415 F.

3d 174

UNITED STATES of America, Appellee,

v.
Peter Gomes FONTES, Defendant, Appellant.
No. 04-2237.

United States Court of Appeals, First Circuit.

Heard May 3, 2005.
Decided July 20, 2005.

Timothy G. Watkins, Federal Defender Office, for appellant.

Nancy Rue, Assistant United States Attorney, with whom Michael J.
Sullivan, United States Attorney, and Rachel E. Hershfang, Assistant
United States Attorney, were on brief, for appellee.
Before BOUDIN, Chief Judge, LYNCH and LIPEZ, Circuit Judges.
LIPEZ, Circuit Judge.

Defendant-appellant Peter Gomes Fontes ("Fontes") challenges his sentence for

drug trafficking crimes on the ground that the district court's finding that the
government engaged in sentencing factor manipulation entitles him to a
sentence below the statutory mandatory minimum. Specifically, Fontes assails
the district court's ultimate conclusion that his predisposition to commit the
crimes for which he was convicted prevented the government's misconduct
from being "extreme and outrageous" enough to warrant a sentence below the
mandatory minimum. Discerning no reason to disturb the district court's
considered resolution of this fact-intensive inquiry, we affirm Fontes's sentence.

I.
2

On March 31, 2004, Fontes pled guilty to one count of conspiracy to distribute
50 grams or more of crack cocaine in violation of 21 U.S.C. 846, 841(a)(1),
and 841(b)(1)(A), and one count of distribution and possession with intent to
distribute crack cocaine in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)
(A), based on his sale of 59.2 grams of crack to a friend and drug associate-

turned-government informant on January 3, 2003. During his plea colloquy,

Fontes admitted that his offenses involved the quantity and type of cocaine
alleged in the indictment (at least 50 grams, or approximately two ounces, of
crack). Nevertheless, relying on United States v. Montoya, 62 F.3d 1, 4 (1st
Cir.1995), Fontes sought a downward departure from the applicable Guidelines
sentencing range and/or a sentence below the statutory mandatory minimum on
the theory that government agents had engaged in sentencing factor
manipulation by instructing the informant to purchase two ounces of crack
cocaine, which carries a statutory mandatory minimum term of imprisonment of
ten years, rather than the same quantity of powder cocaine, which carries no
statutory mandatory minimum sentence and results in a lower Guidelines
sentencing range. See 21 U.S.C. 841(b)(1)(A) (imposing statutory mandatory
minimum sentence for violation involving "50 grams or more of a mixture or
substance ... which contains cocaine base," but no mandatory minimum
sentence for a violation involving less than 500 grams of cocaine powder);
U.S.S.G. 2D1.1 (Drug Quantity Table) (2003).
3

After an evidentiary hearing on August 6 and August 18, 2004, during which
the informant and an FBI special agent testified, the district court found that the
government had engaged in sentencing factor manipulation by ordering the
informant to purchase crack cocaine with the intent of securing a higher
sentence. However, the court concluded that, in light of Fontes's predisposition
to sell crack, the government's conduct was not "extreme and outrageous," and
the court therefore could not impose a sentence below the statutory mandatory
minimum. See Montoya, 62 F.3d at 4 (court may impose sentence below
statutory mandatory minimum for "sentencing manipulation amounting to
`extraordinary misconduct'"). The district court declined to consider whether
the government's misconduct nevertheless warranted a downward departure
from the applicable Guidelines sentencing range of 140-175 months of
imprisonment.1 See id. at 4-5 (entertaining possibility that "a district court may
order a discretionary downward departure from the guideline range on
something less than extraordinary misconduct"). Instead, predicting that the
Supreme Court would soon declare the federal sentencing Guidelines
unconstitutional,2 the court imposed a non-Guidelines sentence of 126 months
of imprisonment above the statutory mandatory minimum of 120 months but
below the applicable Guidelines sentencing range which it considered to be
"fair and just." The court also imposed a five-year term of supervised release
and a special assessment of $200.

