In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2647

United States of America,

Plaintiff-Appellee,

v.

Sergio Estrada,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 CR 46--Suzanne B. Conlon, Judge.

Argued March 30, 2001--Decided June 22, 2001

 Before Flaum, Chief Judge, and Posner and

Evans, Circuit Judges.

 Flaum, Chief Judge. Sergio Estrada was

convicted of knowingly and intentionally

attempting to possess with the intent to

distribute mixtures containing cocaine.

Estrada now appeals his conviction,

arguing that: (1) the government engaged

in outrageous conduct through its

arrangement with informant Jose Antonio

Varela; (2) the district court erred when

it allowed the government to introduce

into evidence translated transcripts of

Spanish conversations without ever

playing the tapes of those conversations;

and (3) he was the victim of sentencing

entrapment. For the reasons stated

herein, we affirm.

Background

 Sergio Estrada’s current legal problems

arise out of his coming into contact with

Jose Antonio Varela ("Varela").

Unbeknownst to Estrada, Varela worked as

a confidential informant for the Drug

Enforcement Agency ("DEA"). On January

13, 2000, a woman named Deysi who worked

at the Sin Frontera bar, introduced

Estrada to Varela. Estrada discussed with

Varela the possibility of purchasing

cocaine from him. Varela said a kilogram

of cocaine would cost Estrada $17,000,

but if he purchased more than five

kilograms, then the price per kilogram
would be reduced to $16,000. Although

Estrada desired to buy a kilogram that

night, Varela would not accommodate this

request. When the two ended their

conversation, they exchanged phone

numbers. On January 14, Varela spoke with

Estrada and told him that he really

needed the cocaine right away. Varela,

however, was going to be in California

and could not supply Estrada with cocaine

until he returned. Once again, on January

17, Estrada and Varela spoke and they

arranged to meet the next day. Estrada on

January 18, accompanied by his brother

Otoniel Estrada, who was going to supply

the money for the cocaine, met Varela in

the parking lot of the Hillside Holiday

Inn to inspect the cocaine. Also present

was Richard Alvarado, a police officer

working undercover and posing as Varela’s

partner. Otoniel Estrada inspected the

cocaine and determined that it was fine.

Despite Estrada’s desire to go ahead with

the deal that day, it was decided that

the transaction would be completed the

next day. Varela spoke with Estrada on

the phone after the meeting at the

Hillside Holiday Inn and it was agreed

that Estrada would purchase five

kilograms of cocaine and take two

kilograms on credit. As Estrada arrived

in the parking lot of the Hillside

Holiday Inn on January 19, undercover

officer Alvarado met him and entered

Estrada’s car. Estrada showed Alvarado a

large amount of cash that he was carrying

in a fanny pack strapped to his waist,

which contained approximately $35,000.

After a brief exchange, Alvarado gave a

signal and DEA agents arrested Estrada.

After the arrest of Estrada, agents

recovered an additional $25,000 from a

Jeep parked in back of Estrada’s car.

 Estrada was charged with one count of

knowingly and intentionally attempting to

possess with the intent to distribute

approximately 7 kilograms of mixtures

containing cocaine in violation of 21

U.S.C. sec. 846. On May 3, Estrada was

convicted by a jury and the district

court sentenced him to serve 121 months

of imprisonment.

Discussion

I. Outrageous Government Conduct

 Estrada contends that the government’s

employment of Varela as a contingent fee
informant constituted outrageous conduct

in violation of the Due Process Clause.

The origins of the outrageous conduct

doctrine can be traced to United States

v. Russell, 411 U.S. 423 (1973), in which

the Supreme Court stated that it "may

some day be presented with a situation in

which the conduct of law enforcement

agents is so outrageous that due process

principles would absolutely bar the

government from invoking judicial

processes to obtain a conviction . . . ."

Id. at 431-32; see also United States v.

Miller, 891 F.2d 1265, 1267 (7th Cir.

