Sentencing After Stash Houses: Addressing Manipulation of the Federal Sentencing Guidelines

October 1, 2022

In the realm of undercover work, law enforcement has broad discretion to define the contours of a criminal offense. Due to quantity-based provisions in the Federal Sentencing Guidelines, federal agents or their informants may coerce an individual into a higher sentencing range by escalating their behavior to align with mandatory minimums or quantifiable offense levels. Because this type of offense is police-initiated, law enforcement has discretion to select the individuals subject to these tactics and influence their eventual sentences. The defenses of sentencing entrapment and sentencing manipulation are meant to combat this discretion. However, these defenses are rarely invoked successfully and often fail to provide defendants with relief at the sentencing phase.

These defenses received new attention after the proliferation of “fake stash house” cases that displayed a pattern of selective enforcement in federal sting operations. Subsequent litigation showed that federal agents almost exclusively targeted people of color for these stings and incarcerated hundreds of these individuals with inflated sentences. This Note proposes that the findings of that litigation can be used to argue for reduced sentences under a judge’s consideration of the sentencing factors in 18 U.S.C. § 3553(a) to provide relief for defendants caught in similar schemes. This Note draws on data obtained in the stash house litigation and on documented instances of similar selective enforcement cases to illustrate the necessity of sentencing relief in cases where law enforcement weaponizes the Federal Sentencing Guidelines. Accordingly, this Notes argues that bolstering defensive arguments at sentencing could provide warranted relief for individuals sentenced as a result of coercive, discriminatory tactics.

October 2022

No. 1