ARTURO MUNSTER-RAMIREZ, PETITIONER V. UNITED STATES OF AMERICA No. 89-6646 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 Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A20) /1/ is reported at 888 F.2d 1267. JURISDICTION The judgment of the court of appeals was entered on November 7, 1989. The petition for a writ of certiorari was filed on January 4, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court correctly applied the former criminal livelihood Sentencing Guideline, Section 4B1.3 (June 15, 1988), to petitioner. 2. Whether petitioner was entitled to a reduction in his offense level under Sentencing Guidelines Section 3E1.1 for accepting responsibility. STATEMENT Petitioner pleaded guilty in the United States District Court for the Southern District of California to one count of transporting an illegal alien, in violation of 8 U.S.C. 1324(a)(1)(B), and to one count of committing that offense while released on bail, in violation of 18 U.S.C. 3147. He was sentenced under the Sentencing Guidelines to 33 months' imprisonment on the illegal alien offense, to be followed by a two-year term of supervised release. He was sentenced to a suspended one-year term of imprisonment for committing an offense while on baill and placed on one year's probation to be served concurrently with the term of supervised release. 1. a. Petitioner and a passenger were stopped by Border Patrol agents on December 9, 1987, while driving on a road in Southern California frequently used by alien smugglers to avoid a nearby Border Patrol traffic checkpoint. An illegal alien named Israel Ayala-Navarro was hiding in the car trunk. Petitioner and his passenger were arrested for smuggling aliens, but the passenger was later released for insufficient evidence. Ayala told an agent he had paid an unknown smuggler $300 in Tijuana, Mexico, to be taken into the United States. As he and six other aliens were being brought into the United States by the smuggler, they were detected by the Border Patrol and the other six aliens were arrested. The smuggler and Ayala escaped on foot and subsequently met petitioner. The smuggler told Ayala to pay petitioner $300 when they reached Los Angeles. Gov't C.A. Br. 3-5. At the time of the offense, petitioner was on pretrial release on a previous indictment for the transportation of illegal aliens. Pet. App. A4. b. At the time that petitioner was sentenced, the "criminal livelihood" Guideline, United States Sentencing Comm'n, Guidelines Manual Section 4B1.3 (Guidelines) (June 15, 1988), provided as follows: If the defendant committed an offense as part of a pattern of criminal conduct from which he derived a substantial portion of his income, his offense level shall be not less than 13, unless Section 3E1.1 (Acceptance of Responsibility) applies, in which event his offense level shall be not less than 11. The Application Note to Guidelines Section 4B1.3 Commentary defined the phrase "pattern of criminal conduct" as "planned criminal acts occurring over a substantial period of time." Guidelines p. 4.13 (June 15, 1988). The Background Note to that Commentary said that "Section 4B1.3 implements 28 U.S.C. Section 994(i)(2), which directs the Commission to ensure that the guidelines specify a 'substantial term of imprisonment' for a defendant who committed an offense as part of a pattern of criminal conduct from which he derived a substantial portion of his income." Guidelines 4.13 (June 15, 1988). Neither Guidelines Section 4B1.3 nor the accompanying Commentary, however, defined the phrase "substantial portion of (the defendant's) income." At the July 11, 1988, sentencing hearing, defense counsel acknowledged that petitioner had transported one or two illegal aliens at a time on seven different occasions over an unspecified period of time. /2/ Counsel argued, however, that even if petitioner had been paid $300 for transporting each alien, petitioner would not have received enough money to live on. E.R. 43-44. /3/ Petitioner claimed that he was self-employed, but he produced information regarding only a few days' employment, and no tax returns existed. Id. at 44-45, 62. See also Presentence Report 8. Petitioner was also receiving welfare. E.R. 42, 44. The district court found that petitioner derived a substantial portion of his income from criminal conduct, and that petitioner's adjusted offense level was 13. E.R. 46. The court found that, if petitioner were not subject to the criminal livelihood Guideline, his offense level