ROBERT LAMB, PETITIONER V. UNITED STATES OF AMERICA No. 90-6244 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 App. 6-7) is unpublished, but the judgment is noted at 914 F.2d 1495 (Table). JURISDICTION The judgment of the court of appeals was entered on September 26, 1990. The petition for a writ of certiorari was filed on November 15, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether Sentencing Guideline Section 5K1.1, which provides that the district court may sentence a defendant who has cooperated with the government below the statutory minimum and recommended Guidelines range only "upon motion of the Government," violates the Due Process Clause. 2. Whether petitioner was entitled to a reduction in the base offense level under Sentencing Guideline Section 3E1.1 for acceptance of responsibility. 3. Whether the district court properly considered petitioner's previous state conviction for theft in determining his criminal history category. 4. Whether the district court properly determined that petitioner's offense involved more than "minimal planning" under Sentencing Guideline Section 2F1.1(b)(2). STATEMENT After pleading guilty in the United States District Court for the Western District of Kentucky, petitioner was convicted on three counts of making false statements to the Veterans Administration, in violation of 18 U.S.C. 1001. /1/ He was sentenced to a term of 16 months' imprisonment, to be followed by a three-year term of supervised release. Petitioner was also ordered to pay $3,950 in restitution. The court of appeals affirmed. 1. Sometime before July 1988, petitioner acquired $4,000 in "greenbacks," i.e., commercial paper used in the trucking industry to advance funds to drivers. In July 1988, petitioner entered the Veterans Administration Hospital in Louisville, Kentucky, for medical treatment. During his stay, petitioner endorsed the greenbacks and deposited them in the "Patient Funds Account" at the VA hospital. Petitioner knew that he needed to wait seven days for greenbacks to "clear" the issuing bank. Nonetheless, petitioner withdrew a total of $3,950 from his hospital account before that period expired. In so doing, he misrepresented to a teller that he needed the cash to open a checking account, to pay drivers in his trucking business, and to buy a car. See Gov't C.A. Br. 2-3. 2. At his sentencing hearing, petitioner contended that he was entitled to a downward departure under Sentencing Guideline Section 5K1.1 for cooperating with the government, and that he was entitled to a reduction in the base offense level under Sentencing Guideline Section 3E1.1 for acceptance of responsibility. Petitioner also claimed that his offenses did not involve more than "minimal planning" under Sentencing Guideline Section 2F1.1(b)(2), and that the district court should not consider his previous state conviction for theft in determining his criminal history category. The district court rejected each of petitioner's contentions. First, the court concluded that since the government had not filed a motion under Sentencing Guideline Section 5K1.1 seeking a departure based on petitioner's cooperation, petitioner was not entitled to one. Mar. 20, 1990, Tr. 34. Second, the court determined that petitioner was not entitled to a reduction for accepting responsibility, since "he has indicated no remorse for defrauding (the) Veterans Administration." Id. at 57; see id. at 58. Third, the court found that the presentence report prepared by the probation officer reflected a "careful investigation" that provided "sufficient indication for (the court) to find (petitioner) was represented by counsel" during his plea to the challenged state theft charge. Id. at 58. Accordingly, the court included that previous conviction in determining petitioner's criminal history category. Finally, the court found that petitioner's fraud offense was "not a crime of impulse, a crime of minimal planning. This was a crime that was carefully orchestrated by (petitioner) in order to obtain proceeds from these fraudulent drafts." Id. at 59-60. The court therefore adjusted petitioner's base offense level upward under Sentencing Guideline Section 2F1.1(b)(2). Turning to the applicable Sentencing Guidelines, the district court determined that petitioner had a total offense level of nine and a criminal history category that placed him as a Category IV offender, thus calling for a Guidelines range of 12 to 18 months' imprisonment. Mar. 20, 1990, Tr. 62. The court thereafter sentenced petitioner to a term of 16 months' imprisonment, to be followed by a three-year term of supervised release. The court also ordered him to pay $3,950 in restitution. Id. at 66. 