JOHN WILLIAM RAY, PETITIONER V. UNITED STATES OF AMERICA No. 86-281 In the Supreme Court of the United States October Term, 1986 On Writ of Certiorari to the United States Court of Appeals for The Fifth Circuit Brief for the United States TABLE OF CONTENTS Opinions below Jurisdiction Question Presented Statement Introduction and summary of argument Argument: The court of appeals erred by invoking the concurrent sentence doctrine in this case A. The concurrent sentence doctrine may not be invoked when the sentences are not concurrent B. The concurrent sentence doctrine authorizes a reviewing court to decline to review a conviction that is not likely to have adverse collateral consequences for the defendant 1. The concurrent sentence doctrine, which has long been recognized by this Court, furthers the important policy of conserving judicial resources 2. A court of appeals may not invoke the concurrent sentence doctrine to vacate a judgment of conviction 3. An appellate court may invoke the doctrine to decline to review a conviction that is not likely to result in adverse collateral consequences for the defendant 4. The court of appeals properly rejected petitioner's claim that his unreviewed conviction carries adverse collateral consequences Conclusion Addendum OPINION BELOW The opinion of the court of appeals (Pet. App. A3-A25) is unreported. JURISDICTION The judgment of the court of appeals was entered on June 2, 1986. A petition for rehearing was denied on June 25, 1986 (Pet. App. A56). The petition for a writ of certiorari was filed on August 20, 1986, and was granted on November 17, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the court of appeals erred by invoking the concurrent sentence doctrine to vacate one of petitioner's convictions. STATEMENT Following a jury trial in the United States District Court for the Southern District of Texas, petitioner was found guilty of conspiracy to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846; possession of one gram of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1); and possession of six ounces of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). Petitioner was sentenced to concurrent seven-year prison terms on each of the three counts and concurrent five-year terms of special parole on the two substantive counts. In addition, the court imposed a $50 assessment on each count pursuant to 18 U.S.C. (Supp. III) 3013 (see 2 Tr. 341-342). 1. The evidence at trial showed that between May 29, and May 30, 1985, petitioner was involved in a cocaine transaction in the Rio Grande Valley area of south Texas. On May 29, petitioner's co-defendant, Pablo Arturo Sandoval, asked Edelmiro Molina whether Molina knew anyone who was interested in buying cocaine (1 Tr. 83). Molina said that he did (id. at 84). Molina, who was an informant for the Drug Enforcement Administration (DEA), contacted DEA agent Jane Herber, informed her of the conversation, and agreed to cooperate with the DEA in its investigation of Sandoval (id. at 28-31, 84-85). Later that day, Molina and Sandoval went to petitioner's apartment (1 Tr. 87, 154). Petitioner and Sandoval left the living room of the apartment, went into the bedroom, and talked for about five minutes. Sandoval returned and sat down in the living room and tossed a small bag of cocaine to Sandoval. In petitioner's presence, Sandoval told Molina that the bag contained a sample for sale and testing by customers. Id. at 88-89. When Sandoval and Molina left the apartment, Sandoval told Molina to call his buyer and set up a meeting (id. at 90). Molina called Agent Herber, who was posing as a cocaine buyer, and arranged to meet with her that afternoon. Sandoval drove Molina to the meeting in a truck obtained from petitioner and sold the cocaine sample to Herber for $105. Id. at 31-37, 91-95. /1/ At the time she purchased the sample, Agent Herber told Sandoval that she was interested in buying ten ounces of cocaine (1 Tr. 37, 94-95). Sandoval and Molina then returned to petitioner's apartment, where Sandoval handed petitioner the money Agent Herber had paid for the cocaine sample. Petitioner gave some of the money back to Sandoval. Id. at 96-97. Sandoval told petitioner that the buyer wanted an additional ten ounces of cocaine; petitioner said that he had three ounces of the drug and would have to see if he could obtain the additional seven ounces. Id. at 97-98. As Sandoval and Molina left petitioner's apartment, Molina saw petitioner drive away (id. at 98). Later that day, Sandoval called Agent Herber and told her that he had six ounces of cocaine that he would sell for $1950 per ounce (id. at 41). Sandoval failed to appear at a meeting scheduled for that night; he subsequently arranged to meet Herber the next day to consummate the sale. Id. at 41-46, 101-103. The following day, May 30, Sandoval, again driving the truck obtained from petitioner (1 Tr. 48), picked up Molina and took him to Sandoval's apartment where Sandoval removed six ounces of cocaine from a drawer (id. at 104). Sandoval said that "they hadn't come up with the ten ounces, just only six" (id. at 105). Sandoval and Molina then met with Agent Herber. When Sandoval handed Herber the six ounces of cocaine, Agent Herber gave a signal, and the surveillance agents arrested Sandoval (id. at 49-50). /2/ Petitioner was arrested several weeks later (2 Tr. 193). 2. The court of appeals affirmed petitioner's conspiracy conviction and his conviction for possession of one gram of cocaine. It found that there was sufficient evidence to support those convictions (Pet. App. A11-A16), and it rejected petitioner's challenges to two of the district court's evidentiary rulings (id. at A18-A24). With respect to the conviction for possession of six ounces of cocaine, the court "appl(ied) the concurrent sentence doctrine to decline review of the sufficiency of the evidence" (Pet. App. A16). The court observed that the sentences on the two possession counts were concurrent and stated that its "affirmance of the conviction on (one of the possession counts) makes review of the (second possession) conviction unnecessary" (id. at A16-A17). In order "to avoid * * * potential adverse collateral consequences," the court vacated petitioner's second possession conviction (id. at A17). The court said that its action "in no way alters the jury's verdict or the conviction" as its "effect * * * is to suspend imposition of the sentence()" (ibid.). INTRODUCTION AND SUMMARY OF ARGUMENT The concurrent sentence doctrine holds that when a defendant is convicted of several offenses and receives concurrent sentences, a court of appeals need not in every case consider the defendant's challenges to each of the convictions. If the court finds that one of the convictions is proper and that the other convictions are not likely to subject the defendant to additional adverse collateral consequences, the court may invoke the doctrine to decline to address the defendant's claims that the other convictions are invalid. The doctrine is thus a rule designed to promote judicial efficiency, sparing appellate courts the burden of adjudicating issues whose resolution will have no practical impact on the defendant. As its name suggests, the concurrent sentence doctrine applies only when two or more convictions carry sentences that are entirely concurrent. The sentence on the conviction whose validity is upheld by the appellate court must encompass all of the punishment imposed upon the defendant; no additional penalty may flow from the sentences imposed on the convictions that are not reviewed by the court of appeals. The court of appeals' decision in this case rests upon a factual premise that is demonstrably wrong: review of the record makes clear that the sentences imposed upon petitioner are not concurrent. The court of appeals reviewed petitioner's conviction for possession of one gram of cocaine with intent to distribute it and upheld that conviction on the merits; the court then applied the concurrent sentence doctrine to vacate petitioner's conviction for possession of six ounces of cocaine with intent to distribute it. But the district court did not simply sentence petitioner to concurrent seven-year terms of imprisonment and concurrent five-year terms of special parole on the two substantive convictions. The court also imposed a $50 monetary assessment on each count pursuant to 18 U.S.C. (Supp. III) 3013, a recently-enacted statute requiring that a monetary assessment be imposed on a convicted defendant in every federal criminal case. In view of the separate, cumulative $50 assessments imposed on each of those two counts, the sentences on the two counts plainly are not concurrent. Because the court of appeals' error was