STANLEY PHARR, PETITIONER V. UNITED STATES OF AMERICA No. 90-7382 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-6a) is reported at 916 F.2d 129. JURISDICTION The judgment of the court of appeals was entered on October 19, 1990. Pet. App. 8a. A petition for rehearing was denied on November 30, 1990. Id. at 7a. The petition for a writ of certiorari was filed on March 13, 1991, and is therefore out of time under Rule 13.1 of the Rules of this Court. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court correctly departed downward from the applicable Sentencing Guidelines range on the basis of petitioner's successful drug rehabilitation. STATEMENT Following his plea of guilty in the United States District Court for the Eastern District of Pennsylvania, petitioner was convicted of selling a stolen United States Treasury check in violation of 18 U.S.C. 510(b) (Count 1), and of possessing stolen mail, in violation of 18 U.S.C. 1708 (Count 2). The district court sentenced him to concurrent terms of five years' probation on each count, and ordered him to pay $1,200 in restitution. Pet. App. 9a-14a. The court of appeals reversed petitioner's sentence and remanded for resentencing. Id. at 1a-6a, 8a. 1. On four occasions from April 13, 1988 to August 1, 1988, petitioner sold a stolen United States Treasury check to a United States Postal Inspector acting in an undercover capacity. On June 14, 1988, petitioner sold a stolen United States money order to the undercover inspector, and on September 6, 1988, petitioner attempted to sell the inspector a stolen School District of Philadelphia check. Petitioner stipulated to these transactions in his plea agreement; the total face value of the stolen instruments was $4,565.66. Gov't C.A. Br. 4. The probation office calculated petitioner's adjusted offense level from Sentencing Guideline Section 2F1.1, which applied to both offenses of conviction and provided for a base offense level of six, an increase of one level for offenses involving losses between $2,000 and $5,000, and an increase of two levels for offenses involving more than minimal planning. Accordingly, the probation office calculated petitioner's adjusted offense level as nine. Gov't C.A. Br. 4. Following his arrest, petitioner had admitted his offenses and provided the government with information about his role in them. In the plea agreement, the government and petitioner stipulated that petitioner was entitled to a two-level decrease in his offense level for acceptance of responsibility under Guideline Section 3E1.1. The parties, however, acknowledged that this stipulation did not bind either the probation office or the district court. Gov't C.A. Br. 4-5. After entering his guilty plea, petitioner stated that a heroin addiction had caused him to commit his offenses. He entered and completed an inpatient drug treatment program. On the basis of the stipulation in the plea agreement and petitioner's completion of the treatment program, the probation office recommended that petitioner's total offense level be reduced by two levels for acceptance of responsibility. Gov't C.A. Br. 5. Petitioner's criminal record was extensive. The probation office assigned criminal history points for two 1972 larceny convictions, a 1975 robbery conviction, a 1975 attempted extortion conviction, a 1983 theft conviction, and a 1988 theft conviction, but did not assign points for a 1968 larceny conviction, a 1969 conviction for assault with a deadly weapon, and ten pending retail theft cases from 1989. Petitioner's criminal history score placed him in criminal history category VI. When this category was coupled with petitioner's total offense level of seven, the resulting Guidelines range was 15-21 months' imprisonment. Gov't C.A. Br. 5. 2. At petitioner's sentencing, the district court adopted as applicable the Guidelines range recommended by the probation office. It determined, however, to depart downwards from this range and sentenced petitioner to a five-year term of probation, requiring petitioner to make restitution as a condition of probation. Gov't C.A. Br. 5-6. The court stated its reasons for the downward departure as follows (C.A. App. 69a-72a): I think the concept of "guidelines" is totally false. I think that it has robbed judges to a large extent of their discretion. It has treated human beings as numbers and as calculi in a book where you press numbers, as pointed out, and out comes a Sentence. There was a rhyme, a line rather I think in the Mikado, which was: "Let the punishment fit the crime." That's not so. That's pure false penology. The punishment should fit the "man" and not the "crime." I see before me a man who is making a conscientious effort to overcome