KEITH LAMONTE HILL, PETITIONER V. UNITED STATES OF AMERICA No. 90-5999 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 Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals, Pet. App. A, is unreported. JUDGMENT The judgment of the court of appeals was entered on August 13, 1990. A petition for rehearing was denied on September 27, 1990. The petition for a writ of certiorari was filed on October 18, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether a defendant is entitled to notice, in advance of the sentencing hearing, of the district court's intention to depart upward from the range of sentences prescribed by the Sentencing Guidelines, and of the grounds for departure. 2. Whether the district court erred in refusing to depart downward based on defendant's assistance to law enforcement authorities. 3. Whether the district court committed clear error in its valuation of stolen jewlry for purposes of calculating adjustment under the Sentencing Guidelines. STATEMENT Following his plea of guilty in the United States District Court for the District of Nebraska, petitioner was convicted of interstate transportation of stolen property, in violation of 18 U.S.C. 2314. He was sentenced to 84 months' imprisonment and ordered to pay restitution in the amount of $109,075. The court of appeals affirmed. 1. On April 5, 1989, petitoner entered a guilty plea to the charge of transporting stolen jewelry. Petitioner had stolen the jewelry from a department store in Lincoln, Nebraska, and sold it to a fence in Ohio. Gov't C.A. Br. 1. The district court accepted petitoner's guilty plea and ordered the probation office to prepare a presentence investigative report. That report devotes 12 pages to petitioner's criminal history. Pet. App. C, 10-21. In part F of the report, entitled "FACTORS THAT MAY WARRANT DEPARTURE," the report concludes that petitioner's extensive criminal history may justify an upward departure from the range of sentences prescribed by the federal Sentencing Guidelines: The (petitoner's) criminal history does not adequately reflect the seriousness of the (petitioner's) past criminal conduct. The (petitioner) exceeds the criminal history category by 9 points, and this does not even consider prior adult and juvenile behavior or offenses where the defendant has jumped bail. If the Sentencing Commission extended the criminal history category, (petitoner) would fall at approximately a Level IX or X. He misses a "career offender" classification only because his prior convictions, as well as the instant offense, are burglaries "of other structures" rather than "of a dwelling." Pet. App. C, 29. Petitioner filed no objection to the report's suggestion of an upward departure. See Pet. App. D, G. On October 20, 1989, the district court made "Tentative Findings on Objections to Presentence Report." Pet. App. H. The court determined that $109,075 accurately reflected the wholesale cost of the jewelry and "therefore, the loss to the victim" (a department store), but that the fair market value of that jewelry (i.e., the retail value), for purposes of calculating the offense level under Guidelines Section 2B1.1, was $500,000. Pet. App. H, 1. The court tentatively concluded that a reduction in petitoner's offense level for acceptance of responsibility was not warranted. Id. at 2. On that premise, the court calculated that "the total offense level is 15, (and) that the criminal history category is VI, calling for 41 to 51 months imprisonment." Ibid. The district court invited the parties to raise objections to its tentative findings at the sentencing hearing. Ibid. At that hearing, the district court adhered to its tentative findings that the stolen jewelry had a fair market value of $500,000 and that a reduction in offense level for acceptance of responsibility was not warranted. Pet. App. J, 1. The court also determined that an upward departure was necessary to account for petitioner's "long history of repeated crimes of a similar nature; for lack of prospect, by declaration or otherwise, of his ceasing his criminal activity when he is not in prison; for inadequacy of the Sentencing Guidelines to mirror the severity of his criminal history; (and for) aggravating circumstances not adequately taken into consideration by the Sentencing Commission." /1/ Id. at 3. In light of petitoner's extensive criminal history, the district court departed upward and sentenced petitioner to 84 months in prison. Gov't C.A. Br. 1-3. 