Interesting opinion on “sentencing factor manipulation”

The First Circuit on Wednesday issued an interesting opinion in US v. Fontes, No. 04-2237 (1st Cir. July 20, 2005) (available here), which addresses so-called “sentencing factor manipulation.”  Here is the Fontes court’s legal overview (quotes/cites omitted):

Sentencing factor manipulation takes place where government agents have improperly enlarged the scope or scale of a crime.  Such claims may arise where the government employs undercover agents in sting operations.  We have recognized the court’s power to impose a sentence below the statutory mandatory minimum as an equitable remedy for sentencing factor manipulation by the government.  Because, however, by definition, there is an element of manipulation in any sting operation, we have stressed that this form of relief for sentencing factor manipulation is reserved for only the extreme and unusual case.

Interestingly, in Fontes the district court made a “factual determination that the government harbored an improper motive of exposing Fontes to a higher sentence when agents instructed the informant to deviate from his usual practice and purchase crack rather than powder cocaine from Fontes.”  Nevertheless, even though a form of “sentencing factor manipulation” had taken place, the district court still decided to impose a sentence above the statutory mandatory minimum, and the First Circuit affirmed that decision.  Appellate Law & Practice has more on Fontes here.