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Remanding – Trial Judge’s failure to address claims of sentencing entrapment: United States v. McKeever, _ F.3d _ (D.C. Circuit, No. 13-3096, June 10, 2016)

Remanding – Trial Judge’s failure to address claims of sentencing entrapment: United States v. McKeever, _ F.3d _ (D.C. Circuit, No. 13-3096, June 10, 2016)

June 10th was a day in which criminal appellants hit the trifecta in the D.C. Circuit. In the first of three decisions remanding appeals, a unanimous panel of the D.C. Circuit remanded lengthy sentences given to three appellants who raised sentencing entrapment claims arising from a so-called “reverse sting” operation.

In United States v. McKeever the defendants were prosecuted under the Hobbs Act, 18 U.S.C. § 1951, for conspiracy to rob a liquor store and thereby interfere with commerce. Appellants each pleaded guilty and were sentenced. They principally argued on appeal that, inter alia, the District Court had erred in applying the so-called “Gun Bump” enhancement of Guidelines §§ 2B3.1(b)(2)(C) (five-level enhancement warranted if firearm brandished or possessed during robbery), to their sentence, reasoning that the conspiracy offense wasn’t covered by the bump. Although that theory proved unsuccessful (Slip Op. at 9-16), their key back-up claim earned a remand.

Basically, the defense contended that because the undercover police officers had instigated the idea of using firearms, brought the weapons to the crucial planning meeting, and placed the weapons in the hands of two of the appellants, their sentences should have been less severe. (Id. at 2-3). That argument, Senior Circuit Judge Edwards wrote, was permitted under United States v. Bigley, 786 F.3d 11, 12 (D.C. Cir. 2015) (per curiam), for “[t]he law of the circuit is now clear that a defendant may raise a mitigation argument resting on sentencing entrapment to request a downward variance in his sentence.” (Slip Op. at 16).

In the case at hand, the key issue was whether the appellants had properly raised sentencing entrapment with the District Court. Pointing out that “[t]he issue is not as simple as the Government suggests” and bluntly characterizing the Government’s response as “perplexing,” the Court of Appeals stated that “[a]t worst, Appellants Wallace and McKeever were not as clear as they might have been in raising with the District Court their claims that they were entitled to downward variances in their sentences because they were victims of sentencing entrapment” but that “[t]he record also suggests that the trial judge had an inkling of the issue, but never addressed it.” (Id. at 4, 17).

Turning to the third appellant, the Court of Appeals also squarely rebuffed the Government’s position. After stating that “there is no doubt that Appellant Hopkins expressly raised an argument for mitigation based on sentencing entrapment, but the trial judge never considered his request,” the Court tartly observed that “[m]oreover, in its brief to this court, the Government not only appears to acknowledge that Hopkins raised the issue with the District Court, but goes on to concede that, ‘[t]o the extent that this Court finds that Hopkins sufficiently asserted a sentencing manipulation argument below, we agree that discussion of the point would have been in order.’” (Id.)

Invoking Circuit authority such as United States v. Saani, 650 F.3d 761, 771-72 (D.C. Cir. 2011) and United States v. Williams, 951 F.2d 1287, 1291 (D.C. Cir. 1991), the Court of Appeals determined that “[i]n circumstances such as these, when we cannot discern the District Court’s disposition of the sentencing entrapment issue, justice will be best served if we remand the case to afford the trial judge an opportunity to address the issue in the first instance.” (Slip Op. at 4-5).

Bob Becker, Carmen Hernandez and Dennis Hart achieved the victory.

–Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.