2. The court of appeals affirmed the sentence. First, it rejected petitoner's argument that "he had no notice of the court's intention to upwardly depart from the guideline range of 41-51 months." Pet. App. A, 2. The court pointed out that "(n)otice of a possible departure * * * was clearly given in the (presentence investigative report) and (petitioner) had adequate opportunity to review it." Ibid. Second, the court upheld the district court's valuation of the jewelry petitoner stole. It held that the district court's valuation "conforms to the loss definition in Comment 2 of section 2B2.1, and is not clearly erroneous." Pet. App. A, 4. Third, the court rejected petitoner's argument that he was entitled to a 1-point reduction for substantial assistance to the government. The court pointed out that neither petitoner nor the government had requested such a downward adjustment, and that a motion for such a reduction is required under the Guidelines. Pet. App. A, 4. ARGUMENT The court of appeals' decision is correct and does not merit further review. 1. Petitioner contends that the district court failed to give him adequate notice of its intention to depart from the range of sentences presumptively indicated under the Sentencing Guidelines. Pet. 7. Although the question whether departure notice is required by Federal Rule of Criminal Procedure 32(a) or the Due Process Clause is currently before the Court in Burns v. United States, No. 89-7260 (argued Dec. 3, 1990), this case should not be held for Burns. Both the petitioner here and in Burns, and the courts of appeals that have required departure notice, agree that such notice may be provided either by the presentence investigative report or by the sentencing court itself. See Pet. 6; Pet. Reply Br. 1 in Burns v. United States, No. 89-7260 ("The judge only has to provide notice when he or she is considering a departure based upon grounds not identified either in the presentence investigation report ("PSI report") or by the parties."); United States v. Sands, 908 F.2d 304, 307 (8th Cir. 1990). Unlike Burns, petitioner here received notice of the possibility of an upward departure from the presentence report and failed to object. See pp. 2-3, supra. Indeed, since the Eighth Circuit had earlier held that defendants are entitled to departure notice, petitioner presumably received the benefit of that requirement in his case. See United States v. Sands, 908 F.2d at 306-307. It is true that the district court did not address the possibility of an upward departure in its "Tentative Findings on Objections to Presentence Report." Pet. App. H. But the court's silence can hardly be read as a tentative decision not to depart upward. As the title confirms, the tentative findings addressed only the parties' "objections to (the) presentence report," and petitioner did not object to the report's suggestion that the court depart upward on the basis of petitioner's extensive criminal history. Nor can the court's calculation of the presumptively applicable Guidelines range, Pet. App. H, 2, be construed as a decision not to depart from that range. The calculation of a Guidelines range obviously expresses no opinion on whether a departure from that range is appropriate. The presentence report gave petitioner adequate notice of the grounds for departure as well as its possibility. The report underscored that petitioner's "criminal history (did) not adequately reflect the seriousness of the (petitoner's) past criminal conduct." Pet. App. C, 29. Contrary to petitioner's contention, Pet. 6, that statement placed him on sufficient notice that the district court might depart upward for all of his "(o)ther criminal conduct," including his impersonation of law enforcement officials and his use of alias names and social security numbers in furtherance of his criminal activity. See Pet. App. J, 3. 2. Petitioner contends that the court of appeals erred when it held that a downward adjustment for assistance to authorities is contingent on a formal motion by the government. Pet. 7. Guidelines Section 5K1.1 expressly provides that only "(u)pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense" may be district court depart for assistance to authorities. Every court of appeals to have considered this language has held that in the absence of a motion by the government requesting a departure, the district court may not depart from the Guidelines on the ground of substantial assistance. See, e.g., United States v. Mesa-Rincon, 911 F.2d 1433, 1445-1446 (10th Cir. 1990); United States v. Alamin, 895 F.2d 1335, 1337 (11th Cir. 1990), cert. denied, 111 S. Ct. 196 (1990); United States v. Francois, 889 F.2d 1341, 1343 (4th Cir. 1989), cert. denied, 110 S. Ct. 1822 (1990). Although the government filed no motion on petitioner's behalf, petitioner suggests that the motion requirement was satisfied by statements in letters and the presentence report. But "(t)he Guidelines unambiguously require the government (to) file a motion in order to trigger section 5K1.1," United States v. Brick, 905 F.2d 1092, 1098-1099 (7th Cir. 