Entrapment Defense Denied in Machine-Gun Case; Tenth Requires "Compelling" Reasons to Justify Variance

U.S. v. Hildreth, -- F.3d --, 2007 WL 1404314 (10th Cir. 5/14/07) - Mr. Hildreth was not entrapped as a matter of law in his purchase of a machine gun from an undercover cop -- the government presented evidence that he was predisposed to commit the crime.

The court then moves right along to the government's cross appeal of a sentence of 3 years' probation where the guideline range was 27-33 months' imprisonment. The more divergence from the guideline range, the more "compelling" the district court's reasons and the more specific the explanation for divergence must be. The substantial divergence here required "compelling reasons," not cheesy reasons like long-term employment and support of family and low risk of danger to the public that the district court cited. The sentencing variance in this case "threatens to undermine uniformity in sentencing. . . " The Court of Appeals was not taken in by the district court's comment that the "problem with inform[ity] in sentencing is we don't have uniform defendants" and sees right through the district court's failure to distinguish Mr. Hildreth from defendants convicted of the same crime whose histories are similar.