In a prosecution for possession with intent to distribute cocaine, a denial of petitioner's habeas petition is affirmed where: 1) a "reverse sting" downward departure was inapplicable because petitioner was sentenced not based on drug quantity but rather as a career offender; and 2) petitioner failed to show a reasonable probability that the district court, having effectively rejected the predicate of petitioner's lesser harms argument, would have departed downward had counsel formally invoked U.S.S.G. section 5K2.11.
Argued January 7, 2010
Decided February 5, 2010
Opinion by Judge Tatel
Beverly G. Dyer, A.J. Kramer, Federal Public Defenders, Washington, DC
Patricia A. Heffernan, Elizabeth A. Trosman and Roy W. McLeese III, Assistant U.S. Attorneys, Washington, DC