1989). According to Estrada, the DEA

acted in an outrageous manner through the

particular type of confidential informant

arrangement it had with Varela. Between

1987 and 1991 Varela sold approximately

three to four hundred kilograms of

cocaine. To avoid a possible life

sentence after his arrest in 1991, Varela

agreed to become a confidential

informant. The government has paid Varela

more than $400,000 for his services. He

has purchased two homes with this money,

one of which is in Honduras. 

 Estrada claims that several aspects of

Varela’s involvement in procuring his

arrest raise questions about the

government’s behavior. To begin with,

Varela testified that he receives 25

percent of whatever money the DEA seizes

during a sting. Estrada argues that such

a compensation arrangement is contrary to

the agency’s alleged goal of reducing the

supply of narcotics. Estrada contends

that Varela had total discretion to

select his target, and as a consequence,

he selects a target based upon the amount

of money that he believes can be seized

from that person. Accordingly, Estrada

advances that when Varela decides to

select a particular target, he does not

take into account the more traditional

law enforcement factors, like a target’s

prior criminal history. Estrada asserts

this is evidenced by the fact he had no

history of drug trafficking or

othercriminal activity. He believes that

Varela targeted him because he knew that

Estrada worked as a cook at the

restaurant that his brother owned and so

Varela determined that Estrada’s brother

would be able to raise the cash necessary

for the deal, thus ensuring that he would

receive 25 percent of the cash seized.

Estrada suggests that not only was Varela

allowed to select his targets, but he
also was authorized to assume the lead

role of seller in the sting operation.

According to Estrada, typically

informants are used to introduce the

target to an undercover agent who then

assumes control of the transaction and

ensures that the deal furthers legitimate

law enforcement concerns. In this

particular case, Estrada argues that

Varela was given complete discretion to

negotiate the deal to serve his own

interests, which was to induce him to

agree to a purchase that involved the

greatest amount of cash so that he

maximized his commission. Estrada warns

that one must remember that Varela was

given such extensive discretion even

after he failed a polygraph examination

just three months before he targeted

Estrada. Further, Varela’s discretion was

not limited to selection of a target.

Estrada claims that Varela had complete

control over what conversations he chose

to tape record when dealing with him and

so he was able to limit the amount of

exculpatory evidence available after the

sting operation; thus, ensuring that the

government would be able to successfully

prosecute Estrada and that Varela would

receive his commission. 

 Estrada finally notes that Varela’s

involvement with his case did not end

when he was arrested. During the trial,

Estrada argues that Varela was the star

prosecution witness despite the fact

Varela had a history of deception and

incentive to perjure himself to assure a

conviction and his own commission. In

support of this position, Estrada points

out that Judge Wiggins in United States

v. Cuellar, 96 F.3d 1179, 1189 (9th Cir.

1996) (concurring) said that certain

factors, not present in that case, should

be given consideration when attempting to

assess whether the government has engaged

in outrageous conduct in violation of an

individual’s due process rights. Estrada

asserts that those factors are present in

this case, including that: (1) Varela was

"instrumental" in building the case

against him; and (2) Varela was given

discretion to develop the case against

him. Id. Estrada thus argues that when

one considers Varela’s arrangement with

the DEA in its totality, it becomes clear

that the government acted in an

outrageous manner.

 The government contends that Estrada’s
claim of outrageous government conduct

cannot be sustained in light of this

Circuit’s refusal to recognize the

existence of such a doctrine. In United

States v. Boyd, 55 F.3d 239 (7th Cir.

1995), the doctrine was specifically

disavowed: "Today we let the other shoe

drop, and hold that the doctrine [of out

rageous governmental misconduct] does not

exist in this circuit. The gravity of the

prosecutors’ misconduct is relevant only

insofar as it may shed light on the

materiality of the infringement of the

defendants’ rights; it may support, but

it can never compel, an inference that

the prosecutors resorted to improper

tactics because they were justifiably

fearful that without such tactics the

defendants might be acquitted." Id. at

241. The government claims that Estrada’s

outrageous conduct argument has been

foreclosed by this Circuit’s case law. 

