## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 7 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,Plaintiff-Appellee/CrossAppellant, v. ELEUTERIO GARCIA,Defendant-Appellant/CrossAppellee. Nos. 98-2012 and 98-2031

Appeal from the United States District Court for the District of New Mexico (D.C. No. CR-96-004 MV)
John L. Sullivan, Rothstein, Donatelli, Hughes, Dah lstrom, Cron & Schoenburg, LLP, Santa Fe, New Mexico (Mark H. Donatelli, Roths tein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, LLP, Santa Fe, New Me xico and Michael W. Lilley of Las Cruces, New Mexico, with him on the b riefs), for DefendantAppellant/Cross-Appellee. Richard A. Friedman, Attorney, Appellate Section of Criminal Division of the Department of Justice, Washington, D.C. (John J. Ke lly, United States Attorney for the District of New Mexico and Mick I.R. Gutier rez, Assistant United States Attorney for the District of New Mexico with him on the brief) for PlaintiffAppellee/Cross-Appellant.

Before PORFILIO, BALDOCKand EBEL , Circuit Judges.

EBEL , Circuit Judge.**-2-**

This appeal involves the defendant’s challenge to t he district court’s denial of a motion for judgment of acquittal based on an e ntrapment defense and denial of motions for a new trial, as well as the governme nt’s cross-appeals on several sentencing issues. We affirm the district court’s judgment, except for the district court’s two-level reduction based on the minor part icipant provision of the Sentencing Guidelines, on which we reverse and remand. On December 14, 1995, Defendant-Appellant/Cross-App ellee Eleuterio Garcia was arrested for trafficking cocaine, and wa s later charged with possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2. At trial, his sole d efense was that paid government informant Saul Horcasitas entrapped him. The jury returned a guilty verdict, and Garcia’s post-trial motions for judgment of acquitt al and for a new trial were denied. At sentencing, the district court adjusted downwardGarcia’s base offense level by six levels, pursuant to the safety valve, acceptance of responsibility, and minor participant provisions of the Sentencing Guid elines. The district court then departed downward an additional seven levels, findi ng Garcia’s commission of the crime to be a single act of aberrant behavior. In total, Garcia’s offense level dropped from twenty-eight to fifteen, which, when c ombined with his criminal history category of I, established a guideline impr isonment range of eighteen to**-3-**

twenty-four months. Garcia was sentenced to eighte en months in prison. The government cross-appeals the downward departure, as well as the acceptance of responsibility and minor participant adjustments.

I. Entrapment as a Matter of Law Garcia argues that he was entrapped as a matter of law, and that the district court thereby erred in denying his motion for judgm ent of acquittal. The denial of a motion for judgment of acquittal based on entrapm ent is reviewed de novo, viewing all the evidence and drawing all reasonable inferences in the light most favorable to the government. See United States v. Lampley , 127 F.3d 1231, 1242 (10th Cir. 1997), cert. denied , 118 S. Ct. 1098 (1998). “Entrapment exists as a matter of law only if the e vidence of entrapment is uncontradicted. When a jury has found that no entr apment existed, we can alter that finding on legal grounds only ‘where the holdi ng should be made without choosing between conflicting witnesses nor judging credibility. . . . Accordingly, we review only whether sufficient evidence exists t o support the jury’s verdict.’” United States v. Martinez , 979 F.2d 1424, 1429 (10th Cir. 1992) (quoting Uni ted States v. Dozal-Bencomo , 952 F.2d 1246, 1250 (10th Cir. 1991)) (citations omitted). Once the defense of entrapment is proper ly raised, the government has the burden of proving that the defendant was predis posed to commit the crime.**-4-**

United States v. Duran , 133 F.3d 1324, 1327 n.2 (10th Cir. 1998). The “entrapment defense has two parts: (1) the lawfuln ess of the government’s conduct, and (2) the defendant’s predisposition to engage in the criminal activity.” Lampley , 127 F.3d at 1242. Garcia’s claim of entrapment a s a matter of law focuses on the second element, predispositio n. Garcia contends that the government failed in its burden to prove that he wa s predisposed to commit a criminal act prior to being approached by the gover nment. “Predisposition to commit a criminal act may be shown by evidence of s imilar prior illegal acts or it may be inferred from defendant’s desire for profit, his eagerness to participate in the transaction, his ready response to the governme nt’s inducement offer, or his demonstrated knowledge or experience in the crimina l activity.” Duran , 133 F.3d at 1335 (internal quotations and citations omitted) . As a result, although Jacobson v. United States , 503 U.S. 540, 549 (1992), requires that the defen dant’s predisposition be viewed at the time the governmentagent first approached the defendant, inferences about that predisposition maybe drawn from events occurring after the two parties came into contact. See Duran , 133 F.3d at 1336 (finding sufficient evidence of predisposition wher e defendant, inter alia , “bragged” to the government informant “about being able to obtain drugs”); United States v. Mendoza-Salgado , 964 F.2d 993 , 1003 (10th Cir. 1992) (“[Defendant’s] solicitous telephone discussions wi th [the government agent]**-5-**

