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The Honorable Donald J. Stohr, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3881

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

Joseph Martin, Jr., *

*

Appellant. *

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Submitted: September 25, 2009

Filed: October 19, 2009

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Before LOKEN, Chief Judge, WOLLMAN, and SHEPHERD, Circuit Judges.

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WOLLMAN, Circuit Judge.

Joseph Martin Jr. pleaded guilty to two counts of manufacturing, distributing

or possessing with intent to manufacture or distribute a controlled substance, in

violation of 21 U.S.C. § 841(a)(1). The district court1

 sentenced Martin to 160

months’ imprisonment, to be followed by five years of supervised release. Martin

appeals from his sentence, arguing: (1) the district court erred in determining that he

was responsible for manufacturing cocaine base, rather than merely for the

distribution of cocaine powder; (2) he should have been sentenced below the
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guidelines range because of sentencing entrapment; and (3) the government breached

the plea agreement by failing to recommend an acceptance of responsibility reduction

and by encouraging an obstruction of justice enhancement. We affirm. 

I. Background

In exchange for Martin’s plea, the government agreed to recommend that the

sentencing court grant a three-level reduction in the offense level for acceptance of

responsibility and avoidance of trial pursuant to U.S. Sentencing Guidelines §§

3E1.1(a) & (b).

The facts set forth in the plea agreement were that a cooperating individual (CI)

contacted Martin in November 2006 about purchasing crack. Martin agreed to arrange

a purchase of powder cocaine from a third party, and Martin offered to cook the

powder cocaine into crack for a separate fee. The CI gave $1700 to Martin for the

purchase and $700 for converting the cocaine into crack. Together they purchased

approximately two ounces of powder cocaine. After the purchase, Martin gave the

powder cocaine to the CI. Martin and the CI then drove in separate cars to Martin’s

residence, where the CI returned the powder cocaine to Martin. Martin then cooked

the powder cocaine into crack, using a coffee cup, baking soda, and microwave oven.

After the cooking was finished, Martin gave the crack to the CI. The finished product

was determined to consist of 53.8 grams of crack. 

In December 2006, the CI again contacted Martin about purchasing crack and

a similar train of events ensued, with the CI providing $2550 to Martin for the

purchase of cocaine and $900 for converting it into crack. As in the first transaction,

Martin gave the powder cocaine to the CI following the purchase, whereupon the two

then traveled in separate cars to Martin’s residence, where the CI gave the powder

cocaine back to Martin. Using the same technique, Martin cooked the crack and then

gave it to the CI. The transaction involved 36.87 grams of crack. 
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The plea agreement included a number of caveats. The government reserved

the right to balk on recommending an acceptance of responsibility reduction if new

information “inconsistent with the defendant’s acceptance of responsibility” came to

light. The agreement also specified that “any actions of the defendant which occur or

which become known to the government subsequent to this agreement and are

inconsistent with the defendant’s acceptance of responsibility including, but not

limited to criminal conduct, are grounds for loss of acceptance of responsibility.” It

also stated that Sentencing Guidelines (guidelines) issues not explicitly mentioned in

the agreement, but referenced in the Presentence Investigative Report (PSR), “may be

presented to the Court for consideration.” The agreement specified that post-plea

criminal conduct by the defendant would release the government from “any

obligations or limits on its power to prosecute the defendant,” and that any such

conduct would be grounds for loss of the acceptance of responsibility reduction. It

also stated that the sentencing court was not bound to follow the government’s

recommendations and that the sentencing court’s refusal to follow these

recommendations was not grounds for withdrawal of the plea. The plea agreement

specifically noted that the parties disagreed about when the transactions were

completed, and the parties anticipated arguing this matter before the sentencing court.

After entering into the plea agreement, Martin remained in custody of the

United States Marshal at the St. Louis County Justice Center, during which time he

made a number of statements from jail that were recorded by jail officials and

analyzed by the FBI. In these statements, Martin denied responsibility for the crimes

alleged, threatened to physically harm his girlfriend and the government agents

involved in the case, and discouraged witnesses from cooperating with government

investigators. Martin also violated jail visitation policy by arranging visits with

prohibited visitors.

Based on these statements and actions, Probation and Pretrial Services

submitted a PSR that did not recommend a reduction for acceptance of responsibility
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and instead recommended adding two offense levels for obstruction of justice.