a pernicious habit, and a habit which contributes to the economic ill-being of the community, giving it up, and thereby restoring another member to the community, and removing ever so small a drop perhaps of the contribution of the drug trade to the detriment of the community. To interrupt that, send him to jail, where I believe, I do not believe the drug treatment is adequate, but even if it might be, why should we take the chance on getting inadequate treatment when we know that he is getting adequate treatment, which has beneficial results. The Guidelines haven't taken into consideration these things. The Guidelines that I know of have not, although they have talked about addiction not being a defense, that's true, but that's not what we're talking about here. We're talking about whether the "separation" from addiction is a factor to be considered in Sentencing. I think it should be, and I think -- until I'm told differently -- I will consider the things that I think the Guidelines have not considered, and that is: The human being, the efforts that the human being has made. When the Guidelines were drawn up, the Sentencing Commission didn't have "flesh and blood" standing in front of them waiting to see what Sentence was going to be imposed. They didn't have standing before them "flesh and blood," who on his own went into a treatment program, well, who continued with the treatment until he has been shown to be, for some months in all events, drug-free. I think that this is a case which deserves probation. It's a departure I know and I think the departure is well justified by the circumstances of this case, which I don't think the Sentencing Commission considered in labeling the push-buttons which it proposes for the arrival at a Sentence. * * * * * I think that it would do the community more good, would do this defendant more good, under any consideration, to put him on probation and to continue his drug program rather than putting him in jail and separating him from that successful or apparently successful treatment and, therefore, I'm going to depart to the extent from the Guidelines. * * * * * You point out in (petitioner's) Sentencing Memorandum what I think I have touched on, and that is that the drug rehabilitation "before Sentencing" took place in this case and that this is a factor not adequately considered or at all by the Sentencing Guidelines, and I considered that too, which was not considered by the Sentencing Guidelines in my judgment. 3. The court of appeals reversed. Pet. App. 1a-6a. It first held that the district court's adoption of a two-level reduction in petitioner's total offense level did not bar it from subsequently departing downwards from the applicable Sentencing Guidelines range. Id. at 3a-4a. It concluded, however, that in light of the objectives of the Sentencing Guidelines and the policy statements issued by the Sentencing Commission, drug rehabilitation efforts and their potential interruption by incarceration were not appropriate grounds for departure from the Sentencing Guidelines. Id. at 4a-6a. The court reasoned that, in authorizing the Guidelines system, Congress had adopted a system of penology that emphasizes fair punishment rather than rehabilitation, and that, in doing so, Congress had limited the consideration that sentencing courts could give to a defendant's personal characteristics. Pet. App. 4a-5a. The court observed that the Sentencing Commission had provided, in U.S.S.G. Section 5H1.4 (policy statement), that "'drug dependence or alcohol abuse is not a reason for imposing a sentence below the guidelines,'" and interpreted this statement to mean that "separation from such a dependency" is also not a basis for departure. Pet. App. 5a. The court noted that a contrary conclusion would, to some extent, actually reward a defendant for his prior drug addiction. Ibid. The court of appeals thus concluded that the district court erred in basing its departure on petitioner's drug rehabilitation efforts. Id. at 5a-6a. The court similarly rejected the district court's related justification that incarceration could interrupt such efforts. Id. at 6a. ARGUMENT Petitioner contends (Pet. 11) that the court of appeals erred when it ruled that the district court's downward departure on the basis of petitioner's drug rehabilitation was inappropriate. In support of this contention, petitioner alleges that the court of appeals misconstrued U.S.S.G. Section 5H1.4 (policy statement), and erroneously accorded it controlling authority. Petitioner's contention is without merit, and does not warrant review. In pertinent part, the Sentencing Reform Act of 1984 provides (18 U.S.C. 3553(b)): The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. This