Fontes timely appealed, contesting the court's ultimate conclusion that the
government's sentencing factor manipulation was not "extreme and outrageous"
enough to justify a sentence below the statutory mandatory minimum. See 18

U.S.C. 3742(a)(1) (defendant may appeal sentence on ground that it "was

imposed in violation of law").3
II.
5

We recount the facts as set forth in uncontested portions of the pre-sentence

investigation report and the transcripts of the sentencing hearing. United States
v. Lagasse, 87 F.3d 18, 20 (1st Cir.1996). In August and September 2002, the
FBI debriefed a potential informant facing state drug charges who agreed to
collect evidence against his drug associates, including Fontes, whom the
informant had known for more than five years. At the evidentiary hearing, the
informant testified that he began selling drugs in 1999 or 2000 and that he told
FBI agents during interviews that he and Fontes sold each other powder
cocaine on occasion.

On October 22, 2002, the government authorized the informant to make a

controlled purchase of more than four ounces of powder cocaine from Fontes
for $3900 in government funds. Due to technical and other unexpected
difficulties, however, the FBI was unable to maintain surveillance of the
informant or to record the transaction. According to the FBI agent, the
government decided not to prosecute Fontes for the offense because the
informant's first-hand account of the transaction constituted the only evidence
of the circumstances of the sale.4

FBI agents subsequently learned, by listening to recorded conversations

between the informant and others, that some of Fontes's drug associates dealt
cocaine in the form of crack. The informant testified that when the agents asked
him to explain code words or slang used during these recorded conversations,
he told them they were references to crack cocaine. In his testimony, the agent
explained that the informant "didn't tell us that any of the individuals had sold
crack. It was something that we learned during the course of the investigation.
The other defendants... were talking about it. And, we [knew] those people to
be associates of Mr. Fontes." As the agent put it, "it became clear to us that this
group dealt in crack cocaine."

FBI agents then instructed the informant to make a second controlled purchase
of drugs from Fontes, this time in the form of crack, rather than powder
cocaine. In the informant's words, the agents told him, "if he comes with the
crack, buy it, if he doesn't, don't buy it." The agent testified that he directed the
informant to purchase two ounces of crack, which the informant testified was a
commonly sold quantity. At this point in the investigation, the agent testified, "I
had no specific information whether or not Mr. Fontes would sell that product,

meaning crack cocaine. I had no information whether he would or would not."

The agent explained, "I just simply thought he might be amenable to doing it
since ... two of his associates were."
9

On December 20, 2002, Fontes and the informant met at a pizza restaurant to
negotiate a price for the second drug transaction. Although the informant wore
a wire to record the conversation, the tape did not clearly reveal whether the
informant specified to Fontes that he wished to purchase crack rather than
powder cocaine. The informant testified, however, that he told the agents he
had negotiated a deal with Fontes to purchase two ounces of crack. The agent
testified that the informant also reported that Fontes had shown him a gun
during their meeting. On January 2, 2003, the informant spoke to Fontes in a
recorded phone call to confirm the quantity of drugs and to make arrangements
for the sale the next day. Again, the recording revealed no specific reference to
crack cocaine.

10

On January 3, 2003, the informant picked up Fontes in a government-provided

car rigged with hidden audio and video recording equipment. At the sentencing
hearing, the government published excerpts from the informant's recording and
asked the informant to describe the events captured on the tape. The
government later submitted a transcript of the audio recording to the district
court at the court's request. The transcript reveals that when Fontes entered the
car, he told the informant that he had just provided a half-ounce of cocaine
powder to someone else and that he had cooked the powder into crack for that
person. During the evidentiary hearing, the informant explained that certain
code words or slang (i.e., "chef'd") used during his conversation with Fontes
were references to crack or the act of cooking powder cocaine into crack.
According to the informant, Fontes then told him that they had to drive to
another town to pick up the drugs the informant had ordered, since Fontes had
already distributed one-and-a-half ounces of his two-ounce supply. When
Fontes and the informant arrived at their destination outside an apartment
building, a third person got in the car and handed Fontes a bag while the
informant drove around the block. After dropping off the third person at the
apartment building, the informant paid Fontes $1900 in government funds, and
Fontes gave him the bag.

11

The informant quickly realized that the bag contained powder, not crack,
cocaine. According to the transcript of the taped conversation, he protested, "I
wanted it cooked, [the customer] wanted it cooked." Fontes responded, "You
wanted it chef'd?" and asked the informant, "You don't know how to chef ... ?"
The informant replied, "Nah, I don't have time, too." Fontes then told the
informant, "Hold up, I'll probably get a trade," and made a cell phone call.