3. In the court of appeals, petitioner contended that Sentencing Guideline Section 5K1.1, which provides that the district court may sentence a defendant who has cooperated with the government below the statutory minimum and recommended Guidelines range only "upon motion of the Government," violates the Due Process Clause. Pet. C.A. Br. 3-4. Petitioner next contended that he was entitled to a reduction in the base offense level under Sentencing Guideline Section 3E1.1 for acceptance of responsibility. Pet. C.A. Br. 4-5. He also argued that the district court erred in considering his previous state conviction for theft in determining his criminal history category. Id. at 5-9. Finally, petitioner contended that the district court erred in determining that his offense involved more than "minimal planning" under Sentencing Guideline Section 2F1.1(b)(2). Pet. C.A. Br. 9. In an unpublished order, the court of appeals summarily affirmed, "find(ing) all four of (petitioner's) appellate arguments to be without merit and the district court's factual decisions supported by the preponderance of the evidence." Pet. App. 6. ARGUMENT 1. Petitioner contends (Pet. 8-9) that Sentencing Guideline Section 5K1.1, which provides that the district court may sentence a defendant who has cooperated with the government below the statutory minimum and recommended Guidelines range only "upon motion of the Government," violates the Due Process Clause. /2/ To date, the courts of appeals have uniformly upheld the constitutionality of the "substantial assistance" provision. /3/ This Court has consistently declined to review that issue. E.g., Francois v. United States, cert. denied, 110 S. Ct. 1822 (1990); Ayarza v. United States, cert. denied, 110 S. Ct. 847 (1990); Huerta v. United States, cert. denied, 110 S. Ct. 845 (1990). Petitioner offers no persuasive reason for the Court to adopt a different approach in this case. /4/ In any event, petitioner's contention is meritless. Sentencing Guideline Section 5K1.1 provides that a court may depart from the Guidelines' sentencing range "(u)pon motion of the Government stating that the defendant has provided substantial assistance" to the government. See 18 U.S.C. 3553(e). The framework under those "substantial assistance" provisions comports with the Due Process Clause because in the absence of any "right to individualized sentencing, * * * Congress may constitutionally * * * constrain the exercise of judicial discretion." United States v. Huerta, 878 F.2d 89, 94 (2d Cir. 1989), cert. denied, 110 S. Ct. 845 (1990). As this Court has recognized, "the authority to define and fix the punishment for crime is legislative." Ex parte United States, 242 U.S. 27, 42 (1916). Accordingly, "in noncapital cases, the (formerly) established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes." Lockett v. Ohio, 438 U.S. 586, 604-605 (1978); see also McMillian v. Pennsylvania, 477 U.S. 79, 92 (1986). In cases involving neither capital punishment nor life imprisonment, e.g., Solem v. Helm, 463 U.S. 277 (1983), this Court has never questioned the legislature's authority to divest courts of sentencing discretion by establishing mandatory minimum punishments. See, e.g., Mistretta v. United States, 488 U.S. 361, 364-365 (1989); Lockett v. Ohio, 438 U.S. at 603. In other words, Congress could constitutionally have eliminated sentencing discretion entirely by imposing mandatory minimum sentences in all noncapital cases. For that reason, Congress may certainly take the less drastic measure of permitting sentencing judges to depart from mandatory minimum sentences only where prosecutors certify that such a departure is justified because of the accused's "substantial assistance" to the government. Moreover, since Congress delegated to the Sentencing Commission the authority to regulate the sentencing process, a defendant has no more of a constitutional right to a "substantial assistance" reduction in his sentence under the Guidelines than he does under the Sentencing Reform Act. See, e.g., United States v. Lewis, 896 F.2d 246, 249 (7th Cir. 1990). As the Eleventh Circuit recently observed, "(i)f, despite their inflexibility, mandatory sentencing provisions withstand due process scrutiny, so too must the sentencing guidelines." United States v. Erves, 880 F.2d 376, 379 (11th Cir.), cert. denied, 110 S. Ct. 416 (1989). 