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* Local Rule 47.5.1 provides: "The publication of opinions
that have no precedential value and merely decide particular cases
on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_____________
No. 93-8091
(Summary Calendar)
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLARD LEE MCDANIEL,
Defendant-Appellant.
_______________________________________________
Appeal from the United States District Court
for the Western District of Texas
(EP-92-CR-202)
________________________________________________
(December 16, 1993)
Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Defendant Willard Lee McDaniel was tried before a jury and
convicted of possessing an unregistered firearm, in violation of 26
U.S.C. § 5861(d) (1988), and causing another person to travel in
interstate and foreign commerce in connection with a murder-for-
hire scheme, in violation of 18 U.S.C. § 1958. The district court
sentenced McDaniel to ten years imprisonment on the murder-for-hire
count and a concurrent term of forty-one months on the firearm

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1 McDaniel also received a $10,000 fine, terms of supervised release,
and special assessments.
2 Throughout the undercover operation, Gonzalez recorded
each conversation he had with McDaniel with hidden tape recording
equipment.
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count.1 McDaniel now appeals his conviction and sentence, arguing
that: (1) the government's conduct constituted outrageous conduct
as a matter of law, thus barring his prosecution; (2) the
government entrapped him as a matter of law; and (3) the district
court's application of sentencing guideline § 2E1.4 to his murder-
for-hire conviction resulted in an unconstitutional sentence. We
affirm the district court's decision.
I
The Federal Bureau of Investigation ("FBI") learned from a
confidential informant that McDaniel was holding several million
dollars in drug-related proceeds for Charlie Lightborne, an
incarcerated drug dealer. Believing that McDaniel would not
voluntarily turn over the money, FBI agents looked for "a chink" in
McDaniel's "armor" to convince McDaniel to release the money. The
FBI learned that McDaniel had, for several years, been attempting
to hire someone to murder Mario Tarin, a Mexican citizen who
accidentally killed McDaniel's son several years earlier. Based on
that information, the FBI assigned Agent Dan Gonzalez to contact
McDaniel and pose as a hit man.
Gonzalez first contacted McDaniel in the summer of 1991 and
offered to assist McDaniel with his "problem."2 At McDaniel's
suggestion, the men agreed to meet at a later date when Gonzalez

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3 Gonzalez also told McDaniel that he was a drug dealer and
a money runner.
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would be traveling through El Paso. McDaniel returned Gonzalez's
subsequent call to set up the meeting, and McDaniel provided
Gonzalez with a work number where he could be reached. At the
meeting, McDaniel stated that he previously paid an individual
$1,000 to kill Tarin, but the murder never occurred. McDaniel and
Gonzalez then agreed that Gonzalez would kill Tarin for $9,000 and
collect $1,000 from the first hired killer.3
Gonzalez and McDaniel met again shortly thereafter, and
McDaniel related his difficulty in obtaining the money to pay
Gonzalez's fee. McDaniel then told Gonzalez that he had contacted
an individual who could get Gonzalez work either as a drug
trafficker or money runner. The men discussed lowering the price
of the murder if McDaniel could procure additional work of an
unlawful nature for Gonzalez. McDaniel subsequently indicated to
Gonzalez that he had collected the money to pay Gonzalez for
killing Tarin. At McDaniel's suggestion, he and Gonzalez met at a
business owned by Ray Forti, a friend of McDaniel, and McDaniel
gave Forti $4,000 to hold as a downpayment for Tarin's murder.
McDaniel then drove Gonzalez to Mexico where McDaniel identified
Tarin, his residence, place of business, and his vehicle.
Approximately two weeks thereafter, Gonzalez called McDaniel
and informed McDaniel that he was in Texas and ready to commit the
murder. Pursuant to his agreement with McDaniel, Gonzalez then
went to Forti's shop to pick up the $4,000 downpayment. Forti,

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4 Tarin cooperated with the FBI by posing, as if he were dead, for the
photographs shown to McDaniel. Tarin also agreed to disappear from his residence
and work during the week following the "murder."
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however, refused to release the money without McDaniel's approval,
so McDaniel came to the shop to give Gonzalez the money. To prove
that he killed Tarin, Gonzalez showed McDaniel pictures of the
body.4 Because McDaniel wanted to investigate whether Tarin
actually was dead, Gonzalez agreed to return the next week to
collect the remainder of the fee. When Gonzalez returned to
Forti's shop, Forti once again refused to pay Gonzalez without
McDaniel's authorization. Gonzalez then met with McDaniel, who
offered to sell marijuana, hand grenades, explosives, and a sawed-
off shotgun to Gonzalez. Later that same day, the two men met for
McDaniel to deliver the last installment payment, and McDaniel
produced the shotgun, marijuana, and explosives along with the
$5,000 owed. FBI agents arrested McDaniel at this meeting.
II
McDaniel initially contends that because the government
engaged in outrageous conduct as a matter of law, thus violating
his right to due process, the government should be barred from
prosecuting him. McDaniel specifically asserts that the
government's efforts to play on his grief over his son's death in
an attempt to coerce him to surrender Lightborne's money constitute
outrageous conduct. Additionally, McDaniel alleges that Gonzalez
introduced the subjects of weapons and drugs into their
conversations to create additional offenses with which McDaniel
could be charged, thereby increasing the FBI's leverage. The