would be 11. The base offense level for smuggling aliens under Guidelines Section 2L1.1(a) was six, plus a three-point increase for smuggling aliens for profit under Guidelines Section 2L1.1(b)(1), /4/ plus a two-point increase under Guidelines Section 2L1.1(b)(2) because petitioner had previously been convicted of smuggling aliens. E.R. 47-48. The court declined to award petitioner a two-point credit under Guidelines Section 3E1.1 for accepting responsibility. The court found that while petitioner admitted committing the offense, "he put the responsibility off on his son." Pet. App. A14; E.R. 48. The court also found that petitioner had a criminal history score of 22, which resulted in a criminal history category of VI. Ibid. /5/ Under the Sentencing Table in the Guidelines, ch. 5, pt. A, p. 5.2, the Guidelines range for an offense level of 13 and a criminal history category of VI is 33-41 months' imprisonment. The range for an offense level of 11 and a criminal history category of VI is 27-33 months' imprisonment. The district court imposed a 33-month term of imprisonment, the minimum sentence applicable to petitioner under the criminal livelihood Guideline. E.R. 46. In so doing, the judge commented that even if petitioner had been entitled to a two-point reduction in the adjusted offense level for accepting responsibility, the court nonetheless would have imposed a 33-month sentence -- the top of the Guidelines range that would then apply -- due to the seriousness of petitioner's criminal history. Id. at 48-49. /6/ The court imposed no additional term of imprisonment on petitioner under 18 U.S.C. 3147, since the court believed that a 33-month term of imprisonment was sufficient. R.E. 51-52. 2. The court of appeals affirmed by a divided vote. Pet. App. A2-A20. The majority held that the criminal livelihood Guideline, Section 4B1.3, applied to petitioner because he derived a substantial portion of his income from criminal activity. Pet. App. A4-A13. /7/ The majority reasoned that the plain language of the Guideline required only that the sentencing court determine the percentage of the defendant's income that was derived from criminal activity without regard to whether the defendant's income was substantial in comparison to that of others. The majority rejected the conclusion of the court in United States v. Rivera, 694 F. Supp. 1105 (S.D.N.Y. 1988), that the Guideline applied only if the amount of income the defendant derived from criminal activity was itself substantial. Pet. App. A7-A12. Instead, the majority held that the district court's ruling that the criminal livelihood Guideline applied to petitioner was not clearly erroneous, because petitioner had engaged in a pattern of criminal conduct for profit beginning in 1970, and petitioner had little or no income from legitimate employment. Id. at A12-A13. The court of appeals declined to decide petitioner's claim that he was entitled to a reduction in his adjusted offense level under Guidelines Section 3E1.1 for accepting responsibility. The majority stated that it could not properly reach the issue because it would make no difference in the outcome of the case and hence would be an advisory opinion. Id. at A14-A15. Judge Nelson dissented. Pet. App. A16-A20. She agreed with the majority that the question whether a defendant earned a substantial portion of his income from criminal activity under Guidelines Section 4B1.3 should be determined by measuring his income from criminal activity against his total income, rather than against some absolute amount. But she disagreed with the majority that Guidelines Section 4B1.3 applied regardless of how low the defendant's income was. She concluded that the limitations on income specified in the laws replaced by Section 994(i)(2) -- the dangerous special offender provision, 18 U.S.C. 3575(e) (1982) (repealed 1984), and the dangerous special drug offender provision, 21 U.S.C. 849(e) (1982) (repealed 1984) -- were applicable. Pet. App. A16-A17. Both provisions rendered enhanced sentencing inapplicable to defendants otherwise covered by the statutes if their illegal income did not exceed the minimum wage in a one-year period and was not at least half their total income. ARGUMENT 1. Petitioner argues that the district court erred in applying in his case the criminal livelihood Guideline, Section 4B1.3 (June 15, 1988), because his income from all sources was below the minimum wage. Pet. 5-6. Guidelines Section 4B1.3 (June 15, 1988) does not