DANIEL ROMAN, PETITIONER V. UNITED STATES OF AMERICA No. 90-7822 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 opinion of the court of appeals (Pet. App. 1a-7a) is unreported, but the judgment is noted at 922 F.2d 834 (Table). JURISDICTION The judgment of the court of appeals was entered on December 26, 1990. Pet. App. 1a. A petition for rehearing was denied on January 23, 1991. Pet. App. 16a. The petition for a writ of certiorari was filed on April 23, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether it was improper for the district court to rely on information in the presentence reports of petitioner's co-defendants to determine whether petitioner was a minor or minimal participant for purposes of Sentencing Guidelines Section 3B1.2. STATEMENT Petitioner pleaded guilty in the United States District Court for the Eastern District of Pennsylvania to charges of conspiring to distribute cocaine and to possess cocaine with the intent to distribute it, in violation of 21 U.S.C. 846, and unlawful use of a telephone to facilitate a drug conspiracy, in violation of 21 U.S.C. 843(b). The district court sentenced petitioner to 63 months' imprisonment, to be followed by a five-year period of supervised release. The court of appeals affirmed. 1. On May 2, 1988, petitioner was arrested for making retail sales of cocaine. The FBI subsequently intercepted two telephone conversations between petitioner and a cocaine distributor named Hernan Londono, in which they discussed petitioner's procuring approximately two kilograms of cocaine for Londono. Pet. App. 2. 2. At the sentencing hearing, petitioner sought a reduction in his offense level because he was a minor or minimal participant in the offense. /1/ Petitioner's counsel argued that each of the co-defendants had been involved in more telephone conversations than petitioner, and that the co-defendants' conversations had involved larger amounts of cocaine. Pet. App. 9a-12a. The government responded that a reduction was inappropriate because the transcripts of petitioner's conversations showed that petitioner was knowledgeable about drug deals, drug contacts, and drug prices. Id. at 13a. The district court rejected petitioner's argument for two separate reasons. First, it noted that the reduction petitioner sought "is used infrequently," generally in cases that "involve a small amount of drugs" as part of "a very large drug smuggling operation." Pet. App. 14a. The court noted that this case was different, because it involved two kilograms of cocaine, which the court characterized as "a relatively large amount of drugs." Ibid. Second, the court rejected petitioner's argument that it should "count up in a mathematical way the number of conversations," because it doubted this approach would "make any sense out of relative culpability." The court then explained: I've read all of the presentence reports of the defendants that have pleaded in this case. * * * I can't conscientiously say that (petitioner) is less culpable than most other participants. He's again an initiator of the conversation in the May 5 transcript: "But listen. What do you want? You want some of the big ones?" And Londono says, "Yeah, brother, right now" and (petitioner's) right in there and it sounds to me like he's right in the middle of the two kilogram conspiracy and he's out looking for it trying to find it so I can't say he's either a minimal or minor participant in the enterprise. Id. at 14a-15a (citation omitted). Petitioner's counsel did not object to the court's statement that it had read the sentencing reports of petitioner's co-defendants. 3. The court of appeals affirmed in an unpublished opinion. Pet. App. 1a-7a. Although petitioner first raised the point in his reply brief, see Pet. C.A. Reply Br. 11-13, the court nevertheless addressed his contention that the district court erred in relying on the presentence reports of petitioner's co-defendants in determining the level of petitioner's participation in the conspiracy. The court of appeals observed: It is apparent to us, from the sentencing hearing transcript, that the district court also relied on the fact that "a relatively large amount of drugs" (two kilograms) was involved and that (petitioner) was the initiator of the conversation with respect to the purchase of cocaine in at least one instance. Therefore, notwithstanding the information in the presentence reports, the district court had a sufficient basis on which to determine that (petitioner) was neither a minor nor minimal participant. Pet. App. 7a. ARGUMENT Petitioner argues (Pet. 7-9) that the decision below is in "apparent conflict" with the decision of the First Circuit in United States v. Curran, 926 F.2d 59 (1991), and that he was unfairly denied an opportunity to examine and challenge information relied on by the district court at sentencing. For several reasons, petitioner's claims do not warrant further review. First, because petitioner's counsel did not object in the trial court to the court's reference to the co-defendants' presentence reports, this case is not a proper vehicle for reviewing petitioner's claim. Petitioner's failure to raise the point in the trial court deprived that court of the opportunity to clarify or explain its ruling in a way that would make clear whether the information from the co-defendants' reports in fact affected the sentence petitioner received. Moreover, the objection would have allowed the court to explain just what information from the reports, if any, it found relevant; that information may well have been known and available to the defendant. Second, because the opinion of the court of appeals is unpublished, it will have no effect on the law in the Third Circuit. The Third Circuit is not bound by its unpublished decisions, so the decision in this case does not make law for the Third Circuit that will bind that court in future cases. Third, without regard to whether it was correct for the district court to refer to the co-defendants' sentencing reports, it is unlikely that the material in those reports had a decisive effect on the district court's decision, because it is clear that petitioner was neither a minimal nor a minor participant in the conspiracy. As the district court pointed out at sentencing during its discussion of petitioner's telephone conversations (Pet. App. 14a-15a): (Petitioner's) right in there and it sounds to me like he's right in the middle of the two kilogram conspiracy and he's out looking for it trying to find it so I can't say he's either a minimal or minor participant in the enterprise. Thus, petitioner's own statements in the course of a negotiation to procure a "relatively large amount of drugs" provided ample support for the court of appeals' conclusion that "notwithstanding the information in the presentence reports, the district court had a sufficient basis" for its determination. Id. at 7a. Accordingly, it is unlikely that the material from the co-defendants' sentencing reports had a decisive effect on the sentencing decision in this case. Finally, whatever the merits of the decision of the First Circuit in Curran, the circumstances of this case are so different from those before the Curran court that it is difficult to conclude that the Curran court would have decided this case differently than the court below. The Curran case involved materials completely unknown to the defendant -- letters from the defendant's victims urging the court to impose a severe sentence. Those materials bore directly on the defendant's culpability and apparently were the basis for the court's decision to impose a sentence greater than the government had requested. By contrast, the information here had only an ancillary effect on petitioner's culpability. Moreover, there is every reason to believe that the information at issue in this case was available to petitioner, because the most damaging information relating to the co-defendants' culpability was recounted in the government's sentencing memorandum, see C.A. App. 160a-174a. Significantly, petitioner sought a reduction of his offense level based on his contention that his participation in the crimes for which he was convicted was materially less than the participation of his co-defendants. To make that argument, petitioner's counsel referred specifically to the factual circumstances of the crimes of those co-defendants. It is not surprising that the district court evaluated that argument by referring to the most complete source of information available regarding the culpability of the co-defendants: their presentence reports. The reference to the co-defendants' presentence reports therefore did not remotely resemble the reliance on victims' letters that were unknown to the defendant in Curran. 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 THOMAS M. GANNON Attorney JUNE 1991 /1/ Sentencing Guidelines Section 3B1.2(a) provides for a four-level decrease in a defendant's offense level if he was a "minimal participant" in the offense. Sentencing Guidelines Section 3B1.2(b) grants a two-level decrease to a defendant who is a "minor participant" in an offense. The comment to these provisions indicates that they apply where a defendant is "substantially less culpable than the average participant" in an offense.