NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 17-1196 ________________

UNITED STATES OF AMERICA

v.

SEAN MOFFITT, Appellant

________________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal No. 2-12-cr-00147-002) District Judge: Honorable Cathy Bissoon ________________

Argued: February 8, 2018

Before: CHAGARES, SCIRICA, and COWEN, Circuit Judges

(Opinion Filed: January 9, 2020)

David R. Fine [ARGUED] K&L Gates LLP Market Square Plaza 17 N. Second St., 18th Fl. Harrisburg, PA 17101 Counsel for Appellant

Soo C. Song Laura Schleich Irwin [ARGUED] United States Attorney’s Office 700 Grant Street, Suite 4000 Pittsburgh, PA 15219 Counsel for Appellee _______________

OPINION* ________________

SCIRICA, Circuit Judge

Sean Moffitt moves to vacate, set aside, or correct his sentence under

. His primary argument is that his lawyer was constitutionally ineffective for

failing to raise a sentencing entrapment defense at his jury trial. Because Moffitt cannot

demonstrate prejudice under the Supreme Court’s Strickland doctrine, we will affirm the

District Court’s denial of his motion.

I.

A.

This case involves a reverse-sting operation: an undercover law enforcement agent

posing as a dissatisfied drug courier proposed robbing a fictional stash house. With the

promise of a big payday, the agent enlisted a handful of willing participants, including

Sean Moffitt. When Moffitt took steps in furtherance of the crime, he was arrested and

prosecuted.

In April 2012, Bruce Stukey, an undercover agent of the Bureau of Alcohol,

Tobacco, Firearms and Explosives (“ATF”), met Chad Revis (Moffitt’s cousin) through a

confidential informant. Agent Stukey held himself out as “Jake,” a disgruntled courier for

a cocaine trafficking organization. In that guise, Agent Stukey complained that his drug

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 organization had denied him a lucrative selling role, instead relegating him to

deliveryman. Agent Stukey told Revis he planned to rob the organization’s stash house,

which stored twelve to eighteen kilograms of cocaine.

Although Agent Stukey set the robbery scheme in motion, Revis undertook

important next steps. On May 2, 2012, Revis introduced Agent Stukey to Sean Moffitt

and Edward Harris (Moffitt’s uncle), both of whom expressed interest in joining the

robbery scheme. Before the meeting, Revis told Agent Stukey that Moffitt and Harris

need not know the quantity of drugs they would steal. Agent Stukey disagreed and

described the plan to all three men, including the amount of drugs involved. When the

meeting ended, the plan was for all four men to participate in the robbery of the fictitious

stash house.

But the plan changed. At the meeting, Moffitt and Harris became suspicious that

Revis understated the amount of drugs targeted. Moffitt later testified that Agent Stukey

told them that the stash house would likely have around ten kilograms of cocaine. Moffitt

and Harris decided to cut Revis out of the scheme. Harris then called Agent Stukey and

asked for a follow-up meeting, which was to include Moffitt but exclude Revis, and also

requested that Revis not be informed about the meeting.

Thus Moffitt and Harris initiated a second meeting. This meeting was secretly

recorded on video with sound by Agent Stukey. Moffitt and Harris argued that Agent

Stukey should cut out Revis, with Harris stating: “We’re the guns. I’m the [expletive]

man. [Moffitt] is my right-hand man.” Gov’t Ex. 8, at 4:00. Moffitt explained that he and

Harris were more experienced than Revis at robbing stash houses, stating “that’s why

3 [Revis] called us.” Gov’t Ex. 8, at 6:36. Throughout the conversation, Moffitt was

enthusiastic, telling Agent Stukey, “we really want to do this thing.” Gov’t Ex. 8, at 4:16.

