ROBERT V. MARSHALL, PETITIONER V. UNITED STATES OF AMERICA No. 90-5968 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. B) is reported at 910 F.2d 1241. JURISDICTION The judgment of the court of appeals was entered on August 23, 1990. The petition for a writ of certiorari was filed on October 15, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner was properly sentenced as a career offender. 2. Whether the district court lacked jurisdiction to accept petitioner's guilty plea because his indictment had not been signed by the foreman of the Grand Jury. STATEMENT Petitioner pleaded guilty in the United States District Court for the Western District of Texas to one count of distributing cocaine base, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 210 months' imprisonment, to be followed by five years' supervised release. /1/ 1. The facts are not in dispute. In July 1989, a confidential informant bought almost 20 grams of cocaine base from petitioner and his co-defendants, Ramona Davis and Evelyn King, in Midland, Texas. Pet. App. B5985. Two detectives witnessed the sale that was the basis of the plea. Plea Tr. 19-20. 2. At the plea hearing, the district court informed petitioner that he would be sentenced under the Sentencing Guidelines and that his sentence could not be determined until a presentence report (PSR) had been prepared. Plea Tr. 7, 11, 15, 22-23. Petitioner acknowledged that he understood, that he and his attorney had discussed how the Guidelines might apply to his case, and that he knew that the maximum sentence he faced was twenty years' imprisonment and a fine of $1 million. Plea Tr. 12, 15. He also acknowledged that no promises had been made to him other than that the government would move to dismiss the five remaining counts against him. Plea Tr. 14-15. The court asked him if he had changed his mind about pleading guilty, and he said that he had not. Plea Tr. 10-11. After finding that petitioner fully understood his rights and his maximum possible sentence, the court accepted his guilty plea. Plea Tr. 21. Petitioner acknowledged that he had been in trouble with the law before and opined that the court would have no difficulty obtaining all the information on his background that it would need in order to determine sentence. Plea Tr. 23. 3a. The probation office determined that petitioner was a career offender under Guideline Section 4B1.1, which requires, inter alia, that a defendant have at least two prior felony convictions of either a crime of violence or a controlled substance offense. The probation office counted four such prior felony convictions: (1) a 1972 federal conviction for robbery of government funds (in violation of 18 U.S.C. 2114), (2) a 1972 state conviction for robbery, (3) 1972 state convictions for using a firearm during the commission of a felony and for three counts of robbery, and (4) a 1978 state coviction for possession of a controlled substance. When petitioner committed the instant offense, Application Note 4 to Guideline Section 4B1.2 stated that Guideline Section 4A1.2(e) was applicable to the counting of convictions under Guideline Section 4B1.1. /2/ At that time, Guideline Section 4A1.2(e)(1) provided: Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant's commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month that resulted in the defendant's incarceration during any part of such fifteen-year period. /3/ The probation office concluded that all of petitioner's previous convictions fell within the applicable time period for computing his criminal history because he had served all or part of the sentences for those convictions within the fifteen years prior to his commencement of the instant offense in July 1989. /4/ It therefore counted those convictions for career offender purposes. PSR 7-8, 10-11. b. Petitioner filed objections (PSR 18) to the PSR's computation of his criminal history, contending that only the state drug conviction qualified as a predicate for career offender status because the other crimes were all committed more than ten years before the instant offense. The probation office declined to revise its computation on this basis and reaffirmed its conclusion that all four prior felony convictions were proper predicates under Guideline Section 4A1.2(e)(1). PSR 18-19. 4. At the sentencing hearing, petitioner did not renew this objection to the PSR. Instead, he argued that he should not be sentenced as a career offender because his 1972 crimes were, as he characterized them, simply part of a "spree" for which he had already been punished. Sent. Tr. 37-38. He also claimed that when he pleaded guilty to the instant offense, he did not know that he would be adjudicated a career offender, and that if he had known, "I might not have pled guilty." Sent. Tr. 38. Defense counsel, however, said that he had discussed the meaning of career offender status with petitioner. Sent. Tr. 39. Petitioner did not seek to withdraw his guilty plea. The district court "accept(ed) as accurate" the PSR's information on petitioner's criminal history and found him to be a career offender. Sent. Tr. 45. With a criminal history category of VI and an offense level of 30, the applicable sentencing range was 168 to 210 months' imprisonment. The court imposed the maximum Guidelines sentence. Sent. Tr. 46. 