2. Petitioner next contends (Pet. 9-10) that the district court erroneously refused to reduce the base offense level to reflect his acceptance of responsibility. The record belies that claim. Here, petitioner told the probation officer that the government "owed (the) money to him" and that he did not care about VA hospitals and "rip(ped them) off * * * if they need it." Gov't C.A. Br. 8. Indeed, at the sentencing hearing, petitioner concocted a story about intending to "rip a drug dealer off" with the greenbacks, testimony the district court found to be incredible. Gov't C.A. Br. 8; Mar. 20, 1990, Tr. 24-25. On this record, petitioner's actions themselves compelled the conclusion that "he has indicated no remorse for defrauding (the) Veterans Administration," id. at 57, and thus did not merit the two-level reduction for acceptance of responsibility. See, e.g., United States v. Zayas, 876 F.2d 1057, 1059-1060 (1st Cir. 1989) (perjury is sufficient reason to deny reduction for acceptance of responsibility). /5/ 3. Petitioner also contends (Pet. 10-13) that the district court erred in considering his previous state conviction for theft in determining petitioner's criminal history category. As the probation officer found after reviewing some of the remaining records of that conviction, petitioner -- while represented by counsel -- had in fact pleaded guilty to a misdemeanor theft offense in Kentucky state court. See Gov't C.A. Br. 9-10. Since petitioner offered no evidence to the contrary, the district court properly considered that previous conviction in determining petitioner's criminal history category. See United States v. Murphy, 899 F.2d 714, 717 (8th Cir. 1990). 4. Finally, petitioner contends (Pet. 13) that the district court erred in concluding that petitioner's offense involved more than "minimal planning" under Sentencing Guideline Section 2F1.1(b)(2). As the Sentencing Commission has explained, more than minimal planning "is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune." Sentencing Guideline Section 1b1.1, comment n.1(f). Here, petitioner studied legitimate greenback transactions in order to determine how to defraud the VA, and he forged a special authorization code on the greenbacks he acquired. Gov't C.A. Br. 10. Petitioner knew that he needed to wait seven days for greenbacks to "clear" the issuing bank. Nonetheless, petitioner withdrew a total of $3,950 -- at various times and in different amounts -- from his hospital account before that period expired. As the district court found, petitioner's actions themselves showed more than minimal planning because petitioner "was trying not to raise alarm in trying to get all the money out in one fell swoop." Mar. 20, 1990, Tr. 60-61. /6/ 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 GEOFFREY R. BRIGHAM Attorney FEBRUARY 1991 /1/ Petitioner entered his plea under North Carolina v. Alford, 400 U.S. 25 (1970) (defendant maintains innocence, but pleads guilty where record contains sufficient factual basis of guilt). /2/ Since petitioner did not raise his constitutional challenge before the district court at sentencing, the court of appeals may have properly considered that he had waived it. See United States v. Ortiz, 902 F.2d 61, 64 (D.C. Cir. 1990). For that reason alone, further review of petitioner's contention is not warranted. /3/ See, e.g., United States v. Harrison, 918 F.2d 30, 33 (5th Cir. 1990); United States v. Levy, 904 F.2d 1026, 1035 (6th Cir. 1990); United States v. LaGuardia, 902 F.2d 1010, 1015-1017 (1st Cir. 1990); United States v. Lewis, 896 F.2d 246, 249 (7th Cir. 1990); United States v. Francois, 889 F.2d 1341, 1344 (3d Cir. 1989), cert. denied, 110 S. Ct. 1822 (1990); United States v. Huerta, 878 F.2d 89, 93 (2d Cir. 1989), cert. denied, 110 S. Ct. 845 (1990); United States v. Ayarza, 874 F.2d 647, 653 (9th Cir. 1989), cert. denied, 110 S. Ct. 847 (1990); United States v. Musser, 856 F.2d 1484, 1487 (11th Cir. 1988), cert. denied, 489 U.S. 1022 (1989). /4/ Petitioner mistakenly relies (Pet. 8-9) on United States v. Curran, 724 F. Supp. 1239 (C.D. Ill. 1989). In United States v. Lewis, 896 F.2d 246, 248 (7th Cir. 1990), the court of appeals effectively overruled Curran to the extent the district court had held that Sentencing Guideline Section 5K1.1 violated the Due Process Clause. See also United States v. Egan, 742 F. Supp. 1003, 1004-1005 (N.D. Ill. 1990). /5/ The record refutes petitioner's suggestion (Pet. 9-10) that he was suffering from a post-traumatic stress disorder. After reviewing petitioner's medical report, the district court found that there was no showing by a preponderance by (petitioner) that either his actions or his pleas were in any way the result of the post-traumatic stress disorder, and (the court) carefully examined (petitioner) on that at the taking of the plea. Mar. 20, 1990, Tr. 56. /6/ The district court expressly found incredible petitioner's claim that he had not intended to enter the VA hospital. See Mar. 20, 1990, Tr. 59-60.