PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JUAN CRUZ VEGA,

Petitioner-Appellant,

v.

JOHN SUTHERS, Director of Colorado Department of Corrections; BOB HICKOCK, Warden of Delta Correctional Center, Delta, Colorado; KEN SALAZAR, Attorney General for the State of Colorado,

Respondents-Appellees.*

No. 98-1024

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 95-Z-2708)

Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, (David F. Vela, Colorado State Public Defender, with him on the brief), for Petitioner- Appellant.

Roger Griffin Billotte, Assistant Attorney General, Criminal Enforcement Section, Denver, Colorado, (Ken Salazar, Attorney General, with him on the brief), for Respondents-Appellees.

Before TACHA, BALDOCK, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Juan Cruz Vega was convicted in Colorado state court on charges of possessing more than twenty-eight grams of cocaine with intent to distribute. See Colo. Rev. Stat. §§ 18-18-105(1), (3) (1991). Although the presumptive sentencing range1 for a conviction on such charges was from four to sixteen years,2 Vega was sentenced to a term of imprisonment of twenty-four years and one day because he was found to be a "special offender."3 Vega was adjudged a special offender because he had "introduced, distributed, or imported" the cocaine "into the state of Colorado." Colo. Rev. Stat. § 18-18-107(1)(d) (1991).4

On direct appeal, Vega argued as follows: (1) he was denied due process of law and the right to a trial by jury because the trial court refused to allow him to raise an entrapment defense to the special-offender charge; and (2) he was denied his Sixth Amendment right to confront the witnesses against him because the trial court had excluded evidence of internal Drug Enforcement Agency incentives for the conviction of drug offenders. The Colorado Court of Appeals and Colorado Supreme Court, in turn, rejected Vega's contentions and affirmed his conviction and sentence. See People v. Vega, 870 P.2d 549, 554 (Colo. Ct. App. 1993); Vega v. People, 893 P.2d 107, 120 (Colo. 1995) (en banc).

After his conviction and sentence were affirmed on direct appeal, Vega filed the instant § 2254 habeas corpus petition. In the petition, Vega raised the same two claims he raised on direct appeal. The district court concluded that Vega was not entitled to habeas relief for substantially those reasons stated by the Colorado Supreme Court on direct appeal and, therefore, dismissed Vega's petition with prejudice. Exercising jurisdiction pursuant to 28 U.S.C. § 2253,5 this court affirms.

II. BACKGROUND

A. Factual Background

The prosecution of Vega grew out of a sting operation that began with the arrest of John Anderson in Colorado on arson and burglary charges. Anderson, who also had drug charges pending against him in Nevada, approached law enforcement officials in Colorado in hopes of providing information in exchange for a reduction of the charges against him and for leniency in sentencing.

Anderson convinced agents of the Drug Enforcement Administration ("DEA") and the Arvada, Colorado Police Department ("APD") to allow him to negotiate with individuals who might import narcotics into Colorado. Anderson began his work with the DEA and APD by calling Charlie Aponte, an individual Anderson had known for some period of time. Anderson called Aponte in California and indicated that he "was in Colorado and had a buyer" and that he "would like to do some business." Aponte indicated that he would "look into it." Although Anderson made several additional calls from November of 1990 through January of 1991, the telephone negotiations did not come to fruition. Nevertheless, Anderson was released from custody in Colorado so that he could travel to California in the hope of consummating a sale and delivery of drugs to Colorado. Anderson remained in California for a number of weeks to continue negotiations with Aponte. Aponte eventually agreed to provide Anderson with drugs during one of their meetings.

At some point, Vega, a friend of Aponte, became involved in the conspiracy to deliver drugs to Colorado. On the evening of January 14, 1991, after the deal had been finalized, Anderson, Aponte, Vega, and an additional co- conspirator flew to Denver with three kilograms of cocaine. Upon arrival in Denver, undercover DEA agents met the group at the airport and transported them to a hotel where the deal was to be consummated. The DEA agents videotaped the transaction at the hotel and then arrested Vega and the others.