1990) (emphasis added), and the courts of appeals have uniformly read Section 5K1.1 to require a formal motion by the government, see id. at 1098 (statements made by government at resentencing do not satisfy motion requirement); United States v. Coleman, 895 F.2d 501, 505 (8th Cir. 1990) (letters from government informing the court of the defendant's cooperation do not satisfy the motion requirement of 18 U.S.C. 3553(e), which is the statutory counterpart to Section 5K1.1). The distinction between an informal sentencing recommendation and a formal motion is significant. In many circumstances, a defendant's cooperation merits only a lower sentence within the applicable Guideline range rather than a departure below that range. United States v. Brick, 905 F.2d at 1098 n.9. Even without a reduction in offense level for substantial assistance to the government, petitioner received a substantial benefit from his plea agreement. That agreement promised no prosecution by the State of Nebraska and no federal prosecution in Ohio, and that promise has been kept. Pet. App. A4; cf. United States v. Sutherland, 890 F.2d 1042, 1043 (8th Cir. 1989) (per curiam) (no reduction needed if defendant already received benefit of cooperation through plea agreement); United States v. Taylor, 868 F.2d 125, 127 (5th Cir. 1989) (no departure warranted where defendant received benefit of his cooperation on the charging end of case). 3. Petitiioer contends that the district court committed clear error in finding that he stole $500,000 worth of jewelry. Pet. 7. The district court's fact-bound determination of the fair market value of the stolen jewelry was correct, and even a large error would not affect petitioner's sentence. Under the applicable Guideline, the same adjustment in the offense level applies for any valuation of the jewelry between $200,001 and $500,000. See Federal Sentencing Guidelines at C.51 (amendment 99) (1989). In this case, the appraisals of the retail value of the stolen jewelry were between $226,000 and $600,000 -- well within the applicable range. For example, a manager at a merchandising company valued the stolen jewelry at a "$600,000 * * * asking price." Pet. App. D, 3. A New York jeweler fixed the value at $226,000. Pet. App. H, 1. After his arrest, petitioner himself estimated that the value of the stolen jewelry was $500,000. Pet. App. H, 1; Gov't C.A. Br. 6. In light of these appraisals, the district court committed no error in finding the stolen jewelry to have a fair market value of at least $200,001. Petitioner argues that it was "totally self-contradictory and unfounded" for the district court to find the jewelry to have a wholesale value of $109,075 for restitution purposes, and a fair market (retail) value of $500,000 for determining the proper adjustment under Guidelines Section 2B1.1(b)(1). Pet. 7. The district court's distinction between wholesale and retail values is entirely sensible. The value of the jewelry to the victims -- who were merchants -- was estimated by them to be $109,075, and it was appropriate for the district court to adopt that figure, as the amount of restitution for the loss they had suffered. Pet. App. D, 3. At the same time, Guidelines Section 2B1.1 (comment. n.2) requires the loss for sentencing purposes to be based on the "fair market value" -- not the wholesale value -- of the property. As the district court correctly observed: For restituion purposes, loss to the victim is the proper consideration and wholesale value is a proper measure, because if the victim gets back the wholesale value, it will have been made whole. On the other hand, when we are determining the appropriate sentence of punishment, it is more important that we consider the gain to the perpetrator, * * * because the gain to the perpetrator shows the magnitude of the offense from his position. Pet. App. H, 1; see Guidelines Section 2B.1 comment. n.2 ("in the case of the theft of a government check or money order, loss refers to the loss that would have occurred if the check or money order had been cashed."). 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 JANUARY 1991 /1/ Those circumstances were (1) the "(i)nadequacy of defendant's criminal history" level under the Guidelines; (2) petitioner's "other criminal conduct" (including similar department store burglaries, use of alias names and Social Security numbers in furtherance of petitioner's criminal activity, and petitoner's impersonation of law enforcement officials); (3) the fact that petitioner committed the instant crime while on parole; (4) petitioner's "history of burglaries from department stores for past 15 years," and (5) petitioner's acknowledgement that "he lives off crime" and "has worked a total of one year during his lifetime." Pet. App. J, 3-4.