DONALD OWENS, PETITIONER V. UNITED STATES OF AMERICA No. 89-6070 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 Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A4) /1/ is unreported. JURISDICTION The judgment of the court of appeals was entered on September 21, 1989. The petition for a writ of certiorari was filed on November 18, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's provisional sentence, pursuant to 18 U.S.C. 4244(d), impermissibly exceeds the maximum prison term he could receive under the Sentencing Guidelines. STATEMENT Following a guilty plea in the United States District Court for the Eastern District of Missouri, petitioner was convicted of stealing mail from a post office, in violation of 18 U.S.C. 1708. Prior to sentencing, the court determined that petitioner presently suffered from a mental disease or defect and that, in lieu of being sentenced to imprisonment, he should be committed to a suitable facility for treatment. Accordingly, under authority of 18 U.S.C. 4244(d), the court provisionally sentenced petitioner to up to five years' commitment in a treatment facility. The court of appeals affirmed. Pet. App. A1-A4. 1. On January 14, 1988, petitioner was arrested for mail theft. Before his arraignment, the district court granted petitioner's motion for a psychiatric examination pursuant to 18 U.S.C. 4241(b). The psychiatric report, dated April 20, 1988, concluded that petitioner was mentally competent to stand trial and that he was not insane at the time of the offense. The report stated that petitioner suffered from schizophrenia and a possible bipolar disorder, but that he was not in need of any psychotropic medication. On June 9, 1988, the court declared petitioner competent to stand trial. Pet. C.A. Br. 1. Petitioner returned to court on July 7, 1988, intending to enter a plea of guilty. Before he could enter his plea, his behavior in the courtroom prompted the court to order a second psychiatric examination. The second psychiatric report, dated August 31, 1988, offered essentially the same diagnosis and stated the same conclusions concerning petitioner's competence to stand trial and his sanity at the time of the offense as did the first report. This time, however, petitioner was administered psychotropic medication. Pet. C.A. Br. 2. On September 12, 1988, petitioner entered his guilty plea. As a result of petitioner's behavior, on October 11, 1988, the court continued the sentencing and, pursuant to 18 U.S.C. 4244(b), ordered a third psychiatric examination. The third psychiatric report, dated November 19, 1988, revealed that petitioner's behavior was "bizarre" and "hostile," and that his persistent "angry mood" necessitated the tightest security available. The report concluded that petitioner was suffering from "a major mental illness which would benefit from psychiatric treatment." Pet. App. A1 n.2; Gov't C.A. Br. 3-4. On December 6, 1988, petitioner was returned to court for sentencing. After reviewing the psychiatric reports, the court found that petitioner was "presently suffering from a mental disease or defect, and that, in lieu of being sentenced to imprisonment, he should be committed to a suitable facility for care or treatment." Pet. App. B2. As required upon such a finding (18 U.S.C. 4244(d) & (e)), the court committed petitioner to the custody of the Attorney General for hospitalization in a suitable facility pending a determination by the facility that petitioner has recovered from his mental disease or defect to such an extent that he is no longer in need of custody for care or treatment. /2/ Under Section 4244(d), such a commitment for treatment of mental illness "constitutes a provisional sentence of imprisonment to the maximum term authorized by law for the offense for which the defendant was found guilty." Because 18 U.S.C. 1708, the statute that petitioner was convicted of violating, provides for a maximum five-year term of imprisonment, the court entered a provisional sentence of five years. Pet. App. B2. In so doing, the court rejected petitioner's argument that he should be released from confinement immediately because he had already served more than the maximum of eight months' imprisonment he could receive under the Sentencing Guidelines. Pet. App. C7-C8. /3/ 2. On appeal, petitioner contended, first, that the length of his provisional sentence should have been determined by reference to the Sentencing Guidelines instead of the charging statute. The court of appeals rejected this claim, finding "not reversible error" the district court's conclusion that "the Insanity Defense Reform Act," which includes Section 4244, "is an exceptional piece of criminal legislation because the lengths of criminal sentences imposed under its incompetency provisions are dictated by the charging statute in the indictment * * *, not by the Sentencing Guidelines." Pet. App. A3. Petitioner also contended that his commitment to a treatment facility pending his recovery from mental illness violated due process absent any determination by the district court that he was dangerous. In rejecting this claim, the court of appeals concluded that petitioner's "felony conviction satisfies any constitutional need for the finding of 'dangerousness' required to justify further detention." Pet. App. A4. ARGUMENT Petitioner renews his challenge to his five-year provisional sentence and commitment for treatment under Section 4244(d). Specifically, he contends that, as a matter of statutory construction and due process, his provisional sentence and commitment for treatment impermissibly exceed the maximum prison term to which he is subject under the Sentencing Guidelines. The court below correctly rejected this claim. 