Vega was charged with possession of cocaine with intent to distribute in violation of Colo. Rev. Stat. § 18-18-105 (1991) and as a special offender pursuant to Colo. Rev. Stat. § 18-18-107 (1991) because he had imported the cocaine into Colorado. At trial, Vega asserted entrapment as an affirmative defense6 to both the possession-with-intent-to-distribute and special-offender charges. The trial court, however, refused to instruct the jury that the entrapment defense applied to the special-offender charge. It reasoned that the special- offender statute did not define a substantive offense, but rather was a sentence enhancement provision to which affirmative defenses did not apply. The trial court also excluded, as irrelevant, proffered cross-examination questions concerning internal DEA incentives to promote the arrest and conviction of drug traffickers.

The jury found Vega guilty of distribution of cocaine and returned a special verdict finding beyond a reasonable doubt that Vega had imported the cocaine into Colorado. Based on the special verdict, the trial court found that Vega was a special offender subject to enhanced sentencing under Colo. Rev. Stat. § 18-18-107 (1991) and imposed a sentence of twenty-four years and one day.

B. Procedural History

1. Colorado State Court Proceedings

Vega appealed his conviction to the Colorado Court of Appeals ("CCA"), which affirmed. See People v. Vega, 870 P.2d 549 (Colo. Ct. App. 1993). The Colorado Supreme Court ("CSC") granted certiorari to review the decision of the CCA. See Vega v. People, 893 P.2d 107, 109 & n.1 (Colo. 1995). Before the CSC, Vega argued that the trial court had erred in excluding his proffered line of cross-examination because evidence of internal DEA incentives was relevant to Vega's entrapment defense. Vega also argued, for the first time, that evidence of the incentives was relevant for the purpose of establishing bias in the DEA agents' testimony. The CSC rejected Vega's claim that the proposed cross- examination was relevant to the issue of entrapment, concluding, as had the CCA, that the Colorado entrapment statute creates a subjective test. Id. at 119 (noting that under Colorado's subjective entrapment defense, "while police methods are relevant to the defense of entrapment, police motives are not relevant because they do not impact on the subjective state of mind of the defendant").

As to Vega's claim that the proposed cross-examination was relevant to demonstrate bias in the DEA agents' testimony, the CSC exercised its prerogative to ignore Vega's procedural default and reviewed the issue on the merits. Id. That review led the CSC to conclude the trial court had erred in precluding the proposed cross-examination because the "testimony would have revealed the specific benefits that would accrue to the agents should Vega be convicted of the charges against him and would have demonstrated the DEA agents' 'motive[s] for favoring the prosecution' and strong interest in the outcome." Id. at 120 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). Nevertheless, applying those factors identified by the Supreme Court in Van Arsdall, the CSC concluded, after a thorough and detailed analysis, that the trial court's error in limiting Vega's cross-examination was harmless beyond a reasonable doubt. Id.

The CSC also rejected Vega's claim that denying him an opportunity to present an entrapment defense to the special offender charge violated the Due Process Clause. Id. at 113-17. The CSC began its analysis of this issue by considering "the language of the statute, its legislative history, and the criteria [the CSC had] applied in the past to distinguish substantive offenses from sentencing provisions" and concluding, purely as a matter of state law, that § 18- 18-107 is a "sentencing provision to which affirmative defenses do not apply." Vega, 893 P.2d at 113. That conclusion, according to the CSC, necessitated a further analysis of whether § 18-18-107 "violates due process limitations placed on the power of states to define criminal offenses." Id.

