WILLIAM BRENT DUNCAN, PETITIONER V. UNITED STATES OF AMERICA No. 89-6792 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 Fifth Circuit Brief For The United States OPINION BELOW The opinion of the court of appeals (Pet. App. A15-A19) is not reported. JURISDICTION The judgment of the court of appeals was entered on December 26, 1989. The petition for a writ of certiorari was filed on February 27, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the Sentencing Guidelines violate due process by depriving criminal defendants of the right to individualized sentencing. 2. Whether 18 U.S.C. 3013, which directs sentencing courts to impose monetry 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 1. Petitioner pleaded guilty in the United States District Court for the Southern District of Texas to a single count of conspiring to manufacture and to possess phenylacetone with the intent to manufacture methamphetamine, and of conspiring to manufacture methamphetamine, in violation of 21 U.S.C. 846 and 841(a)(1), and 21 C.F.R. 1308.12. In return, the government agreed to dismiss a substantive count of aiding and abetting the manufacture of phenylacetine. For sentencing purposes, the government also agreed to findings that petitioner was a minimal participant in and accepted responsibility for the offense, and also was entitled to a downward departure based on his cooperation with the government. See United States Sentencing Comm'n, Guidelines Manual Sections 3B1.2, 3E1.1, and 5K1.1 (Nov. 1, 1989) (Guidelines). In calculating petitioner's sentence under the Guidelines, the district court determined that the adjusted offense level for petitioner's offense was 28 and that petitioner's criminal history placed him in category IV. Pet. App. A16-A17. Accordingly, the Guidelines indicated a sentencing range of 110-137 months' imprisonment. The district court departed downward from the indicated Guidelines range and imposed a sentence of 66 months' imprisonment, to run consecutively to a state sentence and to be followed by a three-year term of supervised release. The court fined petitioner $2,500, and it imposed a special assessment of $50 under 18 U.S.C. 3013. 2. The court of appeals upheld petitioner's sentence. Pet. App. A5-A19. The court held that the Guidelines do not vilate due process by unduly limiting the ability of the sentencing court to consider mitigating factors and to impose individualized sentences. Id. at A18. The court also held that 18 U.S.C. 3013 is "not a bill for raising revenued subject to the constraints of the Origination Clause, and that the mandatory special assessment imposed on petitioner is not unconstitutional. Pet. App. A18-A19. ARGUMENT 1. In Mistretta v. United States, 109 S. Ct. 647 (1989), this Court upheld the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq., 28 U.S.C. 991-998 (Supp. V 1987), against a variety of constitutional challenges. This case raises a due process challenge to the Sentencing Reform Act that was not addressed in Mistretta, but that, as petitioner concedes, Pet. 9 n.1, has been rejected by every court of appeals to have considered it. See, e.g., United States v. Brady, 895 F.2d 538 (9th Cir. 1990); United States v. Thomas, 884 F.2d 540, 542-544 (10th Cir. 1989); United States v. Erves, 880 F.2d 376, 379 (11th Cir. 1989); United States v. Bolding, 876 F.2d 21, 22-23 (4th Cir. 1989); United States v. Pinto, 875 F.2d 143, 144-146 (7th Cir. 1989); United States v. Allen, 873 F.2d 963 (6th Cir. 1989); United States v. Seluk, 873 F.2d 15, 16 (1st Cir. 1989); United States v. Brittman, 872 F.2d 827, 828 (8th Cir. 1989); United States v. Vizcaino, 870 F.2d 52, 54-56 (2d Cir. 1989); United States v. White, 869 F.2d 822 (5th Cir.), cert. denied, 110 S. Ct. 560 (1989); United States v. Frank, 864 F.2d 992, 1008-1010 (3d Cir. 1988), cert. denied, 109 S. Ct. 2442 (1989). This Court recently denied certiorari when the identical issue was raised in Chambless v. United States, cert. denied, 110 S. Ct. 560 (1989). There is no reason for a different result here. Relying primarily on district court opinions that were decided prior to Mistretta or that have been overruled by the court of appeals decisions cited above, petitioner contends that the Guidelines violate due process since they