JOHN WILLIAMS, PETITIONER V. UNITED STATES OF AMERICA No. 89-7038 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 2a, 1-20) is reported at 892 F.2d 296. JURISDICTION The judgment of the court of appeals was entered on December 26, 1989. A petition for rehearing was denied on January 25, 1990. The petition for a writ of certiorari was filed on March 26, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the offense of the possessoin of a firearm by a previously convicted felon was a "crime of violence" under a prior version of the career offender sentencing guideline, when the firearm was discharged in the course of an assault on another person. 2. Whether 18 U.S.C. 3013, which directs sentencing courts to impose monetary assessments on all defendants convicted of federal offenses, was enacted in violation of the Origination Clause of the Constitution, Art. I, Section 7, Cl. 1. STATEMENT After a jury trial in the United States District Court for the Western District of Pennsylvania, petitioner was convicted of possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. 922(g)(1). Petitioner was sentenced under the career offender provision of the Sentencing Guidelines, Section 4B1.1, /1/ to a term of 360 months' imprisonment, to be followed by a three-year term of supervised release, and was fined $50. The court of appeals affirmed petitioner's conviction and sentence; in addition, it issued a writ of mandamus ordering the imposition of a special assessment as required by 18 U.S.C. 3013. 1. On the evening of December 25, 1987, petitioner, a previously convicted felon, went to the residence of his sister, Harriet Boyd. Petitioner showed Boyd a revolver that he had and told her that he was "going to get" Tony and Larry Anderson, who had "stole(n) the dope man's dope." At the time, Larry Anderson lived across the street from the Boyd residence with another of petitioner's sisters, Wanda Gillmore. Pet. App. 2a, at 3. Petitioner then crossed the street to Gillmore's residence, where he found Larry Anderson asleep on the couch. Waking Anderson, petitioner stated that there was a contract on Anderson's head. After briefly discussing a small debt that Anderson supposedly owed petitioner, petitioner stated that he "ought to shoot" Anderson and began to draw the revolver that he was carrying. Petitioner stopped, saying that he would not use the gun in his sister's house, and then turned to leave. As petitioner started toward the door, he turned back toward Anderson, re-drew his revolver, and said, "Now I am going to shoot you." Petitioner then chased Anderson through the house, firing at Anderson once but missing. He then left, returning to Boyd's house. Pet. App. 2a, at 3-4. After learning what had occurred, Gillmore went to Boyd's house and confronted petitioner. Gillmore asked petitioner why he had fired a gun in her house. Petitioner replied that he would shoot Gillmore if she "d(id) not get out of his face." Gillmore then reported the incident to the police. Petitioner was subsequently arrested at Boyd's residence. Although petitioner denied that he knew anything about a gun, officers found a revolver under the couch on which petitioner had been lying when he was arrested. Anderson identified the revolver -- which had one spent cartridge and smelled as if it had recently been fired -- as the firearm with which petitioner had attacked him. Pet. App. 2a, at 4-6. 2. a. At sentencing, the district court found that petitioner was subject to the enhanced penalty provisions of 18 U.S.C. 924(e), which authorize the imposition of a mandatory minimum sentence of 15 years' imprisonment and a maximum sentence of life imprisonment for persons convicted of violating 18 U.S.C. 922(g) who have three prior convictions for "a violent felony or a serious drug offense." As the court stated, petitioner's prior state felony convictions for burglary, rape, and aggravated assault satisfied the statutory definition of "violent felon(ies)" under Section 924(e)(2)(B). J.A. 967-968. /2/ The district court also held that petitioner should be treated as a "career offender" under Section 4B1.1 of the Sentencing Guidelines. J.A. 866-867, 965-967. Specifically relying on petitioner's prior convictions for rape and aggravated assault, the court found that petitioner had "at least two prior convictions" for "a crime of violence" within the meaning of Guidelines Section 4B1.1. J.A. 966-967. The court also held that petitioner's instant conviction for possessing a firearm as a previously convicted felon was "a crime of violence," since petitioner fired the weapon at Larry Anderson during the commission of the offense. Id. at 967, 971. Applying the Sentencing Guidelines, the court determined that, because the statutory maximum for petitioner's offense was life imprisonment under the enhancement provisions of Section 924(e), his offense level as a "career offender" was level 37. J.A. 968. Moreover, the court noted that the Sentencing Guidelines provide that the criminal history score of all "career offenders" shall be Category VI. Ibid. The resulting guideline range was 360 months to life imprisonment. The court sentenced petitioner to a term of 360 months' imprisonment. J.A. 971-972. As the court explained, despite the "very serious nature" of the offense that "could have led to the death of Mr. Anderson," a sentence at the lower end of the guidelines range was sufficient to ensure petitioner's incapacitation until he was in his elder years and to deter others. Id. at 972. b. The district court refused to imposed the $50 special assessment required by 18 U.S.C. 3013. The district court held that Section 3013 was unconstitutional as a revenue measure that did not originate in the House of Representatives, as required by the Origination Clause of the Constitution, Art. I, Section 7, Cl. 1. J.A. 952-954. 