5. The court of appeals affirmed. Pet. App. B. It rejected petitioner's contention that 21 U.S.C. 851 entitled him to notice before he pleaded guilty that he would be sentenced as a career offender. The court explained that the notice requirement applies when the government seeks to enhance the maximum penalty under the recidivist provisions of Title 21, but that it does not apply to sentences imposed pursuant to the Guidelines and within the applicable sentencing range. Pet. App. B5987-B5988. /5/ The court also noted that petitioner "was told and acknowledged at his sentencing that he understood the Sentencing Guidelines applied to his sentence and the district court could not give an estimate of his sentence. Furthermore, (petitioner) told the district judge that he understood that he faced up to 20 years in prison (and) a $1,000,000 fine." Pet. App. B5988 n.1. /6/ The court next rejected petitioner's claim that his 1972 convictions should not have been counted for career offender purposes because, in petitioner's view, there was "no proof" (Pet. C.A. Br. 18) that he had served any part of his prison sentences on those convictions during the fifteen years prior to the commencement of the instant offense, as required by Guideline Section 4A1.2(e)(1). Petitioner argued that the government should have been required to show that he was not on parole for those offenses prior to July 22, 1974 (Pet. C.A. Br. 18-19). Noting that petitioner had failed to raise this issue in the district court, the court of appeals reaffirmed the general rule against considering issues for the first time on appeal unless they "involve purely legal questions and the failure to review them would result in a manifest injustice." Pet. App. B5988. The court found that petitioner's issue did not satisfy either of these criteria, because (1) "(t)he determination of release dates involves factual, not legal, questions," and (2) petitioner "was aware of the recitations in the presentence report concerning his release dates and at no time called the court's attention to a discrepancy or any difference of opinion on them." Pet. App. B5988. The court observed that the district judge was in any event entitled to rely upon uncorroborated hearsay that carries sufficient indicia of reliability, and that that standard was met here because the PSR's information about petitioner's release dates had been derived from public records. Pet. App. B5988-B5989. Accordingly, the court ruled that the 1972 convictions "fall squarely within the fifteen year period of Section 4A1.2(e)." Pet. App. B5988. Finally, the court rejected another claim that petitioner had raised for the first time on appeal, i.e., that his indictment was fatally defective because the foreman of the Grand Jury had not signed it. In determinig the effect of Fed. R. Crim. P. 6(c), which states that "(t)he foreperson * * * shall sign all indictments," the court relied (at Pet. App. B5986) on the Notes to that provision by the Advisory Committee on Rules, which make clear that the "(f)ailure of the foreman to sign or endorse the indictment is an irregularity and is not fatal, Frisbie v. United States, 157 U.S. 160, 163-165." The court observed that petitioner had not only failed to raise this issue below but had also failed to object to the government's supplementation of the record on appeal with a Grand Jury concurrence form, signed by the foreman, that showed that 18 jurors had in fact concurred in the finding of the indictment. Pet. App. B5986; Gov't C.A. Br. Addenda A, B, C. Accordingly, the court ruled that the lack of the foreman's signature on the indictment did not deprive the district court of jurisdiction to accept petitioner's guilty plea. Pet. App. B5986. ARGUMENT 1. Petitioner challenges his career offender status on two grounds, neither of which warrants review. a. First, petitioner contends (Pet. 9-12) that 21 U.S.C. 851 entitled him to notice before he pleaded guilty that he would be sentenced as a career offender. This claim is incorrect. As the court of appeals explained, Section 851 was inapplicable to petitioner because he received an increased sentence under the Guidelines, within the generally applicable statutory range. See United States v. McDougherty, No. 89-50245 (9th Cir. Nov. 28, 1990), slip op. 14712-14713; United States v. Wallace, 895 F.2d 487, 489-490 (8th Cir. 1990). /7/ Section 851 was enacted in 1970, /8/ and is thus not part of the Guidelines, which do not even refer to Section 851. Section 851 applies when the government seeks to invoke the increased statutory penalties in 21 U.S.C. 841-858, based upon certain qualifying prior convictions. Unlike Section 851 and its related provisions, the career offender provision of the Guidelines (Section 4B1.1) does not increase the statutory penalties for the defendant's