GERALD SMALL, PETITIONER V. GOVERNMENT OF THE VIRGIN ISLANDS AND UNITED STATES OF AMERICA No. 90-7135 In The Supreme Court Of The United States October Term, 1990 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 OPINION BELOW The judgment order of the court of appeals (Pet. App. 1-2) is not reported, but the judgment is noted at 922 F.2d 831 (Table). JURISDICTION The judgment of the court of appeals was entered on December 18, 1990. The petition for a writ of certiorari was filed on February 19, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court properly increased petitioner's base offense level under Sentencing Guidelines Section 3C1.1 on the ground that petitioner obstructed justice by repeatedly attacking arresting officers in his efforts to avoid arrest by flight, and later escaping from custody. STATEMENT Following a jury trial in the District Court of the Virgin Islands, petitioner was convicted on one count of possessing cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1); two counts of possessing a controlled substance (cocaine and marijuana) with intent to distribute it, in violation of 19 V.I.C. 604(a)(1); and one count of trafficking in a controlled substance, in violation of 19 V.I.C. 614a(a)(3)(A). He was sentenced to a term of nine years' imprisonment on the federal conviction, to be followed by four years' supervised release. The sentence on his Virgin Islands conviction for possessing cocaine with intent to distribute it was merged with the federal sentence. He was sentenced to a one-year term of imprisonment on his Virgin Islands conviction for possessing marijuana with intent to distribute it, and to three years' imprisonment on the Virgin Islands drug trafficking conviction; both of these sentences were set to run concurrently to the federal sentence. He was also ordered to pay a fine of $50,000. Pet. C.A. App. 13-14. The court of appeals affirmed by judgment order. Pet. App. 1-2. 1. The evidence at trial showed that on March 9, 1989, Virgin Islands police arrived at a gazebo-type structure on St. Croix called "the Pavilion," which had been the subject of community complaints about drug trafficking. Gov't C.A. Supp. App. 53-57. The police conducted a "jumpout raid," in which officers jump out of their vehicles and confront drug dealers. Id. at 55. As the police approached the Pavilion, the men inside froze at first, and then started jumping over the walls and running away. Id. at 59, 105-106, 133-134. Inside the Pavilion, Officer Raphael Berrios encountered petitioner, who was holding two paper bags. When petitioner saw Berrios, he threw the bags onto a bench, and marijuana spilled out of them. Berrios, who was in uniform, identified himself as a police officer and ordered petitioner to "hold it." Gov't C.A. Supp. App. 100-101. Petitioner ran toward Berrios and collided with him, causing both of them to fall. They struggled on the ground, and although another officer had by this time come to Berrios' assistance, petitioner, who was kicking, punching, and thrashing, managed to break free. He ran across the street and knocked down another officer who was trying to stop him. Petitioner fell and struggled with officers on the ground, but again fought his way to his feet. The officers succeeded in handcuffing petitioner only after another long struggle on the ground. They placed him in a police car, but moments later he slipped out of the car and ran away, still handcuffed. He was discovered a short while later hiding in nearby bushes. Id. at 59-64, 76-77, 80-81, 86-87, 96-109, 122-124, 128. A search incident to petitioner's arrest revealed two one hundred-dollar bills in his pocket. Gov't C.A. Supp. App. 96-97. The bags that he had discarded contained 78 grams of crack cocaine, 44 bags of marijuana, and $162 in cash. Id. at 113, 141-142, 170-171. 2. The presentence investigation report recommended that petitioner's offense level of 28 be increased by two points for obstruction of justice under Sentencing Guidelines Section 3C1.1 (Oct. 1987 ed.). The report stated that the probation officer had "information suggesting that the defendant willfully impeded the administration of justice. He engaged the officers and had to be physically restrained, then he escaped from custody." Pet. C.A. App. 33. At sentencing, petitioner objected to the two-point increase, contending that the proof at trial did not establish an escape from custody. Id. at 142-143. The district court agreed with the report's calculation of petitioner's sentencing range and imposed a sentence within that range. Id. at 144-145. 