error, see

United States v. Belletiere, 971 F.2d 961, 964 (3d Cir. 1992), we 

note that the record indicates that Raven initiated the contact 

that led to the importation scheme, and when Taju and Hilton 

provided him the opportunity to participate, Raven not only 

immediately took it, but continued to demonstrate his 

enthusiastic support for the scheme until his arrest. We find 

that the district court did not err here, either. 

III. 

 In conclusion, we do not gainsay that there is often 

something potentially troubling about an indictment that charges 

that a defendant conspired to traffic in narcotics, where the 

pleaded facts show that: (1) the defendant had no means (money 

or contacts) to produce or sell any narcotics, and no means 

(money or credit) to buy narcotics; (2) the narcotics transaction 

in which he was supposed to be a courier never got off the 

ground; and (3) the deal was negotiated with a government 

informant and the co-conspirator was only another courier 

(recruited by the defendant). There is, in these circumstances, 

no physical evidence of the crime, and not only conviction but 

also sentence will turn entirely upon the credibility of the 

government (and defense) witnesses. However, the facts described 

in footnote 13 supra appear to be sufficiently concrete that 

there is no cause for such concern here. Of course, we intimate 

no view as to what the district court should do on remand. 
 For the foregoing reasons, we will remand for 

resentencing as discussed in section II.A.3, and will affirm in 

all other respects.