3. The court of appeals affirmed in part, reversed in part, and remanded the case for resentencing. The court held that petitioner was a "career offender" under the Sentencing Guidelines because the facts of this case made petitioner's unlawful possession of a firearm "a crime of violence." Pet. App. 2a, at 17-18. As the court explained, not all violations of 18 U.S.C. 922(g) are "crime(s) of violence," but the flexible definitional provision of Guidelines Section 4B1.1 looks to the particular facts of each case. Petitioner's possession of a firearm was "a crime of violence" because it was accompanied by an assault on Larry Anderson. Pet. App. 2a, at 17-18. The court also held that the district court had erred in ruling that the special assessment statute was unconstitutional. Id. at 20. The court therefore issued a writ of mandamus directing the district court to vacate its order and to impose the required special assessment. Ibid. ARGUMENT 1. Petitioner argues that the offense of the possession of a firearm by a previously convicted felon is not a "crime of violence" under the former version of the career offender guidelines, Sentencing Guidelines Section 4B1.1 (Jan. 15, 1988). Pet. 7-12. In the Sentencing Reform Act of 1984, 28 U.S.C. 994(h)(1) and (2), Congress directed the Sentencing Commission to ensure that the Sentencing Guidelines "specify a term of imprisonment at or near the maximum term" authorized by statute for adult offenders who are convicted of a felony that is a "crime of violence" and who also have been convicted of two or more such offenses or two or more drug offenses. In response, the Sentencing Commission adopted the career offender guideline, Section 4B1.1 (Jan. 15, 1988). Section 4B1.1 provided that a defendant was a "career offender" if "the instant offense of conviction" was a "felony" that was "a crime of violence," and he had "at least two prior felony convictions of either a crime of violence or a controlled substance offense." /3/ Guidelines Section 4B1.2 (Jan. 15, 1988) defined the term "crime of violence" for Guidelines Section 4B1.1 by incorporating by reference the definition of the term "crime of violence" in 18 U.S.C. 16. Section 16 of Title 18, in turn, defines a "crime of violence" as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another," or "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." /4/ Petitioner does not challenge the district court's findings that he is an adult and that his prior convictions for rape and aggravated assault are "crime(s) of violence" within the meaning of Guidelines Section 4B1.2 (Jan. 15, 1988). Instead, he argues that "the instant offense of conviction" -- the possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. 922(g)(1) -- is not a "crime of violence" under the career offender guideline, and that the courts below erred by looking to the manner in which he used the firearm. That claim does not warrant review by this Court, for three reasons. First, in determining the scope of the inquiry permitted under the "career offender" provisions, the language of the Sentencing Guidelines themselves must be read together with their commentary. As Guidelines Section 1B1.7 makes clear, the commentary accompanying a guideline provision is significant since it "may interpret the guideline or explain how it is to be applied"; hence, "(f)ailure to follow such commentary could constitute an incorrect application of the guidelines." See also United States v. Pinto, 875 F.2d 143, 144 (7th Cir. 1989) (commentary provides strong evidence of the Commission's intent since it was written by Commission itself and adopted with the guideline to which it applies). Reading Section 16, the guidelines provisions, and the commentary together leads to the conclusion that the Commission intended to incorporate the conduct described in Section 16 as a "crime of violence," but did not intend to incorporate any limitation on the information the court could consider at sentencing regarding whether the particular offense conduct fit that definition. Thus, the commentary states that offenses other than those specifically listed in Section 16 and in the commentary "are covered only if the conduct for which the defendant was specifically convicted meets the definition of a crime of violence." That language contemplates examination of the actual