regarding defendant’s ability to supply cocaine, hi s express interest in handling future drug purchases and his attendance at the pre liminary meeting between [his supplier] and agents exemplifies a profound eagerne ss to engage in the illegal activity.”). We find there is sufficient evidence to prove that Garcia was predisposed to distribute narcotics. The government’s paid inform ant, Saul Horcasitas, testified that three weeks after he moved into the trailer ne xt door to Garcia, it was Garcia who first suggested to Horcasitas that he should se ll cocaine. Additionally, Garcia’s vocabulary and manner of dealing with Horc asitas demonstrates knowledge and experience in illicit drug trades. D uring two taped telephone conversations between Garcia and Horcasitas, Garciademonstrated knowledge of the drug trade when he understood Horcasitas’ use o f code words. Horcasitas talked to Garcia in code, using phrases like “anima ls” (cocaine), “bundles” (kilograms), and “papers” (money), and Garcia had n o problem understanding Horcasitas’ lingo. In fact, Garcia even used code words, stating in one conversation that he wanted to look “at the papers to see if I like them, to see if they work on the roof.” Police Officer Mike Mullin iks testified that such code is used by people “familiar with dealing in drugs,” an d it is not unreasonable for a jury to find that someone who understands such code is predisposed to deal drugs.**-6-**

See Mendoza-Salgado , 964 F.2d at 1003 (“‘code words’ to describe drugs and related matter further exemplifies . . . understand ing of the narcotics trade”). Other evidence admitted at trial sufficiently estab lishes Garcia’s predisposition. DEA Agent James Baker testified th at the amount of cocaine involved in the transaction, 2.987 kilograms, is “c onsistent with more sophisticated operators.” Moreover, Garcia had a c onversation with Horcasitas in which Garcia refused to transport the cocaine from Las Cruces, New Mexico to Hatch, New Mexico. Garcia’s refusal to transport t he cocaine to Hatch from Las Cruces reasonably could be interpreted as evincing a sophisticated understanding of the risks of transporting drugs, because Border Patrol checkpoints are positioned between the two cities. Garcia also kne w to ensure his security by insisting that the drug deal occur on his home turf; that the transaction be completed quickly at the time Garcia, not the buyer s, demanded; and that the locations for the drug deal frequently change. Fin ally, Garcia was apparently experienced enough to maintain a cool, calm, and co llected businesslike demeanor throughout the entire drug transaction. Given this evidence, and all reasonable inferences which can be drawn in the government’s favor, the district court did not abuse its discretion in denying the motion for judgment of acquittal. A jury reaso nably could find that the nearly**-7-**

three kilogram cocaine deal involving Garcia resemb led a sophisticated drug transaction that someone predisposed to drug traffi cking would commit.

II. Motion for a New Trial Garcia filed a motion for a new trial on the ground that the verdict was against the weight of the evidence with regard to h is sole defense of entrapment. The district court denied the motion, and Garcia ap peals, arguing that the district court totally failed to weigh any evidence. A dist rict court’s denial of a new trial based on the weight of the evidence is reviewed forabuse of discretion. United
States v. Evans , 42 F.3d 586, 593 (10th Cir. 1994). Though the di strict court’s reasoning could have been more explicit, the distri ct court did not abuse its discretion. A motion for new trial should be granted if, “afterweighing the evidence and the credibility of the witnesses, the court det ermines that ‘the verdict is contrary to the weight of the evidence such that a miscarriage of justice may have occurred.’” United States v. Gabaldon , 91 F.3d 91, 93-94 (10th Cir. 1996) (quoting Evans , 42 F.3d at 593). In its Memorandum Opinion and Order denying the motion, the district court stated that it “cons idered the briefs, testimony of witnesses and [was] otherwise fully informed,” and it then concluded that the motion for new trial was “not well taken.” The cou rt laid out in detail the**-8-**