 During oral argument, we opined that in

some situations the government uses

either money or promises of lenience to

induce testimony, which is commonplace

and permitted. Varela’s arrangement does

not seem to quite fit within the

aforementioned scenario. Varela was paid

prior to testifying at Estrada’s trial

$1000 and at the time of the trial he was

still expecting to receive 25 percent of

the cash seized from the sting operation.

This type of arrangement we suggested at

argument can appear to make the witness’s

compensation uniquely dependent on the

outcome of the case. Apparently, if

Varela testified truthfully, but Estrada

was not convicted, he would not receive

25 percent of the money seized, which

amounted to $15,000 or $20,000./1 While

Estrada has framed the issue as one of

outrageous government conduct, what

appears to be his true concern is the

admission of Varela’s testimony during

his trial. 

 Varela during the trial stated that he

was involved in about 60 to 70

investigations and that he testified in

about 10 to 13 trials. He claims to not

have figured out how the DEA pays him,

yet he acknowledged that since 1996 he

has had an agreement with the DEA

providing that they would pay him 25

percent of the cash seized during an

operation. Although Varela said he

expected 25 percent of the money seized

from the Estrada sting, he contended that
he was not sure how much money was

confiscated during the investigation.

Further, Varela was unsure about when he

would be paid the 25 percent, except that

he believed it took up to six months and

perhaps even longer. When questioned

about whether he had to testify to get

paid, his response was "[w]ell, because I

never known it like that, that they pay

me to testify. I just know they only pay

me 25 percent." Just prior to making this

remark, Varela in response to a question

asking whether he must testify and follow

through with a case, said "Well,

whatever--whatever I have to do." It is

apparent from Varela’s testimony that he

was somewhat unclear about the conditions

of his arrangement with the DEA. He was,

however, definitive about his desire to

receive 25 percent of the cash seized

from the Estrada investigation. It is

understandable that this was of concern

to Varela, as it represented a

significant, depending on the case,

source of income for him. 

 Varela testified that he had received

only $1000 before Estrada’s trial and had

yet to receive his 25 percent commission.

During the trial, the district court

instructed the jury in the following

manner with regard to Varela’s testimony,

and in doing so framed the issue as one

of credibility: "You have heard testimony

from Jose Antonio Varela who received

benefits from the government in

connection with this case, namely

received money and the promise of

additional commission payments. You may

give his testimony such weight as you

feel it deserves, keeping in mind that it

must be considered with caution and great

care." We have stated that "[t]reating

fee arrangements with witness/informants

as a credibility factor for the jury

rather than an outrageous conduct issue

appears to be a more reasoned approach."

United States v. Valona, 834 F.2d 1334,

1344 (7th Cir. 1987); see also United

States v. Febus, 218 F.3d 784, 796 (7th

Cir. 2000) ("And even in cases where the

government pays informants for their

testimony, we have held that such

arrangements are not per se outrageous;

rather the jury may consider [them] as

evidence relating to the informant’s

credibility.") (internal citations and

quotation marks omitted). It appears then

that our general position with regard to

admission of testimony of an informant
who has a contingent fee arrangement with

government is to allow the jury to

consider such an arrangement in its

evaluation of a witness’s credibility.

While this may be our ususal approach,

this case causes us to inquire whether

Varela’s testimony should simply be an

issue of credibility for the jury to

determine. For instance, when an

informant is being paid living expenses,

then the informant’s testimony raises

traditional credibility issues. Varela

was not merely being paid a stipend that

covered his living expenses. 

 Instead, the instruction underscores

what promotes unease about the

arrangement in this case, which is that

Varela’s fee arrangement was dependent,

in part, on the conviction of Estrada.

The First Circuit has remarked that

"[c]ourts have generally allowed paid

informants to testify as long as the

agreements are not contingent upon the

conviction of particular persons." United

States v. Palow, 777 F.2d 52, 54 (1st

Cir. 1985); United States v. Cresta, 825

F.2d 538, 547 (1st Cir. 1987) (same). The

arrangement between Varela and the DEA

indicates that the conviction of Estrada

and Varela’s payment were interdependent.