define the term "substantial portion of his income" and therefore does not impose the limitation petitioner seeks. Nonetheless, two courts of appeals have ruled that "the geneology of the criminal livelihood provision suggests such an implied limitation." United States v. Cianscewski, 894 F.2d 74, 77 (3d Cir. 1990); United States v. Nolder, 887 F.2d 140 (8th Cir. 1989). /8/ Despite this disagreement among the circuits, however, the judgment below does not warrant review by this Court, since the question presented is of no continuing importance. Since petitioner was sentenced, the Sentencing Commission has revised the criminal livelihood Guideline and its accompanying commentary. See Guidelines Section 4B1.3 (Nov. 1, 1989); id. App. C, Amendment 269, at C.139-C.140 (Nov. 1, 1989). /9/ The current version of that Guideline, which became effective November 1, 1989, provides that the criminal livelihood Guideline applies only when the defendant derived income from a pattern of criminal conduct in a 12-month period that exceeded 2,000 times the then-existing federal hourly minimum wage. /10/ The new version of that Guideline therefore resolves for future cases the disagreement among the circuits over the question presented by this case. That question is therefore only of historical interest. Moreover, petitioner suffered no prejudice as a result of the court of appeals' ruling, as he received a sentence that was actually more lenient than the one that he should have received. The district court sentenced petitioner to imprisonment for one year on petitioner's conviction for violating 18 U.S.C. 3147, suspended the execution of that term of imprisonment, and placed petitioner on probation for one year. E.R. 35 (Judgment and Commitment Order). That sentence was unduly favorable to petitioner. Before the Guidelines went into effect, a district court could suspend the execution of a sentence imposed under 18 U.S.C. 3147. Rodriguez v. United States, 480 U.S. 522 (1987). But petitioner committed his offense and was sentenced after the Guidelines went into effect. Section 3651 of Title 18, which authorized the district court to suspend the execution of a defendant's sentence and on which this Court relied in Rodriguez, 480 U.S. at 523-524, was repealed when the Guidelines went into effect on November 1, 1987. See 18 U.S.C. p. 631 Note (1988). Under the Guidelines in effect at the time of petitioner's sentencing, the offense level for petitioner under 18 U.S.C. 3147 was ten (the base offense level of 6 would have been increased by four levels because petitioner's crime was punishable by five years' imprisonment). Guidelines Section 2J1.7(a) and (b)(2) (Jan. 15, 1988). Because petitioner fit into criminal history category VI, he should have received a sentence of 24-30 months' imprisonment. Guidelines Ch. 5 Pt. A, at p. 5.2 (Sentencing Table). In addition, that sentence also should have run consecutively to the sentence that petitioner received for illegally importing aliens into the United States, because a sentence imposed under Guidelines Section 2J1.7 (Jan. 15, 1988) was exempt from grouping under the multiple count Guidelines, Section 3D1.2. Guidelines Section 2J1.7, at 2.89 Application Note 2 (Jan. 15, 1988). In sum, although petitioner argues that he should have received a sentence of 21 months' imprisonment (including a two-level credit for accepting responsibility), E.R. 8, in fact petitioner should have received a sentence of at least 45 months' imprisonment, even if the criminal livelihood Guideline is disregarded and even if petitioner were given credit for accepting responsibility. 2. Petitioner also contends that he was entitled to a two-point reduction in his offense level under Guidelines Section 3B1.1 for accepting responsibility. Although the court of appeals did not address that that fact-bound claim, it do not warrant review by this Court. Petitioner maintains that he is entitled to credit because he pleaded guilty to the charged offenses and because there is nothing in the record to indicate that petitioner's son was not involved in the smuggling of aliens. Pet. 6. Neither claim is persuasive. Guidelines Section 3E1.1(c) (Jan. 15, 1988) expressly states that "(a) defendant who enters a guilty plea is not entitled to a sentencing reduction under this section as a matter of right." Accord id. p. 3.21 Commentary (Jan. 15, 1988) ("A guilty plea may provide some evidencde of the defendant's acceptance of responsibility. However, it