testimony of Horcasitas, Agent Baker, and Officer M ulliniks, and ultimately found this testimony to be “directly relevant to th e question of inducement and contradictory to Mr. Garcia’s testimony.” The court concluded that “[b]ecause of this conflict the Court cannot say that Mr. Garcia was entrapped as a matter of law.” Although its reasoning was not explicit, we believe the district court weighed the evidence and considered the credibility of all the witnesses. The court’s complete description of the evidence pertai ning to the entrapment defense, its express consideration of “the briefs, testimonyof witnesses and being otherwise fully informed,” combined with the court’ s explicit rejection of the new trial motion establish that the court weighed the e vidence, and found it not to support a motion for new trial. Accordingly, Garci a’s appeal on this matter fails.

III. Failure to Hold Hearing Regarding Potential Jury Misconduct Garcia also asserts that the district court erred i n failing to conduct a hearing regarding potential jury misconduct. The d enial of a motion for new trial based on juror misconduct is reviewed under the abu se of discretion standard. See United States v. Davis , 60 F.3d 1479, 1482 (10th Cir. 1995). Garcia alleges that several jurors saw him arrive at the courthouse in a recent model pickup truck and that they improperly inferred that to afford such an expensive vehicle, he must have been a drug dealer. Garcia argues that the**-9-**

jurors’ observations of him arriving at the courtho use in a luxurious automobile constitutes external information triggering a presu mption of prejudice under Remmer v. United States , 347 U.S. 227 (1954).
Remmerdealt with a third party offer of a bribe to the j ury foreman in exchange for a favorable verdict. The Supreme Court held that the trial court erred in not conducting a hearing with the particip ation of the defendant to determine the effect of the offered bribe on the ju ry, and stated: “In a criminal case, any private communication, contact, or tamper ing, directly or indirectly, with a juror during a trial about the matter pendin g before the jury is, for obvious reasons, deemed presumptively prejudicial.” Id. at 229. Remmer ’s presumption of prejudice does not apply to Garcia because the j urors’ alleged observations of Garcia and his pickup truck do not constitute direc t or indirect private “communication, contact, or tampering.” Seeing Gar cia arrive at court in his truck is not extraneous evidence, in the same way t hat it is not extraneous evidence when a juror observes the defendant walkin g down the corridor of the courthouse between trial dates, or sees the defenda nt at the grocery store. “To hold otherwise would require a Remmerhearing based on each of the multiple ordinary incidental contacts between non-sequestere d jurors and virtually any other person during the course of a trial.” United States v. Brooks , 161 F.3d 1240, 1246 (10th Cir. 1998) (holding Remmerinapplicable where juror spoke**-10-**

with security officers during lunch break on first day of trial, without evidence that their conversations were “about the matter pen ding before the jury”).
Remmerand its applications in this Circuit thus foreclos e us from adopting Garcia’s arguments. We further observe that, in any event, photographs were introduced in evidence showing Garcia in this truck . The Remmerpresumption is not applicable and the district court acted within its discretion in refusing to hold a hearing on the matter.

IV. The Government’s Cross-Appeals from the Sentence The government raises three issues on cross-appeal. The government contends that the district court erred in adjusting Garcia’s sentence downward based on his acceptance of responsibility and minorparticipant status in the offense. The government also argues that the distr ict court erred in granting a downward departure for aberrational behavior. We h old that the district court erred only in its minor participant downward adjustment; therefore, we affirm in part and reverse in part.

A. Acceptance of responsibility At sentencing, the district court granted Garcia a two point reduction for acceptance of responsibility. The court made a fac tual finding that:1 The Third, Sixth, Ninth, and Eleventh Circuits have concluded that the