not detected by petitioner and was not apparent to us at the time we opposed the certiorari petition, this Court granted review on the assumption that this case properly presented a question of general importance regarding the application of the concurrent sentence doctrine. No such question in fact is presented here, however, because regardless of whether the concurrent sentence doctrine has continuing validity as a general matter, it is indisputable that the court below erred by applying the doctrine with respect to nonconcurrent sentences. For that reason, petitioner is entitled to the vacation of the judgment of the court of appeals and a remand to permit that court to consider his challenge to the unreviewed conviction. In the event the Court chooses to consider the broader question regarding the validity of the concurrent sentence doctrine, the Court should reaffirm that an appellate court may apply the doctrine to decline to review a conviction when it determines that the unreviewed conviction is not likely to result in adverse collateral consequences for the defendant. The courts of appeals have developed two different procedures for applying this doctrine. Under one approach, the court of appeals vacates the judgment of conviction on the unreviewed count. In our view, this procedure is plainly wrong. It is contrary to important separation of powers principles, it devalues the role of juries and district courts, and it places the unreviewed conviction in an unclear procedural status that is likely to lead to future complications and uncertainty. The second procedure for implementing the concurrent sentence doctrine is the method used in the past by this Court: the appellate court may decline to review a conviction if the unreviewed conviction will not have any significant adverse collateral consequences for the defendant. The potential adverse consequences that may flow from a conviction have been identified by this Court: delay in the defendant's eligibility for parole, an increased sentence under a recidivist statute for a future offense, the availability of the conviction to impeach the defendant's character or credibility in future proceedings, and the stigma resulting from the additional conviction. Adverse collateral consequences generally are the result of the fact of conviction, not the number of convictions. If at least one conviction may properly be imposed upon the defendant, a court frequently may be able to find the possibility of additional adverse consequences to be quite remote, because the defendant will not be subjected to incremental collateral consequences as a result of the additional conviction. If a court determines that such consequences are not likely to arise in a particular case, the court may apply the concurrent sentence doctrine and decline to consider the defendant's challenge to the additional conviction. Even if the Court chooses to address this broader question and concludes that the concurrent sentence doctrine may be applied in some circumstances, it is clear that the court below erred by applying the doctrine in connection with petitioner's non-concurrent sentences. The judgment of the court of appeals therefore should be vacated and the case remanded so that the court of appeals may review the sufficiency of the evidence to support petitioner's conviction on Count 3 of the indictment. ARGUMENT THE COURT OF APPEALS ERRED BY INVOKING THE CONCURRENT SENTENCE DOCTRINE IN THIS CASE We agree with petitioner that the court of appeals erred by applying the concurrent sentence doctrine in this case. And we agree that this Court should direct the court of appeals to consider petitioner's claim that his conviction on Count 3 of the indictment was not supported by sufficient evidence. We reach this conclusion on somewhat different grounds from petitioner, however. In our view, the concurrent sentence doctrine is inapplicable in this case not because of some basic flow in the doctrine itself, but for the simple reason that the sentences in this case were not concurrent. Although we believe that point is sufficient to dispose of this case, we discuss the broader question of the validity of the concurrent sentence doctrine in the event the Court wishes to address that issue here. A. The Concurrent Sentence Doctrine May Not Be Invoked When The Sentences Are Not Concurrent The premise underlying the concurrent sentence doctrine is that consideration by an appellate court of a defendant's challenges to each of several convictions carrying concurrent sentences is unnecessary because the resolution of those claims will have no practical effect on the defendant's punishment. If the sentence imposed on the unreviewed count adds in any way to the penalty imposed on the reviewed count, the doctrine is inapplicable. In that setting, the failure to review the conviction carrying the additional penalty will prejudice the defendant by depriving him of an opportunity to overturn the additional penalty. See, e.g., Barnes v. United States, 412 U.S. 837, 848 n.16 (1973) (noting the existence of "identical concurrent sentences" before invoking the doctrine); Hirabayashi v. United States, 320 U.S. 81, 85 (1943) (same); cf. Benton v. Maryland, 395 U.S. 784, 799-800 (1969) (White, J., concurring); id. at 801-802 (Harlan, J., dissenting). Because the sentences imposed by the district court in this case were not fully concurrent, the court of appeals erred by applying the concurrent sentence doctrine. Congress in 1984 enacted 18 U.S.C. (Supp. III) 3013, which provides that a district court "shall assess on any person convicted of an offense against the United States" specified monetary charges (18 U.S.C. (Supp. III) 3013(a)). The court must assess $25 when an individual is convicted of a misdemeanor and $50 if the individual is convicted of a felony (ibid.). /3/ The record in this case reveals that, in addition to sentencing petitioner to prison and parole terms, the district court imposed $50 assessments on each of the three counts on which petitioner was convicted. The court stated that "on each one of these (counts) I am going to impose a $50 assessment as required by law, to each one of these counts" (2 Tr. 342). The unreviewed conviction for possession of cocaine with the intent to distribute thus carried a $50 assessment that was separate and distinct from -- and cumulative of -- the $50 assessment on the reviewed possession conviction. /4/ Although the amount of the assessment imposed on each count is small, it plainly is sufficient to render the sentences cumulative rather than concurrent. See Pinkus v. United States, 436 U.S. 293, 304-305 (1978) (sentences "were not in fact fully concurrent" where the prison terms were identical but "the $500 fines on each of the counts were cumulative"; the Court observed that the defendant "had at least a pecuniary interest in securing review of his conviction on each of the counts"). For that reason, the concurrent sentence doctrine is inapplicable in this case. Because the court of appeals erred by invoking the concurrent sentence doctrine to decline to review the sufficiency of the evidence supporting petitioner's conviction on Count 3 of the indictment, the judgment of the court of appeals should be vacated and the case remanded for further proceedings. B. The Concurrent Sentence Doctrine Authorizes A Reviewing Court To Decline To Review A Conviction That Is Not Likely To Have Adverse Collateral Consequences For The Defendant Statutory developments have greatly limited the practical importance of the broader question in this case regarding the continuing vitality of the concurrent sentence doctrine. As we have discussed, Congress in 1984 enacted 18 U.S.C. (Supp. III) 3013, which requires the imposition of monetary assessments upon convicted defendants. Section 3013 does not expressly state whether an assessment must be separately imposed for each count on which the defendant is convicted, but the three courts of appeals that have addressed the issue all have held that assessments must be separately imposed on each count. See United States v. Dobbins, 807 F.2d 130 (8th Cir. 1986); United States v. Donaldson, 797 F.2d 125 (3d Cir. 1986); United States v. Pagan, 785 F.2d 378, 381 (2d Cir. 1986). That interpretation is consistent with the legislative history of the statute, in which the special assessment is characterized as a charge of $25 "for a misdemeanor conviction" and $50 "for a felony conviction." S. Rep. 98-497, 98th Cong., 2d Sess. 13 (1984); see also 130 Cong. Rec. H12086 (daily ed. Oct. 10, 1984) (section-by-section analysis submitted by Congressman Rodino). If that interpretation of the statute is correct, and we believe it is, the practical effect of Section 3013 will be to abolish the concurrent sentence doctrine in federal criminal cases. Because the monetary assessment is mandatory, it must be imposed in every case. And because Section 3013 requires separate cumulative assessments on each count on which the defendant is convicted, there should be few, if any, federal criminal cases in which the sentences are fully concurrent. /5/ Thus, the monetary assessments required under Section 3013 will in virtually every case preclude the invocation of the concurrent sentence doctrine. Petitioner does not base his challenge to the vitality of the concurrent sentence doctrine upon either the effect of Section 3013 or the non-concurrent nature of the sentences imposed in his case. We do not believe it is necessary for the court to address the grounds petitioner raises in challenging the judgment of the court of appeals. Nonetheless, if the Court puts aside the effect of Section 3013 in this case and addresses the question of the validity of the concurrent sentence doctrine in general, we believe that the Court should reaffirm the rule that an appellate court may decline to review a conviction is not likely to result in adverse collateral consequences for the defendant. 