In analyzing that question, the CSC looked to the Supreme Court's decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986). Vega, 893 P.2d at 114. According to the CSC, McMillan stands for the proposition that the Due Process Clause acts to limit the ability of the states to define certain operative facts as sentencing enhancements rather than elements of a crime. Id. at 114-15. Analyzing the non-exclusive factors identified by the Court in McMillan, the CSC concluded that treating § 18-18-107 as a sentencing enhancement comported with the Due Process Clause because: (1) although § 18-18-107 requires "a sentencing judge to impose a greater sentence than otherwise is available" for the underlying offense, the special offender sentence is not "disproportionate" to the sentence available for the underlying crime and does not "drive the penalty determination entirely"; (2) Vega had pretrial notice of the possibility of the special-offender enhancement and the benefit of a jury finding beyond a reasonable doubt that he had imported the cocaine into Colorado; and (3) there was no indication in either the text of § 18-18-107 or its legislative history that the special-offender provision was designed to surreptitiously evade constitutionally-mandated burdens of proof by "restructuring Colorado's distribution offense to make an essential element of [the] crime a sentencing factor." Id. at 116.

2. Section 2254 Habeas Corpus Proceedings

After Vega had exhausted his direct appeals in state court, he filed the instant § 2254 habeas corpus petition. In his petition, Vega once again raised the claims relating to the special offender statute and the limitation on his cross- examination of the DEA agents. The matter was referred to a magistrate for initial proceedings pursuant to 28 U.S.C. 636(b)(1). The magistrate recommended that the writ be granted in an extensive Report and Recommendation ("R&R"). According to the magistrate, "[t]he net result is that [Vega] received more than a mere sentence enhancement. He was convicted of an upgraded felony on a factual issue where the burden of proof was lessened. The Colorado General Assembly has transformed a sentencing factor into an element of an offense [in violation of the Supreme Court's decision in McMillan]." As to Vega's claim relating to limitation on his cross-examination of the DEA agents, the magistrate concluded, after a thorough review of the trial record and opinion of the CSC, that the limitation was harmless because "[t]here is no indication that the excluded information would have made any substantial difference in the outcome of the case." Cf. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (adopting Kotteakos v. United States, 328 U.S. 750, 776 (1946), "substantial and injurious effect" standard for reviewing trial-type constitutional errors in the habeas corpus context).

The respondents filed a timely objection to the magistrate judge's R&R, asserting the magistrate had erred in concluding that treating § 18-18-107 as a sentencing provision violated Vega's right to due process. Upon de novo review, the district court rejected the magistrate's recommendation as to the sentence enhancement for substantially those reasons stated by the CSC in its opinion on direct appeal. Furthermore, despite Vega's failure to object, the district court reviewed de novo that portion of the R&R analyzing Vega's cross-examination claim and agreed the erroneous limits imposed by the trial court were harmless.

III. ANALYSIS

A. Limitation on Cross-Examination of DEA Agents

Vega asserts the district court erred in concluding that the limitations imposed by the state trial court on Vega's cross-examination of the DEA agents did not have a substantial and injurious effect on the outcome of the trial. We conclude that Vega waived appellate review of this question when he failed to file an objection to the magistrate's R&R.

This court has adopted a "firm waiver rule" which provides that a litigant's failure to file timely objections to a magistrate's R&R waives appellate review of both factual and legal determinations. See United States v. One Parcel of Real Property, 73 F.3d 1057, 1059 (10th Cir. 1996). While acknowledging the force of this rule, Vega argues that it does not apply under the particular facts of this case. According to Vega, the district court "revived" the right to appeal when it considered and rejected the cross-examination claim on the merits. Vega's protestations to the contrary, it is well-settled in this circuit that a district court's decision to review a R&R de novo, despite the lack of an appropriate objection, does not, standing alone, preclude application of the waiver rule. See id. at 1061; see also Thomas v. Arn, 728 F.2d 813, 814-15 (6th Cir. 1984) (deeming appellate argument waived for failure to object to magistrate's R&R even though district court, sua sponte, reviewed record de novo), aff'd 474 U.S. 140 (1985). But see United States v. Male Juvenile, 121 F.3d 34, 39 (2d Cir. 1997) ("Because the purposes of the waiver rule are not advanced when the district court has reviewed the magistrate judge's [R&R] de novo, we will disregard the procedural default rule and reach the merits of this case."). Accordingly, One Parcel forecloses Vega's assertion that his cross-examination claim was "revived" when the district court addressed the claim de novo despite Vega's failure to file objections to the R&R. See United States v. Foster, 104 F.3d 1228, 1229 (10th Cir. 1997) (holding that "a three-judge panel cannot disregard or overrule circuit precedent").

