OLGA TORRES, PETITIONER V. UNITED STATES OF AMERICA No. 90-6470 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 judgment order of the court of appeals (Pet. App. 1) is not reported, but the judgment is noted at 917 F.2d 568 (Table). JURISDICTION The judgment of the court of appeals was entered on September 25, 1990. The petition for a writ of certiorari was filed on December 10, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court properly departed above the sentencing range indicated by the Sentencing Guidelines because petitioner permitted her son to participate in a drug trafficking conspiracy. STATEMENT Petitioner pleaded guilty in the United States District Court for the Southern District of Florida to possessing more than half a kilogram of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). /1/ She was sentenced to 72 months' imprisonment, to be followed by a four-year term of supervised release. The court of appeals affirmed. Pet. App. 1. 1. The facts are summarized in the government's brief in the court of appeals (Gov't C.A. Br. 3-4, 7). During January 1988, petitioner and several members of her family, including her husband (Carlos Torres), her brother (Augustin Castro), and two sons (John and Efrein Torres), participated in a conspiracy to distribute large quantities of cocaine. John Torres negotiated the sale of 50 kilograms of cocaine to an undercover agent and thereafter delivered approximately one kilogram to the agent as a sample. On January 21, 1988, John Torres and the agent went to the Torres family home. There, in the presence of John and Efrein Torres, petitioner retrieved a kilogram of cocaine from a bedroom and displayed it for the agent. At the time, petitioner, John, and Efrein conversed in Spanish. Later that day, other conspirators showed the agent two additional sample kilograms of cocaine. One week later, the agent met with John and Efrein Torres to discuss the actual delivery of the 50 kilograms of cocaine. Efrein Torres and other conspirators displayed another sample kilogram of cocaine to the agent at that time. 2. At sentencing, the district court determined that the offense level for petitioner's offense was level 26. The court adjusted the offense level downward to level 24 because petitioner was a minor participant in the offense. Sentencing Guideline 3B1.2(b). Petitioner was determined to have a criminal history category of I. As a result, the Sentencing Guidelines indicated a range of 51-63 months' imprisonment. The court departed upward from the indicated Guidelines range and imposed a sentence of 72 months' imprisonment. Referring to petitioner's younger son, the court noted that because of petitioner and her husband, "the life of one young man has been absolutely destroyed in this courtroom"; the court faulted them for allowing Efrein Torres to become involved in the offense rather than exercising their "ability * * * to have extricated Efrein Torres from this situation." Gov't C.A. Br. 6. The court announced that it was departing upward by nine months "because of (petitioner's) participation and because of the resulting damage that ha(d) been done to Efrein Torres." Id. at 7. /2/ ARGUMENT Petitioner contends that the district court erred in departing above the recommended Guidelines range on account of her responsibility for her youngest son's involvement in the drug trafficking conspiracy. Petitioner argues that this factor was not sufficiently unusual to warrant a departure, that there was no adequate factual basis to support a departure, and that the nine-month departure from the Guidelines sentencing range was unreasonable. There is no merit to petitioner's claims. A district court may impose a sentence outside the range established by the Sentencing Guidelines if 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." 18 U.S.C. 3553(b). Petitioner's "abuse of her custodial relationship" with her son Efrein constituted just such an aggravating factor. See United States v. Shuman, 902 F.2d 873, 876 (11th Cir. 1990) (upholding an upward departure for a mother who "voluntarily and wilfully brought her son into a drug business environment"). Although a parent's involvement of an offspring in drug trafficking was not a circumstance specifically taken considered by the drafters of the Guidelines, it is analogous to other provisions in the Guidelines that treat abuse of a custodial relationship or a position of trust as aggravating factors. See, e.g., Sentencing Guidelines 2A3.1(b)(3) (offense level for sexual abuse is increased if victim was in defendant's custody); 2G2.1(b)(2) (offense level for sexual exploitation of a minor is increased if defendant was a parent or guardian); 