MARY ELIZABETH DE LA ROSA, PETITIONER V. UNITED STATES OF AMERICA No. 90-6427 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 Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 17-25) is reported at 911 F.2d 985. JURISDICTION The judgment of the court of appeals was filed on August 29, 1990. The petition for a writ of certiorari was filed on November 27, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court erred in finding that the prosecutor adequately explained a peremptory strike of an Hispanic juror on race-neutral grounds. 2. Whether the district court erred in increasing petitioner's offense level under the Sentencing Guidelines by two levels because she used a gun during her offense. STATEMENT After a jury trial in the United States District Court for the Southern District of Texas, petitioner was convicted of kidnapping, in violation of 18 U.S.C. 1201(a)(1). She was sentenced to 180 months' imprisonment, to be followed by a three-year period of supervised release. The court of appeals affirmed. 1. The evidence at trial showed that petitioner arranged the kidnapping of a two-year-old boy from a village in Mexico and transported the child to the United States. In October 1987, a man known as "Rubel" or "Nacho" kidnapped the child from the market in Rio Verde, Mexico. Nacho took the child to a nearby house, where petitioner was waiting. Petitioner took the child from Nacho. During an argument later that day, petitioner waved a pistol and told the owner of the house that anyone reporting the kidnapping to the authorities would have to deal with her. Petitioner brought the child back to Houston, where she raised him for the next two-and-one-half years. Pet. App. 20. Petitioner is Hispanic. During jury selection, the prosecutor used a peremptory challenge to strike from the jury the only Hispanic member of the venire. Petitioner challenged the peremptory strike under Batson v. Kentucky, 476 U.S. 79 (1986), and the district court asked the prosecutor to articulate his reasons for striking the juror. The prosecutor explained that he had struck the juror because she was employed by a church affiliated agency. He stated that someone "who works in a church ministry * * * basically wants to forgive people." The prosecutor also explained that he had evidence that petitioner had once relied on a church for financial assistance. The district court found that the prosecutor's explanation was race neutral and denied petitioner's Batson challenge. Pet. App. 22-23. The Sentencing Guideline for kidnapping, Section 2A4.1(b)(3), requires a two-level increase in the offense level if the defendant used a gun to commit the offense. A gun is used during the offense if it is discharged or "otherwise used" as defined by Guideline Section 1B1.1, Application Note 1(g). That Guideline defines "otherwise used" as less than discharging but more than "brandishing, displaying, or possessing a firearm." At sentencing, the district court found that petitioner's use of a pistol to threaten the owner of the house where she was staying in Mexico amounted to more than "brandishing" the weapon. It therefore held that petitioner had "otherwise used" the gun within the meaning of Guideline Section 1B1.1 and increased her offense level by two. Pet. App. 24-25. 2. The court of appeals affirmed. Pet. App. 17-25. It rejected petitioner's contention that the prosecutor's strike of the Hispanic member of the venire constituted a violation of Batson. The court agreed with the district court that the prosecutor gave a race-neutral explanation for the strike. Id. at 23-24. The court of appeals also rejected petitioner's contention that the district court had erred in enhancing her offense level by two because of her use of a gun during the kidnapping. Id. at 24-25. Employing the clearly erroneous standard of review, the court held that the district court had properly found that petitioner's use of the gun to threaten others involved in the plot amounted to more than "brandishing" a weapon, which justified enhancement of the offense level. /1/ ARGUMENT 1. Petitioner renews her contention (Pet. 9-11) that the prosecutor's decision to strike the only Hispanic member of the venire violated Batson. She contends that the district court's finding that the prosecutor provided a race-neutral explanation for the strike is clearly erroneous. That contention, which is entirely fact-bound, does not warrant this Court's review. In Batson, the Court explained that the district court's determination whether a defendant has established purposeful discrimination is a "'finding of fact' entitled to appropriate deference by a reviewing court." 