does not, by itself, entitle a defendant to a reduced sentence under this section."). In addition, the Commentary to that Guideline explains that because the sentencing judge occupies "a unique position to evaluate a defendant's acceptance of responsibility," the judge's determination whether the defendant has expressed "sincere contrition" is "entitled to great deference on review and should not be disturbed unless it is without foundation." Id. pp. 3.21-3.22 (Oct. 1987). See United States v. Harris, 882 F.2d 902, 905 (4th Cir. 1989) (whether a defendant has accepted responsibility is a factual question subject to review under the clearly erroneous standard); United States v. Wilson, 878 F.2d 921, 923 (6th Cir. 1989) (same); United States v. Franco-Torres, 869 F.2d 797, 799 (5th Cir. 1989) (same). Cf. United States v. Ofchinick, 877 F.2d 251 (3d Cir. 1989) (declining to decide whether the clearly erroneous standard or the abuse of discretion standard is applicable, since the defendant could not prevail under either one). /11/ The district court's credibility determination does not warrant review by this Court. /12/ 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 KAREN SKRIVSETH Attorney APRIL 1990 /1/ The petition appendix is unnumbered. We will treat the appendix as if it were numbered beginning with page A1. /2/ That concession is inconsistent with the fact that petitioner was arrested by Border Patrol agents on June 5, 1987, while loading six illegal aliens into a pickup truck. Presentence Report 6; Docket No. 87-3257 (S.D. Calif. Mar. 8, 1988). /3/ "E.R." refers to the "Excerpts of Clerk's Record" filed in the court of appeals. /4/ The applicable Guideline, Section 2L1.1, had been amended effective January 15, 1988, to provide a base offense level in subsection (a) of nine for the typical smuggling for profit offense, and a potential reduction of three points in subsection (b) that applied if the offense were not for profit. See Guidelines Amendment No. 35, at C.17-C.18 (1989). The amendment does not alter the result in calculating the adjusted offense level. /5/ Petitioner's criminal history score included 19 points for previous convictions, including the earlier 1987 offense of aiding and abetting illegal entry of aliens; a 1983 conviction as accessory to a robbery; a 1980 conviction for receiving stolen property; a 1980 conviction for burglary of an auto parts store; a 1973 conviction for possession of marijuana for sale; a 1960 conviction for petty theft; and numerous convictions for simple possession of controlled substances and for driving under the influence of alcohol or controlled substances. See Guidelines Section 4A.1. (Oct. 1987). Petitioner's overall criminal history score also included an additional two points because petitioner was on probation for two offenses when he committed the instant offense, see id. Section 4A1.1(d) (Oct. 1987), and one point because he had been released from custody on a previous conviction less than two years before committing the instant offense, see id. Section 4A1.1(e) (Oct. 1987). /6/ The court also ordered petitioner to serve a two-year term of supervised release for the smuggling offense, to be served concurrently with a one-year term of probation for committing the smuggling offense while on bail and consecutively to the prison term, and ordered petitioner to pay a $50 special assessment. E.R. 49-50. /7/ In its opening brief, the government took the position that the criminal livelihood Guideline applied in this case, Gov't C.A. Br. 6-10, but thereafter filed a supplemental brief taking the opposite position. The government concluded that although a high percentage of petitioner's income was derived from criminal activity, his income level was insubstantial. Gov't C.A. Supp. Br. 1-3. The government's supplemental brief concluded that Guidelines Section 4B1.3 was intended to replace the former dangerous special offender provisions, 18 U.S.C. 3575(e) (1982) (repealed 1984) and 21 U.S.C. 849 (1982) (repealed 1984), which required that a defendant's income be at or above the minimum wage. /8/ Those courts reasoned as follows: First, the Sentencing Commission's Commentary accompanying Guidelines Section 4B1.3 states that it implements 28 U.S.C. 994(i)(2) (Supp. IV 1986), which requires the Sentencing Commission to fix "a substantial term of imprisonment" for defendants who commit an offense "as part of a pattern of criminal conduct from which he derive(s) a substantial portion of