Because the obstruction of justice occurred while Martin was incarcerated, the PSR

recommended adding two points to his criminal history pursuant to U.S.S.G. §

4A1.1(d). These additional two points raised Martin from a category I to a category

II offender. The PSR further recommended that the district court find that crack,

rather than powder cocaine, should determine the base offense level. According to the

PSR, Martin’s offense level should have been 32, criminal history category II, for a

guideline range of 135 to 168 months’ imprisonment. If the substance in question had

been powder cocaine and if Martin had received the acceptance of responsibility

reduction and no obstruction of justice enhancement, then his offense level would

have been 13, criminal history category I, with a guideline range of 12-18 months’

imprisonment.

Martin filed multiple objections to the PSR. He argued, first, that the sentence

should be based upon the guidelines for cocaine powder because the transaction ended

when the CI took possession of the cocaine powder. Second, Martin argued that his

statements from jail were not general denials of responsibility for the crimes alleged,

but rather specific denials of responsibility for distributing crack. Thus, an acceptance

of responsibility reduction was still warranted. Third, Martin argued because his

telephone conversations were not actual attempts to obstruct justice but rather

expressions of frustration about his prosecution and detention, an obstruction of

justice enhancement was unjustified. 

After a lengthy sentencing hearing with multiple witnesses, the district court

determined that Martin should be sentenced for manufacturing 90.67 grams of crack

and that Martin’s post-plea conduct warranted a two-level enhancement for

obstruction of justice rather than a reduction for acceptance of responsibility. The

district court then sentenced Martin as set forth above.
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II. Analysis

A. Powder/Crack Identification

Martin argues that the district court should have sentenced him according to the

guidelines range for cocaine powder rather than crack because the transaction ended

when the powder cocaine was delivered to the CI, rather than after delivery of the

crack. Identification of controlled substances is a factual finding reviewed for clear

error, and we will reverse only when we are definitely and firmly convinced that the

district court was mistaken. United States v. Whitehead, 487 F.3d 1068, 1071 (8th

Cir. 2007).

As outlined above, Martin arranged on two separate occasions for the purchase

of powder cocaine on behalf of the CI, distributed powder cocaine to the CI, took the

same powder cocaine from the CI, converted the powder cocaine into crack, and gave

crack to the CI. On both occasions, Martin solicited and received a separate fee from

the CI for manufacturing crack. 

Like the district court, we find Martin’s argument unconvincing. In the plea

agreement, Martin admitted facilitating the purchase of the powder cocaine for the

purpose of manufacturing crack. The parties disagreed as to whether the transactions

were completed when the CI took possession of the powder cocaine or when Martin

handed the crack to the CI. The district court considered extensive testimony on this

topic. Its conclusion that the transaction did not end until the crack was delivered is

well supported by the evidence, and thus we are not firmly and definitely convinced

the district court was mistaken. 
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B. Powder/Crack Disparity

Martin argues that the district court erred in not granting him a departure based

upon the disparity between cocaine powder and crack sentences. We review the

district court’s application of the guidelines de novo and review factual findings for

clear error. United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005). Because

this objection was not raised below, we review it under plain error analysis. United

States v. Davis, 538 F.3d 914, 917 (8th Cir. 2008).

Martin relies upon Davis for the proposition that although a district court need

not deviate from the guidelines due to the powder/crack disparity, a court errs when

sentencing if it does not believe that it can deviate from the guidelines. Id. He argues

that the district court’s failure to refer to its ability to depart from the guidelines

proves that the district court was under the false belief that it had no discretion to grant

a downward departure. The absence of any explicit statement is not surprising, given

that this objection was not raised before the district court. Davis holds that a district

court errs when it denies its ability to grant a downward departure, and imposes a

sentence predicated upon that false belief. Id. In this case, there is no evidence that

the court was under a mistaken impression about its discretionary power. Indeed, the

court considered a PSR that specifically noted the court’s discretion in this regard.

Martin’s extensive dealing with controlled substances and previous crimes were

adequate grounds for not granting a downward departure based on the powder/crack

disparity. Thus, the district court did not plainly err in failing to grant Martin a

downward departure on these grounds.

C. Sentencing Entrapment

Martin argues that the government’s use of sentencing entrapment justifies a

sentence below the guidelines range. Sentencing entrapment occurs when official

conduct leads an individual otherwise indisposed to dealing in a larger quantity or
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different type of controlled substance to do so, and the result is a higher sentence.

