EDWIN ALVAREZ, PETITIONER V. UNITED STATES OF AMERICA No. 90-7258 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 Seventh Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A7) is reported at 914 F.2d 915. The memorandum opinion and order of the district court (Pet. App. B1-B10) is unreported. JURISDICTION The judgment of the court of appeals was entered on September 27, 1990. On December 17, 1990, Justice Stevens extended the time within which to file a petition for a writ of certiorari to and including February 25, 1991. The petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the offense of possession of a firearm by a previously convicted felon is a "crime of violence" under the pre-1990 version of the career offender provisions of Sentencing Guidelines Sections 4B1.1 and 4B1.2, when petitioner brandished the loaded firearm at police officers during the course of resisting arrest. STATEMENT After a jury trial in the United States District Court for the Northern District of Illinois, petitioner was convicted on one count of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. 922(g)(1). He was sentenced to a term of 360 months' imprisonment, to be followed by a five-year term of supervised release. The court of appeals affirmed. Pet. App. A1-A7. 1. The evidence at trial showed that sometime around midnight on April 2, 1988, two Chicago police officers, David Kohn and Clark Mikes, directed a group of men drinking beer on a West Side street corner to disperse. A half hour later, after the group had not heeded the officers' warning, the officers told "the men that they were now under arrest for drinking in public, and to stand against the wall of the building behind them." Pet. App. A2. Petitioner began walking away from the group, but then complied with Officer Kohn's renewed order to stop and stand against the wall. Ibid. At this time, petitioner tried to divert the officer's attention "by telling him someone with a gun was behind him." Pet. App. A2. Officer Kohn responded by leading petitioner to the building and placing him against the wall with his cohorts. Kohn then began to search petitioner; petitioner again told Kohn "that a man with a gun was standing behind him." Ibid. Kohn turned to look behind him, and found no one there. "When Kohn spun back around he saw (petitioner) pulling a gun from his pants pocket. Kohn struggled with (petitioner), wrestled the gun -- a fully-loaded, .25 caliber semiautomatic handgun -- away from him and pinned him against the building." Ibid. Kohn injured his finger during the brief struggle. 2. At sentencing, the district court found that petitioner was subject to the enhanced penalty provisions of 18 U.S.C. 924(e), which authorize the imposition of a mandatory minimum term of 15 years' imprisonment and a maximum sentence of life imprisonment for persons convicted of violating 18 U.S.C. 922(g), and who have three previous convictions for a "violent felony or a serious drug offense." As the court stated, "(i)t is undisputed that (petitioner) has seven prior convictions for violent felonies as defined by Section 924(e)." Pet. App. B2. /1/ The district court also held that petitioner should be treated as a "career offender" under the pre-1990 version of Sentencing Guidelines Sections 4B1.1 and 4B1.2. Pet. App. B2-B10. /2/ Specifically relying on petitioner's "seven prior violent felony convictions and history of recidivism," the court found that petitioner had "at least two prior convictions" for "a crime of violence" within the meaning of Sentencing Guideline Section 4B1.1. Pet. App. B7. The court also held that petitioner's instant conviction for possessing a firearm as a previously convicted felon was a "crime of violence," since petitioner "was attempting to draw the gun for use rather than simply removing it from his pocket to surrender it." Id. at B6-B7. Applying the career offender provisions of the Sentencing Guidelines, the court determined that, because the statutory maximum for petitioner's offense was life imprisonment under the enhancement provisions of 18 U.S.C. 924(e), his offense level as a "career offender" was level 37. See Pet. App. B4 n.2. Moreover, the court noted that the Sentencing Guidelines provide that the criminal history score of all "career offenders" shall be Category VI. The resulting Guideline range was a term of 360 months' to life imprisonment. The court sentenced petitioner to a term of 360 months' imprisonment, to be followed by a five-year term of supervised release. Pet. App. A3. /3/ 3. The court of appeals affirmed. Pet. App. A1-A7. In the court of appeals, petitioner contended that mere possession of a handgun does not involve the use, attempted use or threatened use of force, nor does it by its nature involve a substantial risk of such force, and therefore it cannot be considered a "crime of violence" for purposes of the Career Criminal Offender Guideline. Id. at