AUDREY GRAVES, PETITIONER V. UNITED STATES OF AMERICA No. 90-7528 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 Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-3a) is not reported. JURISDICTION The judgment of the court of appeals was entered on December 26, 1990. A petition for rehearing was denied on February 11, 1991. Pet. App. 1b-2b. The petition for a writ of certiorari was filed on March 27, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the Sentencing Guidelines apply to a conspiracy that commenced before, but continued after, the effective date of the Sentencing Reform Act of 1984. 2. Whether application of the Sentencing Guidelines to a conspiracy that commenced before, but continued after, the effective date of the Sentencing Reform Act of 1984 violates the Ex Post Facto Clause of the Constitution. 3. Whether the requirement of the Sentencing Guidelines that the base offense level for offenses involving Dilaudid be calculated from the gross weight of the tablets containing the controlled substance, instead of the net weight of the active ingredients, is consistent with the Controlled Substances Act. STATEMENT Following a jury trial in the United States District Court for the District of Maryland, petitioner was convicted of conspiring to distribute and to possess Dilaudid with the intent to distribute it, in violation of 21 U.S.C. 846 (Count 1), and of seven counts of possessing Dilaudid with the intent to distribute it, in violation of 21 U.S.C. 841(a) (Counts 2-8). The district court sentenced her to concurrent terms of 135 months' imprisonment on each count, to be followed by a three-year period of supervised release, and imposed special assessments of $400. /1/ The court of appeals affirmed. Pet. App. 1a-3a. 1. The evidence at trial, the sufficiency of which is not in dispute, showed that petitioner was a member of a Dilaudid script ring that operated from April 1986 to December 1987. Members of the ring traveled to 13 different cities across the United States, using forged prescriptions to obtain Dilaudid from pharmacies. Gov't C.A. Br. 1-2. The conspirators obtained physicians' names and DEA numbers by stealing legitimate prescription forms from doctors' offices, or by calling doctors' offices while posing as pharmacists and telling the receptionists that the doctors had failed to place their DEA numbers on prescriptions. The ring often obtained physicians' DEA numbers from receptionists through this ruse. After obtaining a doctor's name and DEA number, the ring would hire an answering service in the doctor's name with a false address. The answering service would respond to any calls to the doctor's office from suspicious pharmacists. Using the doctor's name and DEA number, the ring purchased preprinted prescription forms. Two members of the ring, Teri Meitinger and Stephanie Short, forged prescriptions for Dilaudid on the forms using the appropriate medical terms and abbreviations. Gov't C.A. Br. 2. /2/ After the prescriptions were forged, Meitinger and Short gave them to various people who served as "walkers," i.e., they walked into pharmacies with the forged prescriptions, posed as patients, and obtained 100-pill bottles of Dilaudid, paying $40-$50 per bottle. When the members of the ring obtained several hundred pills by this means, they sold the pills to petitioner in Chicago for $1,600-$1,800 per bottle. Another member of the ring, Ronald Jorgensen, would fly the pills to Chicago and return with the money that petitioner paid for them, or petitioner herself would fly to various cities, e.g., Las Vegas, Nevada, Charlotte, North Carolina, and Albuquerque, New Mexico, to pick up Dilaudid pills. Petitioner would resell the pills to Carl Kinsey, who distributed them in Knoxville, Tennessee. Gov't C.A. Br. 2-4. DEA agents recovered many of the scripts that the ring had passed in the course of the conspiracy. Each script was for 100 tablets of four milligrams of Dilaudid each. The total weight of the tablets represented by the recovered prescriptions exceeded 1,125 grams, including at least 50 grams of pure Dilaudid. Gov't C.A. Br. 5. 2. After the jury returned its verdict, petitioner moved to have the court impose sentence under the law in place before the Sentencing Guidelines went into effect. She contended that her offenses occurred before the Guidelines were promulgated and went into effect, and that sentencing her under the Guidelines would violate the Ex Post Facto Clause of the Constitution. C.A. App. 24-26. At petitioner's sentencing, the district court granted the motion with respect to Counts 2-5, involving charges of Dilaudid possession with intent to distribute on September 26, and October 5, 16, and 27 of 1987, which occurred before the Guidelines went into effect on November 1, 1987. At the same time, the court denied the motion with respect to Count 1, which involved a Dilaudid distribution conspiracy extending from April 1986 to December 1987, and in connection with Counts 6-8, which involved charges of possessing Dilaudid with the intent to distribute it on November 4, 17, and 28 of 1987, after the Guidelines went into effect. Pet. App. 7; C.A. App. 34-38, 408-413. 