476 U.S. at 98 & n. 21, quoting Anderson v. Bessemer City, 470 U.S. 573 (1985). In this case, the district court found as a matter of fact that the prosecutor acted in a race-neutral manner, and the court of appeals affirmed. Because the factual issue of whether purposeful discrimination occurred has been resolved against petitioner by two courts below, it warrants no further review here. See United States v. Doe, 465 U.S. 605, 614 (1984); United States v. Reliable Transfer Co., 421 U.S. 397, 401 n.2 (1975); Berenyi v. Immigration Director, 385 U.S. 630, 635 (1967). In any event, petitioner's claim lacks merit. The prosecutor struck the Hispanic member of the venire because of her employment at a church-affiliated agency. Pet. App. 22 & n.17. Numerous courts of appeals have held that a prosecutor may strike a juror because the prosecutor believes that the juror's occupation may incline the juror to sympathize with the defendant. See United States v. Moreno, 878 F.2d 817, 820-821 (5th Cir.) (strike of commercial artist upheld), cert. denied, 110 S. Ct. 508 (1989); United States v. Romero-Reyna, 867 F.2d 834, appeal after remand, 889 F.2d 559, 562 (5th Cir. 1989) (strikes of person in a "college work study program" and person in an "elderly meal program" upheld), cert. denied, 110 S. Ct. 1818 (1990); United States v. Wilson, 867 F.2d 486, 487-488 (8th Cir.) (strike of social worker upheld), cert. denied, 110 S. Ct. 92 (1989); United States v. McCoy, 848 F.2d 743, 745 (6th Cir. 1988) (strike of unemployed juror upheld); United States v. David, 844 F.2d 767, 768-769 (11th Cir. 1988) (strike of juror employed by the federal government upheld). In keeping with those precedents, the government's explanation for its peremptory strike was race neutral, as Batson requires, and was properly credited by the district court. /2/ 2. Petitioner also contends (Pet. 12-15) that the court of appeals erred in applying a clearly erroneous standard of review to the district court's finding that her offense level should be enhanced because she used a gun during the kidnapping. The Sentencing Guidelines do not support that contention. The Guidelines authorize appellate review of several varieties of claims, including that a defendant's sentence "was imposed as a result of an incorrect application of the sentencing guidelines." 18 U.S.C. 3742(e)(2). The Guidelines also provide specific directions about the applicable standard of appellate review: The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts. 18 U.S.C. 3742(e). In line with its earlier decision in United States v. Mejia-Orosco, 867 F.2d 216, 220-221 (5th Cir.), cert. denied, 109 S. Ct. 3257 (1989), the court of appeals applied the "clearly erroneous" standard of review to the district court's determination that petitioner had "otherwise used" a firearm within the meaning of Guideline Section 1B1.1 and its commentary. In our view, the court of appeals' holding is correct. Questions involving the application of a rule of law to a particular factual context are generally analyzed as "mixed questions" of fact and law. See Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982). Appellate review of such "mixed questions" varies according to the context. To the extent that appellate review requires assessment of the underlying values promoted by the rule of law and the determination whether those values are furthered by applying the rule to particular conduct, the inquiry resembles the formulation of pure legal principles and is generally reviewed de novo. See United States v. McConney, 728 F.2d 1195, 1203 (9th Cir.), cert. denied, 469 U.S. 824 (1984). To the extent, however, that review requires appreciation of distinctive factual considerations in a specific case, the inquiry resembles the drawing of factual inferences and is generally reviewed under a clearly erroneous standard. See United States v. Wright, 873 F.2d 437, 443 (1st Cir. 1989); cf. Pullman Standard, 456 U.S. at 289 n.19. A deferential standard of review is also favored when judicial economy suggests that the district court is better positioned as a decision-maker than a reviewing court, and where cases do not necessarily fall into recurring patterns. See Cooter & Gell v. Hartmarx Corp., 110 S. Ct. 2447, 2459-2460 (1990); Pierce v. Underwood, 487 U.S. 552 (1988). Applying those considerations to the Sentencing Guidelines, most courts of appeals that have addressed the issue have opted for the "clearly erroneous" standard of review in considering issues like that involved in the present case. Those courts have found that that standard best implements the direction to give "due deference to the district court's application of the guidelines to the facts." 18 U.S.C. 3742(e). See United States v. Wright, 873 F.2d at 437 (applying clearly erroneous standard to the question whether a defendant is a "minor" or "minimal" participant in an offense for purposes of Guidelines Section 3B1.2); United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989) (same); United States v. Mejia-Orosco, 867 F.2d at 220-221 (same); United States v. Lanese, 890 F.2d 1284, 1291 (2d Cir. 1989), cert. denied, 110 S. Ct. 2207 (1990); United States v. Ortiz, 878 F.2d 125, 126 (3d Cir. 1989). As Judge Breyer explained in Wright, line-drawing under the Guidelines calls for an "inquiry that is essentially factual -- one that is founded on the application of the fact-finding tribunal's experience with the mainsprings of human conduct," and in this context "the district court's resolution of the question raises no important, widely applicable issues of law." 873 F.2d at 444 (internal quotation marks omitted). Cf. Wainwright v. Witt, 469 U.S. 412 (1985) (a district court's determination whether cause exists to excuse a member of the venire is a factual question subject to clearly erroneous review). As petitioner points out (Pet. 15), the Tenth Circuit in United States v. Roberts, 898 F.2d 1465 (1990), appears to have taken a different approach. In that case, the court announced that it would apply a de novo standard of review to a district court's determination that a defendant "otherwise used," as opposed to "brandished," a weapon for purposes of Guidelines Section 1B1.1. Id. at 1468-1469. The court explained that in its view, the reviewing court in that context is "required to interpret the statute and to exercise (its) judgment about the values underlying the legal principles involved" -- a task that triggers the de novo standard. Id. at 1469. Applying that standard, the court found that the defendant's use of a knife to threaten his victim during an assault amounted to more than just "brandishing," and upheld the district court's enhancement of the offense level. Id. at 1469-1470. Although statements in Roberts contrast with statements in other decisions, for several reasons we do not believe that any difference between the formulations used in this case and in Roberts calls for this Court's review. First, the depth of any conflict between the Tenth Circuit and other courts of appeals is suspect. Despite the different descriptions used to characterize the standard of review, it is generally recognized that issues requiring the interpretation of a Guideline's meaning, or the elucidation of its policies, will be reviewed under a standard approximating de novo review. See, e.g., United States v. Daughtrey, 874 F.2d at 217. Likewise, issues having a heavy factual component are generally reviewed deferentially, in the Tenth Circuit as elsewhere. See Roberts, 898 F.2d at 1469 n.3, citing United States v. Beaulieu, 893 F.2d 1177 (10th cir. 1990) (applying clearly erroneous standard to the determination whether a defendant was an "organizer or leader of a criminal activity" under Guidelines Section 3B1.1(a)). Because sentencing issues often fall somewhere in the continuum between issues of pure fact and issues of pure law, courts have not reached complete consensus on the characterization of each of the many determinations required under the Guidelines. But there is no indication that the courts of appeals are undertaking review of sentencing determinations in fundamentally different ways. In particular, there is no conflict in results attributable to the different verbal tests expressed in the circuits. This case and Roberts illustrate the point quite strikingly. Although purporting to use a different standard of review, each case employed an analysis much like the other, and their conclusions are consistent. In Roberts, the court noted that the defendant there had approached the victim from the rear, put his arm around her, and held his knife against her face and neck. The court concluded that "(t)his conduct amounts to more than pointing, waiving or displaying (a weapon) in a threatening manner," justifying the district court's enhancement. 898 F.2d at 1470. In this case, the court noted that petitioner not only "brandish(ed) the handgun during an argument," but also made "a threat to those involved in the scheme with her" which was "sufficient to intimidate the others involved in the plot and enabled her to cross the U.S. border without police pursuit." Pet. App. 25. Each court, therefore, explained in some detail the factors in the defendant's conduct that rose to a level justifying the enhancement; neither court deferred to the district court's analysis of the requirements of the law. Moreover, each court focused on the particular facts that differentiated the defendant's handling of the weapon from mere "brandish(ing)" or displaying in a threatening way; in Roberts, it was touching the victim with a knife, while in this case it was petitioner's use of a weapon to intimidate her accomplices into silence. Both cases reflect an appropriate respect for the district court's perception of the facts while preserving the court of appeals' traditional role of ensuring coherent application of the law. Second, as is evident from the foregoing, petitioner would not benefit from the application of de novo review to the facts in this case. The drafters of the Guidelines intended conduct that fell between "brandishing" and discharging a firearm would constitute "otherwise using" a gun. Because "brandishing" is defined as pointing or waving a weapon about in a threatening manner, a weapon is "otherwise used" if the defendant actually employs the weapon to enforce a threat. To the extent that policy judgments about the seriousness of underlying conduct should inform interpretation of the Guidelines, the court of appeals correctly made those judgments here. Under any standard of review, petitioner would not be entitled to relief. 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 FEBRUARY 1991 /1/ The court of appeals also rejected petitioner's claims that the indictment against her failed to charge an offense; that the federal kidnapping statute did not apply to her conduct; that the evidence was insufficient to show petitioner's role in the kidnapping; and that the government's closing argument warranted a new trial. Petitioner does not press any of these claims in this Court. /2/ The petition should not be held for the Court's disposition of Hernandez v. New York, No. 89-7645 (to be argued Feb. 25, 1991). Although Hernandez does raise issues with respect to the sufficiency of the prosecutor's explanation under Batson, as well as the standard of review to be applied to a trial court's acceptance of the prosecutor's explanation, the explanation offered here is quite different from that involved in Hernandez and would be sufficient under any standard of review.