Harris stated that Agent Stukey’s offer was a “blessing,” which Moffitt verbally agreed

with. Gov’t Ex. 8 at 4:40. Harris stated that he would treat Agent Stukey fairly “so we

could do it the [expletive] again,” which Moffitt again verbally agreed with. Gov’t Ex. 8,

at 7:16. Agent Stukey feigned hesitation and twice said that he needed to “process”

everything. This led Moffitt and Harris to pressure Agent Stukey to include them in the

robbery. Harris touted their robbery experience, explaining “we done pulled off licks; we

hit [people] for 20 bricks before.” Gov’t Ex. 8, at 13:39.1 He also assured Agent Stukey

that they would “walk [him] through” the process. Gov’t Ex. 8, at 11:15.

Throughout the recorded conversation, Moffitt and his coconspirators were

explicit about their understanding of the amount of cocaine involved in the robbery.

Moffitt and Harris expressed their suspicion that Revis had underrepresented the amount

of cocaine involved in order to deprive them of the robbery’s fruits, with Moffitt saying,

“the stuff [Revis] told us was totally different than what you told us.” Gov’t Ex. 8, at

3:53. Moffitt added that Revis told them they would only be taking “two or three ounces

[of cocaine] a piece.” Gov’t Ex. 8, at 5:50. But he said he knew Revis was lying when he

said there were only “nine ounces at most” of cocaine. Gov’t Ex. 8, at 12:10. Later in the

conversation, Agent Stukey confirmed that there would likely be eight to twelve

kilograms of cocaine at the stash house, and Moffitt nodded his head and said, “See!”

1 One “brick” of cocaine is one kilogram. In Pittsburgh, as of 2012, a kilogram of cocaine had a value of approximately $30,000.

4 Gov’t Ex. 8, at 10:27. In response to Agent Stukey’s disclaimer that there could be

slightly more or less drugs than that, Harris said, “whatever it is, we will split it three

ways,” and Moffitt again verbally agreed. Gov’t Ex. 8, at 10:45.

During the recorded conversation, Moffitt and Harris explicitly expressed their

readiness to use violence to pull off the robbery. In explaining why Agent Stukey needed

their help, Harris got to the heart of the matter: “Dealing with that much [cocaine], it ain’t

like those [people] are gonna be like ‘well here you can just have it’ [so] we’re the ones

[you need].” Gov’t Ex. 8, at 12:18. Moffitt agreed, saying “it might get ugly.” Gov. Ex. 8,

at 12:30.

The next day, Moffitt, Harris, and another individual, Tone,2 met Agent Stukey at

a restaurant. At this meeting––also secretly recorded on video with sound––Moffitt asked

Agent Stukey for the stash house’s location. The stash house moved around, Agent

Stukey explained, and his superiors often told him the location at the last minute, giving

him a brief window in which to seize the cocaine. Stukey asked whether the men had the

firearms needed to accomplish the robbery, and Moffitt assured him they did. Moffitt

even said they would come with “weapons of mass destruction.” S.A. 131. Harris

reiterated his and Moffitt’s qualifications for the job: “We do this. This is what we do,

and we got good connections.” Gov’t Ex. 9 at 22:54.

Less than a week later, Agent Stukey called Harris and told him the robbery would

take place the next day. Harris called Agent Stukey the following morning to confirm the

robbery was still on schedule. Agent Stukey instructed Harris to meet him at the Knight’s

2 Agent Stukey testified that he never had contact with Tone again after this meeting.

5 Inn in Bridgeville, Pennsylvania. Harris arrived with an accomplice, whom Harris had

recruited to help with the scheme. Harris explained to Agent Stukey that his crew was

ready and nearby in two different vehicles. Harris then rode with Agent Stukey to pick up

a van he believed would be used in the robbery. Agent Stukey asked, and Harris

confirmed, that the rest of the robbery “crew” were the people that Agent Stukey had met

at the restaurant, i.e., Moffitt and Tone. When they arrived at the supposed robbery van,

Harris and another accomplice, who had followed them to the van, were arrested.

Unaware of the arrests and in a series of phone calls, Moffitt pressed Agent Stukey

for the stash house location. Agent Stukey in turn asked to meet Moffitt in person.

Moffitt declined Agent Stukey’s repeated requests, explaining he did not want to ride

around with “all of the artillery.” S.A. 143. Moffitt later admitted he was in the

Bridgeville area that morning, near where the robbery would take place. After additional

conversations, Agent Stukey called off the robbery. Moffitt was arrested later.

