BOBBY LEE HARRIS, PETITIONER V. UNITED STATES OF AMERICA No. 90-7159 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 Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-3a) is not reported, but the judgment is noted at 915 F.2d 1573 (Table). JURISDICTION The judgment of the court of appeals was entered on October 12, 1990. The petition for a writ of certiorari was filed on January 10, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the sentencing court correctly enhanced petitioner's Guideline sentence by two levels for obstructing justice. STATEMENT After a jury trial in the United States District Court for the Middle District of Tennessee, petitioner was convicted of distributing cocaine, in violation of 21 U.S.C. 841(a)(1), and conspiracy to distribute and to possess with intent to distribute cocaine, in violation of 21 U.S.C. 846. Petitioner was initially sentenced without regard to the Sentencing Guidelines to concurrent terms of six years' imprisonment for each offense. The court of appeals upheld petitioner's conviction, but vacated the sentence and remanded for sentencing under the Guidelines. On remand, the district court sentenced petitioner under the Guidelines to 78 months' imprisonment. The court of appeals affirmed the sentence. Pet. App. 1a-3a. 1. While petitioner was incarcerated pending trial, he conspired with his co-defendants to have an informant in the case killed. Evidence of this conspiracy was produced at petitioner's bail hearing before a magistrate on December 4, 1987, C.A. App. 136-137, and again before the district court on appeal from the magistrate's order of detention, id. at 114-203. The evidence showed that on November 20, 1987, petitioner telephoned the Drug Enforcement Administration undercover number he had been given during the investigation. A recording device was connected to that line, and it recorded petitioner's statement to DEA Special Agent Mark Keller that the informant was going to be killed for his connection to the investigation. See Appendix to United States' Response to Defendant's Appeal of Magistrate's Order of Detention (transcript of telephone conversation); cf. C.A. App. 318-331. In addition, Agent Keller testified that he had been approached by an inmate incarcerated in the same jail as petitioner, who informed him that petitioner and his co-defendants met in the jail on a daily basis to plot the informant's murder, and that petitioner had made a call from the jail in an attempt to hire a "contract" killer. C.A. App. 186-188. Assistant U.S. Attorney Peter J. Strianse also submitted an affidavit in camera recounting his conversations with this inmate regarding the plan to kill the informant. Id. at 40-42. Based on this evidence, the magistrate held that petitioner should remain detained pending trial. The district court upheld that ruling. Id. at 167-168. On March 25, 1988, after a jury trial, petitioner was found guilty of conspiracy to distribute cocaine and distribution of cocaine. Although petitioner's offenses occurred after November 1, 1987, the effective date of the Sentencing Guidelines, petitioner was not sentenced under the Guidelines because at the time the Middle District of Tennessee had ruled that the Guidelines were unconstitutional. See United States v. Williams, 691 F. Supp. 36 (M.D. Tenn. 1988) (en banc). The court stated that it would not consider evidence of the defendants' plot to kill the informant in determining the appropriate sentence. C.A. App. 241; see also id. at 232. The court sentenced petitioner to concurrent terms of six years' imprisonment on each count. 2. The court of appeals affirmed petitioner's convictions, but remanded for resentencing under the Guidelines in light of this Court's decision in Mistretta v. United States, 488 U.S. 361 (1989), upholding the constitutionality of the Sentencing Guidelines. Petitioner and his co-defendant Howard Tharpe were resentenced on December 18, 1989. The government requested an upward adjustment of two offense levels for obstruction of justice activity for both defendants under Sentencing Guidelines Section 3C1.1, based on the testimony and corroborating evidence presented at the prior detention hearings. Although the inmate who had provided Agent Keller information regarding petitioner's plan to kill the informant was unavailable at the time of the second sentencing hearing, the sentencing judge stated: "I heard Agent Keller testify and I heard about the conversations in the jail where they were threatening the life of both Agent Keller and the informant. Or hiring a contract killer for him." C.A. App. 266. Counsel for petitioner objected to enhancement for obstruction of justice, stating that the inmate's credibility was suspect and that she did not have a chance to cross-examine the inmate to test his credibility. /1/ Id. at 268. In imposing sentence on co-defendant Howard Tharpe, the court stated: "With respect to obstruction of justice, the informant may lack some credibility but nevertheless the Court finds by a preponderance of the evidence the defendant Tharpe was involved in the discussion stages, at least of obtaining the contract murder of not only the informant but of Mr. Keller." Id. at 280. When sentencing petitioner, the court stated that "with