JOHN WILLIAM RAY, PETITIONER V. UNITED STATES OF AMERICA

   No. 86-281

   In the Supreme Court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Fifth Circuit

   Memorandum for the United States in Opposition

   Petitioner contends that he was prejudiced by the court of appeals'
application of the concurrent sentence doctrine to vacate one of his
three convictions.

   1. Following a jury trial in the United States District Court for
the Southern District of Texas, petitioner was convicted 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 to concurrent five-year
special parole terms on the two substantive counts.

   The evidence adduced at trial showed that in May 1985 petitioner's
co-defendant Pablo Arturo Sandoval asked Edelmiro Molina whether
Molina knew anyone who was interested in buying cocaine.  Molina, who
was an informant for the Drug Enforcement Administration, contacted
DEA agent Jane Herber, informed her of the conversation, and agreed to
cooperate with the DEA in its investigation of Sandoval.  Molina and
Sandoval went to petitioner's apartment on May 29, 1985.  Petitioner
and Sandoval left the main room of the apartment, and petitioner
returned carrying a small plastic bag that contained one gram of
cocaine.  Sandoval explained that the cocaine was a sample for sale
and testing by customers.  Molina called Agent Herber, who was posing
as a cocaine buyer;  Molina and Sandoval drove to meet Herber and
Herber purchased the sample of cocaine for $105.  Pet. App. A5-A7.

   At the time she purchased the sample, Agent Herber told Sandoval
that she was interested in buying 10 ounces of cocaine.  Sandoval and
Molina then returned to petitioner's apartment, and Sandoval handed
petitioner the money Herber had paid for the cocaine sample.
Petitioner gave some of that money back to Sandoval.  Sandoval told
petitioner that the buyer wanted to obtain 10 ounces of cocaine.
Petitioner replied that he had only three ounces of cocaine on hand
but that he would try to obtain more.  Several hours later, Sandoval
telephoned Herber and told her that he was ready to delivery six
ounces of cocaine;  the two agreed to meet the next day.  Sandoval,
driving petitioner's truck, picked up Molina and stopped at Sandoval's
apartment to get the six ounces of cocaine.  Sandoval and Molina met
Agent Herber, Sandoval handed Herber the six ounces of cocaine, and
Sandoval was arrested.  Petitioner was arrested approximately three
weeks later.  Pet. App. A7-A10.

   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 ruling (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" (id. at A16).  The court observed that
the sentences on the two possession counts were concurrent and that
its "affirmance of the conviction on (one of the possession counts)
makes the 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).

   2. Petitioner argues (Pet. 22-38) that this Court should abolish
the concurrent sentence doctrine.  However, this case presents no
question regarding the validity of that doctrine.  /1/

   The concurrent sentence doctrine provides that when a defendant
receives concurrent sentences for two convictions and one of the
convictions is upheld, a court need not review the conviction on the
other count, because the conviction on one count is sufficient to
sustain the sentence.  Hirabayashi v. United States, 320 U.S. 81, 105
(1943);  see also United States v. Romano, 382 U.S. 136, 138 (1965);
Lawn v. United States, 355 U.S. 339, 359 (1958);  Locke v. United
States, 11 U.S. (7 Cranch) 339, 344 (1813).  The unreviewed conviction
therefore is affirmed.  See, e.g., Barnes v. United States, 412 U.S.
837, 848 n.16 (1973).  This Court has indicated, however, that
affirmance of the unreviewed conviction may not be appropriate if the
defendant would suffer adverse consequences as a result of the
additional, unreviewed conviction.  Benton v. Maryland, 395 U.S. 784,
790-792 (1969).  /2/

   In this case, the court of appeals applied a variant of the
concurrent sentence doctrine under which the unreviewed conviction is
vacated, rather than affirmed, in order to "avoid * * * potential
adverse collateral consequences" (Pet. App. A17).  This case therefore
does not present any issue regarding the propriety of the affirmance
of an unreviewed conviction under the concurrent sentence doctrine.
Indeed, petitioner should not be heard to complain about a rule that
provided him with essentially the same relief that he would have
received if his challenge to the conviction had been successful on the
merits.  /3/

   3. Petitioner claims (Pet. 18-22, 36-38) that he was prejudiced
because the court of appeals' failure to address the of his challenge
to the vacated conviction deprived him of an opportunity to reduce the
severity classification of his offense under the guidelines utilized
by the United States Parole Commission.  He asserts that the court of
appeals' action may have increased the length of his term of
incarceration.  This fact-bound contention is wholly without merit.

   Petitioner asserts (Pet. 18) that "the effect of the unreviewed
count * * * is to raise the severity of petitioner's offense (under
the Parole Commission guidelines) from Category 3 * * * to Category 5"
because, in petitioner's view, the Parole Commission would have been
barred from considering the evidence relating to the six ounces of
cocaine if the court of appeals had found that the evidence was not
sufficient to support the second possession conviction.  In fact, the
Commission would be free to consider that evidence in connection with
the conspiracy conviction regardless of the disposition of the
possession count.  The court of appeals' failure to review the merits
of petitioner's challenge to the possession conviction is therefore
irrelevant to the severity classification accorded to petitioner's
offense.