B.

A grand jury indicted Moffitt, Harris, and the accomplice, charging them with two

counts of conspiring to possess with intent to distribute and attempting to possess and

distribute, five kilograms or more of cocaine. See

(a)(1),

841(b)(1)(A)(ii)(II), 846. The day before trial, Harris pleaded guilty to both counts of the

indictment.3

3 Harris was sentenced to 200 months’ incarceration and five years of supervised release. On July 14, 2015, Harris’s sentence was reduced to 150 months, after the United States Sentencing Commission amended U.S.S.G. § 2D1.1 to decrease the base offense level for drug offenses by 2 levels and applied this amendment retroactively.

6 Moffitt proceeded to trial, employing a trial strategy focusing on his innocence.

His trial counsel argued Moffitt was innocent, that he was just “play[ing] along,” and had

no intent “to be part of any of the actions.” S.A. 78. Moffitt testified before the jury that

he had never intended to go along with Agent Stukey’s scheme, and that he was just

feigning interest in the robbery. He did not deny that he attended a subsequent lunch with

the co-conspirators, who discussed the logistics for the planned robbery. On cross-

examination, Moffitt struggled to answer questions and became frustrated, repeatedly

refusing to answer questions. For example, Moffitt testified on direct examination he had

previously trafficked in heroin, but only heroin. On cross-examination, after several

evasive answers, Moffitt admitted he had also been convicted of trafficking cocaine—the

drug at issue in the present case. As another example, Moffitt struggled to explain what

he was doing on the day of the robbery. Although he claimed he was at his aunt’s house

for part of that day, he admitted he did not know her address.

Throughout the trial, Moffitt focused on his innocence and his lawyer stuck to that

strategy. Although the District Court ultimately gave a jury instruction on entrapment,

Moffitt’s lawyer did not argue entrapment before the jury and Moffitt did not testify to

anything suggesting he was entrapped. When the district judge asked Moffitt’s counsel

whether he wanted an entrapment jury instruction, Moffitt’s counsel did ask for it. But he

acknowledged that he might later request removing it and that it was “not necessary”

because Moffitt’s “defense [was] focused on a denial that he was ever in a conspiracy.”

7 S.A. 388. Moffitt’s counsel also told the district judge that “entrapment is something that

we haven’t pursued . . . with our defense and our theory of defense.” S.A. 389.4

The jury convicted Moffitt of both counts.

C.

Because of his career offender status, Moffitt was sentenced to a statutorily

mandated term of life imprisonment. Days before trial, the government filed a notice

under

(the “851 notice”), establishing that Moffitt had two or more prior

convictions for felony drug offenses. This notice triggered

(b)(1)(A),

which mandates a life sentence for persons convicted of, inter alia, an offense under

§ 841 after two or more prior felony drug convictions.5 See id. At the sentencing hearing

on February 5, 2014, the court sentenced Moffitt to life imprisonment.

D.

On direct appeal, Moffitt challenged only the admission of two prior convictions

under Federal Rule of Evidence 404(b), and we affirmed. See United States v. Moffitt,

(3d Cir. 2015). Moffitt then filed a motion under

,

alleging ineffective assistance of counsel, which the District Court denied.6 We granted a

4 The District Court also instructed the jury to acquit Moffitt if it found “that the government conduct in this case with respect to Sean Moffitt is so outrageous as to be shocking in the universal sense of justice . . . under the due process clause . . . .” S.A. 537. 5 Moffitt’s counsel obtained a continuance during sentencing as part of an attempt to persuade the government to withdraw the 851 notice. The United States Attorney’s Office for the Western District of Pennsylvania declined to revoke the 851 notice. 6 The District Court had jurisdiction under

. We have jurisdiction under

and 2253(a). See United States v. Davenport,

, 608 n.4 (3d Cir. 2015).

8 certificate of appealability limited to two questions: (1) whether “counsel was ineffective

for failing to argue, at sentencing, that Moffitt should have been sentenced at a lesser

drug quantity because the Government unfairly exaggerated the quantity of cocaine with

which he was charged;” and (2) whether “counsel was ineffective for failing to request a

jury instruction that would have allowed the jury to find Moffitt guilty at a lesser drug

quantity for the same reason.”7

II.

