Buffalo Law Review

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Kenneth Flowers is currently serving a mandatory minimum sentence of 120 months imprisonment stemming from a conviction of conspiracy to possess with intent to distribute five or more kilograms of cocaine. While the ten-year prison sentence is very real, the five-kilograms of cocaine is not, and never was. Mr. Flowers was caught-up in one of the elaborate and overused “reverse stash-house sting” operations employed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”).

Mr. Flowers’ story is one of many similar cases resulting from the government operation conducted by the ATF known as a reverse stash-house sting operation. The ATF’s reverse stash-house stings developed in the late 1980s to combat a rise in professional robbery crews targeting stash-houses. The operations have grown extremely controversial in recent years because they “empower law enforcement to craft offenses out of whole cloth.”

This dubious imbalance of power in the hands of the government spurred the creation of the court-created constitutional doctrine of sentencing factor manipulation. Sentencing manipulation is a violation of the Due Process Clause. “Sentencing factor manipulation occurs ‘where government agents have improperly enlarged the scope or scale of [a] crime.’” When a court determines the government has engaged in such manipulation, the court has the “power to impose a sentence below the statutory mandatory minimum as an equitable remedy.

This Comment proposes adopting a modified sentencing factor manipulation claim that can be brought by defendants in reverse stash-house sting cases. Part I explains how a reverse stash-house sting is conducted and briefly examines why the reverse stash-house stings are becoming more and more disfavored in federal courts. Part II describes the historical and doctrinal underpinnings of the sentencing factor manipulation claim, including a close examination of the entrapment defense, the due process based outrageous government conduct claim, and the structure of sentencing in the federal courts. Part III examines the current state of the sentencing factor manipulation claim across the federal circuit courts. Finally, Part IV discusses why the sentencing factor manipulation claim is so relevant to reverse stash-house sting cases, distinguishes other defenses and claims that are less applicable, and proposes a version of the sentencing factor manipulation claim to be adopted.