crime. It simply implements the mandate of 28 U.S.C. 994(h) that the Sentencing Commission assure that certain career offenders receive sentences "at or near the maximum term authorized" for their crime under the existing federal statute. See McDougherty, slip op. 14713. /9/ Nothing in the Guidelines requires that defendants be given pre-plea notice of career offender status. Cf. United States v. Selfa, 918 F.2d 749, 752 (9th Cir.) (rejecting claim that Fed. R. Crim. P. 11 requires notification of career offender status at time of plea), cert. denied, 111 S. Ct. 521 (1990); Advisory Committee Notes to Fed. R. Crim. P. 11 (recognizing that it is "impracticable, if not impossible, to know which guidelines will be relevant prior to the formulation of a presentence report and resolution of disputed facts"). /10/ Contrary to petitioner's suggestion (Pet. 9), there was nothing unfair about the lack of pre-plea notice of his career offender status. During the plea proceedings, petitioner acknowledged that (1) he faced a maximum sentence of twenty years' imprisonment and a $1 million fine, (2) he knew that his criminal history was relevant to his sentence and that his sentence could not be estimated until a PSR had ben prepared, (3) he and his attorney had discussed the applicabilty of the Guidelines to his case, and (4) he nevertheless wished to persist in his plea. Plea Tr. 7, 10-12, 15, 21-23. The district court specifically found that petitioner fully understood his rights. Plea Tr. 21. Moreover, petitioner -- who received less than the maximum sentence -- does not deny that he was given ample opportunity to contest the career offender determination both in written objections to the PSR and at the sentencing hearing. His comment at sentencing that he "might" not have pleaded guilty had he known that he would be sentenced as a career offender (Sent. Tr. 38) is belied by his attorney's indication that he had discussed that very possibility with petitioner, as well as by the fact that petitioner never moved to withdraw his guilty plea. Cf. United States v. Babineau, 795 F.2d 518, 521 (5th Cir. 1986) (defendant's failure to attempt to withdraw guilty plea at time of sentencing indicates that asserted violation of Rule 11 did not affect decision to plead guilty); Lilly v. United States, 792 F.2d 1541, 1544-1545 (11th Cir. 1986) (same). /11/ In sum, petitioner was not entitled to pre-plea notice that he would be sentenced as a career offender. /12/ b. Next, petitioner renews (Pet. 12-14) his claim that his 1972 convictions should not have been counted for career offender purposes because there was "no proof" (Pet. 13) that he was serving sentences of imprisonment within fifteen years of the commencement of the instant offense, as required by Guideline Section 4A1.2(e)(1). Having filed objections to the PSR on other grounds and discussed his sentence at length with the judge (Sent. Tr. 33, 34-45, 47), petitioner obviously had ample opportunity to raise this claim in the district court. Nevertheless, he failed to do so; he has therefore waived the claim. See United States v. Visman, No. 89-10630 (9th Cir. Nov. 28, 1990), slip op. 14700-14702; United States v. Soliman, 889 F.2d 441, 445 (2d Cir. 1989); United States v. Atehortua, 875 F.2d 149, 151 (7th Cir. 1989). In any event, as the court of appeals recognized, the district court was entitled to rely upon the PSR's unchalleged information, drawn from public records, concerning petitioner's prison release dates. See Commentary to Guideline Section 6A1.3 ("In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. 18 U.S.C. Section 3661. Any information may be considered, so long as it has 'sufficient indicia of reliability to support its probable accuracy.' * * * Reliable hearsay evidence may be considered"). See also United States v. Cuellar-Flores, 891 F.2d 92, 93 (5th Cir. 1989) (proper for district court to rely on probation officer's uncorroborated hearsay testimony at sentencing hearing). Even now, petitioner does not deny the accuracy of the PSR's information. There are thus no grounds for disturbing the district court's determination that the release dates were accurate and that the underlying prior felony convictions were countable for career offender purposes. 2. Petitioner next renews (Pet. 14-15) his contention -- raised for the first time in the court of appeals -- that the absence of the foreman's signature from the indictment rendered it fatally defective and deprived the district court of jurisdiction to accept his guilty plea. It is true, as petitioner points out (Pet. 15), that a guilty plea does not waive jurisdictional defects. United States v. Diaz, 733 F.2d 371 (5th Cir. 1984). But the omission here was not such a defect, as the Notes to Fed. R. Crim. P. 6(c) by the Advisory Committee on Rules (quoted at Pet. App. B5986) -- which petitioner does not even mention -- make clear. See also Frisbie v. United States, 157 U.S. at 164 (lack of foreman's signture "does not go to the substance of the charge, but only to the form in which it is presented"); Hobby