In reviewing the District Court’s decision to summarily dismiss Moffitt’s motion

for relief under

, we must consider whether “the motion and the files

and records of the case conclusively show that the prisoner is entitled to no relief.” See

United States v. Day,

(3d Cir. 1992) (articulating the standard of review).

But “the question of whether to order a hearing is committed to the sound discretion of

the district court . . . . Accordingly, we review this matter to determine if the trial court

abused its discretion” in declining to order a hearing.8

7 After granting a certificate of appealability, we appointed David R. Fine of K&L Gates LLP to serve as Moffitt’s counsel. See

(e)(1). We express our appreciation to Mr. Fine for accepting this matter pro bono and for capably briefing and arguing this case. 8 The Sixth Amendment guarantees “the right to the effective assistance of counsel.” Strickland v. Washington,

(1984) (quoting McMann v. Richardson,

, 771 n.14 (1970)). “Regardless of whether an ineffective assistance of counsel claim is raised in a motion for a new trial, on collateral review, or on direct appeal, the standard of review is the same.” United States v. Washington,

(3d Cir. 2017). “We exercise plenary review over the legal component” of the claim and “review the underlying facts for clear error, but exercise independent judgment on whether those facts, as found by the District Court, show that counsel rendered ineffective assistance.” Davenport,

(citation omitted).

9 Moffitt contends that both his trial counsel and sentencing counsel were

constitutionally ineffective for failing to raise a sentencing entrapment defense. In the

context of drug distribution crimes, the contention is that the defendant lacked the

culpability to traffic in the amount of drugs charged—i.e., more than five kilograms of

cocaine in Moffitt’s case. A defendant asserting sentencing entrapment “argues that,

although predisposed to commit a minor or lesser offense, he has been entrapped into

committing a greater offense subject to greater punishment.” United States v. Ciszkowski,

(11th Cir. 2007).

Under Strickland’s two-part standard, Moffitt must show both that “counsel performed deficiently and that counsel’s deficient performance caused him prejudice.” Buck v. Davis,

(2017) (citing Strickland,

). To satisfy Strickland’s deficiency prong, Moffitt must show that counsel’s performance “fell below an objective standard of reasonableness.”

. “Strickland’s first prong sets a high bar.” Buck,

. Defense lawyers “face[] any number of choices about how best to make a client’s case.”

Thus, a lawyer’s conduct is objectively reasonable “so long as his decisions fall within the ‘wide range of professionally competent assistance.’”

(quoting Strickland,

).

Under Strickland’s second prong, Moffitt must show that he was prejudiced by counsel’s deficient performance. The prejudice standard is demanding: “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Strickland,

. Rather, “the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Id. at 594. A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id. We may resolve an ineffectiveness claim under either prong. Id. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.”).

10 Moffitt concedes he had previously dealt with “modest volumes of drugs.”

Appellant Br. at 22. But he contends he would not have been willing to traffic eight to

twelve kilograms of cocaine if Agent Stukey had not entrapped him.

Neither the Supreme Court nor the Third Circuit has yet endorsed a sentencing

entrapment defense. See Washington,

; United States v. Sed,

(3d Cir. 2010). And courts of appeals have divided on whether to recognize

the defense. Five courts of appeals have recognized some form of sentencing

entrapment,9 with some setting demanding standards.10 But four other courts of appeals

have declined to recognize a sentencing entrapment defense.11

9 The Eighth and the Ninth Circuits focus on the “defendant’s predisposition” to deal in a certain quantity of drugs. See United States v. Yuman-Hernandez,

(9th Cir. 2013) (explaining that the focus of the analysis is on predisposition and that a defendant has the burden of showing either a lack of intent or a lack of capability to deal in the quantity of drugs charged); United States v. Martin,

(8th Cir. 2009). The First Circuit, in contrast, “focuses primarily on the behavior and motives of the government.” United States v. Jaca-Nazario,