To begin with, not only did Varela

testify, he was the main witness at

trial. He targeted Estrada, set up and

negotiated the deal, and tape recorded

certain conversations between himself and

Estrada. Varela was to receive the bulk

of his payment ($15,000 or $20,000) after

he testified; leading us to conclude that

in order for him to receive his 25

percent commission it was necessary that

his testimony result in Estrada’s

conviction. See Cresta, 825 F.2d at 547

("Montaner received the bulk of his

compensation prior to trial; thus payment

of this sum was not contingent upon the

conviction of any of the defendants.");

Valona, 834 F.2d at 1344 ("In addition,

Rapkin received his fee well before trial

and it was not in any way contingent upon

the trial outcome."); United States v.

Innamorati, 996 F.2d 456, 482 (1st Cir.

1993) ("Finally, the $250,000 payment to

Scott was completed several days prior to

trial, and the payment was thus not

directly dependent upon the result of

Scott’s testimony in court."). As

discussed earlier, Varela’s arrangement

with the DEA was ill-defined. Such lack

of clarity and detail can only further be
construed to suggest that Varela’s

contingent fee was dependent on the

outcome of the case. See United States v.

Dailey, 759 F.2d 192, 200-201 (1st Cir.

1985) (discussing the benefits of a clear

agreement between the government and a

contingent witness in the context of plea

agreements). Finally, it is important to

remember that Varela had incentive to

ensure that his testimony resulted in the

conviction of Estrada, both from a

monetary standpoint, and because he

presumably wanted to show that he still

could remain an important asset to the

DEA in light of his credibility being

called into question before Estrada’s

case. Three months prior to the beginning

of the Estrada investigation, Varela had

failed a lie detector test, so his

veracity was in doubt, and therefore

presumably so was his position with the

DEA. As Varela himself admitted, he was

not under contract with the DEA, so the

DEA could at any point determine that it

no longer required his assistance.

Further, Varela’s sole source of income

was from being an informant, and he acted

in this capacity primarily for the DEA. 

 At base, the government’s arrangement

with Varela can be characterized as a

problematic means of pursuing a drug

case. During all of the critical

junctures of the case, from the initial

investigatory stage, up to and through

the period in which Varela testified, he

was motivated to convict Estrada so that

he would receive the much sought after

and elusive 25 percent commission. Such

an incentive structure does little to

enhance overall confidence in the

criminal justice system. Notwithstanding,

as will be seen in Section III, there is

such overwhelming evidence of Estrada’s

drug involvement that we conclude his

sentence does not carry with it the

specter of a miscarriage of justice.

II. Admission of Translated

Tape-Recorded Conversations

 The government recorded several

conversations between Estrada, his

brother, and Varela. All of these

conversations took place in Spanish.

Prior to trial, the government prepared

transcripts of English translations of

these tapes. However, at trial, the

government did not play any of the tapes.

Estrada argues that the district court
abused its discretion when it allowed the

introduction of the English translations

as substantive evidence.

 Estrada concedes that the jury was

properly instructed that "[w]hether a

transcript is an accurate translation, in

whole or in part, is for you to decide."

Estrada nonetheless advances that this

instruction was rendered meaningless

because the tapes were not played. During

the trial, Estrada believes the crucial

issue was his intent to purchase cocaine

from Varela. Accordingly, it is Estrada’s

contention that the tapes became the most

critical item of evidence to show his

lack of intent. The jury heard only

Varela’s version of what was on the tapes

because Estrada did not testify. Estrada

claims that if the government had been

required to play the tapes, then the jury

would have had the opportunity to

evaluate whether Varela’s version of what

transpired was credible. According to

Estrada, allowing the tapes to be played

would have given the jurors an

opportunity to make judgments about the

transcripts. From Estrada’s perspective,

even jurors with no knowledge of the

Spanish language would have been able to

judge the speaker’s particular tone and

inflection, such as whether the speaker

was joking or serious and sincere or

deceitful. Estrada therefore asserts that

the tapes should have been played for the

jury. 