   The Parole Commission's guidelines provide that the severity
classification of a conspiracy conviction depends upon the "underlying
offense." 28 C.F.R. 2.20, 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 of the sales of cocaine to Agent Herber.
Since evidence of both cocaine sales was relevant to the conspiracy
conviction, the Parole Commission could consider all of that evidence
in assessing the severity of the conspiracy offense.  /4/ Therefore,
even if the court of appeals had found insufficient evidence to
support the second possession conviction, the Parole Commission still
would have been able to assess the severity of the conspiracy offense
by reference to the evidence that petitioner was involved in the sale
of six ounces of cocaine.  DiNapoli v. United States Parole Comm'n,
538 F. Supp. 658, 663 (M.D. Pa.), aff'd by order, 676 F.2d 684 (3d
Cir. 1982) (Table).  The court of appeal's decision not to address the
merits of petitioner's challenge to his second possession conviction
therefore could not have affected the timing of petitioner's release
from prison.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   OCTOBER 1986

   /1/ Contrary to petitioner's assertions (Pet. 14-17) regarding the
merits of the sufficiency issue that the court of appeals declined to
address, it is not at all clear that the evidence was insufficient to
support the second possession conviction.  Petitioner plainly was
involved in a conspiracy to sell cocaine -- the jury convicted
petitioner on the conspiracy charge and the court of appeals affirmed
that conviction.  The facts supporting the conspiracy conviction also
support the conviction on the second possession count.  Petitioner
provided the sample of cocaine that Sandoval -- petitioner's
co-conspirator -- sold to Agent Herber.  Sandoval gave petitioner the
money derived from the sale of the sample and petitioner -- apparently
the leader of the conspiracy -- divided the proceeds.  When Agent
Herber indicated that she wanted to purchase 10 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;  hours
later, Sandoval had obtained six ounces of cocaine.  Sandoval used
petitioner's truck to deliver the drugs to Herber the following 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.

   /2/ The courts of appeals generally have concluded that the
concurrent sentence doctrine may be utilized if the defendant will not
suffer adverse collateral consequences as a result of the affirmance
of the unreviewed conviction.  See United States v. Gordon, 634 F.2d
639, 643 (1st 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. Mullens, 583
F.2d 134, 142 (5th Cir. 1978);  United States v. Grunsfeld, 558 F.2d
1231 (6th Cir.), cert. denied, 434 U.S. 872 (1977);  United States v.
Smith, 601 F.2d 972, 973 (8th Cir.), cert. denied, 444 U.S. 879
(1979);  United States v. Hopkins, 716 F.2d 739, 749 (10th Cir. 1982);
 United States v. Johnson, 700 F.2d 699, 701 (11th Cir. 1983).  The
Second Circuit has placed the burden on the government to show the
absence of adverse collateral consequences.  United States v. Vargas,
615 F.2d 952, 960 (2d Cir. 1980).  Under the Seventh Circuit rule, the
absence of collateral consequences will be found only in rare
situations.  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).

   The Ninth Circuit, the District of Columbia Circuit, and some
panels of the Fifth Circuit have refused to apply this rule to affirm
convictions.  In their view, the task of determining whether a
defendant will suffer adverse consequences is too difficult and time
consuming to result in any gain in judicial efficiency.  United States
v. De Bright, 730 F.2d 1255 (9th Cir. 1984);  United States v. Hooper,
432 F.2d 604 (D.C. Cir. 1970);  United States v. Diaz, 733 F.2d 371,
376 (5th Cir. 1984).  The Ninth Circuit has held that the merits of a
defendant's claim must be decided in every case, the District of
Columbia Circuit and some panels in the Fifth Circuit have adopted the
practice of vacating the unreviewed convictions.

   /3/ Petitioner cites (Pet. 11-13) our filing in United States v.
Rubin, 439 U.S. 810 (1978), and implies that our position in that case
precludes us from defending the decision below.  The court of appeals
in Rubin applied the concurrent sentence doctrine to affirm the
unreviewed convictions.  Here, by contrast, the court of appeals
vacated the unreviewed conviction.  Since petitioner has not been
burdened with an unreviewed conviction that was nonetheless affirmed
by the court of appeals, Rubin is irrelevant to this case.  Our brief
in Mariscal v. United States, 449 U.S. 405 (1981), also is inapposite.
 In that case, as in Rubin, the court of appeals had affirmed the
defendant's convictions on the counts in dispute.  We argued in
Mariscal (80-5618 Memo in Opp. at 2-4) that the application of the
concurrent sentence doctrine was appropriate because the defendant
would not suffer adverse collateral consequences as a result of the
court of appeals' affirmance of the unreviewed convictions.

   /4/ On September 18, 1986, the Parole Commission's National Appeals
Board rejected petitioner's claim that his offense had been
incorrectly assigned a category 5 severity rating.  The 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)."