entrapment defense and the acceptance of responsibi lity reduction are not necessarily incompatible. See United States v. Demes , 941 F.2d 220, 222 (3d Cir. 1991) (“[I]t is conceivable to hypothesize a case i n which a plea of entrapment would not be inconsistent with the acceptance of re sponsibility . . . .”); United States v. Fleener , 900 F.2d 914, 918 (6th Cir. 1990) (“[W]e find that the district court did not err in considering a reduction for ac ceptance of responsibility even though [the defendant] raised an entrapment defense at trial. Such a defense is no less inconsistent with the Guidelines provision than is a plea of not guilty, which does not raise an absolute bar to a court’s conside ration.”); United States v. Ing , 70 F.3d 553, 556 (9th Cir. 1995) (“The assertion of an entrapment defense is not necessarily incompatible with acceptance of respons ibility.”); United States v. Davis , 36 F.3d 1424, 1435 (9th Cir. 1994) (“[T]he distri ct court could not have found that [the defendant] had not accepted respons ibility solely because he presented an entrapment defense at trial.”); Joinerv. United States , 103 F.3d 961, (continued...) **-11-** The defendant meets the criteria of Section 3E1.1(a ) and will receive a two (2) level reduction for acceptance of respons ibility . . . . The defendant admitted his involvement in the offense s ince his initial arrest and throughout the trial. Further, the defendant h as given the Government all the information he knows about the offense. Th e Court finds it was appropriate for the defendant having presented an e ntrapment defense which admitted the underlying facts, to receive ful l credit for acceptance of responsibility. On cross-appeal, the government argues that the dis trict court erred as a matter of law in applying the acceptance-of-responsibility cr edit under U.S.S.G. § 3E1.1 because Garcia went to trial, asserted an entrapmen t defense, and thereby, according to the government, refused to acknowledge that he willfully engaged in drug trafficking. The issue before us is whether a sserting an entrapment defense at trial bars receipt of an acceptance-of-responsib ility reduction as a matter of law. The circuits appear split on this matter, 1 although only the Sixth Circuit has1 (...continued)

963 (11th Cir.) (“[The defendant] would not have be en barred as a matter of law from receiving an adjustment merely because he asse rted an entrapment defense at trial, even though some courts have viewed the asse rtion of an entrapment defense as the virtual antithesis of acceptance of responsi bility. Rather, as with cases involving any other defense, whether a defendant ha s accepted responsibility is a fact-based question which requires the district cou rt to carefully review all of the evidence bearing on a particular defendant’s contri tion.”) (citation omitted), cert. denied , 520 U.S. 1246 (1997). The First Circuit seems to have reached the same conclusion. See United States v. Ellis , 168 F.3d 558, 564 (1st Cir. 1999) (“In some cases, defenses relating to intent may yet qua lify for the acceptance of responsibility reduction.”) (citing Fleener , 900 F.2d at 918). On the other hand, the Fifth and Eighth Circuits have held that an entrapment defense and a § 3E1.1 reduction are nece ssarily incompatible. See United States v. Brace , 145 F.3d 247, 265 (5th Cir.) (en banc) (“[A]n ent rapment defense is a challenge to criminal intent and thus to culpability. Accordingly, this is not one of those ‘rare situations’, contemplated by the guideline commentary, in which a defendant may proceed to trial and still satisfy § 3E1.1(a).”), cert denied , 119 S.Ct. 426 (1998); United States v. Chevre , 146 F.3d 622, 625 (8th Cir. 1998) (“We believe that ‘[w]here a defendant persists in asserting entrapment, she cannot also claim acceptance of responsibility.’”) (quoting United States v. Simpson , 995 F.2d 109, 112 (7th Cir. 1993)). The D.C. Circuit comes very close to holding that t he entrapment defense is incompatible with acceptance of responsibility, butit has left the door just slightly ajar on that issue. See United States v. Kirkland , 104 F.3d 1403, 1406 (D.C. Cir.) (“It may be that a situation could be p resented in which an entrapment defense is not logically inconsistent with a findin g of a defendant’s acceptance of responsibility, even though we doubt it (that three of our sister circuits seem to think so is sufficient reason to be somewhat cautio us), but certainly defense counsel’s argument before the district court did no t raise it.”), cert. denied , 520 U.S. 1246 (1997). The Seventh Circuit appears to be split internally. Compare United States v. Corral-Ibarra , 25 F.3d 430, 440 (7th Cir. 1994) (finding that an entrapment defense if pleaded in good faith “may possibly qual ify” for a § 3E1.1 reduction, but in such a case “a determination that a defendan t has accepted responsibility will be based primarilyupon pre-trial statements and conduct”), withUnited States v. Rector , 111 F.3d 503, 508 (7th Cir. 1997) (“[T]he adjustm ent [for (continued...) **-12-**1 (...continued)