 The district court’s refusal to allow

the Spanish tapes to be played was not an

abuse of discretion. Although Estrada

argued that the "transcript is merely an

impression or an aid to the tape itself,"

the district court responded, "It’s more

than an aid in this case because it’s a

translation from another language." To

which Estrada countered by remarking that

"I know that, but the tape has to be in

evidence for it to be an aid to the

translation, because, clearly, the jury

has to have the right to go back to the

original evidence." The district court

dismissed this point on the practical

grounds that "[w]ell, they can’t. It’s in

Spanish." From this exchange, it becomes

apparent that the district court saw no

value in allowing a presumably Englishspeaking jury to hear tapes that were

recorded in Spanish. It is difficult to

second-guess such a decision.

Understandably, the district court may
have doubted whether a jury not

proficient in Spanish would be able to

properly comprehend from the tapes an

individual’s tone or inflection. See

United States v. Grajales-Montoya, 117

F.3d 356, 367 (8th Cir. 1997) ("[T]he

trial court denied the request [to admit

certain tape-recorded conversations in

Spanish], citing the unlikelihood that a

listener who was not proficient in

Spanish (such as a jury member) would be

able to discern relevant inflections and

idiosyncrasies (the trial court’s word)

without knowing the language being

spoken. Mr. Montoya has suggested no

reliable means of enabling people who do

not speak Spanish to interpret

inflections and tone, and we cannot think

of any, either."). We find therefore that

the district court did not abuse its

discretion when it did not admit and play

the Spanish tapes before the jury. 

III. Sentencing Entrapment

 We now reach Estrada’s last challenge.

Estrada contends that the district court

improperly determined that he was

responsible for five to fifteen kilograms

of cocaine because the court did not make

any findings that Estrada was predisposed

to buy said quantity. The district court

made the following remarks on the matter:

"Well, I find that based on the trial

testimony, that the use of a base offense

level of a 32 is appropriate. That base

offense level incorporates an amount from

5 kilograms to 15 kilograms. So I think

it’s sustained by a preponderance of the

evidence. So that objection is

overruled." The district court apparently

determined that Estrada’s behavior caused

him to fall within sec. 2D1.1 (c)(4) of

the Sentencing Guidelines, which provides

for a base level offense of 32 for "[a]t

least 5KG but less than 15 KG of

Cocaine." The district court’s decision

regarding the quantity of drugs that

Estrada is responsible for is a finding

of fact that we review for clear error.

United States v. Pagan, 196 F.3d 884, 891

(7th Cir. 1999). One can prove clear

error if the "sentencing calculation

rests on an inadequate evidentiary

basis." Id. The record before the court

must be sufficient in nature at

sentencing to support a finding by a

preponderance of the evidence. Id.

Therefore, "if the district court’s

conclusion rests on reliable evidence in
the record, we will not second-guess the

way that the court weighed the evidence,

nor will we upset its credibility

determinations." Id. We will overturn a

factual determination if we are left

"with the definite and firm conviction

that a mistake has been committed."

United States v. Garcia, 69 F.3d 810, 819

(7th Cir. 1995) (internal citations and

quotation marks omitted). 

 Estrada maintains that the record shows

that he was predisposed to purchase a

much smaller quantity of cocaine and that

Varela used bargain basement pricing and

generous credit terms to induce him to

agree to accept delivery of a larger

quantity of cocaine. Consequently,

Estrada argues that he was the victim of

sentencing entrapment "which occurs when

the government causes a defendant

initially predisposed to commit a lesser

crime to commit a more serious offense."