1. The Concurrent Sentence Doctrine, Which Has Long Been Recognized By This Court, Furthers The Important Policy Of Conserving Judicial Resources a. The roots of the modern-day concurrent sentence doctrine lie in the earliest decisions of this Court. Locke v. United States, 11 U.S. (7 Cranch) 339 (1813), was an action brought by the United States under the customs laws to condemn the cargo carried in particular vessel. Although the charge filed by the government consisted of 11 separate counts, the district court entered a single, general judgment directing that the cargo be forfeited to the United States. This Court declined to consider the cargo owner's challenges to all 11 counts of the charge. Chief Justice Marshall's opinion for the Court stated that "(t)he Court * * * is of the opinion, that the 4th count is good, and this renders it unnecessary to decide on the others." 11 U.S. (7 Cranch) at 344; see also Snyder v. United States, 112 U.S. 216, 217 (1884). In Claassen v. United States, 142 U.S. 140 (1891), the Court applied the same rule in the context of a criminal prosecution. The defendant had been convicted fo five counts of embezzlement; the district court imposed a general sentence of six years in prison. After upholding the defendant's conviction on one of the counts, the Court stated, "(t)his count and the verdict of guilty returned upon it being sufficient to support the judgment and sentence, the question of the sufficiency of the other counts need not be considered" (142 U.S. at 146). The Court observed that "it is settled law in this Court, and in this country generally, that in any criminal case a general verdict and judgment on an indictment or information containing several counts cannot be reversed on error, if any one of the counts is good and warrants the judgment, because, in the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only" (id. at 146-147). /6/ The final step in the evolution of the concurrent sentence doctrine occurred in Hirabayashi v. United States, supra. The defendant in that case was convicted on two separate counts of an indictment. This Court stated that "(s)ince the sentences of three months each imposed by the district court on the two counts were ordered to run concurrently, it will be unnecessary to consider questions raised with respect to the first count if we find that the conviction on the second count * * * must be sustained" (320 U.S. at 85). After determining that "(t)he conviction under the second count is without constitutional infirmity," the Court declined to review the defendant's challenges to the validity of the other conviction (id. at 105). /7/ Over the next 20 years, the Court frequently applied this rule when concurrent sentences had been imposed upon the defendant, limiting its review to ascertaining the validity of one of the convictions. See, e.g., United States v. Romano, 382 U.S. 136, 138 (1965); United States v. Gainey, 380 U.S. 63, 65 (1965); Lanza v. New York, 370 U.S. 139, 151-152, n.1 (1962) (Brennan, J., concurring); Barenblatt v. United States, 360 U.S. 109, 115 (1959); Lawn v. United States, 355 U.S. 339, 359 (1958); Roviaro v. United States, 353 U.S. 53, 59 n.6 (1957); United States v. Sheridan, 329 U.S. 379, 381 (1946); Pinkerton v. United States, 328 U.S. 640, 641-642 n.1 (1946). That was the state of the law at the time of the Court's decision in Benton v. Maryland, supra. The defendant in Benton had been convicted of both larceny and burglary, and had been sentenced to 15 years' imprisonment on the burglary count and five years' imprisonment on the larceny count. The Court granted certiorari to consider whether the defendant's larceny conviction violated the Double Jeopardy Clause. /8/ Before addressing that question, however, the Court considered a jurisdictional issue. It noted that reversal of the defendant's larceny conviction alone would not alter the term of the defendant's confinement and observed that "(t)he language used in a number of th(e) Court's opinions might be read to indicate that the existence of a valid concurrent sentence removes the necessary elements of a justiciable controversy" (395 U.S. at 788). The Court traced the development of the concurrent sentence doctrine and concluded that "the existence of concurrent sentences does not remove the elements necessary to create a justiciable case or controversy" (395 U.S. at 790). It found that the possibility that the defendant might suffer adverse collateral consequences from the second conviction -- even if the possibility was a "remote one" -- was sufficient to render the case justiciable (id. at 791). The Court acknowledged, however, that "(t)he concurrent sentence rule may have some continuing validity as a rule of judicial convenience," stating that "in certain circumstances a federal appellate court, as a matter of discretion, might (be able to) decide * * * that it is 'unnecessary' to consider all the allegations made by a particular party" (ibid. (footnote omitted)). Justice White jointed the opinion for the Court in Benton and stated in a concurring opinion that the concurrent sentence doctrine "should be preserved as a matter of proper judicial administration both on direct appeal and collateral attack" (395 U.S. at 800). Justice Harlan, writing for himself and Justice Stewart in dissent, also sought to "emphasize" that "the concurrent sentence rule does have continuing vitality as an element of judicial discretion, and that appellate courts may decline to review a conviction carrying a concurrent sentence when another "concurrent" conviction has been reviewed and found valid and the unreviewed conviction foreseeably will have no significant adverse consequences for the appellant" (id. at 801-802). Justice Harlan observed that "the concurrent sentence doctrine plays a significant role in conserving the time and energy of appellate courts. To require that these already overworked courts invariably review in full detail each of several convictions carrying concurrent sentences seems to me senselessly doctrinaire" (id. at 802 (footnotes omitted)). In the years since Benton, the Court has recognized that the concurrent sentence doctrine may be applied as a rule of judicial economy in the manner advocated by Justices White and Harlan. In Barnes v. United States, supra, the defendant had been convicted on two counts of possessing stolen United States Treasury checks, two counts of forging the checks, and two counts of uttering the checks with the knowledge that the endorsements were forged. This Court considered and rejected the defendant's challenges to the convictions for possessing stolen checks. It then stated that "(a)lthough affirmance of petitioner's conviction on two of the six counts carrying identical concurrent sentences does not moot the issues he raises pertaining to the remaining counts, we decline as a discretionary matter to reach these issues." 