acceptance of responsibility] is rarely available t o those who assert entrapment, a defense that by its nature tends to preclude the ac ceptance of responsibility. Essentially, the problem is that asserting entrapme nt is a denial rather than an acceptance of responsibility. A defendant assertin g such a defense is saying, in effect, ‘I did it but it was somebody else’s fault that I did it.’ That is the antithesis of remorse or acceptance of responsibili ty.”), overruled on other grounds byUnited States v. Wilson , 169 F.3d 418, 428 n.9 (7th Cir. 1999), cert. denied , No. 98-9497, 1999 WL 350146 (U.S. June 21, 1999), andUnited States v. Simpson , 995 F.2d 109, 112 (7th Cir. 1993) (“Where a defen dant persists in asserting entrapment, she cannot also claim accepta nce of responsibility.”), and United States v. Emenogha , 1 F.3d 473, 482 (7th Cir. 1993) (same). The Second Circuit has noted, but has yet to addres s the issue. See United States v. Rosa , 17 F.3d 1531, 1552 (2d Cir. 1994) (expressly refu sing to determine “whether a defendant who claims ‘sentenci ng entrapment’ may ever receive the two-point reduction”). **-13-** addressed the issue in a case with the same posture as here: an appeal from a sentencing court’s grantof the reduction. See United States v. Fleener , 900 F.2d 914 (6th Cir. 1990) (affirming the district court’s decision to grant a two-point reduction for acceptance of responsibility because of the defendant’s pretrial cooperation with the government on the merits of th e offense, notwithstanding the defendant’s assertion at trial of an entrapment def ense). Like the Sixth Circuit, we hold that a § 3E1.1 reduction is not per se unav ailable just because the defendant chooses to go to trial solely on an entrapment defense. The entrapment defense is founded upon the rule of statutory construction that prohibits literal interpretation of a statute that produces absurd results. In Sorrells v. United States , 287 U.S. 435 (1932), where the Supreme Court firs t**-14-**

recognized the entrapment defense, the government’s argument against recognition of the entrapment defense was tied to t he “letter of the statute” under which the defendant was prosecuted. Id. at 446. The Supreme Court, however, rejected a literal reading of the criminal statute, and explained:

Literal interpretation of statutes at the expense o f the reason of the law and producing absurd consequences or flagrant i njustice has frequently been condemned. . . .

. . . We think that this established principle of constru ction is applicable here. We are unable to conclude that it was the in tention of the Congress in enacting this statute that its processes of dete ction and enforcement should be abused by the instigation by government o fficials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them. We are not forced b y the letter to do violence to the spirit and purpose of the statute. Id. at 446-48. Thus, the entrapment defense is a creature of st atutory construction that concedes that the defendant’s con duct satisfies the essential factual elements of guilt, but nonetheless refuses to apply the statute to an entrapped defendant to avoid creating an absurd result. See also Jacobson , 503 at 553 (reaffirming quoted passage from Sorrells ); Sherman v. United States , 356 U.S. 369, 372 (1958) (“Congress could not have inte nded that its statutes were to be enforced by tempting innocent persons into violations.”); United States v. Russell , 411 U.S. 423, 428 (1973) (“[In Sorrells , ] Mr. Chief Justice Hughes, speaking for the Court, held that as a matter of st atutory construction the defense of entrapment should have been available to the defendant.”); id. at 433-34**-15-**

(“Critics of the rule laid down in Sorrells and Sherman have suggested that its basis in the implied intent of Congress is largely fictitious . . . . Arguments such as these, while not devoid of appeal, have been twi ce previously made to this Court, and twice rejected by it, first in Sorrells and then in Sherman .”); Ronald J. Allen et al., Constitutional Criminal Procedure 980 (3d ed. 1995) (“[T]he Court has consistently reaffirmed that the key to the fed eral entrapment defense is the absence of predisposition on the part of the defend ant and that the defense exists as a matter of statutory construction.”). Given that the entrapment defense emanates from suc h a rule of statutory construction, we believe that a sentencing court may apply an acceptance-ofresponsibility reduction to a defendant who asserts the entrapment defense. The commentary to § 3E1.1 states that conviction by tri al “does not automatically preclude a defendant from consideration for such a reduction.” U.S.S.G. § 3E1.1, cmt. (n.2). In rare situations a defendant may clearly demonstr ate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, f or example, where a defendant goes to trial to assert and preserve issu es that do not relate to factual guilt ( e.g. , to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct ). In each such instance, however, a determination that a defendanthas accepted responsibility will be based primarily upon pre-tri al statements and conduct.**-16-**