Instead of a trade, Fontes arranged to drop off the powder back at the apartment
building, where someone would cook it into crack.
12

According to the transcript, Fontes then said that if he had known at the outset
that the informant wanted to purchase crack instead of powder cocaine, "I
would have had it chef'd." When the informant countered that he had told
Fontes his customer wanted crack, Fontes replied, "Yo, but I figured you, ...
you could chef it yourself...." Finally, Fontes lamented that he had had a halfounce of crack available when the informant picked him up: "I had a heezy [a
half-ounce] on me too, man, chef'd...." After dropping the powder cocaine off
with the same third person at the apartment building, Fontes and the informant
drove around for about an hour before returning to the apartment building to
pick up the cocaine, now cooked into crack, which weighed 59.2 grams.

13

During the evidentiary hearing, the FBI agent explained that the agents
instructed the informant to purchase two ounces of crack in part because the
government lacked the funds to make a second controlled purchase of powder
cocaine in a quantity large enough to dispel suspicion, given the informant's
purchasing history with Fontes. By contrast, the agent explained, "In my mind,
[the informant] didn't deal in crack cocaine with Mr. Fontes previously. There
was no history of large quantities and so, this was something that was new to us
in this investigation." The agent further elaborated:

14

At that point, we decided that it was cost effective to purchase crack. Being
aware of the sentencing guidelines, being aware of the fact that the previous
deal was for an eighth kilo of cocaine, which cost a lot of money, and so, what
we were trying to do was to make one transaction, one additional transaction,
get good evidence that would stand to indict and convict Mr. Fontes, and that's
what we did.

15

When the court asked the agent, "What do you mean by `being aware of the
sentencing guidelines?'" the agent replied:

16

I'm aware of the fact that there are guidelines that determine what a sentence is
for a particular drug transaction, depending on what type of drug you are
selling or purchasing, there are different sentences that are associated with the
weights. So, in this case, there's different guidelines for cocaine, as opposed to
crack cocaine, powder versus crack.

17

The court then asked, "So, you're trying to get a higher sentence?" The agent
replied, "That's a part of it."

18

After the witnesses concluded their testimony on August 18, 2004, the court
heard oral argument. Given the informant's history of purchasing only powder
cocaine from Fontes and the agents' lack of information about whether Fontes
actually distributed crack, Fontes maintained that the government's decision to
instruct the informant to purchase crack instead of powder cocaine in order to
procure a higher sentence amounted to sentencing factor manipulation, even if
Fontes later turned out to have some predisposition to sell crack. The
government countered that the agents legitimately sought to test whether
Fontes, like his associates, would sell crack cocaine, even if they had no
advance knowledge that Fontes was predisposed to sell cocaine in that form.

19

After argument, the court concluded: "I don't think given the fact of the
predisposition of Mr. Fontes to sell crack that I can say [the government
engaged in] extreme and outrageous conduct. But I think it's extremely
troubling. I think it's wrong and troubling for the government to try and
quadruple" the defendant's sentence.5 The court continued: "I don't think that's
a legitimate law enforcement goal. And, I am taking it into account in where
I'm going to sentence him. But I don't think it's extreme and outrageous because
of the very strong evidence of predisposition to sell. That tape is devastating."
Nevertheless, the court found that the FBI agent "basically admitted that they
were trying to get a higher sentence."

20

The court then imposed a non-Guidelines sentence of 126 months of

imprisonment, which it found to be "fair and just." The court explained, "[t]hat
takes into account the mandatory minimum, which I don't think I can go below
because I don't think it's extreme and outrageous conduct. On the other hand,
because I find it so troubling, I am not going up as high as requested by the
government." Addressing Fontes directly, the court then gave its rationale for
imposing a sentence six months higher than the 120-month statutory mandatory
minimum term of imprisonment: "[O]ne of the reasons [the FBI] was so out to
get [you], if you will, [is] because you had a gun at the ... [pizza] restaurant"
where Fontes and the informant met on December 20, 2002. "You used guns. It
wasn't the first time, it was the second or third time that you used it.... I am
worried that you are going to be a recidivist."6

21

Finally, the court noted that if the Guidelines were upheld as constitutional, the
applicable GSR would be based on a total offense level of 29 and a Criminal
History Category of V, resulting in a sentencing range of 140-175 months of
imprisonment. The court indicated that if the case were remanded for
sentencing pursuant to the Guidelines, it would consider a downward departure
from that range based on the government's misconduct, but in no event would it
impose a sentence below the statutory mandatory minimum "because I can't say

with that level of predisposition that it's extreme and outrageous." The court
nevertheless admonished: "I think when you quadruple someone's sentence
based on the situation where his track record with this particular informant was
all powder and he thought it was powder, I think he basically you are talking
your best friend into [selling] crack, the whole thing is troubling."
22