A3. Following its recent decision in United States v. McNeal, 900 F.2d 119, 122-123 (7th Cir. 1990), which relied on Sentencing Guideline Section 4B1.2, Application Note 1 (1988), /4/ the court concluded that "in considering whether an offense is a 'crime of violence' for purposes of the Career Offender Guideline, we must look to the underlying conduct as well as the elements of the offense as charged." Pet. App. A4. Turning to the record, the court of appeals held that "the facts of (petitioner's) case do demonstrate the use of physical force sufficient to constitute a 'crime of violence.'" Pet. App. A4-A5. The court noted that "(h)ad (petitioner) simply surrendered to Officer Kohn, or even attempted to flee unsuccessfully when informed that he was under arrest, this would be another case entirely." Id. at A5. On this record, however, the court pointed out that "we are faced with a defendant who struggled with a police officer over a loaded, semi-automatic weapon and managed to injure the officer in the altercation." Ibid. "This conduct," the court concluded, "involved force, danger and violence. The district court, therefore, did not err by applying Section 4B1.1 in determining (petitioner's) sentence." Ibid. ARGUMENT Petitioner contends (Pet. 21-38) that the offense of possession of a firearm by a previously convicted felon is not a "crime of violence" under the pre-1990 version of the career offender provisions of Sentencing Guidelines Sections 4B1.1 and 4B1.2. In the Sentencing Reform Act of 1984, 28 U.S.C. 994(h)(1) and (2), Congress directed the Sentencing Commission to ensure that the Sentencing Guidelines "specify a term of imprisonment at or near the maximum term" authorized by statute for adult offenders who are convicted of a felony that is a "crime of violence" and who also have been convicted of two or more such offenses or two or more drug offenses. In response, the Sentencing Commission adopted the career offender provisions of Sentencing Guidelines Sections 4B1.1 and 4B1.2 (1988). See note 2, supra. Section 4B1.1 provided that a defendant was a "career offender" if "the instant offense of conviction" was a "felony" that was "a crime of violence," and he had "at least two prior felony convictions of either a crime of violence or a controlled substance offense." Section 4B1.2 defined the term "crime of violence" for Guideline Section 4B1.1 by incorporating by reference the definition of the term "crime of violence" in 18 U.S.C. 16. Section 16 of Title 18, in turn, defines a "crime of violence" as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another," or "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." See note 2, supra. Petitioner does not challenge the district court's findings that he is an adult and that his prior convictions for burglary and armed robbery are "crime(s) of violence" within the meaning of Sentencing Guideline Section 4B1.2 (1988). Instead, he argues that "the instant offense of conviction" -- the possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. 922(g)(1) -- is not a "crime of violence" under the career offender provisions of Sentencing Guidelines Sections 4B1.1 and 4B1.2, and that the courts below erred by looking to the manner in which he committed the offense. That claim does not warrant review by this Court for the following reasons. 1. As a threshold matter, last Term the Court denied certiorari in a case raising precisely the same issue under the pre-1990 version of the career offender provisions of Sentencing Guidelines Sections 4B1.1 and 4B1.2. Williams v. United States, 110 S. Ct. 3221 (1990). Nothing has occurred since this Court denied certiorari in that case that would make review in this case more appropriate. 2. In determining the scope of the inquiry permitted under the "career offender" provisions, the language of the Sentencing Guidelines themselves must be read together with their commentary. As Sentencing Guideline Section 1B1.7 makes clear, the commentary accompanying a Guideline provision is significant since it "may interpret the guideline or explain how it is to be applied"; hence, "(f)ailure to follow such commentary could constitute an incorrect application of the guidelines." See also United States v. Pinto, 875 F.2d 143, 144 (7th Cir. 1989) (commentary provides strong evidence of the Commission's intent since it was written by Commission itself and adopted with the Guideline to which it applies). Reading Section 16, the Guidelines provisions, and the commentary together leads to the conclusion that the Commission intended to incorporate the conduct described in Section 16 as a "crime of violence," but did not intend to incorporate any limitation on the information the court could consider at sentencing regarding whether the particular offense conduct fit that definition. Thus, the commentary states that offenses other than those specifically listed in Section 16 and in the