In the alternative, Vega asserts this court should reach the merits of his cross-examination claim because the "ends of justice" so dictate. See Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir. 1996) (holding that the "firm waiver rule" does not apply when the "ends of justice dictate otherwise"). Although this court has never defined the parameters of the "ends of justice" exception in the context of a litigant who is represented by counsel, we have excused the failure to file timely objections only in the rare circumstance in which a represented party did not receive a copy of the magistrate's R&R. See Tesoro v. Colorado, No. 97-
1048, 1997 WL 787173, at *1 (10th Cir. Dec. 23, 1997), cert. denied, 118 S. Ct. 1812 (1998). Vega, who has been represented by counsel throughout these federal § 2254 habeas proceedings, has made no such claim. In fact, there is simply no indication in Vega's appellate filings as to why he failed to file an objection to the magistrate's R&R. Accordingly, this court concludes that Vega has waived his right to appellate review of his cross-examination claim.7

B. Denial of Entrapment Defense to Special Offender Charge

1. Standard of Review

This court "review[s] the district court's legal conclusions de novo[] and its factual findings for clear error. See Hawkins v. Hannigan, 185 F.3d 1146, 1151 (10th Cir. 1999). "'[W]e afford deference to the state court's construction of state law' and presume that its factual findings are correct." Id. (quoting Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir.) (stating pre-AEDPA standards of review), cert. denied, 119 S. Ct. 378 (1998)); see also supra note 5 (noting that Vega's petition was filed prior to the enactment of the AEDPA and is thus not governed by the AEDPA's revised standards of review).

2. Analysis

The parties to this appeal offer the court two diametrically opposed modes of analysis for resolving Vega's claims. Vega states the issue on appeal in the following broad and abstract terms: Can Colorado, consistent with the Due Process Clause, treat § 18-18-107 as a sentencing provision rather than as a separate substantive crime or an element of the underlying possession-with- intent-to-distribute offense? So stated, Vega asserts that the question can only be resolved by reference to the Supreme Court's McMillan line of cases.8 As noted above, the CSC, magistrate judge, and district court all accepted Vega's assertion that the McMillan line controlled the disposition of his claims, although not all agreed that those cases entitled him to relief. See supra Section II(B) (setting forth opinions of each).

Although the respondents appear to have acquiesced in the applicability of the McMillan line before the CSC and the district court, they argue on appeal that when viewed with an appropriate level of specificity, Vega's claims regarding the special-offender provision do not implicate the McMillan line at all. In particular, the respondents note that the cases in the McMillan line all involve, to one degree or another, the question of whether a sovereign can evade the high level of proof constitutionally required to establish criminal offenses by restructuring some essential elements of the crime into sentencing factors.9 In this case, however, it is undisputed that Vega received all of the procedural protections at issue in the McMillan line: (1) he was provided notice of the possibility of the special-offender enhancement through a separate pre-trial charge; (2) the question of whether he had imported the cocaine into Colorado was submitted to the jury in a special verdict form; and (3) the jury was instructed that it must find the element of importation "beyond a reasonable doubt." See Vega, 893 P.2d at 116 (setting forth procedural protections afforded Vega).10 The only thing that Vega was denied by the classification of § 18-18-107 as a "sentencing enhancement" instead of a "crime" or "element" was the right to present an entrapment defense to the importation charge. Thus, according to the respondents, this court should eschew the abstract and purely semantic question of whether Colorado can label § 18-18-107 as a sentencing enhancement and instead focus on the real question presented by Vega's § 2254 habeas petition: Can Colorado, consistent with the Due Process Clause, deny the availability of the affirmative defense of entrapment to a charge of importation of cocaine?11

