When Discretion Leads to Distortion: Recognizing Pre-Arrest Sentence-Manipulation Claims Under the Federal Sentencing Guidelines

This Note argues that sentence manipulation should be a legally viable partial defense – a defense that does not warrant complete exoneration, but does warrant a reduced sentence when the government’s investigative techniques place a quantity of drugs before the court that overrepresents the defendant’s culpability, or individual blameworthiness. Part I describes the policies and objectives that underlie the Guidelines, but then demonstrates how the rigid application of quantity-based sentencing provisions can lead to sentence manipulation that thwarts these goals, particularly the goal of sentencing according to culpability. Part II describes how courts have responded to sentence manipulation claims. It contends that the majority of the courts’ position – examining police practices under the due process “outrageous government conduct” test – is misplaced and inadequate, while the minority’s position of departing downward for less than constitutional violations is more appropriate and promising. Part ill proposes alternative legal formulas for recognizing sentence manipulation as a viable and effective partial defense: allowing it as a special circumstance that warrants a downward departure under the Guidelines or amending the Guidelines themselves to limit the number of transactions that may constitute relevant conduct.