his income(.)" Guidelines p. 4.13 (June 15, 1988). Section 994(i)(2) replaced the former dangerous special offender statutes, 18 U.S.C. 3575(e) (1982) and 21 U.S.C. 849(e) (1982), which were repealed by the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq. and 28 U.S.C. 991-998 (Supp. IV 1986). See S. Rep. No. 225, 98th Cong., 2d Sess. 120, 175-176 (1983). The former dangerous special offender statutes defined the term "substantial source of income" in part as "a source of income which for any period of one year or more exceeds (2000 times the hourly) minimum wage." 18 U.s.C. 3575(e) (1982) (repealed 1984); 21 U.S.C. 849(e) (1982) (repealed 1984). Thus, the phrase in Guidelines Section 4B1.3 "substantial portion of his income" should be interpreted to include the same threshold limitation that was contained in the dangerous special offender statutes replaced by Guidelines Section 4B1.3. Second, interpreting Guidelines Section 4B1.3 to contain a minimum wage limitation reduces the tension between 28 U.S.C. 994(i) and 28 U.S.C. 994(d), which requires that the Guidelines be neutral as to the socioeconomic status of the offender. Third, the Sentencing Commission has modified the criminal livelihood Guideline effective November 1, 1989, in a manner consistent with the limitation in the previously-existing dangerous special offender laws, and that amendment clarifies the standard in the old Guideline. Finally, the courts noted that the government took the position that Guidelines Section 4B1.3 should be interpreted in light of the limitation found in the former dangerous special offender laws. Page 6 note 7, supra. See Cianscewski, 894 F.2d at 77-80; Nolder, 887 F.2d at 142. /9/ The amendment deletes from Guidelines Section 4B1.3 the phrase "from which he derived a substantial portion of his income" and inserts the phrase "engaged in as a livelihood." The Commission also amended the Commentary accompanying that Guideline to define the phrase "engaged in as a livelihood" to mean: that (1) the defendant derived income from the pattern of criminal conduct that in any twelve-month period exceeded 2000 times the then existing hourly minimum wage under federal law (currently 2,000 times the hourly minimum wage under federal law is $6,700); and (2) the totality of the circumstances shows that such criminal conduct was the defendant's primary occupation in that twelve-month period (e.g., the defendant engaged in criminal conduct rather than regular, legitimate employment; or the defendant's employment was merely a front for his criminal conduct). /10/ Petitioner does not contend he was not engaged in a pattern of criminal conduct. /11/ Petitioner errs in suggesting that the government did not prove that he was not entitled to credit for accepting responsibility. See Pet. 6. It was petitioner's burden, not the government's, to show that he was entitled to a reduction in the base offense level. See United States v. Rodriguez, No. 89-1527 (6th Cir. Feb. 23, 1990), slip op. 3-5; United States v. Howard, 894 F.2d 1085, 1089-1090 (9th Cir. 1990); United States v. McDowell, 888 F.2d 285, 291 (3d Cir. 1989); United States v. Urrego-Linares, 879 F.2d 1234, 1238-1239 (4th Cir.), cert. denied, 110 S. Ct. 346 (1989) (all holding that the defendant bears the burden of proof when he seeks a downward adjustment). /12/ Petitioner states that he wishes to preserve for review in this Court a due process challenge to the Guidelines, Pet. 7, but he does not present that question for review, see Pet. i. In any event, that claim does not warrant review by this Court. The courts of appeals have uniformly held that the limitations imposed on a district court's sentencing discretion by the Sentencing Reform Act of 1984 Act and the Guidelines do not violate the Due Process Clause. 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, 964-966 (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). Those decisions are correct. It is settled that, since "the authority to define and fix the punishment for crime is legislative," Congress may define mandatory minimum sentences. Ex parte United States, 242 U.S. 27, 42 (1916). See also United States v. Mistretta, 109 S. Ct. 647, 650 (1989) ("the scope of judicial discretion with respect to a sentence is subject to congressinal control"). "(I)n 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) (plurality opinion). See also Sumner v. Shuman, 483 U.S. 66, 75 (1987); see McMillian v. Pennsylvania, 477 U.S. 79, 92 (1986).