JOSE E. LEON, PETITIONER V. UNITED STATES OF AMERICA No. 90-6043 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 memorandum opinion of the court of appeals (Pet. App. A4-A10) /1/ is unreported, but the judgment is noted at 915 F.2d 1561 (Table). JURISDICTION The judgment of the court of appeals was entered on September 20, 1990. The petition for a writ of certiorari was filed on October 22, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court properly departed from the Sentencing Guidelines on the ground that petitioner's criminal history category did not adequately reflect the seriousness of his other criminal conduct. STATEMENT Petitioner pleaded guilty in the United States District Court for the District of New Jersey to one count of conspiracy to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846. He was sentenced to 96 months' imprisonment and a three-year term of supervised release. 1.a. From the fall of 1987 until August 1989, the FBI conducted "Operation QuickCount," an undercover operation designed to identify and prosecute cocaine traffickers in northern New Jersey. At the center of the operation were two FBI agents posing as businessmen selling money counting machines. Petitioner and his co-defendant, Jose Hincapie, were two of the operation's targets. Pet. App. F12. At various times, petitioner told the undercover agents that he had connections to a nationwide organization that could supply large amounts of cocaine. Id. at F13. Petitioner also introduced the agents to his co-conspirator, who told them that he wanted to establish a regular business relationship with them and that he was distributing 50 kilograms of cocaine a month and could distribute more "if he had the right source." Ibid. In July 1988, the agents agreed to buy a kilogram of cocaine from petitioner and Hincapie for $21,000. They completed the purchase on July 14 at petitioner's apartment. Laboratory tests later determined that the cocaine was 89 percent pure. In July 1989, while petitioner was on bail from state drug charges, he and Hincapie again met with the agents. Hincapie indicated that he could deliver 10 more kilograms of cocaine. In response to that offer, the agents sent petitioner and Hincapie to Florida to buy the drugs, giving them $1000 in expense money, a beeper, and a pickup truck equipped with hidden compartments designed to hold 10 kilograms of cocaine. Although petitioner and Hincapie drove to Florida, their purchase attempt failed. Shortly thereafter, petitioner was arrested; in December he pleaded guilty to the conspiracy on which he was convicted. Pet. App. F13. b. The presentence report calculated that under the Sentencing Guidelines, petitioner would be subject to a sentence of between 121 and 151 months' imprisonment, based on the completed one kilogram sale and the unconsummated ten kilogram transaction. Pet. App. F14, F17. Petitioner's criminal history level was calculated using three 1984 convictions for receiving stolen property. Id. at F6. The probation officer indicated that an upward departure from the Guidelines sentencing range was warranted by two other criminal cases, one of which involved drug dealing, that were then pending against petitioner in state court but were not reflected in his criminal history score. /2/ Id. at F20. At a sentencing hearing held on March 7, 1990, the district court announced that it would not include the 10-kilogram transaction in the computation of petitioner's base offense level. Pet. App. G7. The court stated that "(t)he ten kilos * * * should be out because it is conduct which * * * occurred a year after the conspiracy charged in the indictment ended." Ibid. The court instead calculated a sentencing range of 57 to 71 months, based only on the one kilogram sale. Because the prosecutor alleged that the negotiations took place face to face with undercover agents, however, the court credited the allegation as true, id. at G4, and added "(t)hat's not to say it couldn't be considered for an upward departure," id. at 7. /3/ The court then departed upward from the Sentencing Guidelines range and sentenced petitioner to 96 months' imprisonment. The court explained its decision to depart upward by stating that "the guideline range does not adequately reflect * * * the (petitioner's) criminal involvement." The court clearly indicated that it was taking into account petitioner's pending drug and stolen car charges. /4/ With respect to the 10-kilogram attempted purchase, the court stated that it believed it could be shown that petitioner was involved in that transaction, but the court added that it did not have time to conduct a hearing on that issue. 2. Petitioner sought appellate review of his sentence, and the court of appeals affirmed in an unpublished memorandum opinion. The court interpreted the district court's statements at sentencing to mean that the district court had taken into account the 10-kilogram purchase negotiations as well as the pending state charges in departing upward from the Guidelines sentencing range. The court found that it was proper for the district court to consider the 10-kilogram negotiation as a ground for upward departure rather than as a basis for increasing the base offense level, reasoning that the district court could consider that transaction not to be part of the same course of conduct as the charged count. Finally, the court of appeals held that the district court correctly attributed to petitioner participation in the 10-kilogram transaction on the basis of reasonably reliable information, and that no hearing on petitioner's participation was necessary, because petitioner failed to request one. Id. at A7-A9. ARGUMENT Petitioner principally contends (Pet. 6-11) that the district court abused its discretion in departing from the Guidelines sentencing range on the basis of pending charges and uncharged drug conduct. Section 4A1.3 of the Sentencing Guidelines permits a district court to depart from the specified sentencing range when "reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct." Guidelines Section 4A1.3. Information that supports departure includes "prior similar adult criminal conduct not resulting in a criminal conviction," Guidelines Section 4A1.3(e), and