CATHERINE PONCE, PETITIONER V. UNITED STATES OF AMERICA No. 89-536 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 TABLE OF CONTENTS Questions presented Opinion below Jurisdiction Statement Argument Conclusion OPINION BELOW The order of the court of appeals reversing petitioner's sentence and remanding for resentencing (Pet. App. 1a) is not yet reported. JURISDICTION The judgment of the court of appeals was entered on March 31, 1989. A petition for rehearing was denied on July 26, 1989 (Pet. App. 1b). The petition for a writ of certiorari was filed on September 5, 1989. The jurisdiction of this Court is invoked under 18 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the decision below, which vacated petitoner's sentence and remanded for resentencing under the federal sentencing guidelines, violated petitioner's rights under the Double Jeopardy Clause because she had already served the initially imposed period of imprisonment. 2. Whether the government waived its objection to the district court's failure to sentence under the sentencing guidelines, and whether the government's appeal of petitioner's sentence was based on discriminatory motives. STATEMENT Petitioner pleaded guilty in the United States District Court for the Central District of California to one count of conspiring to distribute cocaine, in violation of 21 U.S.C. 846. Although her offense was committed after the effective date of the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq. (1982 & Supp. IV 1986), she was sentenced under provisions of prior law to a term of 10 years' imprisonment, all but six months of which was suspended in favor of five years' probation. The government appealed that sentence on the grounds that it violated the Sentencing Reform Act of 1984 and that the sentence was illegal under prior law. Petitioner then began to serve her sentence. After this Court held in Mistretta v. United States, 109 S. Ct. 647 (1989), that the Sentencing Reform Act, 18 U.S.C. 3551 et seq. (1982 & Supp. IV 1986) and 28 U.S.C. 991-998 (1982 & Supp. IV 1986), and the Federal Sentencing Guidelines are constitutional, the court of appeals on its own motion reversed petitioner's sentence and remanded to the district court for resentencing. Pet. App. 1a. Petitioner has not yet been resentenced. ARGUMENT 1. Petitioner contends (Pet. 9-10) that because she was sentenced during a period when the Sentencing Reform Act of 1984 had been held unconstitutional in the Ninth Circuit, and because she has served the custodial portion of her sentence, she cannot now be resentenced. There is no merit to that claim. Contrary to her argument, petitioner could not have had any expectation of finality in her sentence. In United States v. DiFrancesco, 449 U.S. 117 (1980), this Court held that a sentence in a criminal case does not enjoy the same finality as an acquittal, and that consequently the Double Jeopardy Clause does not prohibit the government from appealing a sentence. Id. at 132-136. The Court also recognized that the Clause "does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be." Id. at 137. Hence, the Court held, the Clause is not violated by an increase in a defendant's sentence on appeal. Id. at 138. In so ruling, the Court rejected the rule of older cases that a defendant's sentence may not be increased after he has begun to serve it. Instead, the Court held that when "Congress has specifically provided that the sentence is subject to appeal(,) * * * there can be no expectation of finality in the original sentence." Id. at 139. See also Pennsylvania v. Goldhammer, 474 U.S. 28, 30 (1985). In the Sentencing Reform Act of 1984 Congress explicitly provided for appeals by the government of defendants' sentences that were imposed in violation of the sentencing guidelines. See 18 U.S.C. 3742(b) (Supp. IV 1986). Consequently, it does not matter that petitioner has served the custodial portion of the sentence that the district court originally imposed. The court of appeals recognized that the district court's sentence was invalid, because it was not imposed pursuant to the requirements of the Sentencing Reform Act of 1984. Pet. App. 1a. Since the sentence was illegal, petitioner was on notice that it could be corrected on appeal. Moreover, in United States v. Kane, 876 F.2d 734, 736, cert. denied, 110 S. Ct. 173 (1989), the Ninth Circuit expressly recognized that at the time it held the Sentencing Reform Act of 1984 unconstitutional, in Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (1988), this Court already had granted certiorari in Mistretta. As a result, "it was apparent that the Supreme Court might soon overrule the basis for the district court's refusal (to sentence under the sentencing guidelines, and defendants were) * * * also on notice that government appeals for misapplication of the guidelines were expressly authorized in the Sentencing Reform Act. * * * The combined force of these circumstances precluded any reasonable expectation" that defendants' sentences were immune from modification in the event the Supreme Court upheld the constitutionality of the new sentencing system. 876 F.2d at 737. In short, petitioner was on notice from the outset that her sentence was not final and that it could be modified in the event that this Court upheld the Sentencing Reform Act of 1984 in Mistretta. Since that is precisely what took place, the Double Jeopardy Clause does not prevent resentencing. 2. Petitioner also argues (Pet. 11-13) that the government did not timely object to the district court's failure to sentence her under the sentencing guidelines, and that the government is treating her in a discriminatory fashion by appealing her sentence while not appealing the sentences of others who were sentenced under the prior scheme even though they too should have been sentenced under the federal sentencing guidelines. a. The government was not required to "object" to the district court's failure to sentence petitioner in accordance with the sentencing guidelines. If the district court had imposed a sentence in this case consistent with the sentence that would have been required under the guidelines, the government would have had no basis for objection or appeal. That would be so even if the sentencing court regarded the guidelines as non-binding because of the prior decision of the court of appeals holding the Sentencing Reform Act of 1984 to be unconstitutional. See Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988). Thus, the injury to the government arose not from the district court's refusal to sentence under the guideline framework, but from its decision to impose a sentence much lower than the guidelines would have required. That injury did not occur until the district court announced its sentence, at which point the government was entitled under 18 U.S.C. 3742(b) (Supp. IV 1986) to seek appellate review of the sentence. /1/ b. It is true that the government has not taken an appeal in every case in which a district court imposed a sentence below the guidelines. Contrary to petitioner's contention (Pet. 12-13), however, there is nothing improper in that exercise of discretion, and it certainly does not suggest that the decision to take an appeal in petitioner's case denied her the equal protection of the law. The sentence imposed in petitioner's case was a very short sentence (six months' incarceration) for a serious drug offense. While the government has declined to take appeals from sentences that closely approximated the sentences that would have been imposed under the guidelines or in which other factors counseled against an appeal, petitioner has offered nothing to suggest that the decision to appeal the sentence in her case was based on any impermissible factor that could give rise to a valid equal protection or due process claim. /2/ 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 LOUIS M. FISCHER Attorney NOVEMBER 1989 /1/ It is certainly not true, as petitioner contends, that at the time of petitioner's sentencing, the government "merely assumed the Guidelines were unconstitutional." Pet. 11. At the time of the sentencing, the government was litigating that issue in this Court and had sought rehearing en banc of the court of appeals' decision striking down the guidelines on constitutional grounds. In addition, the government had litigated the issue of the constitutionality of the guidelines in the district court in which petitioner was sentenced and was taking appeals in other cases from that court in which the sentences, like the sentence in this case, were inconsistent with the requirements of the guidelines. /2/ Petitioner also argues (Pet. 7-8) that the court of appeals' summary reversal violated her due process rights. That claim obviously does not warrant further review. Not every case must be decided after full briefing by the parties, particularly when, during the pendency of the appeal, this Court has decided a case that requires reversal of the district court's judgment.