commentary "are covered only if the conduct for which the defendant was specifically convicted meets the definition of a crime of violence." That language contemplates examination of the actual conduct for which a defendant is convicted. For that reason, the court of appeals concluded that possession of a loaded semiautomatic weapon in an arrest situation in which the defendant struggled with a police officer over possession of the gun and the officer was injured is a "crime of violence" within the scope of the "career offender" Guideline, regardless of whether possession of a firearm would be regarded as a crime of violence in other settings. Pet. App. A4-A5. Petitioner errs in asserting (Pet. 33-34) that the decision below conflicts with United States v. Gonzalez-Lopez, 911 F.2d 542 (11th Cir. 1990), petition for cert. pending, No. 90-6940. There, the court of appeals held that the defendant's previous robbery and burglary convictions qualified as "crimes of violence" under 18 U.S.C. 16, as incorporated by Sentencing Guidelines Section 4B1.2(1) (1988), without regard to the underlying facts of the particular offenses. United States v. Gonzalez-Lopez, 911 F.2d at 547-548. Since those offenses -- robbery and burglary -- by definition fell within the terms of 18 U.S.C. 16(a) and (b), respectively, the Eleventh Circuit declined to use the allegedly non-violent circumstances of the defendant's crimes to take them outside the ambit of the Guidelines' career offender provisions. Here, by contrast, the court of appeals followed the Sentencing Commission's authoritative commentary and looked to the particular criminal conduct at issue only after determining that petitioner's offense of conviction did not, by definition, fall within the terms of 18 U.S.C. 16. /5/ Indeed, many of the cases on which petitioner relies (see e.g., Pet. 22-32) arose under different statutes, and did not involve a construction of the Sentencing Guidelines. See Taylor v. United States, 110 S. Ct. 2143 (1990) (burglary is a "violent felony" under the Armed Career Criminal Act, 18 U.S.C. 924(e)); United States v. Chatman, 869 F.2d 525 (9th Cir. 1989) (auto burglary is not a "violent felony" under 18 U.S.C. 924(e)); United States v. Leonard, 868 F.2d 1393 (5th Cir. 1989) (burglary is a "violent felony" under 18 U.S.C. 924(e)); cert. denied, 110 S. Ct. 2585 (1990); United States v. Sherbondy, 865 F.2d 996 (9th Cir. 1988) (witness intimidation is not a "violent felony" under 18 U.S.C. 924(e)); United States v. Headspeth, 852 F.2d 753 (4th Cir. 1988) (storehouse breaking is not a "crime of violence" under 18 U.S.C. 924(e)). The definition of a "violent felony" in 18 U.S.C. 924(e) differs from the definition of a "violent felony" in 18 U.S.C. 16, and as set forth in the commentary accompanying the pre-1990 version of Sentencing Guidelines Sections 4B1.1 and 4B1.2. Accordingly, petitioner errs in relying on cases interpreting the former definition. /6/ 3. Moreover, the judgment of the Seventh Circuit in this case is consistent with that of every other court of appeals decision on the question presented under the pre-1990 version of the career offender provisions of Sentencing Guidelines Sections 4B1.1 and 4B1.2. See United States v. Goodman, 914 F.2d 696 (5th Cir. 1990); United States v. O'Neal, 910 F.2d 663 (9th Cir. 1990); United States v. McNeal, 900 F.2d 119 (7th Cir. 1990); United States v. Williams, 892 F.2d 296 (3d Cir. 1989), cert. denied, 110 S.Ct. 3221 (1990). To the extent the courts of appeals have reached that result by different paths, this case is not an appropriate vehicle for resolvig the dispute. In Goodman, McNeal, and Williams, the courts of appeals held that the weapons possession offenses at issue were crimes of violence based on the circumstances underlying each offense. In O'Neal, by contrast, the Ninth Circuit held that the weapons possession offense was a crime of violence without regard to the underlying circumstances. On the record presented here, petitioner's offense of conviction would qualify as a crime of violence under either approach. Petitioner pulled a loaded semiautomatic weapon out of his pocket and struggled with a police officer during the course of an arrest. Such conduct, in these circumstances, "involve(d) a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. 