USA v. Humberto San-Martin

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12682
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUMBERTO FALCON SAN-MARTIN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:22-cr-20335-RKA-1
____________________
USCA11 Case: 23-12682 Document: 34-1 Date Filed: 05/15/2024 Page: 1 of 7

-- 1 of 7 --

2 Opinion of the Court 23-12682
Before B RASHER , ABUDU, AND B LACK , Circuit Judges.
PER CURIAM:
Humberto Falcon San-Martin appeals his 87-month sen-
tence for distributing a substance containing methamphetamine
and a substance containing cocaine. First, he asserts the district
court abused its discretion when it declined his request to reduce
his sentence under the doctrine of sentencing factor manipulation
based on his assertions that a government informant provided him
the methamphetamine involved in his offense and encouraged him
to sell it. Second, he contends we should reconsider our rejection
of the doctrine of sentence entrapment and asserts that he is enti-
tled to relief under the doctrine. After review,1 we affirm.
I. SENTENCING FACTOR MANIPULATION
“[T]his Court has recognized sentencing factor manipula-
tion as a potential means for a sentence reduction.” United States v.
Osmakac, 868 F.3d 937, 959 (11th Cir. 2017). “Sentencing factor ma-
nipulation occurs when the government manipulates a sting oper-
ation to increase a defendant’s potential sentence.” Id. Sentencing
factor manipulation analysis “requires [courts] to consider whether
the manipulation inherent in a sting operation, even if insufficiently
oppressive to support an entrapment defense, or due process claim,
1 We review a district court’s refusal to reduce a sentence due to alleged sen-
tencing factor manipulation for reasonableness under an abuse-of-discretion
standard. See United States v. Haile, 685 F.3d 1211, 1222-23 (11th Cir. 2012).
USCA11 Case: 23-12682 Document: 34-1 Date Filed: 05/15/2024 Page: 2 of 7

-- 2 of 7 --

23-12682 Opinion of the Court 3
must sometimes be filtered out of the sentencing calculus.” United
States v. Sanchez, 138 F.3d 1410, 1414 (11th Cir. 1998) (quotation
marks and alterations omitted). “Relief is warranted only when the
defendant proves that the government engaged in extraordinary
misconduct that was sufficiently reprehensible.” United States v.
Gallardo, 977 F.3d 1126, 1144 (11th Cir. 2020) (quotation marks
omitted).
We have noted “[t]he standard for sentencing factor manip-
ulation is high.” United States v. Ciszkowski, 492 F.3d 1264, 1271
(11th Cir. 2007). For example, in Ciszkowski, the defendant, who
was the subject of a Drug Enforcement Agency (DEA) sting opera-
tion, agreed to carry out a contract killing after being approached
by a confidential informant. Id. at 1266-67. The informant pro-
vided the defendant with a bag containing a gun and a silencer, the
defendant took possession of the bag without examining the gun,
and the defendant was arrested shortly thereafter. Id. The defend-
ant was convicted and received a mandatory minimum sentence of
30 years based on his possession of a silencer. Id. at 1267-68. We
determined the DEA did not engage in sufficiently reprehensible
conduct to constitute sentencing factor manipulation, as reverse-
sting operations are a recognized, useful tool for law enforcement.
Id. at 1271. Further, we determined it was not necessarily miscon-
duct to provide drugs or guns “to a willing and predisposed of-
fender.” Id. Although we indicated it would have been troubling
had the DEA agents provided the defendant with a silencer of
which he was unaware solely to inflate his sentence, we noted the
USCA11 Case: 23-12682 Document: 34-1 Date Filed: 05/15/2024 Page: 3 of 7

-- 3 of 7 --

4 Opinion of the Court 23-12682
defendant had agreed to commit a murder for hire and accepted a
gun to do that job. Id.
The district court did not abuse its discretion in denying Fal-
con San-Martin’s request to reduce his sentence due to sentencing
factor manipulation. First, as Falcon San-Martin conceded, there
was no evidence to support his assertions that a government in-
formant provided him the methamphetamine involved in Count 1
and encouraged him to sell it. On this basis alone, it was not clearly
erroneous for the district court to find the government did not en-
gage in egregious conduct or that Falcon San-Martin was a willing
participant. See United States v. Docampo, 573 F.3d 1091, 1096 (11th
Cir. 2009) (“Factual findings that underlie the sentence . . . are re-
viewed for clear error.”).
Second, even accepting Falcon San-Martin’s assertions as
true, the district court acted within its discretion in determining:
(1) the government’s conduct was not sufficiently manipulative;
and (2) Falcon San-Martin was a willing and predisposed offender.
As to the government’s conduct, we have recognized the im-
portance of reverse sting operations as a tool of law enforcement.
See Ciszkowski, 492 F.3d at 1271. This Court has repeatedly de-
clined to apply the doctrine of sentencing factor manipulation, find-
ing government conduct was not sufficiently manipulative, even
where the government’s choice of a certain quantity or type of
drugs in these operations results in an enhanced sentence for the
defendant. See Gallardo, 977 F.3d at 1143-45 (11th Cir. 2020) (reject-
ing a sentencing factor manipulation claim based on the
USCA11 Case: 23-12682 Document: 34-1 Date Filed: 05/15/2024 Page: 4 of 7

