NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 20-2262

______________

UNITED STATES OF AMERICA

v.

HENRY BAIRD, Appellant ______________

Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 4-17-cr-00139-002) District Judge: Honorable Matthew W. Brann ______________

Submitted under Third Circuit L.A.R. 34.1(a) March 4, 2021 ______________

Before: KRAUSE, PHIPPS, and FUENTES, Circuit Judges.

(Filed: August 16, 2021) ______________

OPINION* ______________

FUENTES, Circuit Judge.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Henry Baird appeals his sentence of 168 months’ imprisonment for conspiracy to

distribute 500 grams or more of methamphetamine in violation of

. Baird

argues that the District Court erred both by denying him a mitigating role adjustment and

denying him a downward variance based on sentencing entrapment or manipulation. He

also argues that the sentence was procedurally unreasonable because the District Court

never addressed his objection to the drug weight calculation. For the following reasons,

we will affirm.

I.

In September 2016, the FBI began an undercover operation to infiltrate the Aryan

Strike Force (“ASF”), a white nationalist organization that advocates the use of violence

in achieving the goal of “protect[ing]” the white race.1 Upon receiving information that

members of ASF were gathering firearms, undercover agents initiated contact with the

organization’s founder, Joshua Steever, in order to identify other members and learn

about any planned criminal activity. When the agents learned that the group wanted to

obtain, but could not afford, additional firearms, the agents presented members of ASF

with an opportunity to traffic simulated methamphetamine in order to raise funds.

Members of ASF then participated in four controlled methamphetamine runs.

Baird was recruited into ASF by Steever during the operation. When ASF’s

president was arrested on unrelated charges, Baird stepped into that role. He participated

in the third and fourth runs, acting as security while the group transferred two sixteen-

1 App. 53a.

2 pound shipments of simulated meth and fifty receivers and inserts for automatic weapons.

He also contributed to a planning meeting in which the group discussed the details of the

fourth run and the type of firearms they intended to purchase with the profits.

Baird and five other members of ASF were indicted on sixteen counts related to

drug and weapons trafficking and money laundering. Baird pled guilty to one count of

conspiracy to distribute 500 grams or more of methamphetamine. Based on a mandatory

minimum of ten years2 and a Sentencing Guidelines range of 135 to 168 months, the

District Court sentenced Baird to 168 months.

II.

The District Court had jurisdiction pursuant to

. We have

jurisdiction pursuant to

and

(a).

We review the District Court’s factual findings for clear error and its application

of the Guidelines to facts for abuse of discretion.3 When reviewing the reasonableness of

the District Court’s sentence, we use an abuse-of-discretion standard.4

III.

A. Mitigating Role Adjustment

Baird argues that the District Court erred by denying him a mitigating role

adjustment as a minimal or minor participant in the conspiracy. A minimal participant is

2 See

(b)(1)(A). 3 United States v. Tupone,

(3d Cir. 2006). 4 United States v. Lopez,

(3d Cir. 2011).

3 one who was “plainly among the least culpable of those involved” and lacked

“knowledge or understanding of the scope and structure of the enterprise.”5 A minor

participant is “less culpable than most other participants in the criminal activity, but

whose role could not be described as minimal.”6

The District Court’s findings that Baird’s role was “substantially similar to that of

other participants” and that he had “knowledge of the scope and the structure of the

enterprise” are not clearly erroneous.7 The record shows that Baird actively supported

ASF’s drug distribution conspiracy. He had a clear understanding of the group’s plan to

traffic drugs and willingly contributed to two separate transfers of contraband. At a

meeting during which the group planned one of the transports, Baird stated that he was

“not afraid to get his hands dirty” and committed to playing his part.8 We reject Baird’s

arguments that his title as president was merely “ceremonial” and that his short-term

participation constituted a minimal or minor role.9 Thus, we find that the District Court

did not abuse its discretion by denying Baird a mitigating role adjustment.

5 U.S.S.G. § 3B1.2 cmt. n.4. 6 Id. § 3B1.2 cmt. n.5. 7 App. 17a. 8 App. 14a. 9 Baird Br. 9.

4 B. Sentencing Entrapment or Sentencing Manipulation

Baird also argues that the District Court erred by denying a downward variance

based on sentencing entrapment or sentencing manipulation. While our sister courts of

appeals are split on the validity of sentencing entrapment and manipulation, this Court

has “neither adopted nor rejected the[se] doctrines.”10 Sentencing entrapment “occurs

when official conduct leads an individual otherwise indisposed to dealing in a larger

quantity or different type of controlled substance to do so, and the result is a higher

sentence.”11 Sentencing factor manipulation would result in a due process violation

“when the government unfairly exaggerates the defendant’s sentencing range by

engaging in a longer-than-needed investigation and, thus, increasing the drug quantities

for which the defendant is responsible.”12 We have declined to rule on the legal merits of

either theory in cases where the defendant has not established the “requisite factual

predicates.”13 The same outcome is warranted here.