412 U.S. at 848 n.16 (citation omitted); see also Andresen v. Maryland, 427 U.S. 463, 469 n.4 (1976) (citation omitted) (noting that if two of the counts for which the defendant received concurrent sentences were not affected by the defendant's constitutional claim, the Court could "apply the discretionary concurrent-sentence doctrine, and thereby decline to consider petitioner's constitutional claims"). The courts of appeals also have generally continued to recognize some form of the concurrent sentence doctrine. See United States v. Nightingale, 703 F2d 17, 19 (1st Cir. 1983); United States v. Gordon, 634 F.2d 639, 643 (1st Cir. 1980); United States v. Vargas, 615 F.2d 952, 960 (2d Cir. 1980); United States v. Lampley, 573 F.2d 783, 788 (3d Cir. 1978); United States v. Truong Dinh Hung, 629 F.2d 908, 931 (4th Cir. 1980) (Russell & Hall, JJ., concurring and dissenting), cert. denied, 454 U.S. 1144 (1982); United States v. Nelson, 733 F.2d 364, 371 n.17 (5th Cir.), cert. denied, 469 U.S. 937 (1984); United States v. Grunsfeld, 558 F.2d 1231 (6th Cir.), cert. denied, 434 U.S. 872 (1977); United States v. Peters, 617 F.2d 503, 506 (7th Cir. 1980); United States v. Tanner, 471 F.2d 128, 140 (7th Cir.), cert. denied, 409 U.S. 949 (1972); United States v. Kirk, 723 F.2d 1379, 1381-1382 (8th Cir. 1983), cert. denied, 466 U.S. 930 (1984); United States v. Hopkins, 716 F.2d 739, 749 (10th Cir. 1982); United States v. Fuentes-Jimenez, 750 F.2d 1495, 1497 (11th Cir. 1985), cert. denied, No. 85-6330 (June 2, 1986); United States v. Durant, 648 F.2d 747, 752 (D.C. Cir. 1981); United States v. Hooper, 432 F.2d 604, 606 (D.C. Cir. 1970); but see United States v. De Bright, 730 F.2d 1255 (9th Cir. 1984) (en banc). b. The policy considerations underlying the concurrent sentence doctrine are as important today as they were when the doctrine was created. The principal policy justification for the rule is that it promotes the efficient use of judicial resources. As Justice White has observed, (i)n a time of increasingly congested judicial dockets, often requiring long delays before trial and upon appeal, judicial resources have become scarce. Where a man has been convicted on several counts and sentenced concurrently upon each, and where judicial review of one count sustains its validity, the need for review of the other counts is not a pressing one since, regardless of the outcome, the prisoner will remain in jail for the same length of time under the count upheld. Rather than permit other cases to languish while careful review of these redundant counts is carried to its futile conclusion, judicial resources might be better employed by moving on to more pressing business. This is not a rule of convenience to the judge, but rather of fairness to other litigants. Benton v. Maryland, 395 U.S. at 798-799 (concurring opinion); see also Jones v. Zimmerman, 805 F.2d 1125, 1128 (3d Cir. 1986) ("(t)he practice (of declining review pursuant to the concurrent sentence doctrine) is eminently practical and conserves judicial resources for more pressing needs"); United States v. Hooper, 432 F.2d at 606. The statistical table appended to this brief demonstrates that the caseload of the federal courts of appeals has grown at an enormous rate over the last 30 years. The number of criminal cases per appellate judge has increased from 13 to 53; the total number of cases per judge has grown from 54 to 183. In view of the burgeoning demands on appellate courts, any rule that tends to increase judicial efficiency should not lightly be discarded. /9/ c. The federal courts have inherent supervisory authority that may be exercised "to formulate procedural rules not specifically required by the Constitution or the Congress." United States v. Hasting, 461 U.S. 499, 505 (1983); see also Thomas v. Arn, No. 84-5630 (Dec. 4, 1985), slip op. 6-7. In addition, Congress has expressly endowed both this Court and the courts of appeals with the authority to dispose of cases in such manner "as may be just under the circumstances" (28 U.S.C. 2106). We think it clear that these sources of judicial authority justify a rule that permits an appellate court to decline to consider claims that will have no practical effect on the rights of the parties. Cf. Thomas v. Arn, slip op. 6 ("(i)t cannot be doubted that the courts of appeals have supervisory powers that permit, at the least, the promulgation of procedural rules governing the management of litigation"). To be sure, "(e)ven a sensible and efficient use of the supervisory power * * * is invalid if it conflicts with constitutional or statutory provisions" (Thomas v. Arn, slip op. 7-8). The question here, therefore, is whether the goal of relieving the burden on the courts of appeals may be achieved in a manner that does not conflict with other constitutional or statutory principles. In attempting to apply the concurrent sentence doctrine in a manner consistent with these other principles, the courts of appeals have adopted several different approaches. The majority of the courts of appeals apply the doctrine by declining to review a conviction, but only where the unreviewed conviction is not likely to result in adverse collateral consequences to the defendant. See, e.g., United States v. Nightingale, 703 F.2d at 19; United States v. Lampley, 573 F.2d at 788; United States v. Kirk, 723 F.2d at 1381-1382; United States v. Hopkins, 716 F.2d at 749; United States v. Fuentes-Jiminez, 750 F.2d at 1497. One of these courts has placed upon the government the burden of showing the absence of collateral consequences. United States v. Vargas, 615 F.2d at 960; see also United States v. Peters, 617 F.2d at 506. Other courts have adopted the practice of vacating any conviction that is not reviewed. See, e.g., United States v. Adi, 759 F.2d 404, 409-410 (5th Cir. 1985); United States v. Butera, 677 F.2d 1376, 1386 (11th Cir. 1982), cert. denied, 459 U.S. 1108 (1983); United States v. Hooper, 432 F.2d at 606. And one court -- the Ninth Circuit -- has determined that the doctrine cannot be applied without running afoul of constitutional and statutory limitations on judicial authority. That court has therefore abolished the doctrine and decided to consider a defendant's challenges to each of his convictions. United States v. De Bright, supra. We now turn to an examination of the merits of these competing views of the concurrent sentence doctrine. 2. A Court Of Appeals May Not Invoke The Concurrent Sentence Doctrine To Vacate A Judgment Of Conviction As we have noted, this Court consistently has applied the concurrent sentence doctrine to decline to review a conviction. In United States v. Hooper, supra, however, the District of Columbia Circuit adopted a different procedural rule. The defendant in Hooper was convicted on one count of theft of federal property in violation of federal law and one count of robbery in violation of District of Columbia law; he received an eight-year concurrent sentence on each count. On appeal, the defendant challenged only his federal conviction. The court of appeals noted that the government had urged it, under the concurrent sentence doctrine, not to consider the defendant's claim; the court agreed that it was not required to address the merits of the claim, but it "follow(ed) a different path from that offered by the government" (432 F.2d at 606). Declaring that there was "no need in the public interest" to retain the convictions and sentences on both counts, the court directed the vacation of the judgment on one of the counts (ibid.). It stated that "(t)he vacation of the judgment does not destroy the jury verdict, but is rather equivalent in practical effect to a suspension of the imposition of sentence. If it later develops that the interest of justice so requires, the sentence can be reimposed on a concurrent basis. The conviction could then be subject to appellate review" (id. at 606 n.8). Some panels of the Fifth and Eleventh Circuits, including the court below in the present case (Pet. App. A16-A17), have jointed the District of Columbia Circuit in adopting this approach. See, e.g., United States v. Adi, 759 F.2d at 409-410; United States v. Butera, 677 F.2d at 1386; United States v. Durant, 648 F.2d 747, 752 (D.C. Cir. 1981). In our view, this procedure for applying the concurrent sentence doctrine cannot be justified by the federal courts' inherent supervisory power or their authority to dispose of a case "as may be just under the circumstances" (28 U.S.C. 2106). The practice of vacating unreviewed convictions offends important separation of powers principles, it devalues the role of juries and district courts, and it places the unreviewed conviction in a unique and extremely uncertain status. /10/ The text of the Constitution entrusts the Executive Branch with the authority to "take Care that the Laws be faithfully executed" (Art. II, Section 3). This Court repeatedly has recognized that the Executive Branch has broad responsibility for conducting criminal prosecutions, including the power to select the charges that may be filed in a particular case. See Ball v. United States, 470 U.S. 856, 859-860 (1985); United States v. Goodwin, 457 U.S. 368, 382 (1982); United States v. Batchelder, 442 U.S. 114, 124 (1979); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); United States v. Nixon, 418 U.S. 683, 