conduct for which a defendant is convicted. For that reason, the court of appeals concluded that "possessing a gun while firing it at (another person) is a crime of violence" within the scope of the "career offender" guideline, regardless of whether possession of a firearm would be regarded as a crime of violence in other settings. Pet. App. 2a, 18. /5/ Second, the Third Circuit's decision in this case is consistent with the only other court of appeals decision on this issue. In United States v. McNeal, No. 89-2570 (Apr. 20, 1990), slip op. 5-8, the Seventh Circuit also held that the offense of possession of a firearm by a felon is a crime of violence under Guidelines Sections 4B1.1 and 4B1.2 (Jan. 15, 1988). None of the cases cited by petitioner involved this question. Third, after petitioner was sentenced the Sentencing Commission amended both the definitional provisions of and the explanatory commentary accompanying Sentencing Guidelines Sections 4B1.1 and 4B1.2 (Jan. 15, 1988). See Sentencing Guidelines Amendment No. 268, at C.137-C.139. In that amendment, the Commission abandoned its use of the definition of the term "crime of violence" in 18 U.S.C. 16. The new definition of the term "crime of violence" substantially (but not entirely) tracks the definition of the term "violent felony" used in the Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B). See Guidelines Section 4B1.2 (Nov. 1, 1989). /6/ The Sentencing Commission's commentary to that guideline is also different from the Commission's commentary to the former guideline. The new commentary no longer contains the examples of fact-specific conduct on which the Third and Seventh Circuits relied in concluding that the possession of a firearm by a felon is a "crime of violence" under the former version of the career offender guideline. Guidelines p. 4.12 Application Note 2 (Nov. 1, 1989). /7/ Accordingly, in light of the Sentencing Commission's amendments to the career offender guideline, all future cases will be governed by the new definition of the term "crime of violence," and the question presented by petitioner is of no continuing importance. 2. Petitioner also contends that the special assessment statute, 18 U.S.C. 3013, is a "Bill() for raising Revenue" that originated in the Senate, in violation of the Origination Clause of the Constitution, Art. I, Section 7, Cl. 1. Pet. 13-14. This Court recently answered that question in United States v. Munoz-Flores, No. 88-1932 (May 21, 1990), holding that 18 U.S.C. 3013 is not such a bill and therefore is not unconstitutional under the Origination Clause. Because the decision below is consistent with Munoz-Flores, petitioner's claim warrants no further review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General ROBERT J. ERICKSON Attorney MAY 1990 /1/ See United States Sentencing Comm'n, Guidelines Manual Section 4B1.1 (Jan. 15, 1988). As explained below, Guidelines Sections 4B1.1 and 4B1.2 have recently been amended by the Sentencing Commission. /2/ The government alleged the existence of the three prior convictions in the indictment, J.A. 9, served notice before trial of its intention to seek enhanced penalty treatment, J.A. 12, and introduced at the sentencing hearing certified records showing the existence of the prior convictions, J.A. 902-916, 963-965. /3/ Section 4B1.1. Career Offender A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. If the offense level for a career criminal from the table below is greater than the offense level otherwise applicable, the offense level from the table below shall apply. A career offender's criminal history category in every case shall be Category VI. /4/ Section 16. Crime of violence defined The term "crime of violence" means -- (a) an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. /5/ The cases cited by petitioner all arose under different statutes, and did not involve a construction of the Sentencing Guidelines. See United States v. Taylor, 882 F.2d 1018, 1023-1028 (6th Cir. 1989) (burglary is a "violent felony" under the Armed Career Criminal Act, 18 U.S.C. 924(e)), cert. granted, 110 S. Ct. 231 (1989); United States v. Leonard, 868 F.2d 1393, 1397-1399 (5th Cir. 1989) (same); United States v. Sherbondy, 865 F.2d 996, 1006-1010 (9th Cir. 1988) (witness intimidation is not a "violent felony" under 18 U.S.C. 924(e)). The definition of a "violent felony" in 18 U.S.C. 924(e) differs from the definition of a "crime of violence" in 18 U.S.C. 16. Accordingly, petitioner errs in relying on cases interpreting the former definition. /6/ Section 4B1.2. Definitions of Terms Used in Section 4B1.1 (1) The term "crime of violence" means any offense under federal or state law punishable by imprisonment for a term exceeding one year that -- (i) has an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another(.) /7/ Application Note 2 now reads as follows: "Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth in the count of which the defendant was convicted involved use of explosives or, by its nature, presented a serious potential risk of physical injury to another.