JOE LOUIS WILLIAMS, PETITIONER V. UNITED STATES OF AMERICA No. 90-6984 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 Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1) is unreported, but the judgment is noted at 916 F.2d 720 (Table). JURISDICTION The judgment of the court of appeals was filed on September 11, 1990. A petition for rehearing was denied on November 15, 1990 (Pet. App. 2). The petition for a writ of certiorari was filed on February 1, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether statements made by petitioner to government investigators and a probation officer were used to set petitioner's offense level under the Sentencing Guidelines, in violation of his plea agreement. STATEMENT After a plea of guilty in the United States District Court for the Southern District of Georgia, petitioner was convicted of possession of heroin with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 55 months' imprisonment, to be followed by five years' supervised release. The court of appeals affirmed. Pet. App. 1. 1. Petitioner participated in a conspiracy to distribute heroin in Augusta and Savannah, Georgia. He was indicted on one count of conspiracy to distribute and to possess with intent to distribute more than 100 grams of heroin (count one), one count charging that he possessed 49 grams of heroin with the intent to distribute it (count two), and one count charging that he distributed an unspecified amount of heroin (count three). Prior to trial, petitioner entered into a plea agreement with the government in which he agreed to plead guilty to count two of the indictment charging possession of 49 grams of heroin with intent to distribute it. In exchange, the government agreed to drop the other two counts of the indictment. Gov't C.A. App. 5-6. Petitioner also agreed to respond truthfully to all questions asked by law enforcement officers and to disclose to the government everything that he knew about heroin trafficking in the Southern District of Georgia. The agreement further stated that the government would stipulate that petitioner was "involved in street level distribution in Savannah, Georgia, and that quantities of drugs distributed in Augusta, Georgia, should not be attributed to him. The government cannot state with any precision the amount of heroin distributed by (petitioner) in Savannah, Georgia." Gov't C.A. App. 6. In addition, the agreement stated that "any information that (petitioner) truthfully discloses to the government during the course of (petitioner's) cooperation will not be used against (petitioner), directly or indirectly." Gov't C.A. Br. 4. After executing this agreement, petitioner was interviewed both by FBI agents and the probation officer charged with preparing his presentence report. His counsel consented to having these interviews occur outside the presence of counsel. Gov't C.A. Br. 13. 2. The presentence report prepared by the United States Probation Office calculated petitioner's sentence based on at least 100 grams of heroin. Petitioner objected to the use of this amount of heroin on the ground that information regarding the amount of heroin he actually had been involved in distributing had been obtained in violation of the plea agreement. He moved to have the district court sentence him based on the 49 grams alleged in the count to which he pleaded guilty. Gov't C.A. Br. 1-2, 5-6. At sentencing, the district court heard testimony on the source of the information contained in the presentence report. An FBI agent testified that FBI agents had interviewed petitioner on several occasions regarding his distribution of heroin. Gov't C.A. Br. 7. In addition, the agent stated that he had obtained information regarding petitioner's activities from his co-defendants. He specifically testified that two of petitioner's co-defendants had provided information regarding petitioner's involvement in the distribution of heroin. Ibid. The agent admitted that he first learned about the quantities of heroin involved in petitioner's activities from petitioner himself, but stated that he learned similar information from debriefing James Spaulding, one of petitioner's codefendants. Id. at 8. The agent stated that he passed along all of the information he obtained from petitioner and his codefendants to the probation officer. Ibid. The probation officer testified that he relied largely on information from Spaulding in preparing petitioner's presentence report. Ibid. The district court denied petitioner's motion to be sentenced based on the 49 grams of heroin charged in the count to which petitioner pleaded guilty. The court found that "this calculation of, at least 100 grams of heroin and perhaps a good bit more, comes from information gleamed (sic) from all sources in the case which are incidents of the codefendants testimony and statements." Gov't C.A. Br. 8, quoting 8 Record 81. 