694 (1974); Confiscation Cases, 74 U.S. (7 Wall.) 454, 457-459 (1868). Just as a court may not overturn the government's decision regarding the charges to be brought against a defendant if that decision does not violate any constitutional or statutory norm, a court may not vacate a judgment of conviction when that result is not necessary to vindicate a constitutional or statutory right. Cf. United States v. Hasting, 461 U.S. at 505-507. Any other rule would allow at the end of the criminal process the very result that is prohibited at the beginning -- judicial interference with the government's discretion to select the charges to be pressed against a defendant. See United States v. DeBright, 730 F.2d at 1257; see also United States v. Carrasco, 786 F.2d 1452, 1455-1456 (9th Cir. 1986) (district court may not dismiss the indictment on the ground that the court could impose an "appropriate" sentence based on the remaining count). An appellate court's decision to vacate a judgment of conviction is fundamentally different from a decision not to review that judgment. As one court of appeals has observed, "convictions represent the expenditure of society's resources in the investigation and prosecution of criminal conduct" (United States v. DeBright, 730 F.2d at 1257). The judgments entered by district courts are presumptively valid. Indeed, one of the basic premises of our system of appellate review is that an appellate court will not affirmatively interfere with the judgment of a lower court unless it finds error in the process that culminated in that judgment. We do not disagree with the premise underlying the procedure adopted by the court of appeals in Hooper: that a conviction carrying no adverse consequences for the defendant is in some sense superfluous. In our view, however, an appellate court exceeds its proper role when it vacates a judgment of conviction simply on the basis of its conclusion that the conviction is superfluous or is not "needed in the public interest." Finally, the application of the doctrine in this manner places the vacated conviction in a procedural no man's land, the contours of which are extremely ill-defined. The courts of appeals that follow this procedure generally direct the vacation of the "judgment," but they also invariably decline to overturn the jury verdict and the conviction; the courts also provide that the sentence may be reimposed at a later date in the event that a defect is discovered in the conviction that was affirmed by the court of appeals. Some courts of appeals analogize a conviction with a vacated judgment to a conviction upon which the district court has suspended sentence. See Pet. App. A16-A17; Hooper, 432 F.2d at 606 n.8. When the imposition of sentence is suspended, the conviction remains on the defendant's record; the district court simply does not impose a sentence for that conviction. See 18 U.S.C. 3578, 3651. Even where an unreviewed conviction is vacated, therefore, the conviction may remain available for purposes collateral to the criminal proceeding, such as enhancement of punishment for subsequent criminal conduct or impeachment of the defendant's credibility in a subsequent trial. Since courts adopted the practice of vacating unreviewed convictions because they believed that all potential for adverse collateral consequences would be eliminated, and the practice may not accomplish that result, the vacating procedure does not even accomplish the goal that it was designed to achieve. /11/ For these reasons, we view the process of vacating unreviewed convictions as an inappropriate way to implement the concurrent sentence doctrine. 3. An Appellate Court May Invoke The Doctrine To Decline To Review A Conviction That Is Not Likely To Result In Adverse Collateral Consequences For The Defendant The alternative procedure for implementing the principle embodied in the concurrent sentence doctrine is the method employed in the past by this Court: once it is determined that one of the defendant's convictions is valid, the appellate court may simply decline to review the other convictions that carry concurrent sentences. Of course, a court is not free to apply the doctrine in every situation in which the defendant has received concurrent sentences. The principle underlying the concurrent sentence doctrine is that review of the defendant's claims is unnecessary because the resolution of those issues will have no practical impact upon the defendant. At the time the doctrine originally was formulated, the sentence was viewed as the only adverse consequence flowing from a conviction. As long as the sentences on the two counts were concurrent, therefore, the defendant would suffer no adverse consequences from an appellate court's decision not to review his challenges to each of the convictions. This Court has now made clear that a criminal conviction has adverse consequences for a defendant that extend beyond the sentence imposed by the district court. See, e.g., Benton v. Maryland, 395 U.S. at 790; Sibron v. New York, 392 U.S. 40, 56-57 (1968). The concurrent sentence doctrine therefore must take account of these potential adverse collateral consequences. As Justice Harlan stated in Benton v. Maryland, supra, the doctrine may be applied only if "the unreviewed conviction foreseeably will have no significant adverse consequences for the (defendant)" (395 U.S. at 802). /12/ Petitioner argues that this approach for implementing the concurrent sentence doctrine is defective for a variety of reasons. We address each of his arguments in turn. a. Petitioner contends (Br. 83-85) that, because a conviction is presumptively prejudicial, a court of appeals must review a defendant's challenges to the validity of each of his convictions. That broad proposition finds no support in this Court's decisions. The Court has considered the adverse collateral consequences attendant to a criminal conviction in a line of decisions addressing the justiciability of a defendant's appeal from a criminal conviction. In St. Pierre v. United States, 319 U.S. 41 (1943), the Court concluded that the defendant's challenge to his conviction was moot because the defendant had fully served his sentence before the Court granted the petition for a writ of certiorari (319 U.S. at 42). The Court observed that the defendant had not shown "that under either state or federal law further penalties or disabilities can be imposed on him as a result of the judgment which has now been satisfied" (id. at 43). In a series of decisions over the following 25 years, the Court qualified the rule announced in St. Pierre, evidencing an increased willingness to recognize the collateral consequences attendant to a criminal conviction. The Court repeatedly found that a defendant's challenge to a conviction remained justiciable because of the existence of adverse collateral consequences, even though the defendant had finished serving his sentence. See, e.g., Ginsberg v. New York, 390 U.S. 629, 633-634 n.2 (1968); Pollard v. United States, 352 U.S. 354, 358 (1957); United States v. Morgan, 346 U.S. 502, 512-513 (1954); Fiswick v. United States, 329 U.S. 211, 222 (1946). Finally, in Sibron v. New York, supra, the Court concluded that "St. Pierre v. United States, supra, must be read in light of later cases to mean that a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction" (392 U.S. at 57). The Court relied upon Sibron when it held in Benton v. Maryland, supra, that the concurrent sentence doctrine was not a jurisdictional rule. The Court explained that "the existence of concurrent sentences does not remove the elements necessary to create a justiciable case or controversy" because the "mere possibility" that the defendant would suffer adverse collateral effects from the additional conviction was sufficient to render justiciable the challenge to the conviction (395 U.S. at 790). These decisions do not mandate the abolition of the concurrent sentence doctrine. The presumption that a conviction carries abverse collateral consequences was developed by the Court to ensure the justiciability of direct appeals of criminal convictions. That presumption does not bar a court from finding that a particular defendant is not likely to suffer adverse collateral consequences as a result of a particular conviction and that, therefore, the defendant's challenge to his conviction need not be considered by an appellate court. /13/ The presumption of adverse collateral consequences that is recognized in the justiciability context is just that: a presumption. It may well be inapplicable in a particular case. And a defendant is considerably less likely to be subject to such adverse consequences in the most common situation in which the concurrent