(1st Cir. 2008). And the District of Columbia and Seventh Circuits appear to consider both the defendant’s predisposition and the government’s conduct. See United States v. Mack,

, 523–24 (D.C. Cir. 2016) (“[S]entencing entrapment occurs if the government induces a defendant to commit a more serious crime when he was predisposed to commit a less serious offense.”) (quotation marks and citation omitted); United States v. Turner,

(7th Cir. 2009) (“The defendant must show (1) that he lacked a predisposition to commit the crime, and (2) that his will was overcome by unrelenting government persistence.”) (internal quotation marks and citation omitted). 10 See, e.g., Turner,

(describing a “high bar” and requiring “unrelenting government persistence”); Jaca-Nazario,

(requiring “extraordinary misconduct” by the government) (quoting United States v. Barbour,

(1st Cir. 2004)). 11 See United States v. Macedo-Flores,

(5th Cir. 2015) (“This court has never recognized sentencing entrapment as a defense, but we have consistently noted that, were we to accept the defense, it would only be cognizable in cases involving ‘true entrapment,’ or where there is proof of ‘overbearing and outrageous conduct’ on the

11 III.

As noted, Moffitt contends that both his trial counsel and sentencing counsel were

constitutionally ineffective for failing to raise a sentencing entrapment defense. We

disagree. There is no reasonable probability that raising a sentencing entrapment defense

would have altered the outcome at trial or sentencing. Accordingly, both of Moffitt’s

ineffective assistance claims fail under Strickland’s second prong, and the District Court

did not abuse its discretion in declining to hold an evidentiary hearing.

A.

Moffitt cannot establish trial counsel’s decision to forego a sentencing entrapment

defense prejudiced him. Even if a sentencing entrapment argument had been made and a

corresponding jury instruction had been sought, the outcome would have been unchanged

because the record did not support such a defense. “A defendant is entitled to an

instruction on his theory of the case where the record contains evidentiary support for it.”

United States v. Weatherly,

(3d Cir. 2008) (internal quotation marks

and citation omitted).

We conclude the record does not support a sentencing entrapment defense.

Nothing in the record suggests that Agent Stukey coerced or placed pressure on Moffitt to

participate. Cf. United States v. Mayfield,

(7th Cir. 2014) (en

Government’s part.”) (citations omitted); United States v. Guest,

(6th Cir. 2009) (“The Sixth Circuit has already addressed sentencing entrapment . . . [and it] does not recognize [the] defense.”); United States v. Ciszkowski,

(11th Cir. 2007) (“While our Circuit does not recognize sentencing entrapment as a viable defense, we do recognize the outrageous government conduct defense, and we have considered sentencing manipulation as a viable defense.”); United States v. Ramos,

(4th Cir. 2006).

12 banc) (faulting the government for “pair[ing] the reward of a stash-house robbery with an

extended campaign of persuasion that played on Mayfield’s financial need and

culminated in a veiled threat of reprisal from a vicious street gang”). The opposite was

true here. Agent Stukey initially targeted Revis, who then introduced Stukey to Moffitt

and Harris. Cf.

(finding sentencing entrapment plausible in case where

government agent directly recruited defendant and played on his known financial

difficulties). But Moffitt and Harris cut Revis out of the scheme––they pitched their

services to Agent Stukey over the course of their meetings during which they bragged

about their prior robberies. At one point, Moffitt exclaimed: “We really want to do this

thing.” Gov’t Ex. 8, at 4:16.

Nor was there any evidence that Agent Stukey induced Moffitt to steal a larger

quantity of drugs than he was predisposed to steal. Moffitt and Harris bragged about prior

criminal activity, including stealing 20 kilograms of cocaine. Revis initially

underreported the amount of cocaine involved, making Moffitt immediately suspicious

that Stukey could offer him more drugs. And Moffitt’s interest in the robbery persisted

after Stukey corrected Revis’s statement and told them the stash house contained in

excess of five kilograms. There was no hesitation on Moffitt’s part about the quantity

being beyond his predisposition. On the contrary, he acknowledged that the opportunity

was a “blessing.” Gov’t Ex. 8 at 4:40. These statements demonstrate Moffitt was not a

hesitant member of the conspiracy, and that he was ready and eager to steal eight to

twelve kilograms of cocaine. In other words, the facts of this case do not support a

sentencing entrapment defense.