provision is mandatory. "No departure is permitted on the basis of circumstances adequately taken into consideration by the Sentencing Commission." United States v. Uca, 867 F.2d 783, 786 (3d Cir. 1989); accord, United States v. Medeiros, 884 F.2d 75, 78 (3d Cir. 1989). Whether a circumstance is of a kind or to a degree that may justify departure is a question of law. United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, 110 S. Ct. 177 (1989). At petitioner's sentencing, the district court found (C.A. App. 72a) that "drug rehabilitation 'before Sentencing' * * * is a factor not adequately considered or at all by the Sentencing Guidelines." The court of appeals correctly determined that this ruling was mistaken. Under the Guidelines, sentencing is to be based on the offense committed, not on the characteristics of the offender. United States v. Reed, 882 F.2d 147, 151 (5th Cir. 1989); United States v. Burch, 873 F.2d 765, 768-769 (5th Cir. 1989). Personal characteristics of a defendant -- age, education and vocational skills, physical condition (including drug dependence and alcohol abuse), employment record, and family and community ties -- are not ordinarily relevant in determining whether a sentence should be outside the Guidelines. See U.S.S.G. Ch. 5, Pt. H. Indeed, Congress has instructed the Sentencing Commission to ensure that its Guidelines and policy statements reflect the general inappropriateness of considering various offender characteristics in determining whether a term of imprisonment should be imposed or the length of such a term. See 28 U.S.C. 994(e). /1/ As the court of appeals noted, moreover, the Guidelines policy statement plainly states that "(d)rug dependence or alcohol abuse is not a reason for imposing a sentence below the guidelines." U.S.S.G. Section 5H1.4 (policy statement). The decision of the court of appeals was fully consistent with these policies. Since drug dependency is a personal characteristic not relevant to sentencing under the Guidelines, freedom from drug dependency is likewise an irrelevant personal characteristic. And just as petitioner's drug-free status was not relevant to sentencing under the Guidelines, neither was the issue whether he would derive more benefit from imprisonment or probation. Thus, contrary to petitioner's contention (Pet. 11-12), the court of appeals properly interpreted U.S.S.G. Section 5H1.4 (policy statement), to embrace not only drug dependency but also separation from drug dependency as physical conditions not relevant in determining whether a departure from the Guidelines was warranted. Pet. App. 5a. Petitioner is also mistaken when he asserts (Pet. 11-12) that the court of appeals erroneously gave the policy statement controlling authority. The court acknowledged that policy statements do not have the same binding effect as Guidelines. Pet. App. 5a n.5. It simply chose to follow, rather than disregard, the guidance provided by the Sentencing Commission in the policy statement. Ibid. /2/ While petitioner's rehabilitation is obviously praiseworthy, it occurred after his arrest and, in all likelihood, in response to that arrest. Accordingly, it is most appropriately recognized, like other constructive post-arrest conduct, by a downward adjustment for acceptance of responsibility under Guideline Section 3E1.1. See United States v. Van Dyke, 895 F.2d 984, 986-987 (4th Cir.) (consideration of post-offense conduct, including drug rehabilitation, limited to application of adjustment for acceptance of responsibility), cert. denied, 111 S. Ct. 112 (1990); cf. United States v. Scroggins, 880 F.2d 1204, 1215-1216 (11th Cir. 1989) (defendant's continued, post-arrest drug use was a proper basis for denying an adjustment for acceptance of responsibility), cert. denied, 110 S. Ct. 1816 (1990); United States v. Weidner, 703 F. Supp. 1350, 1354 (N.D. Ind. 1988) (acceptance of responsibility adjustment denied because, among other things, the defendant had tested positive for post-arrest drug use), aff'd, 885 F.2d 873 (7th Cir. 1989). Although the court of appeals stated that it "part(ed) company" with United States v. Maddalena, 893 F.2d 815 (6th Cir. 1989), and with decisions of several district courts (Pet. App. 4a), no conflict requiring this Court's review is presented. In Maddalena, 893 F.2d at 818, the district court had believed that it lacked authority to consider mitigating circumstances, such as the defendant's efforts to avoid drugs, as a basis for departing from the Guidelines. The Sixth Circuit remanded to the district court wiht instructions that it could, but need not, consider the defendant's efforts to avoid drugs as a basis for departure. Ibid. The Sixth Circuit