In its statement of reasons issued on August 20, 2004, the court reiterated its
factual findings and legal conclusions:

23

Based on the FBI agent's testimony, I find that the primary motivating factor
for the decision by the FBI agent to order the informant to buy 2 ounces of
crack (rather than powder, as in the earlier transaction [of October 22, 2002])
was to procure the highest possible penalty.... There was no investigative
purpose to ordering crack (i.e., finding the source of the drugs or scope of the
conspiracy)....

24

On the other side of the ledger, as the videotaped conversation in the car
demonstrated, the defendant had a predisposition to sell crack and had sold it
before. However, the FBI did not know about any prior sales of crack by the
defendant, or that the defendant had a reputation of selling crack. It only knew
some of his friends sold crack....

25

On balance, I conclude that the defendant has not proven extreme and
outrageous conduct, largely because of the defendant's predisposition....

26

(capitalization omitted.)7

III.
27

Sentencing factor manipulation takes place "where government agents have

improperly enlarged the scope or scale of [a] crime." Montoya, 62 F.3d at 3.
Such claims may arise where the government employs undercover agents in
sting operations. United States v. Barbour, 393 F.3d 82, 86 (1st Cir.2004). 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. United States v. Capelton, 350 F.3d 231, 246 (1st
Cir.2003). Because, however, "[b]y definition, there is an element of
manipulation in any sting operation," United States v. Connell, 960 F.2d 191,
194 (1st Cir.1992), we have stressed that this form of relief for sentencing
factor manipulation is reserved for only "the extreme and unusual case,"
Montoya, 62 F.3d at 4.

28

The defendant bears the burden of establishing sentencing factor manipulation

by a preponderance of the evidence. United States v. Gibbens, 25 F.3d 28, 32
(1st Cir.1994). The district court found that burden met when it determined that
the FBI agent "basically admitted that [the agents were] trying to get a higher
sentence," and that this purpose was not "a legitimate law enforcement goal."

29

"A determination as to whether improper manipulation exists is ordinarily a

factbound determination subject to clear-error review." Id. at 30. Having
withdrawn its appeal, the government does not challenge the court's 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. Nor does Fontes dispute the court's determination, based on his
statements and actions at the time of the January 3, 2003 drug deal, that he was
predisposed to deal crack cocaine. Fontes contests only the district court's
ultimate conclusion, based on its findings regarding the government's
misconduct and Fontes's willingness to engage in the crime when given the
opportunity, that the government's actions did not amount to the "extreme and
outrageous" conduct required to authorize a sentence below the statutory
mandatory minimum. "Because manipulation is largely a fact-bound inquiry,
even the district court's ultimate judgment whether the government's conduct is
outrageous or intolerable is not lightly to be disregarded." Montoya, 62 F.3d at
4. Fontes thus carries a heavy burden on appeal.

30

Fontes first urges us to hold that once the district court found that the
government agents engaged in sentencing factor manipulation because of their
improper motive to increase Fontes's sentence, the district court was compelled
to find that the government's misconduct was egregious enough to authorize a
sentence below the statutory mandatory minimum. "Because of the diversity of
circumstances, we have declined to create detailed rules as to what is or is not
undue manipulation." Id. Instead, such claims "must be approached on a caseby-case basis, albeit with due regard for the potential dangers of sentencing
factor manipulation." Gibbens, 25 F.3d at 31. Indeed, we have previously
upheld the denial of a sentencing factor manipulation claim, "even assuming
that the agents' motives were mixed and not of crystalline purity," where the
defendant was otherwise "legitimately targeted and the sting objectively
reasonable in extent." United States v. Egemonye, 62 F.3d 425, 428 (1st
Cir.1995). We therefore decline to adopt the per se rule Fontes advocates.