Id. (emphasis added). As the long line of Supreme Cou rt entrapment cases show, the entrapment defense is just such a “challenge to the applicability of a statute” to the defendant’s conduct. The defendant, when de fending at trial based only on the entrapment defense, is essentially saying: “I am factually guilty, but it was the government that induced commission of the crime and planted the criminal intent. I thereby was entrapped. Therefore, Congr ess did not intend for this criminal statute to apply to my conduct.” Thus, th e entrapment defense is one of those “rare situations” contemplated by the Sentenc ing Guidelines in which a defendant may go to trial and still receive an acce ptance of responsibility reduction. We are mindful of this court’s prior statement in U nited States v. Hansen , 964 F.2d 1017, 1021 (10th Cir. 1992), that it is “d ifficult for this Court to envision how the defendant argues that he affirmati vely accepted responsibility for his criminal action when throughout the proceed ings he maintained that his criminal action was not his fault, but rather, it w as the result of government inducement.” Nothing we say today is inconsistent with this statement. We hold only that raising the entrapment defense does not n ecessarilyforeclose the possibility of receiving a reduction for acceptance of responsibility, but that does not mean that the simple assertion of the entrapmen t defense coupled with acknowledgment of the underlying criminal activity automatically entitles a**-17-**

defendant to a two-point acceptance of responsibili ty reduction. See also United States v. Hoenscheidt , 7 F.3d 1528, 1532 (10th Cir. 1993) (no error wher e sentencing court acknowledged the entrapment defens e “does not necessarily bar” a § 3E1.1 reduction); United States v. Wallace , No. 97-6190, 1998 WL 13548, at *5 (10th Cir. Jan. 16, 1998) (unpublished) (“[I]t i s possible that a failed entrapment defense could coexist with an acceptance of responsibility adjustment.”), cert. denied , 118 S. Ct. 1855 (1998); United States v. OrtegonAntillon , No. 94-2139, 1995 WL 511137, at *1 (10th Cir. Aug . 30, 1995) (unpublished) (“A defendant who forces the governme nt to prove its case at trial will only rarely warrant a reduction for acceptance of responsibility. One such rare occasion may arise when a defendant who otherw ise expresses remorse, contrition, or acknowledgment of wrongdoing nonethe less pleads not guilty because of entrapment.”) (citation omitted). A def endant will need to evidence acceptance of responsibility, primarily through pre -trial statements and conduct, before an acceptance of responsibility reduction wo uld be warranted. See U.S.S.G. § 3E1.1, cmt. 2. Some courts have suggested that the entrapment defe nse and U.S.S.G. § 3E1.1 are incompatible because the entrapment def ense challenges the factual element of intent. See United States v. Brace , 145 F.3d 247, 265 (5th Cir.) (en banc), cert. denied , 119 S.Ct. 426 (1998); United States v. Kirkland , 104 F.3d**-18-**

1403, 1405 (D.C. Cir.), cert. denied , 520 U.S. 1246 (1997). E ntrapment is indeed “intertwined” with the issue of intent, United States v. Fadel , 844 F.2d 1425, 1430 (10th Cir. 1988), because the jury is asked to consider “whether that intent was the result of Government inducement,” Mathews v. United States , 485 U.S. 58, 65 (1988). However, asking whether the defendant’s intent w as the result of government inducement does not challenge the factual element of intent. As the Supreme Court has clearly stated, “[entrapment] is rooted . . . in the notion that Congress could not have intended criminal punishmen t for a defendant who has committed all the elements of a proscribed offense , but was induced to commit them by the Government.” United States v. Russell , 411 U.S. 423, 435 (1973) (emphasis added); see also , Ronald J. Allen et al, Constitutional Criminal Procedure 999 (3d ed. 1995) (“Typically defendants claiming entrapment do not challenge the prosecutor’s proof of the elements of the offense.”). In this case, Garcia was charged with possession of cocaine with intent to distribute. “To support a conviction of possession with intent to d istribute, the evidence must prove beyond a reasonable doubt the following eleme nts: (1) the defendant knowingly possessed the illegal drug; and (2) the d efendant possessed the drug with the specific intent to distribute it.” United States v. Carter , 130 F.3d 1432, 1440 (10th Cir. 1997) (internal quotations omitted), cert. denied , 118 S. Ct. 1856 (1998). The entrapment defense challenges neither of these elements. Garcia2 The record belies any suggestion that Garcia “admi t[ted] and expresse[d]

