Government Not Required to Prove Beyond a Reasonable Doubt No Entrapment, and § 2B3.1(b)(7) Enhancement Inapplicable in Robbery with No Actual Loss

United States v. Stephens, No. 12-20093 (Jun 5, 2013) (King, Higginbothom, Clement)

Stephens appealed his convictions related to a conspiracy to rob an armored truck. The panel affirmed the convictions and the sentence.

Stephens appealed on four grounds: 1) The district court erred in declining to give an entrapment jury instruction; 2) the evidence presented was insufficient to support his convictions; 3) the district court erred in calculating his advisory Sentencing Guidelines range at sentencing; and 4) the sentenced imposed by the district court was substantively unreasonable.

The panel held that Stephens did not meet the requirements to be entitled to an entrapment instruction because he failed to point to sufficient evidence that would have allowed a reasonable jury to find that he lacked a predisposition to commit the offenses at issue.  The panel also held that the evidence presented by the Government was sufficient to support Stephens’ convictions, noting that the Government is not required to prove beyond a reasonable doubt that a defendant was not entrapped.

The panel found that the court erred in calculating Stephens’s advisory Sentencing Guidelines range, but the error did not affect his substantial rights. The court erroneously applied U.S.S.G. § 2B3.1(b)(7)(D), a provision that only applies when there is actual loss in a robbery. In this case, there was no actual loss. The panel rejected Stephens’s sentencing entrapment argument noting that they have never recognized sentencing entrapment as a defense. They also found that the Government only provided a passive encouragement to pursue more than $250,000, and that it was one of his co-conspirators who originally suggested a higher target. The panel affirmed that the Defendant’s sentence was not substantively unreasonable because the sentence fell within Stephens’s Guidelines range.

Thanks to FPD Intern Matthew Gonzalez for this blog post.