13 Second, making a sentencing entrapment defense would have been inconsistent

with his trial counsel’s strategy. Throughout the case, Moffitt argued he was innocent and

lacked conspiratorial intent. When Moffitt took the stand, he testified he was just

“playing along” with the stash house conspiracy and that he was innocent of the charges;

he never mentioned anything suggestive of entrapment. His trial counsel never mentioned

any sort of entrapment in his opening statement, cross-examination of the government’s

witnesses, direct examination of Moffitt himself, or his closing argument. Moffitt’s trial

strategy was focused entirely on his innocence. Moffitt’s trial counsel recognized that

advancing a traditional entrapment defense stood in some tension with his innocence

strategy, and he suggested to the district judge that Moffitt might not even want that

instruction, though it was requested and ultimately given. Advancing a sentencing

entrapment defense would have been an even more awkward fit with Moffitt’s trial

strategy, because it would have required conceding some culpability. Throughout the

trial, Moffitt demonstrated he was not willing to do this, insisting he was innocent

altogether.

Third, the quantity of drugs proffered by law enforcement in this case would not

make out a sentencing entrapment defense in some circuits. In this case, there is

testimony that the quantity of drugs chosen, eight to twelve kilograms, was based on law

enforcement’s understanding of what a typical stash house in the Pittsburgh area would

contain. At no time during the trial, or on appeal, has Moffitt contended that this is not

the typical amount of drugs found in a Pittsburgh stash house. Among the circuits that do

recognize a sentencing entrapment defense, some authority finds it inapplicable if law

14 enforcement invents an amount of drugs that is found in a typical stash house in the area.

For example, the Seventh Circuit held that, unless there are other facts suggesting

coercion, it will not find sentencing entrapment where law enforcement invents a quantity

of drugs that would be typically found in local stash houses. See Mayfield,

(stating that an amount less than twenty kilograms of cocaine is typical in the

relevant locality); see also United States v. Hare,

(4th Cir. 2016)

(stating, in the context of a due process claim, that “15 to 20 kilograms of cocaine” is not

an “outrageous . . . inducement”). Stated differently, it is not an “illegitimate inducement”

if law enforcement creates a sting involving enough drugs to constitute a “typical stash-

house robbery.” Id. at 441. The idea behind this rationale is that the sting would be less

likely to work if law enforcement were to choose an artificially low amount of cocaine.

Because we conclude that Moffitt suffered no prejudice from his trial counsel’s

failure to raise a sentencing entrapment defense before the jury, it is unnecessary to

decide whether his counsel rendered deficient assistance of counsel.

B.

Moffitt’s attack on sentencing counsel’s performance fares no better. Moffitt

cannot establish prejudice at sentencing because, even if counsel had raised a sentencing

entrapment defense, there is no reasonable probability that his sentence would have been

different.

As noted, a jury convicted Moffitt of conspiracy to possess with intent to

distribute, and attempting to possess and distribute, five kilograms or more of cocaine.

Both the verdict and the government’s 851 notice required the trial court to impose a life

15 sentence. There is no reasonable probability the outcome would have been different if

Moffitt’s counsel had asserted a sentencing entrapment defense under these

circumstances.

In reviewing Moffitt’s ineffective assistance claims, we must “judge the

reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed

as of the time of counsel’s conduct.” Strickland,

. Here, the facts do not

support a sentencing entrapment defense at trial or at sentencing. Accordingly, trial

counsel and sentencing counsel were not constitutionally ineffective.

* * *

Moffitt did not receive ineffective assistance of counsel at his trial or sentencing.

Although his statutorily-mandated life sentence is harsh, and we have continued concerns

about reverse sting operations by law enforcement, this case does not turn on those

issues.

V.

For the foregoing reasons, we will affirm the trial court’s order denying Moffitt’s

motion.

16