United States v. Garcia, 79 F.3d 74, 75

(7th Cir. 1996). According to Estrada,

the Sentencing Guidelines recognizes

sentencing entrapment as a possible basis

for a downward departure. See United

States v. Searcy, 233 F.3d 1096, 1099

(8th Cir. 2000). One Circuit has remarked

that "Application Notes 12 and 15,

require the district court to determine

whether sentencing entrapment has

occurred. See U.S.S.G. sec. 2D1.1,

comment. (nn.12, 15)."/2 Id. Estrada

would like us to adopt the aforementioned

position. Further, Estrada points out

that we have stated that even though

"Note [12] does not refer explicitly to

reverse-buy situations, we have

recognized that it theoretically has

applicability to defendants caught in

such a sting." United States v. Cotts, 14

F.3d 300, 307 (7th Cir. 1994). Estrada

urges that it is important when

addressing a sentencing entrapment issue

to focus on the defendant’s

predisposition to commit the crime. See

Searcy, 233 F.3d at 1099. 

 Estrada holds steadfast to the notion

that he was not predisposed to engage in

a five kilogram cocaine transaction.

Estrada stresses that he has no prior

convictions or arrests and worked as a

cook at his brother’s restaurant.

Accordingly, Estrada believes that Varela

targeted him because his brother owned a

restaurant and had the ability to raise

the cash necessary for the cocaine
transaction. In essence, Estrada is

contending that his background belies the

suggestion that he was predisposed to

deal in cocaine at all, let alone five

kilograms. 

 Estrada argues that the record shows

that he had neither the intent nor the

resources to engage in a five kilogram

cocaine transaction. According to

Estrada, Varela admitted that he and his

brother initially only wanted to buy one

kilogram of cocaine, but Varela refused

to sell them such a small quantity.

Further, Estrada contends that the

transcripts of the tape-recorded

conversations reveal that he and his

brother asked Varela to arrange a smaller

deal for one or two kilograms of cocaine.

Varela’s apparent response was that he

did not want to waste his time arranging

a deal for one or two kilograms.

According to Estrada, his brother, who

was going to supply the money for the

deal, asked Varela to sell a smaller

quantity of cocaine to them, and Varela

said, "with two I can’t," and proceeded

to explain to Estrada’s brother that the

price would rise from $16,000 per

kilogram to $18,000 or $19,000 per

kilogram if he bought only one or two

kilograms of cocaine. All of these

exchanges, Estrada argues, demonstrate

that he wanted to purchase only one or

two kilograms from Varela; nevertheless,

he decided to purchase more because

Varela resisted going through with a deal

that was of a smaller magnitude. 

 Estrada believes that DEA Agent Stanley

M. Grobe’s testimony regarding drug

trafficking bolsters his position. Grobe

testified that the wholesale price of

cocaine in Chicago around January of 2000

was about $18,000 per kilogram and that

$16,000 would be a "rock bottom" price.

Further, Estrada maintains that Grobe

testified that a first time buyer would

pay full price and would not receive any

cocaine on credit. Therefore, Estrada

argues that Varela agreed to sell him

five kilograms at the below wholesale

price of $16,000 per kilogram and to give

him two extra kilograms on credit in

hopes of inducing him to accept a larger

quantity of cocaine.

 Finally, Estrada claims that it is clear

that he lacked the predisposition to

engage in a five kilogram transaction
because he had only $35,000 with him at

the time of his arrest. Accordingly,

Estrada claims that this suggests that he

hoped that at the time of delivery, he

would be able to persuade Varela to agree

to a smaller deal for one or two

kilograms. In addition, even if one

considers the cash ($25,000) possessed by

Estrada’s brother in a separate vehicle,

Estrada would have had only enough cash

($60,000 in total) to buy 3.75 kilograms

at the $16,000 price and perhaps even

less if Varela had decided to raise the

price because the deal was going to be

for a smaller amount. Estrada also points

out that Agent Alvarado said that if the

Estrada-Varela arrangement had been a

real cocaine deal, it would not have

taken place because the buyer did not

bring enough money for the transaction. 

 Despite Estrada’s claim that he was a

victim of entrapment, we find this

argument to be a failing one. In an

entrapment situation, a person’s lack of

predisposition is the critical issue. See

United States v. Theodosopoulos, 48 F.3d

1438, 1444 (7th Cir. 1995) ("The lack of

predisposition is the principal element

in the entrapment defense.").