sentence doctrine may be applied -- where two or more convictions are based on the same underlying facts. Adverse collateral consequences generally are a result of the fact of conviction, not the number of convictions. Once a court determines that at least one conviction may properly be imposed upon the defendant, the inquiry as to adverse consequences will focus on the incremental consequences likely to flow from one or more additional convictions. In these circumstances, a court frequently may be able to find the possibility of additional adverse consequences to be quite remote. /14/ This Court has identified four basic adverse collateral consequences that may flow from a criminal conviction: delay in the defendant's eligibility for parole, an increased sentence under a recidivist statute for a future offense, the availability of the conviction to impeach the defendant's character or credibility in future proceedings, and the stigma resulting from the additional conviction. Benton v. Maryland, 395 U.S. at 790-791; Sibron v. New York, 392 U.S. at 54-56. Each of these adverse consequences is considerably less likely to occur when a defendant already is subjected to at least one conviction. /15/ A defendant's prospects for parole in the federal system frequently will not be affected by an additional conviction on an unreviewed count. /16/ The United States Parole Commission has adopted guidelines that "indicate the customary range of time to be served before release for various combinations of offense (severity) and offender (parole prognosis) characteristics" (28 C.F.R. 2.20(a) and (b)). The guidelines also set forth the procedures used by the Commission in making parole determinations (see 28 C.F.R. foll. 2.20, at 91-107). /17/ The first factor under the Commission's guidelines -- the severity of the defendant's "offense behavior" -- turns on the nature of the defendant's conduct. See 28 C.F.R. foll. 2.20, at 92-100. The guidelines specifically provide that the number of convictions imposed upon a defendant is not relevant in calculating the offense severity rating (id. at 101). Moreover, the guidelines state that multiple offenses committed at the same time generally are considered as a single offense unless the offenses are unrelated or unless they involve "the unlawful possession of weapons during commission of another offense" (ibid.). The second factor considered by the Parole Commission -- the defendant's "salient factor score" -- measures the individual characteristics of the defendant. It involves an evaluation of the defendant's age and drug dependency, if any, as well as his prior criminal record. See 28 C.F.R. foll. 2.20, at 104-107. The Commission's guidelines provide that "(c)onvictions for prior offenses that are charged or adjudicated together (e.g., three burglaries) are counted as a single prior conviction, except where such offenses are separated by an intervening arrest" (id. at 104). The guidelines thus make clear that when the unreviewed conviction is based on the same criminal activity as the reviewed conviction, the defendant's prospects for parole will not be affected by the appellate court's decision not to review the conviction. In that setting, the appellate court can conclude with confidence that its refusal to consider the challenges to the unreviewed count will not prejudice the defendant. Even in other situations, a court often will be able to determine the risk of adverse parole consequences from an unreviewed conviction by examining the relevant portions of the guidelines. See, e.g., United States v. Fuentes-Jiminez, 750 F.2d at 1497; United States v. Wilson, 671 F.2d 1138, 1139-1140 n.2 (8th Cir.), cert. denied, 456 U.S. 994 (1982). The second potential adverse consequence identified by this Court is the possibility of an increased sentence under an habitual offender statute. These statutes typically provide for increased sentences for defendants convicted of several prior criminal offenses. See, e.g., 18 U.S.C. 3575. Under most such statutes, however, multiple convictions arising out of the same facts are counted as a single offense. See 18 U.S.C. 3575(e)(1); Benton v. Maryland, 395 U.S. at 790; id. at 805 (Harlan, J., dissenting). The possibility that an enhanced sentence will result from an unreviewed conviction is therefore remote. Moreover, in many cases the convictions on the reviewed counts or the defendant's prior record will subject the defendant to enhanced sentencing wholly apart from the unreviewed conviction. In that circumstance, the unreviewed conviction cannot possibly result in this particular adverse consequence. Benton v. Maryland, 395 U.S. at 805 (Harlan, J., dissenting); United States v. Ramos Algarin, 584 F.2d 562, 568 (1st Cir. 1978). Finally, at least when the multiple convictions are based on the same facts, the unreviewed conviction is not likely to impose an appreciably greater stigma upon the defendant or provide additional grounds for impeachment. A court could reasonably determine that the close similarity between the offenses would lead society at large, a jury in a subsequent proceeding, and a judge pronouncing sentence for a future offense to accord virtually no added weight to the unreviewed conviction. It seems clear, therefore, that there are at least some cases in which a court can confidently conclude that an unreviewed conviction will have no conceivable adverse collateral effects on the defendant, or that the risk of such adverse effects is vanishingly small. /18/ b. Petitioner contends (Br. 56-59) that even if an unreviewed conviction is not likely to result in adverse collateral consequences in some situations, courts cannot predict the absence of such adverse consequences with sufficient certainty to justify their failure to review a conviction. He also asserts (Br. 43-45) that the inquiry into the potential for adverse consequences is likely to be so time consuming that an appellate court would save time by simply considering the challenge to the conviction. As a threshold matter, we emphasize that a court of appeals is not required to apply the concurrent sentence doctrine or even to engage in an inquiry to determine whether the doctrine may properly be applied. The doctrine is designed to aid in the efficient functioning of the courts; where the inquiry regarding adverse consequences would be too time consuming or its outcome too uncertain, a court may proceed to consider the merits of the defendant's challenge to the validity of the conviction. The possibility that the doctrine may not be useful in every case, however, does not justify prohibiting a court from ever invoking the doctrine. More fundamentally, we do not believe that the possibility that a court may err in assessing the potential for collateral consequences justifies abolishing the concurrent sentence doctrine altogether. Courts are required to make difficult determinations in a variety of contexts; those inquiries are not pretermitted simply because a court might err. If this Court is concerned about the possibility of error, it could place upon the government the burden of establishing the absence of adverse collateral consequences. See United States v. Vargas, supra. /19/ c. Petitioner also contends (Br. 49-51) that the concurrent sentence doctrine infringes upon a defendant's statutory right to appeal. That contention is plainly wrong. Neither the Constitution nor 28 U.S.C. 1291, which endows the courts of appeals with jurisdiction over appeals from final orders of the district courts, requires an appellate court to address the merits of all of a defendant's challenges to a conviction. A defendant need only be provided with an opportunity to be heard; that opportunity obviously may be conditioned on reasonable procedural rules. See Thomas v. Arn, slip op. 6-7, 14. As we have discussed, the concurrent sentence doctrine is just such a reasonable rule designed to promote judicial efficiency. /20/ 4. The Court Of Appeals Properly Rejected Petitioner's Claim That His Unreviewed Conviction Carries Adverse Collateral Consequences Although we agree that it was improper for the court of appeals to apply the concurrent sentence doctrine in this case because petitioner's sentences were not concurrent, petitioner contends (Pet. 34-40) that the application of the concurrent sentence doctrine was improper for a different reason. He asserts that he will suffer adverse collateral consequences as a result of the court of appeals' failure to address the merits of his challenge to the sufficiency of the evidence supporting that conviction because the Parole Commission would have been required to shorten his prison term if the court of appeals had reversed his conviction. In view of the more obvious defect in the court of appeals' decision, there is no need for the Court to address this claim. We note, however, that petitioner is not likely to suffer any adverse parole consequences due to the court of appeals' failure to consider his challenge to his second substantive conviction. /21/ Petitioner's claim of adverse consequences relates to the first factor under the Commission's guidelines -- the severity classification assigned to petitioner's offense. If petitioner's offense is treated as involving only one gram of 92% pure cocaine, the offense would be classified as a Category Two offense. See 28 C.F.R. foll. 2.20, at 98 (Guideline 921(i)). In petitioner's case, that classification would result in eligibility for parole after he serves one-third of his seven-year sentence. /22/ If petitioner's offense is treated as one involving six ounces of 92% pure cocaine, the offense would be classified as a Category Five offense, and petitioner's suggested prison term would range from 48 to 60 months. 