WILMER SAMPLE, PETITIONER V. UNITED STATES OF AMERICA No. 90-6126 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 Third Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A16-A17) is unpublished, but the judgment is noted at 914 F.2d 245 (Table). JURISDICTION The judgment of the court of appeals was entered on August 31, 1990. The petition for a writ of certiorari was filed on November 1, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner was entitled to reductions in the base offense level under Sentencing Guidelines Sections 3B1.2 and 3E1.1 for his "mitigating role" and acceptance of responsibility. 2. Whether the government breached the plea agreement when it urged the court of appeals to affirm the district court's refusal to reduce petitioner's base offense level for acceptance of responsibility. STATEMENT 1. Petitioner and his co-defendant, Delano Gist, were indicted in the District of Delaware on one count of conspiring to possess five or more grams of crack cocaine with intent to distribute it, in violation of 21 U.S.C. 846, one count of possessing five or more grams of crack cocaine, in violation of 21 U.S.C. 844, and one count of possessing five or more grams of crack cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B) (iii). C.A. App. 9-11. /1/ Before trial, petitioner filed a motion to suppress evidence seized at the time of his arrest. After a hearing, the district court denied petitioner's motion. C.A. App. 12-84. The evidence adduced at that hearing showed that Delaware State Trooper Tebbens arrested petitioner on September 3, 1989, after confirming what a reliable informant had told him, namely, that two men -- who turned out to be petitioner and Gist -- were selling cocaine out of a light blue Ford with Pennsylvania plates. The car was parked by the side of the road in West Rehoboth, Delaware. Id. at 14-18, 51, 53, 67. Tebbens frisked petitioner, found car keys, and asked petitioner if he had any objection to a search of the Ford. Petitioner responded he had no objection, because the car was not his. In the car, Tebbens found vials of crack cocaine; a loaded gun was later found inside the car. Id. at 21-23, 30-31, 44-45, 53-54, 69. After Tebbens advised petitioner of his Miranda rights, petitioner explained that he and Gist had bought the crack together in Philadelphia and had driven to Delaware to sell it. Petitioner told Tebbens that he and Gist were equal partners in the enterprise. Id. at 35-37, 47-48, 70-71. 2. Petitioner later reached a plea agreement with the government. Under that agreement, petitioner agreed to plead guilty to the conspiracy charge. In return, the government agreed to move to dismiss the remaining two counts against petitioner at sentencing. In addition, the government agreed that it would "not oppose a two-level reduction in the offense level for (petitioner's) affirmative acceptance of responsibility under Sentencing Guideline 3E1.1." Pet. App. A19. In January 1990, petitioner pleaded guilty to the conspiracy offense. During the plea colloquy, petitioner acknowledged that he and Gist were going to sell crack and share the profits. C.A. App. 100. Moreover, petitioner did not contest the government's assertion that, if the case were to proceed to trial, the government would prove that petitioner admitted to Trooper Tebbens that he and Gist "had come to Delaware from Pennsylvania with the explicit understanding that they would make some money from the sale of crack cocaine and that they would share the profits of that sale." Id. at 102. /2/ 3. Petitioner thereafter met with his probatio officer as part of the preparation of the Presentence Report. During that interview, petitioner "denied any ownership of the crack." Gov't C.A. App. A4. Petitioner initially denied knowing that Gist was selling crack from the car, and claimed that he himself had not even been near the car until just before the police arrived. He also claimed that he had been drinking before his arrest, that he could not remember if he had made statements about the crack to Trooper Tebbens, and that he did not believe he had made the admissions attributed to him. Ibid. He later acknowledged that "he knew Mr. Gist was selling drugs from the car, after they arrived in Rehoboth." Ibid. Petitioner claimed, however, that he and Gist had gone to Delaware to attend a cook-out, and "he denied any prior knowledge that Mr. Gist possessed crack or that he intended to sell it while they were in Delaware." Ibid. In view of petitioner's statements, the probation officer concluded that petitioner had not accepted responsibility for his offense and therefore did not recommend that the court reduce petitioner's base offense level under Sentencing Guideline Section 3E1.1. The probation officer also made no adjustment for petitioner's "mitigating role" in the offense under Sentencing Guideline Section 3B1.2. Gov't C.A. App. A4-A5. Petitioner objected to the probation officer's refusal to recommend reductions for acceptance of responsibility and for what petitioner claimed was his minor role in the offense. Gov't C.A. App. A10. The probation officer overruled these objections. First, the officer found that "there is sufficient evidence to conclude that (petitioner) not only had prior knowledge that Mr. Gist was going to Rehoboth to sell crack but was also his partner." Ibid. Second, the probation officer determined that "(g)iven (his) belief that (petitioner) and Mr. Gist were partners in this offense, (he) does not believe (petitioner) is entitled to a reduction for minor participa(tion)." Id. at A11. /3/ 4. At sentencing, petitioner renewed his objections to the probation officer's recommendations regarding reductions in the base offense level for petitioner's "mitigating role" and acceptance of responsibility. The government stated that, under the terms of the plea agreement, it did not oppose a reduction for petitioner's acceptance of responsibility. Pet. App. A10. The district court noted that, at the suppression hearing, Trooper Tebbens had testified that petitioner "stated that he got together with Gist on Friday afternoon in Philadelphia, they bought the crack, they were going to split the profits fifty-fifty * * *." Pet. App. A7. /4/ Accordingly, the court found that "it is not appropriate to give any reduction for (petitioner's) role in the offense." Id. at A8. Turning to a reduction for acceptance of responsibility, the court found that petitioner's statements to the