remorse” only after conviction. U.S.S.G. § 3E1.1, comment. (n.2). The sentencing court found that Garcia “admitted his in volvement in the offense since his initial arrest.” Likewise, at the evidentiary hearing and sentencing below, the judge added: “I think Mr. Garcia is entitled to ac ceptance of responsibility by virtue of the fact that he has at all times admitte d the acts that he has been accused of by the Government in this case . . . Mr. Garcia has at all times admitted what he did in this case. He admitted it prior to trial.” **-19-** admits that he knowingly possessed cocaine and thathe specifically intended to distribute the cocaine. Instead, Garcia asserted t he entrapment defense, which functions as an “origin-of-intent” defense, concedi ng that he had the requisite criminal intent when the crime was committed, but c laiming that the requisite criminal intent was planted by the government. If it is proven that the government “originate[d] a criminal design, implant [ed] in an innocent person’s mind the disposition to commit a criminal act, and then induce[d] commission of the crime,” Jacobson , 503 U.S. at 548, then pursuant to a rule of statu tory construction, the criminal statute does not apply t o the defendant, and he or she should therefore not be punished. 2 Even if the entrapment defense were viewed as chall enging the factual element of intent, under the law of this circuit, w e would still affirm the district court’s acceptance-of-responsibility downward adjus tment. In United States v. Gauvin , 173 F.3d 798 (10th Cir. 1999), the defendant was charged with assault with a dangerous weapon and assault on a federal of ficer. The defendant “went to**-20-**

trial only to contest the legal element of intent. . . . [The defendant] disputed whether his acknowledged factual state of mind met the legal criteria of intent to harm or cause apprehension.” Id. at 806. He argued at trial, to no avail, that “he did not intend, while drunk and scared, to cause in jury to others. [He also] contended that his drunkenness rendered him incapab le of forming the requisite mens rea.” Id. The defendant was convicted, but the district cou rt granted him a § 3E1.1 reduction. We affirmed, reasoning that the defendant’s “defense-- essentially a challenge to the applicability of the statute to his conduct, see U.S.S.G. § 3E1.1, cmt. n.2-- does not as a matter o f law preclude application of the guideline.” Id. If an intoxication defense challenging the mens r ea of a crime does not necessarily foreclose an acceptance-of-res ponsibility reduction, then neither does an entrapment defense. Accordingly, t he district court’s ruling was consistent with the law and it committed no error i n granting Garcia a § 3E1.1 downward adjustment.

B. Minor participant The trial court granted Garcia a two level reductio n from the base offense level because he was a “minor participant.” The co urt explained: [T]he defendant is viewed as a minor participant. The defendant was recruited by a paid informant who befriended the de fendant and his pregnant daughter for several months with the goal to ensnare him in this**-21-**

illegal activity and who preyed on the defendant’s sympathy for the paid informant’s seemingly impoverished lifestyle. A trial court’s determination as to whether a defen dant was a minimal or minor participant is a factual finding that we review onl y for clear error, “giving due deference to the court’s application of the sentenc ing guidelines to the facts.” United States v. James , 157 F.3d 1218, 1219 (10th Cir. 1998). This court “ will not reverse the district court unless the court’s f indings are without factual support in the record, or if after reviewing the ev idence we are left with the definite and firm conviction that a mistake has bee n made.” United States v. Gault , 141 F.3d 1399, 1404 (10th Cir.), cert. denied , 119 S. Ct. 253 (1998). After reviewing the evidence, we are indeed left with a d efinite and firm conviction that a mistake has been made. Section 3B1.2 states that the trial court should de crease the defendant's offense level by two levels “[i]f the defendant was a minor participant in any criminal activity.” “[M]inor participant means any participant who is less culpable than most other participants, but whose ro le could not be described as minimal.” U.S.S.G. § 3B1.2, cmt. (n.3). “A ‘parti cipant’ is a person who is criminally responsible for the commission of the of fense, but need not have been convicted,” but does not include an undercover law enforcement officer. U.S.S.G. § 3B1.1, cmt. (n.1). The three “participa nts” in Garcia’s crime were Garcia and the two men who delivered the cocaine to Garcia, Rafael Chavez and3 Garcia contends that he was a “minor participant” because it was the