3. The court of appeals summarily affirmed in an unpublished judgment order. Pet. App. 1. ARGUMENT Petitioner contends (Pet. 6-13) that the district court sentenced him based on information obtained in violation of his plea agreement. He argues that the terms of the agreement itself and Sentencing Guideline Section 1B1.8 forbid the use at sentencing of any statements he gave to the government in fulfillment of his plea agreement. This contention does not warrant review. Sentencing Guideline Section 1B1.3(a)(2) addresses the "Relevan Conduct" to be used in computing a defendant's offense level under the Guidelines. That provision requires a defendant to be sentenced based on "all * * * acts or omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." /1/ Application Note 2 to this Guideline specifically provides that when the defendant engages in multiple drug sales, and those sales are charged in more than one count of the indictment, his offense level must be based on the total quantity of drugs sold, even if he pleads guilty to a single count. In calculating petitioner's offense level, the probation officer and the district court were therefore required to consider the quantity of heroin involved in petitioner's entire course of conduct, not just the 49 grams charged in the offense of conviction. Petitioner was charged in count one of the indictment with participating in a conspiracy to distribute more than 100 grams of heroin. Information gathered from petitioner's codefendant, Spaulding, provided a factual basis to conclude that petitioner had in fact been involved in heroin sales of more than 100 grams. Consequently, he was properly sentenced based on this quantity of heroin. Petitioner's claim to the contrary rests on his contention that the FBI and the probation officer used information derived from post-plea interviews with him to arrive at the amount of heroin involved in his offenses. Petitioner is correct that both his plea agreement and Guideline Section 1B1.8 prohibit the district court from determining his offense level based on information obtained in interviews he had with the government pursuant to his plea agreement. /2/ Nothing in either the agreement or the Guideline, however, prohibited reliance on facts provided by petitioner if those facts also were obtained from a source other than petitioner. Indeed, if petitioner's reading of the Guideline were correct, a defendant could insulate himself from being sentenced based on the full extent of conduct known to the government simply by detailing that conduct in post-plea interviews with investigators or the probation officer. Here, the district court found that the information relevant to petitioner's offense level came from his codefendants. That determination is a factual finding subject to clearly erroneous review. See United States v. St. Julian, 922 F.2d 563, 566 (10th Cir. 1990). Testimony at sentencing from the probation officer and an FBI agent supported the court's conclusion; it is not clearly erroneous. Petitioner contends (Pet. 7-9, 11-12) that the court of appeals' decision conflicts with the decision in United States v. Shorteeth, 887 F.2d 253 (10th Cir. 1989). In Shorteeth, the defendant entered into a plea agreement providing that the government would not use information that she revealed to federal investigators to institute additional prosecutions against her. In a subsequent interview with federal agents, the defendant revealed the amount of cocaine she had transported during the course of conduct leading to her conviction. This information was directly used to calculate her offense level. The court of appeals held that this use of information violated the plea agreement and Guideline Section 1B1.8 and remanded for resentencing. The decision in Shorteeth does not conflict with the decision in this case. Here, the probation officer obtained the information relevant to petitioner's sentencing from a source independent of petitioner's own admissions. In several cases decided since Shorteeth, the Tenth Circuit has made clear that Guideline Section 1B1.8 is not violated if the probation office and the court have an independent source for information used to calculate a defendant's offense level. See United States v. St. Julian, 922 F.2d at 566 (co-defendants' statements provided independent source); United States v. Davis, 912 F.2d 1210, 1213 (10th Cir. 1990) (same); United States v. Boyd, 901 F.2d 842, 845 (10th Cir. 1990); see also United States v. Kinsey, 917 F.2d 181, 184 (5th Cir. 1990) (Guideline Section 1B1.8 is violated only if defendant's statements are the sole source of information used in sentencing). In line with that authority, there is no reason to believe that the Tenth Circuit would have decided this case any differently than did the Eleventh Circuit. /3/ 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 J. DOUGLAS WILSON Attorney MARCH 1991 /1/ Guideline Section 1B1.3(a)(2) applies to offenses "for which Section 3D1.2(d) would require grouping of multiple counts." Petitioner's offenses would be grouped under this provision because they are offenses for which the "offense level is determined largely on the basis of * * * the quantity of the substance involved." Guideline Section 3D1.2(d). /2/ Guideline Section 1B1.8 provides as follows: Where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others, and as part of that cooperation agreement the government agrees that self-incrimination information provided pursuant to the agreement will not be used against the defendant, then such information shall not be used in determining the applicable guideline range, except to the extent provided in the agreement. /3/ Petitioner claims in passing (Pet. 11) that the use of his statements violated the Fifth and Sixth Amendments. Because petitioner's admissions were not used against him, however, neither the Fifth nor Sixth Amendment was violated by the interviews of petitioner.