2P1.1(b)(4) (offense level for assisting an escape is increased if defendant is a law enforcement or corrections officer); 3B1.3 (upward adjustment is required if defendant abused a position of public or private trust). There was an ample basis in the record to support the district court's determination that petitioner seriously abused the responsibilities imposed by the parent-child relationship in fostering her teenage son's participation in a drug trafficking conspiracy that resulted in his conviction and imprisonment. /3/ As in Shuman, where the defendant negotiated a drug sale in the presence of her participating child, petitioner produced a sample kilogram of cocaine for the undercover agent to inspect at the Torres family home in the presence of Efrein. Thereafter, Efrein drove the undercover agent to several meetings, participated in negotiations regarding the planned transaction, and was present when an additional sample kilogram of cocaine was displayed to the agent. Given these facts, together with the involvement of Efrein in the related marijuana importation conspiracy to which petitioner pleaded guilty, the district court was fully justified in concluding that petitioner bore substantial responsibility for fostering her son's participation in a course of serious criminal conduct that ultimately had disastrous consequences for him. /4/ Finally, the nine-month departure for abuse of parental trust was not unreasonable. In Shuman, the court upheld as reasonable an upward departure of ten months in similar circumstances. Moreover, the analogous Guidelines provisions cited above that deal with abuses of trust typically provide for a two-level adjustment in the offense level. Petitioner's sentence of 72 months' imprisonment was well within the Guidelines range that would have been applicable if petitioner's offense level had been two levels higher. See United States v. Hummer, 916 F.2d 186, 194 n.7 (4th Cir. 1990) (reference to analogous Guidelines provisions useful in determining the reasonableness of the departure); United States v. Shuman, 902 F.2d at 876-877 (accord); United States v. Ferra, 900 F.2d 1057, 1062 (7th Cir. 1990) (accord). In sum, the decision to depart in this case was fully consistent with the Sentencing Guidelines and is not in conflict with the holding of any court of appeals. Further review is therefore inappropriate. 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 ROBERT J. ERICKSON Attorney FEBRUARY 1991 /1/ At the same time, petitioner pleaded guilty in a companion case to a charge of importing in excess of 100 kilograms of marijuana. See United States v. Torres, No. 88-832-CR-Spellman(s) (S.D. Fla. 1988). /2/ The court provided that petitioner's sentence was to be concurrent to a five-year sentence imposed as a result of her conviction in a companion case. /3/ Petitioner argues (Pet. 11) she should not have been held responsible for Efrein's criminal involvement because Efrein "was a responsible married adult with a child" at the time of sentencing. Efrein, however, was 19 years old at the time of the offense. Moreover, Efrein was a co-defendant in the marijuana importation conspiracy to which petitioner pleaded guilty. See n.1, infra. That conspiracy was alleged to have begun in 1983, when Efrein was only 15 years old. See Gov't C.A. Br. 7. /4/ Petitioner complains (Pet. 9) that the court's determination that an upward departure was justified because her participation in the offense involved an abuse of her parental responsibilities was inconsistent with its determination that she was entitled to a downward adjustment as a minor participant. There was no inconsistency: although petitioner's participation in the offense may have been minor in comparison to the participation of her co-defendants, her abuse of her parental responsibilities in fostering Efrein's participation in the drug trafficking conspiracy nonetheless had serious and long-term implications for Efrein's well-being. Likewise, petitioner cannot complain because the court did not depart upward in sentencing her equally or more responsible husband. Because the circumstances of this case fully supported the court's decision to depart above the Guidelines range in sentencing petitioner, it is irrelevant that the court could have, but did not, exercise its discretion to depart with respect to a co-defendant. In any event, petitioner's husband was subject to a higher penalty range under the Guidelines than was petitioner, and the court sentenced her husband at the top of that higher range. Thus, even with the upward departure, petitioner received a sentence that was six months shorter than the 78-month sentence that her husband received.