28 C.F.R. foll. 2.20, at 98 (Guideline 921(f)). Petitioner's entire argument rests upon his assumption (Br. 39) that "(o)nce the court of appeals finds that insufficient evidence supports (petitioner's) conviction for possessing six ounces of narcotics, due process prohibits the Parole Commission from assessing the severity of (petitioner's) involvement in the conspiracy offense by reference to any evidence other than" petitioner's conviction for possession of one gram of cocaine. But it is clear that even if the court of appeals had reversed petitioner's conviction for possessing six ounces of cocaine with the intent to distribute it, the Parole Commission's assessment of the severity of petitioner's offense would not have been limited to his conviction for possession of one gram of cocaine. /23/ The Parole Commission's guidelines provide that the severity classification of a conspiracy conviction depends upon the "underlying offense." 28 C.F.R. foll. 2.20, at 92 (Guideline 101). The conspiracy charge in the indictment in the present case does not specify a quantity of cocaine but states that the conspiracy extended from May 25 to June 3, a time period encompassing both sales of cocaine to Agent Herber. Regardless of whether petitioner actually possessed the six ounces of cocaine, therefore, he was convicted of participating in a conspiracy to possess cocaine for the purposes of distribution that encompassed both the one gram of cocaine and the six ounces of cocaine. See Pet. App. A13-A14 (considering evidence regarding second sale in upholding conspiracy conviction). Thus, even if the court of appeals had found that the evidence was insufficient to support the second possession conviction, the Parole Commission would have treated the conspiracy conviction as a Category Five offense in view of the clear evidence that petitioner was a participant in a conspiracy to possess six ounces of cocaine with the intent to distribute it. DiNapoli v. United States Parole Comm'n, 538 F. Supp. 658, 663 (M.D. Pa.) (defendant "was convicted of involvement in a drug conspiracy and therefore cannot separate himself from all of the drugs alluded to in the indictment") (emphasis in original), aff'd by order, 676 F.2d 684 (3d Cir. 1982). /24/ Contrary to petitioner's claim, therefore, the court of appeals' refusal to review the second possession conviction did not subject him to an increased prison term. /25/ CONCLUSION The judgment of the court of appeals should be vacated and the case remanded for further proceedings. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General ANDREW J. PINCUS Assistant to the Solicitor General MARCH 1987 /1/ The bag was found to contain one gram of 92% pure cocaine (1 Tr. 36-37; 2 Tr. 188). /2/ The cocaine was found to be 92% pure (2 Tr. 189, 191). /3/ The statute specifies higher penalties "if the defendant is a person other than an individual" (18 U.S.C. (Supp. III) 3013(a)(1)(B) and (2)(B)). /4/ The Judgment and Commitment Order signed by the district judge stated, "The Court * * * imposes a $50.00 special monetary assessment on Counts 1, 2, and 3, pursuant to 18 U.S.C. 3013." Although the cumulative nature of the assessments is not completely clear from the order, the specific terms of the court's oral pronouncement of sentence plainly resolve any ambiguity regarding the amount of the assessment. See United States v. Tafoya, 757 F.2d 1522, 1529-1530 (5th Cir. 1985), cert. denied, No. 85-5074 (Oct. 21, 1985); United States v. Moyles, 724 F.2d 29, 30 (2d Cir. 1983); United States v. McDonald, 672 F.2d 864, 866 (11th Cir. 1982). Both petitioner and the court of appeals appear to have overlooked the $50 assessments: both characterized the sentences in this case as concurrent. This portion of the sentences also was not apparent from the materials available to us at the time we prepared our memorandum in opposition to the petition for a writ of certiorari. /5/ The only federal cases in which sentences will be concurrent will be those in which the district court neglects to impose the mandatory Section 3013 assessments. Or, perhaps, in the relatively small number of cases under the Assimilative Crimes Act, 18 U.S.C. 13 (see United States v. Mayberry, 774 F.2d 1018 (10th Cir. 1985)). Of course, Section 3013 has no impact upon state criminal proceedings, and the doctrine therefore would remain available in state or federal court proceedings involving the review of state convictions. In addition, a future Congress could repeal Section 3013, which would permit concurrent sentences to arise again in the federal system. /6/ The Court repeatedly applied this rule in criminal cases. See, e.g., Whitfield v. Ohio, 297 U.S. 431, 438 (1936); Sinclair v. United States, 279 U.S. 263, 299 (1929); Abrams v. United States, 250 U.S. 616, 619 (1919); Goode v. United States, 159 U.S. 663, 669 (1895); Evans v. United States, 153 U.S. 608, 609 (1894); Evans v. United States, 153 U.S. 584, 595 (1894). /7/ The Court had applied the rule in this context prior to the decision in Hirabayashi, but had not expressly discussed the reasons for that result. United States v. Johnson, 319 U.S. 503, 518 (1943); Gorin v. United States, 312 U.S. 19, 33 (1941); United States v. Trenton Potteries Co., 273 U.S. 392, 402 (1927); Brooks v. United States, 267 U.S. 432, 441 (1925); Pierce v. United States, 252 U.S. 239, 252-253 (1920). /8/ The defendant had been convicted of burglary and acquitted of the larceny in his first trial, but the results of that trial were set aside because of a constitutional defect in the State's jury selection procedures (395 U.S. at 785-786). /9/ The doctrine has the additional advantage of allowing a court to refrain from addressing an important and difficult legal issue, such as a question of constitutional interpretation, in a context in which the resolution of the issue will not have any concrete impact upon a defendant. Cf. Ashwander v. TVA, 297 U.S. 288, 346-348 (1936) (Brandeis, J., concurring). /10/ Petitioner agrees (Br. 40-43) that a court may not invoke the concurrent sentence doctrine to vacate a conviction. /11/ Courts could, of course, follow the procedure of vacating the unreviewed conviction itself, rather than just the sentence, but even that course would not necessarily achieve the result of insulating the defendant against any conceivable adverse consequence from the vacated conviction. For example, a state court could conclude that a conviction vacated only because the court of appeals chose not to review its validity is sufficiently reliable to be the basis for impeachment of the defendant or enhancement of sentence. /12/ If the reviewed conviction is invalidated as a result of subsequent proceedings in this Court or on collateral attack in the lower courts, a defendant would, of course, be entitled to that time to consideration by the court of appeals of his challenges to the previously unreviewed conviction. /13/ There is nothing unusual about a situation in which a prudential rule is invoked to bar judicial resolution of a claim that satisfies the justiciability requirements of Article III. The Court has recognized that "several judicially self-imposed limits on the exercise of federal jurisdiction" may operate to bar the claims of litigants who satisfy the standing requirement imposed by Article III. Allen v. Wright, 468 U.S. 737, 751 (1984); see also Valley Forge Christian College v. Americans United For Separation Of Church & State, Inc., 454 U.S. 464, 474-475 (1982). Just as a plaintiff who satisfies the constitutional requirements for standing may nonetheless find his complaint dismissed under these prudential rules, a criminal defendant who has a justiciable claim with regard to the validity