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government, on the other hand, argues that it was legitimately
investigating both McDaniel's murder-for-hire scheme and his money
laundering activities with Lightborne. The government states that
although McDaniel's motivation to kill Tarin may have originated
from a tragic event, such an incentive neither justifies McDaniel's
conduct nor makes the government's actions outrageous.
The outrageous conduct defense is applicable where "the
conduct of law enforcement agents is so outrageous that due process
principles would absolutely bar the government from invoking
judicial process to obtain a conviction." United States v.
Russell, 411 U.S. 423, 431-32, 93 S. Ct. 1637, 1642-43, 36 L. Ed.
2d 366 (1973). The defense is available only in the "rarest and
most outrageous circumstances"))where the conduct of law
enforcement officials is so outrageous as to be fundamentally
unfair or shocking to the universal sense of conscience. United
States v. Stanley, 765 F.2d 1224, 1231-32 (5th Cir. 1985); see
also Russell, 411 U.S. at 432, 93 S. Ct. at 1643. Furthermore,
"the outrageous-conduct defense requires not only government
overinvolvement in the charged crime but a passive role by the
defendant as well. A defendant who actively participates in the
crime may not avail himself of the defense." United States v.
Arteaga, 807 F.2d 424, 427 (5th Cir. 1986); see also United States
v. Yater, 756 F.2d 1058, 1066 (5th Cir.), cert. denied, 474 U.S.
901, 106 S. Ct. 225, 88 L. Ed. 2d. 226 (1985). We have never
invalidated a conviction on this ground. See United States v.
Collins, 972 F.2d 1385, 1396 (5th Cir. 1992), cert. denied, ___

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U.S. ___, 113 S. Ct. 1812, 123 L. Ed. 2d 444 (1993).
Assuming arguendo that Gonzalez's actions constituted
outrageous conduct, we find that the record evidence demonstrates
that McDaniel actively participated in the murder-for-hire scheme.
Once Gonzalez offered his services, McDaniel located Tarin,
gathered $9,000 for Gonzalez's payment, drove Gonzalez to Mexico to
identify Tarin, and arranged for Forti to hold the payment for
Gonzalez's services. Moreover, when Gonzalez confided that he was
involved with drug trafficking, McDaniel volunteered to introduce
him to other persons in the drug business and made initial contacts
with these individuals on Gonzalez's behalf. Thus, based on his
active participation in facilitating the murder, McDaniel may not
avail himself of the outrageous conduct defense. See, e.g., United
States v. Nissen, 928 F.2d 690, 693 (5th Cir. 1991); Stanley, 765
F.2d at 1232.
III
McDaniel also contends that the government entrapped him as a
matter of law into committing the offenses of which he was
convicted. McDaniel asserts that Gonzalez entrapped him by
contacting on eight separate occasions to induce McDaniel to commit
the murder-for-hire offense. Additionally, McDaniel argues that it
was Gonzalez who suggested that McDaniel become involved with
weapons. The government argues that McDaniel was predisposed to
commit the murder-for-hire offense because he had previously hired
another individual to murder Tarin. As further evidence of
McDaniel's predisposition, the government points to McDaniel's

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enthusiastic participation in the murder-for-hire scheme.
"Entrapment as a matter of law is established only where a
reasonable jury could not find that the government discharged its
burden of proving the defendant was predisposed to commit the crime
charged." United States v. Arditti, 955 F.2d 331, 342 (5th Cir.),
cert. denied, ___ U.S. ___, 113 S. Ct. 597, 121 L. Ed. 2d 534
(1992). Where, as here, the district court gives an instruction on
entrapment and the jury rejects the defense, "the standard of
review is whether, when viewing the evidence in the light most
favorable to the [g]overnment, a reasonable jury could find, beyond
a reasonable doubt, that the defendant was predisposed to commit
the offense." United States v. Morris, 974 F.2d 587, 588 (5th Cir.
1992); see also Jacobson v. United States, ___ U.S. ___, 112 S.
Ct. 1535, 118 L. Ed. 2d 174 (1992). "It is well established that
a defendant's enthusiasm for the crime can satisfy the
predisposition requirement." United States v. Hudson, 982 F.2d
160, 162 (5th Cir.), cert. denied, ___ U.S. ___, 114 S. Ct. 100,
126 L. Ed. 2d 67 (1993).
The record demonstrates that McDaniel desired to have Tarin
murdered, had unsuccessfully attempted to have Tarin killed on a
prior occasion, was willing to pay $9,000 to have Gonzalez kill
Tarin, and was willing to sell a firearm, drugs, and explosives to
Gonzalez. Moreover, McDaniel actively participated in the murder-
for-hire scheme by locating and identifying Tarin for Gonzalez.
Furthermore, at no time did McDaniel resist participating in the