probation officer "would indicate an unwillingness to accept responsibility for his role in the offense which * * * (was) that he was aware of what was going on and participated with Mr. Gist in what was going on." Id. at A9. The court pointed out that petitioner told the probation officer that he "(didn't) know what Gist was up to until he started selling drugs in Rehoboth, that there was no advance plan or intent to work together and split the proceeds." Id. at A10. Those statements, the court found, were "in conflict with the statements given by both Mr. Gist and (petitioner) at the time of their arrest to Trooper Tebbens." Ibid. In these circumstances, the court determined, petitioner "has not demonstrated sincere remorse," and thus did not merit the two-level reduction for acceptance of responsibility. Id. at A11. Turning to the applicable Sentencing Guidelines, the district court determined that petitioner had a total offense level of 26 and a criminal history that placed him as a Category II offender, thus calling for a Guidelines' range of 70 to 87 months' imprisonment. The court sentenced petitioner to a term of 70 months' imprisonment, to be followed by a five-year term of supervised release. Pet. App. A11-A14; C.A. App. 121-123. 5. In the court of appeals, petitioner contended that the district court erroneously refused to reduce the base offense level to reflect his minor role in the offense and acceptance of responsibility. Pet. C.A. Br. 6-7. Moreover, petitioner contended that, given the terms of the plea agreement, "the government cannot now be heard to argue against the reduction for acceptance of responsibility; if it attempts to do so, (petitioner) is entitled to specific performance * * * or * * * to rescind the contract and withdraw his guilty plea." Id. at 8. /5/ In an unpublished order, the court of appeals summarily affirmed petitioner's conviction and denied his motion to strike portions of the government's brief. Pet. App. A16-A17. ARGUMENT 1. Petitioner contends (Pet. 5-7) that the district court erroneously refused to reduce the base offense level to reflect his minor role in the offense and acceptance of responsibility. The record belies that claim. Here, the evidence adduced at the pretrial suppression hearing showed that petitioner, at the time of his arrest, admitted to Trooper Tebbens that "he got together with Gist on Friday afternoon in Philadelphia, they bought the crack, they were going to split the profits fifty-fifty * * *." Pet. App. A7; see C.A. App. 35-37, 47-48, 70-71. The district court credited Tebbens' testimony and properly determined -- in the absence of contrary record evidence -- that petitioner was not a "minor or minimal participant" in the offense under Sentencing Guideline Section 3B1.2. /6/ Moreover, petitioner's evasive and equivocal statements to the probation officer regarding his criminal activity supported the district court's determination that he did not merit a reduction for acceptance of responsibility. On this record, petitioner's actions themselves compelled the conclusion that he "has not demonstrated sincere remorse," and thus did not merit the two-level reduction for acceptance of responsibility. Pet. App. A11. 2. Petitioner also contends (Pet. 7) that the government breached the plea agreement when it urged the court of appeals to affirm the district court's refusal to reduce petitioner's base offense level for acceptance of responsibility. Under the terms of the agreement, the government would "not oppose a two-level reduction in the offense level for (petitioner's) affirmative acceptance of responsibility under Sentencing Guideline 3E1.1." Pet. App. A19 (Paragraph 5). This provision of the agreement falls in between the provision calling for the government "at the time of sentencing to move to dismiss the remaining counts (against petitioner)," ibid. (Paragraph 3), and the provision stating that the government's "sentencing recommendation * * * is left open until the time of sentencing," ibid. (Paragraph 6). In these circumstances, the sensible -- and straightforward -- construction of the government's obligation is that it would apply only at the sentencing proceeding -- an obligation that the government fulfilled. See Pet. App. A9-A10. Accordingly, the government's brief in the court of appeals defending the district court's imposition of sentence did not violate the terms of the plea agreement. In any event, petitioner has not shown -- nor could he -- that the government's submission to the court of appeals prejudiced him. 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 VICKI S. MARANI Attorney JANUARY 1991 /1/ Gist was also indicted on one count of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. 922(g)(1). Another co-defendant, Nathan Bennett, was indicted on a separate count of conspiring to possess crack cocaine, in violation of 21 U.S.C. 846. Gist ultimately pleaded guilty to the firearms and simple possession charges. Bennett remains a fugitive. See C.A. App. 9-11; Gov't C.A. Br. 5; Gov't C.A. Rev. App. A12. /2/ During the hearing, both the government and the court placed the terms of the plea agreement on the record. See C.A. App. 89-90, 93. /3/ The probation officer noted that "if (petitioner's) role was, as he claims, he deserves an acquittal, rather than simply a reduction in the base offense level." Gov't C.A. App. A11. /4/ Petitioner declined the court's invitation at the sentencing hearing to testify about his role in the offense. Pet. App. A7-A8. /5/ In response, the government contended that its agreement not to oppose the reduction for acceptance of responsibility applied only to the sentencing proceeding. Accordingly, the government urged the court of appeals to affirm the district court's imposition of sentence as supported by the record. Gov't C.A. Br. 16-19. Petitioner then asked the court to "strik(e) all portions of the government's brief opposing the reduction for acceptance of responsibility, or to rescind the contract, which would allow him to withdraw his guilty plea." Pet. C.A. Reply Br. 4. /6/ Petitioner now asserts that when he "left Pennsylvania with Gist, it was to visit friends in Georgetown -- it was after that they decided to go to Rehoboth, sell the drugs, and split the profits '50-50.'" Pet. 6. That assertion, even if correct, scarcely demonstrates that petitioner was a "minor participant" in the offense, since he concedes his substantial stake in the drug venture.