3. On appeal, petitioner challenged his sentence on a new ground. He argued that his conduct had not been calculated to deceive or mislead authorities, or otherwise to willfully interfere with the disposition of criminal charges, and that therefore he had not willfully obstructed or impeded proceedings within the meaning of Guidelines Section 3C1.1 (Oct. 1987 ed.). Pet. C.A. Br. 41-43. The court of appeals affirmed by judgment order. Pet. App. 1-2. The court rejected without discussion petitioner's claim that "the trial court erred in applying the federal sentencing guidelines to (his) sentence." Pet. App. 2. /1/ ARGUMENT Petitioner renews his claim (Pet. 7-9) that his efforts to avoid arrest did not constitute obstruction of justice within the meaning of the 1987 version of the Sentencing Guidelines. Sentencing courts are required to increase a defendant's offense level by two levels if the defendant "willfully impeded or obstructed, or attempted to impede or obstruct, the administration of justice during the investigation, prosecution, or sentencing of the instant offense." Guidelines Section 3C1.1 (Nov. 1990 ed.). At the time petitioner was sentenced, the Commentary to that section stated that the two-point increase was intended to apply to a defendant who engages in conduct calculated to mislead or deceive authorities or those involved in a judicial proceeding, or otherwise to willfully interfere with the disposition of criminal charges, in respect to the instant offense. /2/ The courts of appeals that have addressed the issue in the context of the pre-November 1990 changes to this section of the Guidelines have concluded that, while "instinctual flight" cannot alone be considered willful obstruction of justice, fleeing from arrest can, depending on its "duration or acts occurring in the course thereof, ripen() into a willful attempt to impede or obstruct the administration of justice." United States v. Stroud, 893 F.2d 504, 507 (2d Cir. 1990); see also United States v. Mondello, 927 F.2d 1463, 1466 (9th Cir. 1991); United States v. Hagan, 913 F.2d 1278, 1284-1285 (7th Cir. 1990); cf. United States v. Paige, 923 F.2d 112, 114 (8th Cir. 1991) (noting "instinctual flight" cases, and finding that lengthy car chase to avoid arrest, in which numerous individuals were endangered and evidence was thrown out of the car window, constituted willful obstruction under Section 3C1.1). /3/ In this case, petitioner did not merely run from the police officers; he attacked them repeatedly in a sustained effort to prevent them from arresting him for possession of the drugs that Officer Berrios found him carrying. /4/ Moreover, petitioner's efforts to obstruct justice did not end with his arrest: when petitioner had finally been subdued, handcuffed, and placed in a police vehicle, he again escaped from custody and ran away, only to be found later hiding in nearby bushes. Thus, even under the current version of Section 3C1.1, petitioner's conduct would qualify him for a two-level increase for obstruction of justice. See Guidelines Section 3C1.1, Application Note 3(e) (Nov. 1990 ed.) ("escaping or attempting to escape from custody before trial or sentencing" constitutes obstruction of justice); see also United States v. Valdiosera-Godinez, No. 90-8212, slip op. at 4147 (5th Cir. May 23, 1991) (escape or attempted escape can constitute obstruction of justice under 1987 version of the Guidelines). In light of these circumstances, the district court's conclusion that petitioner's conduct in this case triggered an increase for obstruction of justice does not warrant this Court's review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General VICKI S. MARANI Attorney JUNE 1991 /1/ The court also summarily rejected petitioner's claims that there was insufficient evidence to support his convictions, that the trial judge erred in failing to grant a mistrial at several points in the trial, and that his trial counsel had been ineffective. Pet. App. 1-2. /2/ That portion of the Commentary was deleted effective November 1, 1990. See Sentencing Guidelines, App. C., amend. 347, at C.190. /3/ The Application Notes to Guidelines Section 3C1.1 have been amended, effective November 1, 1990, to provide that "avoiding or fleeing from arrest" does not warrant application of an adjustment unless the defendant "recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer." Guidelines Section 3C1.2. If the defendant avoids or flees from arrest without creating such a risk, such conduct is now to be sanctioned "by the determination of the particular sentence within the otherwise applicable guideline range." Guidelines Section 3C1.1, Application Note 4(d); Sentencing Guidelines, App. C., amend. 347, at C.191-192. The question presented in this petition is therefore of no continuing importance. /4/ It is of no consequence that petitioner's behavior is not listed as an example of obstruction of justice in Application Note 1 of the Commentary to Guideline Section 3C1.1 (Oct. 1987 ed.). That list is expressly not intended to be exclusive.