thus had no occasion to consider either an actual departure on drug rehabilitation grounds or the specific circumstances in which such a departure would be justified. The present case is in a different posture: the district court in fact departed downward from the Guidelines because of petitioner's drug rehabilitation efforts. /3/ Contrary to petitioner's contention (Pet. 12-13), moreover, there also is no conflict warranting review presented by United States v. Sklar, 920 F.2d 107 (1st Cir. 1990). Indeed, the court in Sklar emphasized that "the mere fact of demonstrated rehabilitation between date of arrest and date of sentencing cannot form the basis for a downward departure from the (Sentencing Guidelines range)." Id. at 116. While the court acknowledged the theoretical possibility that "meaningfully atypical rehabilitation" might justify a departure, it reversed the district court and held that the defendant's rehabilitative efforts, including successful completion of a residential substance abuse program, did not warrant departure. Id. at 117. In the present case, because the district court flatly rejected the penology of the Guidelines, it did not reach the question of whether petitioner's efforts, while plainly commendable, in fact constituted "meaningfully atypical rehabilitation." Rather than perceiving a conflict, moreover, the Sklar court itself explicitly cited the court of appeals decision in this case with approval. 920 F.2d at 117. Accordingly, petitioner does not raise a conflict warranting review by this Court. /4/ 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 MAY 1991 /1/ This congressional instruction was expressly acknowledged in a clarifying amendment to the introductory commentary to Chapter 5, Part H of the Guidelines that became effective on November 1, 1990, after petitioner was sentenced. See U.S.S.G. Ch. 5, Pt. H, intro. comment. /2/ The district court's disagreement with the penological theory embodied in the Guidelines is obviously not a valid ground for departure. United States v. Lopez, 875 F.2d 1124, 1126-1127 (5th Cir. 1989). Moreover, because the court of appeals ruled that the district court's grounds for departure were inadequate as a matter of law, it had no occasion to review any factual findings by the district court and, contrary to petitioner's suggestion (see Pet. 12), did not fail to accord appropriate deference to the district court's fact-finding role. See United States v. Diaz-Villafane, 874 F.2d at 49 (first step in appellate review of Guidelines departures is legal determination, subject to plenary appellate review, whether circumstances on which district court relied were of a kind or degree to warrant departure). /3/ The particular context in which the issue arose in Maddalena further distinguishes that decision. In Maddalena, the defendant satisfied the definition of a career offender under Guidelines Section 4B1.1, which requires that a defendant convicted of a violent or controlled substance felony be placed in the highest criminal history category if he has two prior violent or controlled substance felony convictions. Maddalena therefore received a sentence substantially longer than the one he would have received absent the career offender finding. He presented evidence that between the commission of the prior felonies and the offense for which he was sentenced, he made extensive efforts to overcome a drug dependency. See 893 F.2d at 816-818. The court of appeals' decision thus allows a district court to consider pre-offense behavior to moderate the effect of the career offender provision; it does not, however, necessarily authorize a district court to consider post-offense efforts at rehabilitation as a justification for departing downward from the appropriate Guidelines range. /4/ The other appellate decisions relied on by petitioner (Pet. 14-15) do not concern drug-dependency related claims. Although the Guidelines policy statements provide that many other personal characteristics are not "ordinarily relevant," the policy statements provide, as noted, that "(d)rug dependence" simply "is not a reason for imposing a sentence below the guidelines." U.S.S.G. Section 4H.1 (policy statement). Petitioner also relies (Pet. 13) on three district court decisions. Any conflict between the court of appeals and these district courts, however, does not itself merit certiorari. See R. Stern, E. Gressman & S. Shapiro, Supreme Court Practice Section 4.8 (6th ed. 1986). In view of the relatively recent nature of the pertinent court of appeals decisions, moreover, and the possible lack of clarity regarding their precise scope, it is likely that further consideration in the lower courts will clarify the issues.