of his convictions may nonetheless have those claims dismissed under the concurrent sentence doctrine. /14/ When the defendant challenges all of his convictions, the inquiry as to adverse collateral consequences turns upon whether the defendant is disadvantaged by the imposition of any criminal liability in connection with the prosecution. Adverse collateral consequences are far more likely to be found in that context than where the inquiry concerns the incremental collateral consequences flowing from one or more additional convictions. /15/ A defendant might claim that the unreviewed convictions somehow tainted the conviction or sentence on the reviewed counts. Such a claim would constitute a challenge to the validity of the reviewed counts as well, and therefore could not properly be avoided by invocation of the concurrent sentence doctrine. We note, however, there is normally no reason to believe that the sentence imposed by a district judge on one count would be affected by the validity of the convictions on any of the other counts. /16/ Starting in the near future, there will be no possibility of adverse parole consequences from unreviewed convictions. The Sentencing Reform Act of 1984, Pub. L. No. 98-473, Ch. 2, 98 Stat. 1987 et seq., which is scheduled to go into effect in November 1987, provides for determinate sentencing. Under that system, a defendant's prison term will be fixed at the time of sentencing by the district court; any uncertainties created by the parole process will be eliminated. /17/ The guidelines are not binding on the Commission; "(w)here the circumstances warrant, decisions outside of the guidelines (either above or below) may be rendered." 28 C.F.R. 2.20(c); see also 28 C.F.R. 2.20(d) and (e) (noting that the Commission may rely upon "especially mitigating or aggravating circumstances" to adopt an offense severity rating different from that called for by the guidelines and that "clinical evaluation" of the risk of parole violation may override the procedures described in the guidelines). As petitioner acknowledges, however, (Br. 59), the overwhelming number of parole determinations fall within the guidelines. And the question here is not whether a defendant's parole release date can be predicted with certainty, but rather whether a particular unreviewed conviction is likely to be relevant to the Commission's determination. Because the guidelines specify the factors that are relevant to the Commission's decisionmaking process, they permit a court to make the latter determination with a high degree of certainty. /18/ The Court's decision in Ball v. United States, supra, does not dictate a different result. The question in Ball was whether the Double Jeopardy Clause's protection against multiple punishments for the same offense is implicated when a defendant receives two convictions, each carrying identical concurrent sentences, for conduct that Congress intended to be punishable by only a single conviction. Citing the possible adverse collateral consequences identified in Sibron and Benton, the Court concluded that "(o)ne of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense" (470 U.S. at 864). Like Sibron, Ball turns upon a presumption that an additional conviction carries adverse collateral consequences. It does not address the question whether a court may decline to review a challenge to a conviction where the possibility of such collateral consequences is found to be remote. /19/ If, subsequent to the application of the concurrent sentence doctrine, a defendant is threatened with adverse consequences, it might be appropriate to prohibit the use of the unreviewed conviction as the basis for those consequences. See Benton v. Maryland, 395 U.S. at 799-800 (White, J., concurring). /20/ Petitioner also urges (Br. 46-49) this Court to "declare that upon timely presentation, a defendant has a due process right to have the first appellate court determine whether he has been convicted of each element of his crime with proof beyond a reasonable doubt" (id. at 46). But he presents no reason why a sufficiency of the evidence claim should be given priority over a challenge to a conviction on any other constitutional or statutory grounds. Moreover, there is no reason that a court should be required to address the merits of a sufficiency claim in every case. We submit that where the conviction itself is not likely to result in any adverse collateral consequences, nothing in the Constitution requires a court to address the merits of a defendant's challenge to that conviction. /21/ Petitioner apparently wants this Court to resolve his claim that the conviction was not supported by sufficient evidence (see Br. 54-55, 103-109). We believe that the appropriate course is to remand the case to allow the court of appeals to consider in the first instance petitioner's challenge to the sufficiency of the evidence. Although this Court need not consider the sufficiency issue, we believe that, contrary to petitioner's assertions regarding the merits of the sufficiency issue (Br. 51-55), the evidence was amply sufficient to support the second possession conviction. Petitioner plainly was involved in a conspiracy to sell cocaine that encompassed both of the sales to Agent Herber (see Pet. App. A13-A14). The facts supporting the conspiracy conviction also support the conviction on the second possession count. Petitioner provided Sandoval -- petitioner's co-conspirator -- with what he characterized as a sample of cocaine for potential purchasers. Sandoval gave petitioner the money derived from the sale of the sample and petitioner -- apparently the leader of the conspiracy -- divided the proceeds. When the purchaser of the sample, Agent Herber, indicated that she wanted to purchase an additional ten ounces of cocaine, Sandoval asked petitioner for the drugs. Petitioner replied that he had only three ounces, but he promised to try to get more, and he left his apartment soon after he made that pledge. Hours later, Sandoval had obtained six ounces of cocaine; he stated to a government informant that "they hadn't come up with the ten ounces, just only six" (1 Tr. 105). Sandoval used a truck borrowed from petitioner to deliver the drugs to Herber the following day, and the drugs Sandoval provided on May 30 were of precisely the same purity as the sample petitioner had supplied the previous day. In view of the dealings between petitioner and Sandoval, the jury could reasonably conclude that the six ounces of cocaine had been provided by petitioner. /22/ The guidelines would permit parole after 12 to 16 months in prison (28 C.F.R. foll. 2.20, at 91), but petitioner would not be eligible for parole until he served one-third of his sentence (18 U.S.C. 4205(a)). /23/ Petitioner raised this argument before the court of appeals (see Br. 5-10); that Court's decision to invoke the concurrent sentence doctrine apparently reflects its determination that petitioner's claim is meritless. /24/ The Commission's Procedures Manual states that "(i)f a prisoner is convicted by trial of an offense, such as conspiracy, * * * where the severity rating is, by rule, determined by reference to the underlying offense * * *, acquittal on the underlying offense does not bar use of the conviction offense (e.g., conviction for conspiracy to murder is graded as Category Eight (the severity rating for murder) even if the prisoner is acquitted of the charge of murder)." United States Parole Commission, Rules and Procedures Manual 24 (Nov. 4, 1985). /25/ The Commission's initial parole determination was made prior to the issuance of the court of appeals' decision; petitioner's offense severity at that time was rated as Category Five. Petitioner's appeal of that determination -- filed after the court of appeals vacated the conviction -- cites the vacation of the conviction as the ground for seeking a reduction of the offense severity rating. The decision of the Parole Commission's National Appeals Board stated that "(t)he record reflects that you were convicted on all three counts of the indictment, said sentences to run concurrent to each other. The total amount of drugs involved in your case was 154 grams of 100% pure cocaine. Your offense severity was accurately assessed pursuant to 28 C.F.R. Section 2.20(921)(F)." Because the evidence supporting petitioner's conspiracy conviction showed that 154 grams of pure cocaine were involved, the Appeals Board's decision was correct both in light of the evidence in the case and under the Parole Commission's procedures permitting the Commission to assess the severity of the conspiracy offense by reference to the underlying substantive offense, regardless of the disposition of the substantive offense. APPENDIX