3. The court of appeals affirmed. Pet. App. 1a-3a. Relying on United States v. Sheffer, 896 F.2d 842 (4th Cir.), cert. denied, 111 S. Ct. 432 (1990), the court rejected petitioner's contentions that the Ex Post Facto Clause prohibited application of the Sentencing Guidelines to "straddle" conspiracies that began before the effective date of the Guidelines and continued after it, and that the same clause prohibited the district court, in calculating petitioner's base offense level, from considered the weight of drugs distributed by the conspiracy prior to the effective date of the Guidelines. Pet. App. 2a-3a. /3/ ARGUMENT The questions presented in the petition are identical to the questions presented in the petition filed by one of petitioner's co-conspirators, Teri Meitinger, which this Court has already denied. United States v. Meitinger, 901 F.2d 27 (4th Cir.), cert. denied, 111 S. Ct. 519 (1990) (No. 90-5116). For the reasons given in our brief in opposition in that case (a copy of which has been provided to petitioner's counsel), the petition in this case should also be denied. 1. Petitioner contends that the Sentencing Guidelines do not apply to this "straddle" conspiracy, because some of her conduct occurred before the November 1, 1987, effective date of the Guidelines. Pet. 16-17, 21-28. This contention is without merit. The text of the Sentencing Reform Act of 1984, as amended, provided that it would take effect (with certain exceptions not relevant here) "on the first day of the first calendar month beginning 36 months after the date of enactment (October 16, 1984)," i.e., November 1, 1987. The Sentencing Reform Act of 1984, Pub. L. No. 98-473, Tit. II, ch. II, Section 235(a)(1), 98 Stat. 2031, as amended by the Sentencing Reform Amendments Act of 1985, Pub. L. No. 99-217, Section 4, 99 Stat. 1728, and the Criminal Law and Procedure Technical Amendments Act of 1986, Pub. L. No. 99-646, 100 Stat. 3599. /4/ On December 7, 1987, Congress amended the Act to specify that it "shall apply only to offenses committed after the taking effect of (the Sentencing Reform Act)." The Sentencing Act of 1987, Pub. L. No. 100-182, Section 2(a), 101 Stat. 1266. Interpreting those statutes, the courts of appeals have uniformly held that the Sentencing Reform Act of 1984 and the Sentencing Guidelines apply to so-called "continuing" or "straddle" offenses, i.e., offenses that commenced before, but continued after November 1, 1987. See, e.g., United States v. Thomas, 895 F.2d 51, 57 (1st Cir. 1990); United States v. Story, 891 F.2d 988, 991-995 (2d Cir. 1989); United States v. Rosa, 891 F.2d 1063, 1068-1069 (3d Cir. 1989); United States v. Sheffer, 896 F.2d 842, 844-845 (4th Cir.), cert. denied, 111 S. Ct. 432 (1990); United States v. White, 869 F.2d 822, 826 (5th Cir.), cert. denied, 109 S. Ct. 3172 (1989); United States v. Walton, 908 F.2d 1289, 1299-1300 (6th Cir.), cert. denied, 111 S. Ct. 532 (1990); United States v. Stewart, 865 F.2d 115, 118 (7th Cir. 1988); United States v. Wayne, 903 F.2d 1188, 1196-1197 (8th Cir. 1990); United States v. Gray, 876 F.2d 1411, 1418 (9th Cir. 1989), cert. denied, 110 S. Ct. 2168 (1990); United States v. Williams, 897 F.2d 1034, 1040 (10th Cir. 1990); United States v. Pippin, 903 F.2d 1478, 1480-1482 & n.2 (11th Cir. 1990). Those cases are consistent with the well settled rule that a statute increasing the punishment for an offense, such as a conspiracy, applies to any such offense that continues past the date of the new statute. See, e.g., United States v. Borelli, 336 F.2d 376, 386 n.5 (2d Cir. 1964) (Friendly, J.), cert. denied, 379 U.S. 960 (1965), and cases cited infra. /5/ Petitioner's reliance on the legislative history of the Sentencing Act of 1987 is misplaced. Although the courts of appeals have noted that there is some conflict in the legislative history, every court that has examined the legislative history has concluded that the Sentencing Reform Act of 1984 applies to continuing offenses. See United States v. Pippin, 903 F.2d at 1480 n.2; United States v. Tharp, 892 F.2d 691, 693-695 (8th Cir. 1989); United States v. Story, 891 F.2d at 994-995. There is also no merit to petitioner's Ex Post Facto claim. The circuits have uniformly held that application of the Guidelines to a so-called "continuing" or "straddle" offense does not violate the Ex Post Facto Clause. See, e.g., United States v. Story, 891 F.2d at 995; United States v. Rosa, 891 F.2d at 1068-1069; United States v. Sheffer, 896 F.2d at 845; United States v. Boyd, 885 F.2d 246, 248 (5th Cir. 1989); United States v. Walton, 908 F.2d at 1299-1300; United States v. Stewart, 865 F.2d at 118; United States v. Wayne, 903 F.2d at 1196-1197; United States v. Pippin, 903 F.2d at 