respect to (petitioner), the same rational(e) applies to the obstruction of justice." Id. at 281. Petitioner's base offense level was 28 because the conspiracy offense involved two kilograms of cocaine. Sentencing Guidelines Section 2D1.1 Table(8). He was given a two-level reduction for being a "minor participant" in the offense, Sentencing Guidelines Section 3B1.2(b), and a two-level enhancement for obstruction of justice, Sentencing Guidelines Section 3C1.1, resulting in a total offense level of 28. Because petitioner fell into criminal history category I, the resulting sentencing range was 78-97 months, Sentencing Guidelines Table. Petitioner was sentenced to 78 months' imprisonment. C.A. App. 282. Had petitioner's sentence been calculated without taking his obstruction of justice into account, he would have had an offense level of 26, and the indicated Guidelines sentencing range would have been 63-78 months. 3. The court of appeals affirmed petitioner's Guideline sentence. Pet. App. 1a-3a. It found that "a preponderance of the evidence supports the district court's decision to enhance each defendant's base offense level by two levels for obstruction of justice." Pet. App. 3a. The court also rejected petitioner's claim tha the district court's refusal to consider petitioner's obstruction of justice in imposing the initial, non-Guideline sentence estopped the court from making an adjustment for that behavior under the Guidelines. Pet. App. 2a-3a. ARGUMENT Petitioner renews his argument (Pet. 4-8) that the district court improperly increased his base offense level by two points for obstruction of justice. 1. Petitioner first argues (Pet. 5) that there is insufficient evidence supporting the district court's finding that petitioner conspired with his co-defendants to kill a confidential informant in the case. As every court of appeals has held, disputed questions of fact under the Sentencing Guidelines are to be resolved by a preponderance of the evidence. /2/ The record shows that petitioner's obstruction of justice was proved not only by the testimony of Agent Keller, who relayed what the inmate in petitioner's jail had told him regarding the conspiracy to kill the informant, but also by petitioner's own statements made during the course of a recorded telephone conversation, in which petitioner stated that the informant was a "goner" and had "dug his grave." There was plainly sufficient evidence supporting the district court's conclusion that petitioner attempted to obstruct justice. /3/ 2. Petitioner also complains (Pet. 5-8) that the district court improperly relied on hearsay evidence in finding that petitioner plotted with his co-defendants to kill the informant. Under the Sentencing Guidelines, a sentencing court "may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy." Sentencing Guidelines Section 6A1.3(a); see, e.g., United States v. Byrd, 898 F.2d 451, 452-453 (5th Cir. 1990); United States v. Maddalena, 893 F.2d 815, 820 (6th Cir. 1989). The district court was thus not precluded from relying on the testimony of Agent Keller and the affidavit of Assistant U.S. Attorney Strianse simply because such evidence might have been hearsay. Moreover, this evidence was corroborated by petitioner's own recorded statements that the informant was a "goner." /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 RICHARD A. FRIEDMAN Attorney MAY 1991 /1/ Petitioner was represented by different counsel at the bail hearing held on December 4, 1987, C.A. App. 10 (Doc. Ent. 49), at which evidence of the plan to kill the informant was presented. /2/ See United States v. Castellanos, 904 F.2d 1490, 1494-1495 (11th Cir. 1990); United States v. Wilson, 900 F.2d 1350, 1353-1354 (9th Cir. 1990); United States v. Frederick, 897 F.2d 490, 491-493 (10th Cir.), cert. denied, 111 S. Ct. 171 (1990); United States v. Carroll, 893 F.2d 1502, 1506 (6th Cir. 1990); United States v. Castro, 889 F.2d 562, 569-570 (5th Cir. 1989), cert. denied, 110 S. Ct. 1164 (1990); United States v. Blanco, 888 F.2d 907, 909 (1st Cir. 1989); United States v. Burke, 888 F.2d 862, 869 (D.C. Cir. 1989); United States v. White, 888 F.2d 490, 499 (7th Cir. 1989); United States v. McDowell, 888 F.2d 285, 290-291 (3d Cir. 1989); United States v. Guerra, 888 F.2d 247, 250-251 (2d Cir. 1989), cert. denied, 110 S. Ct. 1833 (1990); United States v. Ehret, 885 F.2d 441, 444 (8th Cir. 1989), cert. denied, 110 S. Ct. 879 (1990); United States v. Urrego-Linares, 879 F.2d 1234, 1237-1238 (4th Cir.), cert. denied, 110 S. Ct. 346 (1989); see also McMillan v. Pennsylvania, 477 U.S. 79, 92 (1986). /3/ Contrary to petitioner's assertion (Pet. 5), Agent Keller specifically testified that petitioner was involved in the jailhouse discussions regarding the plan to kill the informant. C.A. App. 186-188. /4/ Petitioner also argues (Pet. 6) that "(t)he District Court should have been estopped from reversing itself on the issue of obstruction of justice without a causal base." When a non-Guidelines sentence is vacated and the case remanded for resentencing under the Guidelines, the sentencing court cannot be "estopped" from applying the Guidelines correctly because it initially exercised its discretion not to take certain evidence into account in a non-Guidelines context.