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5 Section 2E1.4 provides that the base offense level for an
offense involving the use of interstate commerce facilities in a
murder-for-hire scheme is 32. The applicable sentence for McDaniel
ranged from 121 to 151 months. See U.S.S.G. ch. 5, part A,
Sentencing Table. However, the maximum statutory penalty permitted
for participating in a murder-for-hire scheme in violation of 18
U.S.C. § 1958 is only 120 months. "Where the statutorily
authorized maximum sentence is less than the minimum of the
applicable guideline range, the statutorily authorized maximum
sentence shall be the guideline sentence." U.S.S.G. §5G1.1
Accordingly, the district court imposed on McDaniel the maximum
statutory sentence of 120 months. See United States v. Taylor, 868
F.2d 125, 127 (5th Cir. 1989) (noting that when the guidelines and
the applicable statute conflict, the statute ultimately governs).
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proposed scheme. Arditti, 955 F.2d at 343. We find that a
reasonable jury could determine beyond a reasonable doubt that
McDaniel had the predisposition to commit the charged crimes. See
United States v. Mora, 994 F.2d 1129, 1137-38 (5th Cir.), cert.
denied, ___ U.S. ___, ___ S. Ct. ___, 126 L. Ed. 2d 393 (1993).
IV
McDaniel's final contention is that the sentence imposed by
the district court on the murder-for-hire count is unconstitutional
under the Fifth and Eighth Amendments. He specifically contends,
without citing any authority, that application of the guidelines in
his case offends the Due Process Clause and results in the
imposition of cruel and unusual punishment because the guidelines
recommended as McDaniel's sentence the statutorily authorized
maximum sentence, thereby precluding the district court from
considering a range of punishment.5
A
The district court's imposition of the maximum statutory
penalty in accord with Section 5G1.1(a) does not violate McDaniel's

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due process rights. McDaniel mistakenly contends that the district
court judge was "precluded from giving anything less than the
maximum" sentence authorized by statute. However, the district
court has the authority to depart from the statutorily authorized
maximum sentence, even when that sentence is below the minimum
guideline sentence. See U.S.S.G. §5G1.1(a) comment. (backg'd)
(recognizing that "a sentence of less than [the statutorily
authorized maximum sentence] would be a guideline departure"); see
also United States v. Sayers, 919 F.2d 1321, 1324 (8th Cir. 1990)
(noting district court's discretion to downwardly depart from the
maximum statutory penalty used as the sentence guideline under
Section 5G1.1(a)). Moreover, the imposition of a mandatory maximum
sentence does not violate the Due Process Clause because
[t]he Constitution does not require individualized
sentences. Congress has the power to completely divest
the courts of their sentencing discretion and to
establish an exact, mandatory sentence for all offenses.
If Congress can remove the sentencing discretion of the
district courts, it certainly may guide that discretion
through the guidelines.
United States v. White, 869 F.2d 822, 825 (5th Cir.) (citations
omitted), cert. denied, 490 U.S. 1112, 109 S. Ct. 3172, 104 L. Ed.
2d 1033 (1989); see United States v. Woolford, 896 F.2d 99, 101 &
n.2 (5th Cir. 1990) (finding that the district court was not
required to consider mitigating factors under the sentencing
guidelines). Accordingly, we reject McDaniel's argument that the
district court violated his right to due process by imposing the
maximum sentence allowed by statute.

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B
McDaniel next contends that the sentence imposed by the
district court violates the Eighth Amendment's prohibition against
cruel and unusual punishment. Appellate review of an alleged
Eighth Amendment sentencing violation is narrow:
The appellate court is not to substitute its judgment for
that of the legislature nor of the sentencing court as to
the appropriateness of a particular sentence; it should
decide only if the sentence is within constitutional
limitations; and it should engage rarely in analyzing
whether the sentence is constitutionally disproportionate
in light of deference to the sentencing court's
determination.
United States v. Cardenas-Alvarez, 987 F.2d 1129, 1134 (5th Cir.
1993). "Absent impermissible motives, incorrect information, or
. . . noncompliance" with the guidelines, we will not find a
sentence imposed under the guidelines to violate the Eighth
Amendment. See United States v. Sullivan, 895 F.2d 1030, 1032 (5th
Cir.), cert. denied, 498 U.S. 877, 111 S. Ct. 207, 112 L. Ed. 2d
168 (1990).
We find that the sentence imposed by the district court does
not constitute cruel and unusual punishment. The district court
complied with the guidelines when sentencing McDaniel, and McDaniel
has not demonstrated that the district court acted on the basis of
impermissible motives or incorrect information. Accordingly,
McDaniel has not stated a valid Eighth Amendment claim.
V
For the foregoing reasons, we AFFIRM the judgment of the
district court.

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