31

Fontes next contends that the district court erred in considering evidence of his
manifest willingness to sell crack to the informant that was not available to the
government at the time that it designed the sting operation, and in concluding

that this evidence of his predisposition, captured on tape as the drug deal
unfolded, precluded a finding of sentencing factor manipulation "extreme and
outrageous" enough to warrant a sentence below the statutory mandatory
minimum.8 As Fontes points out, every defendant raising a sentencing factor
claim has necessarily shown at least some willingness to take the bait. In
Gibbens, we did observe that a defendant's predisposition to commit an
improperly enlarged crime is "of modest relevance" to a finding of sentencing
factor manipulation. 25 F.3d at 31. "When an accusation of sentencing factor
manipulation surfaces, the judicial gaze should, in the usual case, focus
primarily though not necessarily exclusively on the government's conduct
and motives." Id.; Montoya, 62 F.3d at 4 ("most important" factor "is likely to
be the conduct of the government, including the reasons why its agents
enlarged or prolonged the criminal conduct in question"). By treating his
predisposition to sell crack as a bar to a conclusion that the government's
misconduct was "extreme and outrageous," Fontes argues, the court ignored
these directives to focus on the government's as distinct from Fontes's
misconduct.
32

We have never stated that a court is precluded from weighing a defendant's

predisposition when evaluating the degree to which the government has
engaged in sentencing factor manipulation. "By their nature, sting operations
are designed to tempt the criminally inclined, and a well-constructed sting is
often sculpted to test the limits of the target's criminal inclinations." Id. at 196;
see also Egemonye, 62 F.3d at 427 ("Government agents are not limited to
replicating a suspect's largest unsolicited crime.") Accordingly, we have noted,
"a defendant's predisposition, or the lack thereof, may have evidentiary
significance in the assessment of the government's motives and conduct.
Moreover, one can imagine different species of sentencing factor manipulation,
in some of which predisposition may be of greater relevance." Gibbens, 25 F.3d
at 31 n. 3. In particular, because a sentencing factor manipulation claim may
turn on whether government agents "overb[ore] the will of a person
predisposed only to committing a lesser crime," Connell, 960 F.2d at 196, we
have recognized that some assessment of a defendant's response to an invitation
to crime may be warranted, see, e.g., Egemonye, 62 F.3d at 427 (finding "no
indication that [the defendant] was coerced or pressured" where defendant
accepted offered sale of unprecedented quantity of stolen credit cards).

33

The court's consideration of Fontes's predisposition as evidenced during the

sting operation did not displace the central role of the government's improper
motive in the court's analysis. To the contrary, the court declared repeatedly in
no uncertain terms, based solely on the government's conduct and the FBI
agent's candid admission, that the government acted improperly when it

directed the informant to purchase crack in order to increase Fontes's sentencing

exposure. In making this determination, the court squarely focused on the
government's conduct and motives at the time it structured the sting operation,
probing its reasons for structuring a deal for crack instead of powder cocaine.
In that context, the court considered the government's lack of specific
information, in the FBI agent's words, about "whether or not Mr. Fontes would
sell that product," as well as the fact that Fontes's "track record with this
particular informant was all powder and [Fontes] thought [the drug the
informant sought] was powder."9
34

Having made the determination that the government's conduct was "wrong and
troubling" and that it would "tak[e] it into account in where I'm going to
sentence [Fontes]," the court properly inquired further to determine the degree
to which the government engaged in misconduct that is, whether the
government's misconduct was sufficiently egregious to warrant a sentence
below the statutory mandatory minimum. See Montoya, 62 F.3d at 4 ("in order
to require a reduction" below the statutory mandatory minimum, defendant
must show that the government's conduct was "carried to such a degree that [it]
must be viewed as `extraordinary misconduct'") (quoting Gibbens, 25 F.3d at
31).

35

In order to discern whether the government applied "outrageous or intolerable

pressure" on Fontes to supply a different type of cocaine than he was prepared
to sell, Montoya, 62 F.3d at 4, the court reasonably considered the limits of
Fontes's own predilection for trafficking in crack cocaine as demonstrated
during the January 3, 2003 drug deal itself. As the transcript of the taped
controlled purchase reveals, when Fontes entered the car, he stated,
unprompted, that he had just provided cocaine to someone else and that he had
helped that person cook it into crack. Later, when the informant protested that
he needed cocaine in the form of crack rather than powder, Fontes, far from
refusing to go through with the deal, quickly accommodated the informant's
needs. While Fontes expressed surprise and disappointment at the unexpected
request, he displayed no discomfort with the quantity or type of cocaine
requested by the informant. This evidence of Fontes's predisposition to sell
crack was, in the court's words, "devastating" to his claim of sentencing factor
manipulation.