The District Court did not clearly err in concluding that Baird was not indisposed

to providing security for the kind of criminal activity that occurred in this case, even if he

had not previously trafficked methamphetamine. He had a history of both racially

motivated violence, including aggravated assault, and participating in white nationalist

10 United States v. Sed,

(3d Cir. 2010). 11

at 230 (quoting United States v. Martin,

(8th Cir. 2009)). 12

at 231 (quoting United States v. Torres,

(8th Cir. 2009)). 13 Id. at 230; see also United States v. Tykarsky,

, 476 n.13 (3d Cir. 2006); United States v. Raven,

(3d Cir. 1994).

5 organizations. He also expressed the desire to secure additional firearms, which was the

main reason ASF began trafficking contraband. When given the opportunity to

withdraw, Baird assured an undercover agent of his familiarity with this kind of illegal

activity and his willingness to participate. We therefore agree with the District Court that

there was no sentencing entrapment here.

We likewise agree with the District Court that the FBI did not engage in

sentencing manipulation. We have previously stated that it is not sentencing

manipulation for agents to “intentionally delay[] [a] sting operation” in a way that leads

to a greater penalty for the defendant.14 While the FBI agents maintained control of

much of the operation, they did so in order to preserve public safety, identify new

members of ASF, and investigate any additional plans for criminal activity. The FBI

determined a drug quantity and type that would make the enterprise realistic, which is

reasonable in the context of a sting operation.15 Baird was given multiple opportunities

by the agents to withdraw from the enterprise but chose to continue, even as other ASF

members withdrew. Furthermore, his base offense level already accounted for the fact

that he participated in only two of the four runs. Therefore, the FBI’s actions in this case

were not “sufficiently outrageous to violate” Baird’s due process rights.16

14 Sed,

(alterations in original) (quoting Tykarsky,

n.13). 15 See Raven,

; see also United States v. Washington,

(3d Cir. 2017). 16 Sed,

.

6 Based on Baird’s predisposition to commit this crime and his continued

participation when he was given the chance to withdraw, we find that the District Court

did not err in refusing to depart downward based on either sentencing entrapment or

sentencing factor manipulation, even assuming we recognized those doctrines.

C. Drug Weight Calculation

Baird also challenges his sentence as procedurally unreasonable because the

District Court never addressed his objection pursuant to U.S.S.G. § 2D1.1, Application

Note 5 that the drug weight calculation was overstated. Application Note 5 provides that,

in “reverse sting” operations when undercover agents negotiate as the sellers, rather than

the purchasers, of the drugs, the agreed-upon amount will generally determine the

defendant’s drug quantity.17 However, if “the defendant did not intend to provide or

purchase, or was not reasonably capable of providing or purchasing, the agreed-upon

quantity,” then the drug weight calculation should “exclude . . . the amount of controlled

substance that the defendant establishes that the defendant did not intend to provide or

purchase or was not reasonably capable of providing or purchasing.”18

Although Baird invokes Application Note 5, it does not apply in this case as he

does not establish that he lacked intent to provide the amount used to determine his

sentence. Baird’s sentence reflects the amount of simulated methamphetamine, thirty-

two pounds, that was actually delivered in his two runs. He agreed to these transfers,

17 U.S.S.G. § 2D1.1 cmt. n.5. 18 Id.

7 participated in the deliveries, and admitted to these weights in his plea agreement.

Nevertheless, he argues that a downward variance is proper because law enforcement

controlled the quantity of drugs in the operation. Application Note 5, however, does not

contemplate a departure simply because undercover agents chose the quantity of drugs to

transfer. Instead, it allows a defendant to establish—for purposes of setting his base

offense level—that he did not intend to provide, or was not reasonably capable of

providing, the agreed-upon amount, but rather a lesser amount.19 Baird has neither

established nor even suggested an alternative drug weight that he intended to transfer.

Baird’s argument, while framed under Application Note 5, merely repackages his

argument that the FBI engaged in sentencing entrapment. Although the District Court did

not address the drug weight calculation specifically, it did fully address the substance of

this objection in rejecting Baird’s sentencing entrapment claim. We therefore reject

Baird’s argument that his sentence was procedurally unreasonable.

IV.

For the reasons stated above, we will affirm the District Court’s judgment of

sentence.

19 See, e.g., United States v. Sau Hung Yeung,

(3d Cir. 2001).

8