16(b). /7/ 4. Finally, after petitioner was sentenced the Sentencing Commission amended both the definitional provisions of and the explanatory commentary accompanying Sentencing Guidelines Sections 4B1.1 and 4B1.2 (1988). See Sentencing Guidelines, Appendix C, Amendment 268, at C.137-C.139 (1990). In that amendment, the Commission abandoned its use of the definition of the term "crime of violence" in 18 U.S.C. 16. The new definition of the term "crime of violence" substantially (but not entirely) tracks the definition of the term "violent felony" used in the Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B). See Sentencing Guideline Section 4B1.2(1) (1990) (note 2, supra). The Sentencing Commission's commentary to that Guideline is also different from the Commission's commentary to the former Guideline. The new commentary no longer contains the examples of fact-specific conduct on which the Third and Seventh Circuits relied in concluding that the possession of a firearm by a previously convicted felon is a "crime of violence" under the former version of the career offender Guideline. See Sentencing Guideline Section 4B1.2, Application Note 2 (1990). /8/ Accordingly, in light of the Sentencing Commission's amendments to the career offender Guideline, all future cases will be governed by the new definition of the term "crime of violence," /9/ and the question presented by petitioner is of no continuing importance. 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 KAREN SKRIVSETH Attorney APRIL 1991 /1/ The record showed that petitioner's criminal record included five previous burglary convictions and two previous armed robbery convictions. See Gov't C.A. Br. 8; Presentence Report 3-8. /2/ The pre-1990 version of the career offender provisions of Sentencing Guidelines Sections 4B1.1 and 4B1.2 (1988), provided in pertinent part: Section 4B1.1. Career Offender A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. * * * Section 4B1.2. Definitions (1) The term "crime of violence" as used in this provision is defined under 18 U.S.C. Section 16. * * * * * Title 18, United States Code, Section 16, defined the term "crime of violence" to include (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. The current definition of career offender in Sentencing Guideline Section 4B1.1 (1990) tracks its predecessor's definition. The Sentencing Commission, however, has since amended the definitional provision of Sentencing Guideline Section 4B1.2(1). Effective November 1, 1989, this Guideline provides that (1) The term "crime of violence" means any offense under federal or state law punishable by imprisonment for a term exceeding one year that -- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Sentencing Guideline Section 4B1.2(1) (1990). /3/ The district court rejected petitioner's claims that imposition of sentence under the career offender provisions violated the Double Jeopardy Clause and the Eighth Amendment. Pet. App. B3-B6. The court of appeals upheld the district court's rulings, Pet. App. A5-A7, and petitioner has not sought further review of those aspects of the court of appeals' judgment. /4/ Application Note 1 provided in pertinent part: The Commission interprets (a crime of violence) as follows: murder, manslaughter, kidnapping, aggravated assault, extortionate extension of credit, forcible sex offenses, arson or robbery are covered by this provision. Other offenses are covered only if the conduct for which the defendant was specifically convicted meets the above definition. For example, conviction for an escape accomplished by force or threat of injury would be covered; conviction for an escape by stealth would not be covered. /5/ Petitioner also asserts (Pet. 32-33) that the decision below may not be squred with the Ninth Circuit's "categorical approach" to the pre-1990 career offender provisions of the Sentencing Guidelines in United States v. Becker, 919 F.2d 568 (1990), and United States v. Selfa, 918 F.2d 749 (1990), cert. denied, 111 S. Ct. 521 (1991). Petitioner is mistaken, since the burglary and robbery offenses at issue in those decisions fell within the terms of 18 U.S.C. 16. /6/ Petitioner also relies (Pet. 22-23) on United States v. Springfield, 829 F.2d 860 (9th Cir. 1987), which construed the term "crime of violence" in 18 U.S.C. 924(c). Although that statute's definition of the term is substantially similar to that contained in 18 U.S.C. 16, the court in Springfield had no occasion to construe the definition in light of the authoritative commentary to Sentencing Guideline Section 4B1.2 (1988). /7/ Petitioner also contends that the decision below improperly sanctioned a sentencing court's distinguishing between "the conduct underlying a prior offense from that underlying the offense of conviction." Pet. 34; see id. at 34-38. The court of appeals adopted no such holding, and thus the issue petitioner seeks to raise is not presented here. /8/ Application Note 2 now reads as follows: "Crimes of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth in the count of which the defendant was convicted involved use of explosives or, by its nature, presented a serious potential risk of physical injury to another. /9/ Moreover, effective November 1, 1990, the Sentencing Commission enacted Guideline Section 4B1.4 (1990), which applies specifically to defendants subject to enhanced sentences as armed career criminals under 18 U.S.C. 924(e). See Sentencing Guidelines, Appendix C, Amendments 268 and 355, at C.137-C.139, C.198-C.200 (1990).