"Predisposition is not a purely mental

state, the state of being willing to

swallow the government’s bait." United

States v. Hollingsworth, 27 F.3d 1196,

1200 (7th Cir. 1994) (en banc). There is

a positional aspect that should be taken

into account along with the dispositional

considerations. For instance, "[a] public

official is in a position to take bribes;

a drug addict to deal drugs; a gun dealer

to engage in illegal gun sales." Id. As a

consequence, "For these and other

traditional targets of stings all that

must be shown to establish predisposition

and thus defeat the defense of entrapment

is willingness to violate the law without

extraordinary inducements; ability can be

presumed." Id. While it may be true that

certain Circuits, see Searcy, 233 F.3d at

1099 and United States v. Naranjo, 52

F.3d 245, 250 (9th Cir. 1995), recognize

that Application Notes 12 and 15 address

the issue of sentencing entrapment, the

Seventh Circuit has not to date adopted

this position. However, we need not

resolve this issue to address Estrada’s

contention because as it will soon become

clear, Estrada possessed the necessary

predisposition to commit the crime in

question, thus he has not successfully
established his entrapment defense. 

 Estrada was in a position to become

involved in the purchase of drugs and

willingly acted upon his desire to do so.

One must remember that Varela spoke with

Deysi, a woman who worked at the Sin

Frontera bar, and she put Varela in

contact with Estrada. When Estrada

arrived at the bar, he and Varela began

"talking about cocaine." It is rather

clear that Deysi was aware that Estrada

desired a source to supply him with

drugs, and had it not been Varela (the

government) who had done so, it would

have been some other dealer. See

Hollingsworth, 27 F.3d at 1200 ("It is

different when the defendant is not in a

position without the government’s help to

become involved in illegal activity.").

Estrada was also rather eager to obtain

the cocaine, indicating his willingness

to violate the law. For example, Estrada

asked Varela to "give him one [kilogram

of cocaine] right away." Even though

Varela had told Estrada he would be out

of town and could not supply him with the

one kilogram the very same day of their

initial meeting, according to Varela,

during a phone conversation the next day,

Estrada said that he "needed it [cocaine]

very badly." Later in that conversation

with Varela, Estrada said, "[W]ell it’s

urgent for me like right now." Estrada

asked Varela to proceed with the deal

right away after his brother inspected

the cocaine on January 18, but Varela

refused. Estrada was intent upon

purchasing cocaine from Varela and he

wanted the deal to proceed quickly. 

 Estrada agreed to buy five kilograms and

take two more kilograms on credit and he

did so under no duress. At one point

during the conversations between Estrada

and Varela, Estrada asked, "What do you

think, if, if I go for, for two, but

bring me five. I have here, I’ll bring

you for two . . . ." Later on Estrada

told Varela, "I, right now I have the

five sold." Shortly thereafter, he told

Varela, "Ok, I’ll go for the five, and

you’ll give the two on credit?," to which

Varela said, "Fine, Sergio." It appears

that Estrada needed to receive five

kilograms of cocaine from Varela because

he already had sold this amount to an

individual or several people. Varela

never pressured Estrada to go through

with the deal. In fact, when Estrada told
Varela that he did not want the deal to

take place in Hillside because he was

scared to go there with all the money

necessary to purchase the cocaine, Varela

told him, "Look, if you don’t want to,

there’s no problem, Sergio. For me,

there’s no problem, Sergio . . . and

we’ll remain friends, you know." However,

Estrada did agree to go through with the

deal in Hillside and on the morning of

January 19, the day the deal was to take

place, Estrada asked Varela, "But they’re

going to be seven, right? And five?"

Estrada was fixated upon Varela providing

him with five kilograms of cocaine. 

 Although Estrada would like us to accept

that he only had enough money ($60,000 if

one includes the $25,000 found in the

vehicle) at the most to purchase 3.75

kilograms of cocaine, this story is not

convincing. From the beginning, Estrada

was anxious to buy cocaine from Varela.