1. Petitioner contends (Pet. 5-7) that his provisional sentence violated the Sentencing Guidelines (18 U.S.C. 3551 et seq.). The Sentencing Guidelines, however, do not govern the length of commitments under Section 4244(d). That Section explicitly provides for a provisional sentence "to the maximum term authorized by law for the offense for which the defendant was found guilty" -- that is, to the maximum term prescribed by the charging statute. Under 18 U.S.C. 3551(a), the Guidelines apply except, as in Section 4244(d), "as otherwise specifically provided." Here, the Guidelines will become relevant if, before the expiration of the provisional sentence, "the director of the facility in which the (petitioner) is hospitalized * * * determines that the (petitioner) has recovered from his mental disease or defect to such an extent that he is no longer in need of custody for care or treatment in such a facility" (18 U.S.C. 4244(e)); under those circumstances, petitioner would return to court for final sentencing. Ibid. Petitioner's statutory claim that the Sentencing Guidelines should have governed the length of his provisional sentence and commitment for treatment thus conflicts with the explicit language of the relevant statutes. Petitioner also advances the statutory argument (Pet. 7-8) that the district court erred by not following the procedure specified in 18 U.S.C. 4246. That Section requires special findings if a person is to be committed beyond the expiration of his sentence, or if criminal charges have been dropped. Petitioner's argument rests entirely on the contention that his proper sentence should have been determined by the Sentencing Guidelines, and that commitment beyond the term suggested by the Guidelines required the Section 4246 procedure. As discussed, however, petitioner's premise is erroneous; his provisional sentence was, not the term suggested by the Guidelines, but the maximum term authorized by the charging statute. Thus petitioner was not held beyond the expiration of his sentence, and there was no need to follow the Section 4246 procedure. 2. Even if the Guidelines do not govern his provisional sentence as a matter of statutory construction, petitioner argues (Pet. 8-11) that, absent a finding that he is dangerous, the Due Process Clause precludes his confinement for treatment under Section 4244(d) beyond the maximum term of imprisonment he could receive under the Guidelines. Petitioner contends that confinement for a longer period than the authorized sentence for commission of a crime is permissible only on a finding that the prisoner, as a result of mental illness, presents a danger to society or to himself. Petitioner's claim, however, is inapplicable to his case. As with the statutory claims, petitioner's constitutional argument confuses the Sentencing Guidelines with the maximum sentence established by the charging statute (in this case, 18 U.S.C. 1708). There is no question in this case about the constitutional requirements for holding a convict beyond the length of an authorized sentence. As noted, Section 4244(d) specifies a provisional sentencing and treatment procedure for convicted persons who are mentally ill. It requires district courts to commit such persons for treatment until they recover but not for a period longer than the maximum term permitted by the charging statute. Petitioner's provisional sentence and commitment for treatment are entirely consistent with the sentence authorized for the offense of stealing mail, and petitioner's claim regarding the constitutional requirements for confinement beyond an authorized term is not applicable. /4/ Nor is Congress constitutionally prohibited from making special provision, within the bounds of a maximum authorized sentence, for sentencing and treatment of the mentally ill. It has long been settled that courts, in imposing sentence, may properly take into consideration a wide range of personal factors bearing on a defendant's chances for rehabilitation. See, e.g., Wasman v. United States, 468 U.S. 559, 563-564 (1984); Williams v. New York, 337 U.S. 241, 247-248 (1949). By the same token, Congress may properly take such factors into account in prescribing criteria, within the context of the maximum authorized sentence, for sentences (and treatment) of the mentally ill. Thus petitioner is incorrect in asserting that Congress could not constitutionally make special provision, entirely apart from the Sentencing Guidelines but within the maximum authorized sentence, for the provisional sentencing and treatment of convicted persons who suffer from mental illness. Even if a finding of dangerousness were required, moreover, the court of appeals correctly held (Pet. App. A4) that such a finding was satisfied by petitioner's felony conviction for mail theft. In concluding, in Jones v. United States, 463 U.S. 354 (1983), that a verdict of not guilty by reason of insanity is sufficiently probative of mental illness and dangerousness to justify commitment, this Court stated that "(t)he fact that a person has been found, beyond a reasonable doubt, to have committed a criminal act certainly indicates dangerousness." Id. at 364. It makes no difference that petitioner's crime was of a non-violent nature. In Jones, the Court explicitly rejected the suggestion that "the requisite dangerousness is not established by proof that a person committed a non-violent crime against property." Id. at 365. /5/ 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 JOEL M. GERSHOWITZ Attorney JANUARY 1990 /1/ The appendix to the petition consists of three separately paginated documents: the court of appeals opinion, the district court's sentencing order, and excerpts from the district court's sentencing hearing on December 6, 1988. We will cite these documents as A, B, and C, respectively. /2/ The district court emphasized that "the moment that it appears from the director of the facility to which (petitioner) may be assigned that he is sufficiently recovered from his problems so that he is no longer in need of custody for care or treatment, then that fact (will be) made known to me and I will order that he be released." Pet. App. C12. /3/ The district court stated that under the Guidelines petitioner would be subject to two to eight months' imprisonment. Pet. App. C10. /4/ Petitioner's reliance (Pet. 9) on United States v. DeBellis, 649 F.2d 1 (1st Cir. 1981) is thus unavailing because, unlike the situation in DeBellis, petitioner has not been confined for longer than the maximum sentence. Indeed, as discussed, if petitioner were to be held beyond the maximum authorized sentence, the extensive procedure set forth in 18 U.S.C. 4246 would be required. /5/ Petitioner also invokes the Equal Protection Clause to support his argument that he should not have received a sentence longer than that suggested by the Sentencing Guidelines. Pet. 11 n.2. Because it rests on the claim of discrimination between convicted persons suffering from mental illness and other convicted persons, this equal protection argument essentially duplicates petitioner's due process argument, and is controlled by the same principles. See Jones v. United States, 463 U.S. at 362 n.10.