1480-1482. Those decisions are correct. In the sentencing context, the Ex Post Facto Clause prohibits Congress from enacting a law that "changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed." Miller v. Florida, 482 U.S. 423, 429 (1987) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (opinion of Chase, J.)). See also Collins v. Youngblood, 110 S. Ct. 2715, 2719 (1990); Dobbert v. Florida, 432 U.S. 282, 292 (1977). A conspiracy begins with the initial agreement to violate the law and continues until all its objectives are achieved or abandoned. See Fiswick v. United States, 329 U.S. 211, 216 (1946); United States v. Kissel, 218 U.S. 601, 607-609 (1910); United States v. Dynalectric Co., 859 F.2d 1559 (11th Cir. 1988), cert. denied, 490 U.S. 1006 (1989). Because a conspiracy is a continuing offense, the courts have consistently held, before and after the Guidelines became law, that application to a defendant of a law increasing the penalty for a conspiracy that continues after the effective date of the increase does not violate the Ex Post Facto Clause. See, e.g., United States v. Tharp, 892 F.2d at 693; United States v. Story, 891 F.2d at 994; United States v. Giry, 818 F.2d 120, 135 (1st Cir.), cert. denied, 484 U.S. 855 (1987); United States v. Gibbs, 813 F.2d 596, 602 (3d Cir.), cert. denied, 484 U.S. 822 (1987); United States v. Baresh, 790 F.2d 392, 404 (5th Cir. 1986); United States v. Todd, 735 F.2d 146, 150-151 (5th Cir. 1984), cert. denied, 469 U.S. 1189 (1985); United States v. Campanale, 518 F.2d 352, 365 (9th Cir. 1975), cert. denied, 423 U.S. 1050 (1976); Leyvas v. United States, 371 F.2d 714, 717-718 (9th Cir. 1967); United States v. Borelli, 336 F.2d at 386 n.5; United States v. Goldberger, 197 F.2d 331 (3d Cir.), cert. denied, 344 U.S. 833 (1952); Huff v. United States, 192 F.2d 911, 914-915 (5th Cir. 1951), cert. denied, 342 U.S. 946 (1952). Cf. Gryger v. Burke, 334 U.S. 728, 732 (1948) (Ex Post Facto Clause not violated by applying a habitual criminal law to a defendant who committed one of the predicate felonies before the statute was enacted). Petitioner's criminal conduct continued until December 1987, past the effective date of the Guidelines. Accordingly, the Ex Post Facto Clause does not prohibit applying the Guidelines to this case. Finally, this question is obviously of diminishing importance, because it relates only to crimes that began before November 1, 1987, but continued beyond that date. In the absence of a conflict among the circuits, this question does not warrant review by this Court. 2. Petitioner contends that, even if there is no bar to applying the Sentencing Guidelines to a continuing offense that straddles the effective date of the Act, the Ex Post Facto Clause precludes the use of conduct occurring before that effective date to calculate the base offense level under the Guidelines. Pet. 17-18, 28-31. That claim also lacks merit. The courts of appeals uniformly agree that the consideration of drug quantities involved in transactions that occurred before November 1, 1987, in the calculation of a defendant's base offense level for a drug offense under the Guidelines does not violate the Ex Post Facto Clause. See United States v. Cusack, 901 F.2d 29, 32 (4th Cir. 1990); United States v. Terzado-Madruga, 897 F.2d 1099, 1123-1124 (11th Cir. 1990); United States v. Sheffer, 896 F.2d at 845; United States v. Ykema, 887 F.2d 697, 700 (6th Cir. 1989), cert. denied, 110 S. Ct. 878 (1990); United States v. Allen, 886 F.2d 143, 145-146 (8th Cir. 1989). Cf. Gryger v. Burke, 334 U.S. at 732. /6/ Petitioner points to no case in which a court of appeals has accepted her claim. Instead, she relies solely on cases deciding the question whether restitution under the Victim and Witness Protection Act (VWPA) may be imposed for conduct that occurred before the effective date of the restitution provisions. Compare United States v. Oldaker, 823 F.2d 778 (4th Cir. 1987); United States v. Martin, 788 F.2d 184 (3d Cir. 1986); and United States v. Corn, 836 F.2d 889 (5th Cir. 1988), with United States v. Bortnovsky, 879 F.2d 30 (2d Cir. 1989). As the Fourth Circuit explained in United States v. Sheffer, 896 F.2d at 845, those cases have no application to the question whether the Guidelines apply to conduct in a drug conspiracy that straddles the effective date of the Sentencing Reform Act of 1984. See also United States v. Ykema, 887 F.2d at 700; United States v. Allen, 886 F.2d at 145-146. As Sheffer explained, restitution is ordered to be paid to identifiable victims for identifiable losses, whereas a drug conspiracy is "one unity offense." 