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

   Reply Memorandum for the United States

   We find petitioner's opposition to our motion to vacate somewhat
puzzling.  As we discuss in the motion (at 8-9), the court of appeals'
decision in this case rests upon a factual premise that is plainly
wrong:  review of the record makes clear that the sentences imposed
upon petitioner are not concurrent.  Because that 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 the 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 doctrine has continuing validity as
a general matter, it is indisputable that the court below erred by
applying the doctrine with respect to non-concurrent sentences.

   In these circumstances, it seems clear to us that the appropriate
course of action is to remand the case to the court of appeals so that
court may reconsider its decision in light of the true state of the
record.  Alternatively, this Court could hold that the concurrent
sentence doctrine may not be applied to non-concurrent sentences and
direct the court of appeals to address the merits of petitioner's
challenge to the sufficiency of the evidence to support his conviction
on Count 3 of the indictment.  The Court frequently vacates and
remands a case where an intervening change in the law alters the
posture of the case.  See, e.g., Thomas v. Outboard Marine Corp., No.
85-1735 (Dec. 8, 1986);  United States Department of the Treasury v.
Galioto, No. 84-1904 (June 17, 1986).  We think the same approach is
appropriate where (1) the record makes clear that the facts of the
case are not what they were believed to be when the court of appeals
rendered its decision and when this Court granted certiorari, and (2)
the question on which this Court granted certiorari simply is not
presented on the facts as they actually appear in the record.

   Petitioner argues that the Court should take the extraordinary step
of proceeding to plenary consideration of the question presented even
though its determination regarding that question could not possibly
alter the proper disposition of this case.  For whatever the Court
might conclude regarding the validity of the concurrent sentence
doctrine, petitioner is entitled to consideration by the court of
appeals of his challenge to the sufficiency of the evidence to support
his conviction.  Thus, on the facts of this case the Court would never
have to reach the question presented in the certiorari petition and,
moreover, any statement regarding the general validity of the doctrine
would be dictum because discussion of that issue would not be
necessary to the decision of this case.

   For the foregoing reasons, and the reasons stated in our motion, it
is therefore respectfully submitted that the motion to vacate and
remand should be granted.

   CHARLES FRIED

      Solicitor General

   FEBRUARY 1987