government and one of the suppliers that “set the p rice of the cocaine, not Garcia; that Garcia did not arrange the location; that Garc ia did not supply the cocaine, did not know the purity of the drugs, and did not h ave any control over the amount of the drugs that were purchased; and that G arcia did not stand to receive any financial gain from the transaction and got inv olved only because of the friendship he felt toward Horcasitas.” However, th is argument, assuming it to be true, fails to rebut the facts outlined above, whic h clearly establish that Garcia’s role was nevertheless not minimal. See U.S.S.G. § 3B1.2, cmt. (n.3). While Garcia may not have run every facet of the drug dea l, his role within it was still substantial. **-22-** Dagoberto Torrez, in order for him to sell it to th e government’s undercover buyers. It would be a mistake to conclude both that Garcia is less culpable than Chavez and Torrez, and that Garcia’s role was minim al. Chavez and Torrez were the suppliers of the cocaine, and Garcia was the se ller who took the active step of contacting the suppliers to arrange the drug deal. We find it clear error to conclude that a seller of nearly three kilograms of cocaine who helped orchestrate its sale by contacting suppliers was a “minor parti cipant.” The fact that the government “preyed” on Garcia’s sympathy does not d iminish his substantial role in the cocaine transactions at issue. 3

C. Aberrant behavior At sentencing, the district court granted a downwar d departure to Garcia because his crime of conviction was a single act of aberrant behavior. The district court explained:**-23-**

The Court finds that this defendant has a minimal c riminal history. The defendant has numerous letters of support from the community attesting to his honesty and integrity in the manner which he co nducted his business in Las Cruces, New Mexico for many years. Several letters confirmed the defendant’s sympathy for people in need. The paid informant used this to entice this previously law-abiding member of the co mmunity. The Court will depart seven (7) levels, from a base offense l evel of twenty-two (22), to a base offense level of fifteen (15). A base of fense level of fifteen (15) and a criminal history category of I establishes a guideline imprisonment range of eighteen (18) to twenty-four (24) months.
“The aberrance of a criminal act is an encouraged f actor for departure.” United States v. Talk , 158 F.3d 1064, 1072 (10th Cir. 1998), cert. denie d , 119 S. Ct. 1079 (1999). “Under our case law, the aberrantnature of a criminal defendant’s offense conduct may properly be conside red as a mitigating factor in a downward departure decision.” United States v. J ones , 158 F.3d 492, 500 (10th Cir. 1998). The “determination of whether an indiv idual defendant’s offense conduct is aberrational, like the decision to depart, requires consideration of unique factors not readily susceptible of useful ge neralization. The district court is in the better position to determine whether the defendant’s offense conduct is out of character for that individual. Accordingly, the district court’s resolution of this largely factual question is due substantial de ference.” Id. The government argues that in order for the aberrat ional behavior departure to apply, the offense must be “spontaneous, withoutsubstantial planning, and be completely aberrant from defendant’s background and personality.” As a result,**-24-**

the government asserts, Garcia’s “carefully planned ” cocaine transaction cannot be deemed aberrational. However, this circuit has never held that application of the aberrant behavior downward departure requires the crime at issue to have been spontaneous. This court focuses “our departure ana lysis not on the number of discrete acts undertaken by the defendant, but on ‘ [t]he aberrational character of her conduct.’” Id. (quoting United States v. Pena , 930 F.2d 1486, 1495 (10th Cir. 1991)). In Jones , this court upheld a downward departure based on t he aberrance of a criminal act where a defendant was convicted o f possession of a firearm by a prohibited person and providing false information t o obtain a firearm. In Pena , a downward departure due to the aberrational nature o f the defendant’s conduct was affirmed where the defendant was convicted of drivi ng a car containing drugs across the border. Neither of the facts in Jones nor Penaevince spontaneity



### ! what the government posits as a prerequisite to the aberrational behavior factor for a downward departure. The government also argues on appeal that the jury’ s rejection of the entrapment defense necessarily amounts to a finding that Garcia was predisposed to commit the offense, and that such predisposition precludes the aberrational behavior downward departure. This argument, howeve r, was not raised below and is unpersuasive, in any event, since the jury, in r ejecting the entrapment defense,**-25-**

did not have to find Garcia predisposed; rather, th e jury, in rejecting the entrapment defense, could simply have found no indu cement by the government. As a result, the district court’s downward departur e based on aberrant behavior is affirmed.

CONCLUSION We AFFIRM the district court’s denial of Garcia’s m otion for judgment of acquittal and motions for a new trial. We also AFF IRM the district court’s application of the acceptance-of-responsibility dow nward adjustment and aberrant behavior downward departure. The district court’s application of the “minor participant” provision is REVERSED, and we REMAND f or resentencing in accordance with this opinion.