-- 4 of 7 --

23-12682 Opinion of the Court 5
defendant’s allegation a government informant had incessantly re-
quested more than one kilogram of cocaine, noting the defendant
was a willing participant and we have “consistently rejected claims
based on the government’s decision to involve a large quantity of
drugs in its sting operation”); United States v. Haile, 685 F.3d 1211,
1223 (11th Cir. 2012) (finding no sentencing factor manipulation
occurred when government agents offered to sell a defendant more
drugs than he originally intended to purchase, including offering
cocaine in addition to marijuana, and suggested the defendant pay
for the drugs with guns); Sanchez, 138 F.3d at 1413-14 (noting “[t]he
fact that the government’s fictitious reverse sting operation in-
volved a large quantity of drugs does not amount to the type of
manipulative governmental conduct warranting a downward de-
parture in sentencing”). Additionally, we have determined it is not
necessarily misconduct where the government provides drugs to a
willing and predisposed offender. See Ciszkowski, 492 F.3d at 1271.
Accordingly, the government’s conduct was not sufficiently repre-
hensible here such that the district court’s failure to apply the doc-
trine of sentencing manipulation was an abuse of discretion.
Additionally, the district court appropriately considered Fal-
con San-Martin’s willing predisposition to commit the offense
when deciding whether to apply the doctrine. See Gallardo, 977
F.3d at 1144-45; Ciszkowski, 492 F.3d at 1271; Docampo, 573 F.3d at
1094, 1098; Haile, 685 F.3d at 1223. The court’s finding that Falcon
San-Martin was a willing participant was not clearly erroneous. See
Docampo, 573 F.3d at 1096. Unobjected to statements from Falcon
San-Martin’s presentence investigation report (PSI) stated he was a
USCA11 Case: 23-12682 Document: 34-1 Date Filed: 05/15/2024 Page: 5 of 7

-- 5 of 7 --

6 Opinion of the Court 23-12682
regular user of crystal methamphetamine and that he had tools for
the distribution of narcotics in his apartment. United States v. Ben-
nett, 472 F.3d 825, 832 (11th Cir. 2006) (stating the district court
may base its findings of fact on undisputed statements in the PSI).
Falcon San-Martin also conceded he was able to independently pro-
cure methamphetamine within five months of his offense underly-
ing Count 1.
Falcon San-Martin was arguably an even more willing par-
ticipant than the defendant in Ciszkowski, who alleged he was una-
ware that he was in possession of a sentence-enhancing silencer,
because Falcon San-Martin does not dispute he was aware he was
selling methamphetamine. See Ciszkowski, 492 F.3d at 1271. Nor
is this case like the hypothetical scenario discussed in Ciszkowski,
because the methamphetamine was included to facilitate another
drug sale, and thus, not “completely unrelated to the accompany-
ing criminal act.” Id. Finally, Falcon San-Martin’s failure to reject
or express any discomfort with the sale is also demonstrative of his
willing participation. See Haile, 685 F.3d at 1223. Accordingly, we
affirm as to this issue.
II. SENTENCE ENTRAPMENT
“Sentencing entrapment is the claim that a defendant, alt-
hough predisposed to commit a minor or lesser offense, is en-
trapped into committing a greater offense subject to greater pun-
ishment.” United States v. Sanchez, 138 F.3d 1410, 1414 (11th Cir.
1998) (quotation marks omitted). Claims of sentencing
USCA11 Case: 23-12682 Document: 34-1 Date Filed: 05/15/2024 Page: 6 of 7

-- 6 of 7 --

23-12682 Opinion of the Court 7
entrapment “fail as a matter of law because this Circuit has rejected
sentence entrapment as a viable defense.” Id.
As we have previously rejected the doctrine of sentence en-
trapment, it was not error for the district court to decline to apply
the doctrine here. See United States v. Archer, 531 F.3d 1347, 1352
(11th Cir. 2008) (stating under our prior-panel-precedent rule, “a
prior panel’s holding is binding on all subsequent panels unless and
until it is overruled or undermined to the point of abrogation by
the Supreme Court or by this [C]ourt sitting en banc”); Sanchez, 138
F.3d at 1414. Accordingly, we affirm.
AFFIRMED.
USCA11 Case: 23-12682 Document: 34-1 Date Filed: 05/15/2024 Page: 7 of 7

-- 7 of 7 --