mechanistically circumscribe the authority of district courts to impose individualized sentences. Pet. 7-9. Petitioner's claim is contrary to the general rule that "the authority to define and fix the punishment for crime is legislative." Ex parte United States, 242 U.S. 27, 42 (1916). As this Court has stated, "in noncapital cases, the (formerly) established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes." Lockett v. Ohio, 438 U.S. 586, 604-605 (1978). See also Sumner v. Shuman, 483 U.S. 66, 75 (1987); Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (lead opinion). Cf. McMillan v. Pennsylvania, 477 U.S. 79, 92 (1986) (in upholding a state minimum sentencing statute, the Court noted "some difficulty fathoming why the due process calculus would change" when the legislature removed discretion from the sentencing court). Thus, in cases not involving capital punishment or life imprisonment, e.g., Solem v. Helm, 463 U.S. 277 (1983), this Court has never doubted the legislative authority to divest courts of their sentencing discretion by establishing mandatory minimum punishments. See Mistretta, 109 S. Ct. at 650; Lockett, 438 U.S. at 603 ("legislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases"); Ex parte United States, 242 U.S. at 42 (holding that district courts have no power to sentence below statutorily-imposed mandatory minimum sentence levels). /1/ Because Congress could properly eliminate sentencing discretion entirely, it can take the less drastic measure of limiting the scope of that discretion by directing the Sentencing Commission to fix the weight that should be accorded to various sentencing factors and to define appropriate ranges within which district courts may select a sentence. As the Seventh Circuit explained in United States v. Pinto, 875 F.2d at 145 (citation omitted): Criminals aren't entitled to sentences devised by judges rather than legislatures. * * * Judicial discretion in sentencing comes late to our history. From the beginning of the Nation, Congress specified precise sentences. * * * Blackstone extolled uniformity (in sentencing) as "one of the glories of English law" because punishment "is not left in the breast of any judge" but is meted out "without respect of persons." Although "(f)ederal judges have long been used to individualized sentencing, and many judges prefer it," the constitutional determination "whether, and to what extent(,) to continue or modify this system is a matter of legislative prerogative." United States v. Brittman, 872 F.2d at 828. Accordingly, with respect to the non-capital offense at issue here, "there is no constitutional right to judicial discretion in individualized sentencing" under the Guidelines. United States v. Vizcaino, 870 F.2d at 56. 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. 10-13. Although we believed that Section 3013 should not be held unconstitutional on that ground, that question is currently before this Court in United States v. Munoz-Flores, No. 88-1932 (argued Feb. 20, 1990). Accordingly, the Court should hold the petition in this case pending the decision in Munoz-Flores. CONCLUSION In connection with Question 2, the petition for a writ of certiorari should be held pending this Court's decision in United States v. Munoz-Flores, No. 88-1932 (argued Feb. 20, 1990), and should then be disposed of as appropriate in light of that decision. In all other respects, the petition should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S. G. DENNIS, JR. Assistant Attorney General ROBERT J. ERICKSON Attorney APRIL 1990 /1/ Quite apart from the Sentencing Guidelines, courts have consistently upheld the constitutionality of various statutory provisions that impose mandatory minimum penalties for certain offenses. See, e.g., United States v. Dombrowski, 877 F.2d 520, 530-531 (7th Cir. 1989); United States v. Kidder, 869 F.2d 1328, 1330-1334 (9th Cir. 1989); United States v. Rodriquez-Suarez, 856 F.2d 135, 137-138 (11th Cir. 1988), cert. denied, 109 S. Ct. 875 (1989); United States v. Holmes, 838 F.2d 1175, 1178-1179 (11th Cir.), cert. denied, 108 S. Ct. 2829 (1988). "If, despite their inflexibility, mandatory sentencing provisions withstand due process scrutiny, so too must the sentencing guidelines." United States v. Erves, 880 F.2d at 379.