departure is justified when "(t)he court * * *, after a review of all the relevant information, conclude(s) that the defendant's criminal history was significantly more serious than that of most defendants in the same criminal history category." /5/ The court may consider whether a defendant has engaged in the past in criminal conduct similar to that for which he is being sentenced, see United States v. Fortenbury, 917 F.2d 477, 478-479 (10th Cir. 1990), and it may consider any undisputed pending charges, see United States v. Gaddy, 909 F.2d 196, 201 (7th Cir. 1990). The district court properly departed upward from the Guidelines sentencing range. Petitioner's criminal history score did not reflect his participation in negotiations for the sale of and attempts to obtain 10 kilograms of cocaine, his pending state charges for drug distribution and possession of a stolen automobile, or the fact that he was on bail from those charges when he participated in the 10-kilogram drug purchase negotiations. Given this persistent criminal conduct, including drug dealing undeterred by prior arrest (and pending charges) for that very crime, the sentence imposed was, as the court of appeals held, entirely reasonable. Indeed, the district court was generous to petitioner: had it accepted the recommendation of the probation office, as it surely could have, petitioner would have received a sentence of at least 121 months instead of the 96-month sentence the court imposed. Petitioner contends (Pet. 10-11) that the court of appeals erred in concluding that the district court relied on the 10-kilogram attempted purchase as a basis for departure. Although the district court's statements on that point are somewhat cryptic, it was reasonable for the court of appeals to conclude, after reviewing the record, that the district court intended to base its departure decision in part on the 10-kilogram transaction. Although the district court decided not to include that transaction in the calculation of petitioner's base offense level, the court credited the allegations regarding that transaction as true and said that they could be considered for purposes of an upward departure. Pet. App. G4. And after the court stated that it intended to depart upwards, the court commented that it was doing so "because * * * it could be shown by the agent's testimony that (petitioner) knew" about the 10-kilogram transaction, even though the court stated that it did not intend to hold a hearing on that issue. /6/ Even if the district court did not take the 10-kilogram transaction into account, petitioner's sentence was still lawful. In departing upward based on criminal conduct that is not adequately represented in the defendant's criminal history category, a court is directed to use as a reference the guideline range for a criminal history score that best reflects the defendant's criminal background. See Sentencing Guidelines Section 4A1.3. In this case, if the two pending charges had been felony convictions carrying significant sentences, petitioner's criminal history category would have been IV, rather than II, and the sentencing range for his offense level would have been 77 to 96 months' imprisonment. See Sentencing Guidelines Section 4A1.1(a). Petitioner's 96-month sentence was within that range and therefore an appropriate sentence once the court decided to depart because of petitioner's aggravated criminal background. 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 KAREN SKRIVSETH Attorney JANUARY 1991 /1/ Some pages in petitioner's appendix are unnumbered. We cite the pages of each lettered appendix listed in petitioner's exhibit list, including related attachments preceding and following each exhibit, as if they were numbered sequentially. /2/ Petitioner had been arrested in March 1988 for possession of two stolen vehicles and in February 1989 for possession of 59 grams of cocaine with intent to distribute it and possession of narcotics paraphernalia. Id. at F16. /3/ Petitioner denied any involvement in the 10-kilogram negotiation or the trip to Florida. Pet. App. at G3-G5. However, despite discussions between the court and the lawyers about a hearing on this issue, petitioner's counsel never requested the court to hold one. /4/ Petitioner's counsel agreed that the charges pending against petitioner could be considered as grounds for departure. Pet. App. G11-G13. /5/ It is clear that the district court departed from the Guidelines under Section 4A1.3, and not, as petitioner contends (Pet. 7, 9), under Section 5K2.0. The latter section allows a departure where "the court finds 'that there exists an aggravating * * * circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.'" Guidelines Section 5K2.0, quoting 18 U.S.C. 3553(b). Although the district court did not specify under which section it departed, its comment at sentencing that "I feel that the prior criminal history is not adequately reflected," makes clear that it employed Section 4A1.3 rather than Section 5K2.0. Pet. App. G22. Further, the presentence report indicated the possibility of upward departure only under Section 4A1.3. Thus, petitioner's reliance (Pet. 9-10) on United States v. Ryan, 866 F.2d 604 (3d Cir. 1989), is misplaced, for Ryan involved departure under Section 5K2.0, and not under Section 4A1.3. Ryan therefore does not stand, as petitioner would have it, for the general proposition that the court may depart only in "unusual" cases. /6/ The court's statement that it did not have time for a hearing does not undermine the conclusion that the court took into account the 10-kilogram transaction. The facts upon which an upward departure are based need be only "reliable," and here, as the district court and the court of appeals held, they were at least that, even without benefit of a hearing. The negotiation took place face-to-face with undercover agents, who supplied petitioner and his co-conspirator with $1,000 in expense money and a specially equipped truck for a trip to Florida. Petitioner's co-conspirator did not deny participation in the 10-kilogram conduct. Furthermore, because petitioner did not request a hearing, the court was not obligated to hold one. See United States v. Fortenbury, 917 F.2d 477, 480 (10th Cir. 1990).