United States v. Cortes

A criminal defendant is entitled to present a sentencing entrapment defense to the jury when evidence shows that the result of the defense will be lowering the statutory sentencing range; the Hobbs Act makes robbery and extortion criminal even when contraband is the property at issue.

Defendant Jorge Cortes was arrested as a result of an “undercover reverse sting operation.” Cortes was convicted of conspiracy “to affect commerce by robbery and extortion, in violation of the Hobbs Act” and conspiracy to “possess with intent to distribute 5 kilograms or more of cocaine.” After being sentenced to a total of 240 months, Cortes appealed his conviction. The district court used the model Ninth Circuit instruction for instructing the jury on the entrapment defense. However, the district court mischaracterized the holding in United States v. Spentz when modifying the jury instruction for entrapment. The panel said that the district court should have told the jury that inducement supporting entrapment cannot be, on its own, the profit from a drug sale or the amount of drugs. The panel reversed and remanded for trial on this count. The district court did not allow Cortes’s “request for a sentencing entrapment instruction” because at the time, United States v. Yuman-Hernandez had not been decided. In light of Yuman-Hernandez, in order to be proper, the jury instruction should state “whether the defendant had the capability and the intent to deal in that fabricated quantity of drugs.” The panel held that where there is evidence of a possibility of a reduced statutory sentencing range and a defendant raises the argument, then sentencing entrapment must be tried by a jury. The panel also held that even when contraband is the property at issue, the Hobbs Act criminalizes extortion and robbery. The panel said that Congress did not intend to protect people who robbed illegal narcotics but only people possessing controlled substances lawfully. The panel affirmed Cortes’s Hobbs Act conviction. REVERSED AND REMANDED for Count 1; AFFIRMED the balance of the judgment.