896 F.2d at 845. What is more, the VWPA added restitution, for the first time, as a possible sentence to be imposed on a defendant who was sentenced to prison; under previous law restitution could only be imposed as a condition of probation. Compare 18 U.S.C. 3663 (1988) and 18 U.S.C. 3651 (1982) (repealed). By contrast, the Guidelines do not alter the maximum prison term for the offense of conviction; they only fix the appropriate range within that maximum term at which sentence should be imposed for a particular quantity of drugs. Petitioner acknowledges, Pet. 30-31, that even if conduct occurring before November 1, 1987, could not be used to calculate the base offense level under the Setencing Guidelines, a district court could nevertheless depart upwards from the Guidelines range in reliance on that conduct, because such conduct would be "an aggravating * * * circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. 3553(b). Where such conduct occurs, the courts of appeals have ruled that the district court may depart from the Guidelines range by analogizing such conduct to similar circumstances covered by the Guidelines. See, e.g., United States v. Pearson, 911 F.2d 186 (9th Cir. 1990); United States v. Gardner, 905 F.2d 1432, 1445 (10th Cir.), cert. denied, 111 S. Ct. 202 (1990); United States v. Ferra, 900 F.2d 1057 (7th Cir. 1990). Thus, it makes no practical difference to petitioner whether the district court arrived at her sentence in this case by considering her pre-November 1, 1987, conduct in calculating the base offense level or in departing upwards from that level. Lastly, this question, like the first one, is also of diminishing importance, since it relates only to crimes that began before November 1, 1987, but continued beyond that date. In the absence of a conflict among the circuits, the question does not warrant review by this Court. 3. The third question presented is identical to the third question that was presented in the petition filed by petitioner's co-conspirator Teri Meitinger. For the reasons given in our brief in opposition in that case, the judgment below is correct and does not warrant review by this Court. In addition, petitioner has not properly preserved this claim. She did not raise this contention in the court of appeals and cannot raise it for the first time in this Court. See, e.g., United States v. Lovasco, 431 U.S. 783, 788-789 n.7 (1977). There is no need to hold this case pending the Court's decision in Chapman v. United States, cert. granted, No. 90-5744 (argued Mar. 26, 1991). Chapman involves the question whether, in determining the weight of lysergic acid diethylamide (LSD) for sentencing purposes, a district court must consider the combined weight of the LSD and a carrier medium for the drug. The Dilaudid at issue in this case, however, was in pill or tablet form. A tablet easily satisfies the statutory definition of a "mixture or substance" containing a detectable amount of a drug, regardless of whether LSD-infused blotter paper is a "mixture or substance." Accordingly, the decision in this case will not be affected by the Court's decision in Chapman. 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 APRIL 1991 /1/ Petitioner was sentenced under the Sentencing Reform Act of 1984 on Counts 1 and 6-8. Counts 2-5 were pre-Sentencing Guidelines counts. See C.A. App. 39-44. /2/ Meitinger and Short testified for the government as cooperating witnesses at petitioner's trial. Gov't C.A. Br. 1. /3/ The court of appeals also rejected petitioner's claims that the district court had improperly admitted evidence under Fed. R. Evid. 404(b), and that the evidence was insufficient to support her convictions. Pet. App. 3a. Petitioner does not pursue those claims in this Court. /4/ The Senate Report on Section 235(a)(1) explained that: The (Act) will apply to any offense or other event occurring on or after the effective date. A sentence imposed before the effective date of the guidelines as to an individual imprisoned or on probation or parole on that date would not be affected by this (Act). As to an offense committed prior to the effective date, the preexisting law will apply as to all substantive matters including the imposable sentence. If a trial occurs or a sentence is imposed on or after the effective date for an offense committed before the effective date, the procedural and administrative provisions of the (Act) will apply except to the extent that such provisions are inconsistent with the preexisting law. S. Rep. No. 225, 98th Cong., 1st Sess. 189 (1983). /5/ As petitioner points out, Pet. 16, one district court declined to apply the Guidelines to a continuing offense. United States v. Davis, 718 F. Supp. 8 (S.D.N.Y. 1989). But that case involved singular circumstances, in which "all the actual narcotics distribution was committed before November 1, 1987." Id. at 10. In any event, no court of appeals has declined to apply the Guidelines to a continuing offense. /6/ Petitioner's reliance on Weaver v. Graham, 450 U.S. 24 (1981), is misplaced. In Weaver, a state prisoner's offense of conviction had taken place before enactment of the statute that disadvantaged him. Id. at 27. Here, of course, petitioner's offense continued after the effective date of the Sentencing Reform Act.