This court agrees with respondents that Vega's proposed analytical model constitutes a semantic wordplay which exalts form over substance. Ultimately, it matters not-at-all what terminology Colorado chose to apply to § 18-18-107, be it "sentence enhancement," "crime," or "element," if that semantic choice has no impact on the procedural protections due a criminal defendant. In this case, Colorado's decision to label § 18-18-107 as a sentencing enhancement did not free the state prosecutor from the burden of providing proper notice of the applicability of the enhancement through a separate pre-trial charge, remove the determination of the existence of the operative fact of importation from the jury, or reduce the prosecutor's burden of proving the fact of importation beyond a reasonable doubt. See Vega, 893 P.2d at 116. The only real, identifiable impact of Colorado's choice to label § 18-18-107 as a sentencing enhancement is that Vega was denied the opportunity to present an entrapment defense to the importation charge. It is that narrow impact which is properly before the court, not the utterly abstract, at least in terms of this case, distinction between sentencing enhancements and substantive crimes.12

As to this very narrow question, we conclude that Colorado can, consistent with due process, choose not to make the affirmative defense of entrapment available to a charge of importation of cocaine in violation of § 18-18-107.13 The Supreme Court has long recognized that the defense of entrapment "is not of a constitutional dimension." United States v. Russell, 411 U.S. 423, 433 (1973).14 The limited nature of the entrapment defense was reaffirmed by the Supreme Court in Hampton v. United States, 425 U.S. 484 (1976). In Hampton, a majority of the Court again recognized that "entrapment" was a term of art referring to a limited doctrine devoid of constitutional dimension. See id. at 489 (plurality opinion) (noting that because Hampton's claim involved an allegation that the government's conduct was so outrageous that due process principles barred the government from obtaining a conviction, the case did "not qualify as one involving 'entrapment' at all"); id. at 491-93 & n.2 (Powell, J., concurring) (recognizing that after Russell, entrapment was a non-constitutional, limited term of art). A different majority, however, recognized that in some very limited set of circumstances the Due Process Clause might stand as an independent bulwark against outrageous governmental conduct. See id. at 493-95 (Powell, J., concurring); id. at 500-01 (Brennan, J., dissenting); see also United States v. Lacey, 86 F.3d 956, 963-64 (10th Cir. 1996) (discussing distinction between defenses of "entrapment" and "outrageous governmental conduct" and noting narrow scope of the latter).15 Following the Supreme Court's decisions in Russell and Hampton, a number of courts have concluded that claims relating to the denial of an entrapment defense, even when the defense is applicable as a matter of state law, are not cognizable in habeas because such claims are not of constitutional magnitude.16 Although this court need not reach that distinct and possibly more troubling question,17 these cases, taken together with Russell and Hampton, certainly support the conclusion that the states are not obligated to provide an entrapment defense to criminal defendants.

Based on Russell, Hampton, and those additional authorities cited above, we conclude that Colorado can, consistent with the Due Process Clause, preclude the applicability of an entrapment defense to Colorado's special offender statute. Cf. Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir. 1993) (upholding against due process challenge Arizona entrapment statute which requires a defendant to admit all elements of each offense charged before the state court would instruct the jury on an entrapment defense). Furthermore, because the sole effect of Colorado's decision to classify § 18-18-107 as a sentencing provision is the elimination of availability of an entrapment defense, the court concludes that Vega's claims are controlled by the Supreme Court's decisions in Russell and Hampton, rather that the decisions in the McMillan line. So analyzed, Vega's claims relating to § 18-18-107 fail to raise a viable due process claim.

IV. CONCLUSION

For those reasons set out above, the order of the United States District Court for the District of Colorado denying Vega's § 2254 habeas petition is hereby AFFIRMED.