36

Based on what it found to be "very strong evidence" at the moment of truth that
Fontes was ready, willing, and able to accommodate the informant's need to
purchase crack upon request, the court supportably concluded that the
government, while motivated at least in part by an improper desire to increase
Fontes's sentencing exposure, exerted no undue pressure or coercion sufficient

to "overbear[] the will of a person predisposed only to committing a lesser

crime." Connell, 960 F.2d at 196. The court's conclusion that the government's
conduct was not, in its words, "extreme and outrageous" enough to warrant a
sentence below the statutory mandatory minimum "is not lightly to be
disregarded." Montoya, 62 F.3d at 4. We apply that principle here.
Accordingly, Fontes's sentence is affirmed.
37

So ordered.

Notes:
1

Based on the total amount of crack and powder cocaine involved in Fontes's
relevant conduct, the pre-sentence investigation report (PSR) recommended a
base offense level of 32, a reduction of three levels to 29 for acceptance of
responsibility, and a Criminal History Category of V

The Supreme Court had recently grantedcertiorari but had not yet heard oral
argument in two consolidated cases in order to consider the effect of its decision
in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403
(2004), on the federal sentencing Guidelines. See United States v. Booker, ___
U.S. ___, 125 S.Ct. 11, 159 L.Ed.2d 838 (2004); United States v. Fanfan, ___
U.S. ___, 125 S.Ct. 12, 159 L.Ed.2d 838 (August 2, 2004). In January 2005, the
Court held that "the Sixth Amendment as construed in Blakely does apply to the
Sentencing Guidelines" and that, "in light of this holding, two provisions of the
Sentencing Reform Act of 1984(SRA) that have the effect of making the
Guidelines mandatory [18 U.S.C. 3553(b)(1) and 3742(e)] must be
invalidated in order to allow the statute to operate in a manner consistent with
congressional intent." United States v. Booker, ___ U.S. ___, ___, 125 S.Ct.
738, 746, 160 L.Ed.2d 621 (2005).

Fontes does not challenge the court's underlying factual determinations or argue
that, absent the alleged legal error, his sentence was otherwise unreasonableSee
Booker, 125 S.Ct. at 765 (federal sentences reviewable on appeal for
unreasonableness). Furthermore, as Fontes was not sentenced under a
mandatory Guidelines regime, he raises no claim of Booker error.
The government filed a notice of appeal on September 24, 2004, but this court
issued an order to show cause on October 7, 2004 observing that the
government's notice of appeal appeared to be untimely. On November 5, 2004,
this court granted the government's motion to voluntarily dismiss the appeal
pursuant to Fed. R.App. P. 42(b).

Fontes's uncharged sale of over four ounces of powder cocaine to the informant
on October 22, 2002 was apparently treated as relevant conduct, and 123.9
grams of cocaine powder were apparently included in the PSR's calculation of
Fontes's base offense levelSee supra, note 1.

The applicable GSR for an offense involving more than 50 grams of crack
(after accounting for Fontes's relevant conduct and other factors), as we have
noted, was 140-175 months of imprisonment, while the GSR for an offense
involving the same quantity of powder cocaine is 37-46 months of
imprisonment

As we have discussed, the FBI agent testified at the evidentiary hearing that the
informant reported that Fontes showed him a gun during the meeting at the
pizza restaurant. Fontes does not contest the court's determination that he "used
guns" more than once

As it had during sentencing, the court indicated in its statement of reasons that
if the Guidelines were upheld as constitutional, it would consider granting a
downward departure from the applicable GSR based on the government's
misconduct on remand

As we have discussed, Fontes does not dispute the court's determination that he
was predisposed to sell crack cocaine

Although the court found that the government knew some of Fontes's associates
sold crack, it explicitly distinguished Fontes's case from that ofUnited States v.
Terry, 240 F.3d 65, 71 (1st Cir.2001), in which we upheld a court's denial of a
claim of sentencing factor manipulation, stating that "[t]he government, when
investigating the business of a drug dealer who by reputation sells both crack
and powder cocaine, is under no obligation to buy only that product or quantity
which would produce the smallest sentence for the defendant" (emphasis
added). We reiterate that because the government has withdrawn its appeal, we
need not express a view on the correctness of the court's determination that the
government acted with an improper motive by seeking a higher sentence
without specific evidence of actual or rumored crack deals involving Fontes
himself.