United States v. Searcy, 233 F.3d 1096, 1099 (8th Cir. 2000). When considering a

claim of sentencing entrapment, the locus of inquiry is the defendant’s predisposition.

Id. at 1099-1101. The defendant bears the burden to prove by a preponderance of

evidence that he lacked the predisposition to sell a larger quantity or different type of

drug. United States v. Searcy, 284 F.3d 938, 942 (8th Cir. 2002). The court considers

the government’s conduct only to show inducement. Searcy, 233 F.3d at 1101. The

government’s conduct is not determinative, and the central question throughout the

analysis of a sentencing entrapment claim is whether the defendant was predisposed

to sell a larger quantity or a different type of drug. Id. at 1101-02. Sentencing

entrapment is a factual finding that we review for clear error. United States v. Ruiz,

446 F.3d 762, 776 (8th Cir. 2006).

In Searcy, we found that sentencing entrapment could have occurred when a

defendant, who had “never dealt crack,” was coaxed to do so by a government

informant. 233 F.3d at 1100. In this case, Martin had sold the CI smaller quantities

of crack on previous occasions. In response to the CI’s request that Martin facilitate

the purchase of larger quantities of crack from a third party, Martin proposed to

arrange a larger purchase of cocaine powder and offered to manufacture the crack for

a separate fee. Martin devised this plan on his own, and he executed it without

government coercion. There is no evidence that Martin was indisposed to this course

of events. Assuming the claim of sentencing entrapment was properly raised at

sentencing (a question about which we have some doubt), the district court’s failure

to find sentencing entrapment was not clearly erroneous. 

D. Breach of the Plea Agreement

Finally, Martin contends that the government breached the plea agreement by

arguing against the acceptance of responsibility reduction and in favor of the

obstruction of justice enhancement. “We review de novo issues pertaining to the
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interpretation and enforcement of a plea agreement. Plea agreements are contractual

in nature and should be interpreted according to general contractual principles.” 

United States v. Thompson, 403 F.3d 1037, 1039 (8th Cir. 2005) (citations omitted).

If a defendant believes the government has breached a plea agreement, he must object

to preserve the issue for appeal. Puckett v. United States, 129 S. Ct. 1423, 1428

(2009). A defendant who fails to object properly is precluded from raising the matter

on appeal. Id. at 1429. This general rule, however, is subject to a narrow exception:

“A plain error that affects substantive rights may be considered even though it was not

brought to the court’s attention.” Fed. R. Crim. P. 52(b). Plain-error review under

Rule 52(b) involves four aspects: (1) the defendant must not affirmatively waive the

error; (2) the error must be clear or obvious; (3) the error must affect the defendant’s

substantive rights, which usually means the defendant must show the outcome would

have been different had the error not been committed; and (4) the court of appeals

must decide whether to exercise its discretion in remedying the error, a discretion to

be reserved for those cases that undermine the fairness, integrity, or public reputation

of judicial proceedings. Puckett, 129 S. Ct. at 1429.

Martin maintains that he preserved his objection by arguing that the district

court should have held the government to the terms of the plea agreement. As the

government points out, however, Martin did not argue that the government breached

the plea agreement, or that he should have been allowed to rescind his plea at

sentencing given the government’s supposed breach. Martin solely argued that his

post-plea conduct did not justify an obstruction of justice enhancement and loss of the

acceptance of responsibility reduction. Thus, having not been properly preserved for

appeal, we review the claim of breach for plain error. Id. at 1428-29.

It is neither clear nor obvious that the government breached the plea agreement.

The agreement stated that the government could refrain from recommending an

acceptance of responsibility reduction if new information came to light after the plea

and before sentencing. The agreement also released the government from its
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responsibilities if Martin engaged in post-plea criminal conduct. Martin’s statements

from jail and violations of jail rules triggered both of these provisions, which allowed

the government to refrain from recommending an acceptance of responsibility

reduction. Further, the plea agreement also stated that guidelines issues not mentioned

in the agreement but raised by the PSR could be presented to the court for

consideration. The PSR recommended an obstruction of justice enhancement, Martin

opposed the enhancement, and the government responded. The government did not

initiate the obstruction of justice enhancement, arguing in favor only after it was

already before the court. Thus, there was no breach of the agreement. Even if we

found a breach by the government, Martin would have to show that the court would

have acted differently had there been no breach. No such proof has been offered, and

thus no plain error occurred.

III. 

The judgment is affirmed.

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