Throughout the negotiation period,

Estrada remained focused on obtaining

five kilograms of cocaine and for good

reason because he had sold this amount to

someone else. Therefore, it is more than

likely that Estrada arrived at Hillside

with the intention of paying Varela for

approximately 3 kilograms of cocaine and

obtaining the other two kilograms. This

would ensure that he would have the

requisite amount he needed for resale.

Varela could have charged Estrada the

higher price of $19,000 per kilogram and

Estrada would have had enough money to

purchase 3 kilograms (total costing

$57,000) and still receive two kilograms

on credit. Unquestionably, Estrada was

predisposed to purchasing the cocaine and

more than capable of buying at least 5

kilograms. See Cotts, 14 F.3d at 306 n.2

("He does not argue that he lacked a

predisposition to buy multiple kilogram

amounts of cocaine and that his will was

overborne by unrelenting government

persistence."). Therefore, no sentencing

entrapment occurred.

 Having addressed Estrada’s sentencing

entrapment claim, we still need to

briefly explore whether Application Notes

12 and 15 as stated in the Sentencing

Guidelines (thus we are setting aside the

issue of whether these Notes address

sentencing entrapment) apply to Estrada’s

situation. See U.S.S.G. sec. 2D1.1,

comment. (nn.12, 15). Application Note 15

centers around the issue of whether "the
government agent set a price for the

controlled substance that was

substantially below the market value of

the controlled substance." U.S.S.G. sec.

2D1.1. This was not the case here. Agent

Grobe testified, "It [the price of one

kilogram of cocaine] can go down. But,

generally, I’ve never seen it go down

below 16,000 in this area. That’s usually

the rock bottom." Earlier, he had said

that the wholesale price of a kilogram of

cocaine in the Chicago area around

January of 2000 was "[a]nywhere from 16-

to 20,000, with an average of 18,000."

The clear implications of Agent Grobe’s

testimony is that $16,000 was the lowest

wholesale market price and that paying

less than $16,000 for a kilogram of

cocaine would be below market.

Consequently, Estrada cannot prove that

he was sold cocaine at below market

prices, since Varela offered him the

cocaine at $16,000. As for Application

Note 12, Varela as discussed earlier, was

reasonably capable of paying for five

kilograms of cocaine, so even if the

district court did not consider the

additional two kilograms that originally

Varela intended to give Estrada on

credit, he still would be eligible for

the same sentence. See U.S.S.G. sec.

2D1.1(c)(4). Thus, we affirm the district

court’s decision to find Estrada

accountable for 5 to 15 kilograms of

cocaine. 

Conclusion

 For the reasons stated herein, we AFFIRM

the decision of the district court.

FOOTNOTES

/1 During oral argument, we learned that the

government recovered $60,000 from the parking lot

at the Hillside Holiday Inn. An additional

$20,000 was recovered from the restaurant owned

by Estrada’s brother, although it is not clear

whether the $20,000 is connected in any way to

this case. Therefore, the government may have

confiscated with regard to this case either

$60,000 or $80,000 and Varela would be due 25

percent of either amount--that is, he would be

due either $15,000 or $20,000.

/2 Application Note 12 states, in relevant part: 

If, however, the defendant establishes that he or

she did not intend to provide, or was not

reasonably capable of providing, the agreed-upon
quantity of the controlled substance, the court

shall exclude from the offense level

determination the amount of controlled substance

that the defendant establishes that he or she did

not intend to provide or was not reasonably

capable of providing.

 Application Note 15 states, in relevant part:

If, in a reverse sting (an operation in which a

government agent sells or negotiates to sell a

controlled substance to a defendant), the court

finds that the government agent set a price for

the controlled substance that was substantially

below the market value of the controlled

substance, thereby leading to the defendant’s

purchase of a significantly greater quantity of

the controlled substance than his available

resources would have allowed him to purchase

except for the artificially low price set by the

government agent, a downward departure may be

warranted.