v. United States, 468 U.S. 339, 345 (1984) ("the foreman's duty to sign the indictment is a formality, for the absence of the foreman's signature is a mere technical irregularity that is not necessarily fatal to the indictment"). Moreover, as the court of appeals noted (Pet. App. B5986), petitioner failed to object to the omission either in the district court or when the government moved to supplement the record on appeal with a Grand Jury concurrence from (Gov't C.A. Br. Addendum C) signed by the foreman. Cf. Frisbie, 157 U.S. at 164 (objection to unsigned indictment is waived if "not made in the first instance and before trial"). In any event, the concurrence form incontestably established that the indictment had been found by 18 Grand Jurors. See Fed. R. Crim. P. 6(c) (requiring foreman or his designee to keep a "record of the number of jurors concurring in the finding of every indictment") and 6(b)(2) (barring dismissal of an indictment on the ground that one or more Grand Jurors were not legally qualified if it appears from the record kept pursuant to Rule 6(c) "that 12 or more jurors, after deducting the number not legally qualified, concurred in finding the indictment"). In short, the court of appeals was correct in holding that the absence of the foreman's signature from the indictment did not create a jurisdictional bar to the district court's acceptance of petitioner's guilty plea. /13/ 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/ After petitioner pleaded guilty, five other counts of the indictment were dismissed. Sent. Tr. 47. /2/ Application Note 4 to Section 4B1.2 was amended, effective November 1, 1989, to read: "The provisions of Section 4A1.2 (Definitions and Instructions for Computing Criminal History) are applicable to the counting of convictions under Section 4B1.1." The Guidelines (App. C.123, amendment 268) state that "the amendment clarifies that all pertinent definitions and instructions in Section 4B1.2 apply to this section." /3/ The second sentence of this provision was amended, effective November 1, 1989, to read: "Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period." The Guidelines (App. C.121, amendment 262) state that "(t)he purpose of this amendment is to clarify that 'resulted in the defendant's incarceration' applies to any part of the defendant's imprisonment and not only to the commencement of the defendant's imprisonment." /4/ For his federal conviction, petitioner was sentenced on December 4, 1972, to ten years' imprisonment; he was paroled on August 4, 1978. For his state robbery conviction, he was sentenced on December 14, 1972, to five years to life, to run concurrently with his federal sentence; although he had a tentative parole date of November 21, 1977, he remained in custody on his federal sentence. For his other state robbery and firearm convictions, he was sentenced on February 22, 1973, to five years to life on each count; he was transferred to the custody of the U.S. Marshal's Service on November 21, 1977. For his state controlled substance conviction, he was sentenced on March 18, 1980, to two years' imprisonment; he was paroled on January 13, 1981. PSR 7-8, 10-11. /5/ Part D of Title 21 specifically enhances penalties if the offender has certain types of prior convictions. See, e.g., 21 U.S.C. 841(b)(1)(C); 21 U.S.C. 842(c). Section 851 provides, in pertinent part, that before a person convicted of an offense under Part D of Title 21 of the U.S. Code receives "increased punishment by reason of one or more prior convictions," the U.S. Attorney must have filed -- before trial or plea -- an information stating the previous convictions to be relied upon. 21 U.S.C. 851(a). The statute gives the convicted defendant an opportunity to "affirm() or den(y) that he has been previously convicted as alleged in the information" (Section 851(b)) and provides for a hearing on disputed matters (Section 851(c)). /6/ Although the court of appeals stated that this discussion occurred at the sentencing hearing, it actually occurred at the plea hearing, before petitioner pleaded guilty. Plea Tr. 7, 11, 12, 15, 22-23. /7/ The court of appeals (Pet. App. B5987) cites United States v. Williams, 899 F.2d 1526 (6th Cir. 1990), as taking the contrary view. However, Williams was not sentenced as a career offender under Guideline Section 4B1.1; instead, the government sought to have him sentenced as a prior drug offender under the recidivist provisions of 21 U.S.C. 841. The Sixth Circuit thus held that the government should have complied with the notice provisions of Section 851. /8/ Pub. L. 91-513, Title II, Section 411, Oct. 27, 1970, 84 Stat. 1269. /9/ Since the cases cited by petitioner (Pet. 10-11) discuss the applicability of sentencing enhancement provisions in pre-Guidelines cases, they are beside the point. /10/ Indeed, a defendant is not entitled to be informed of his Guidelines sentencing range at the time of plea. See United States v. Fernandez, 877 F.2d 1138, 1142-1143 (2d Cir. 1989); United States v. Henry, 893 F.2d 46, 48-49 (3d Cir. 1990); United States v. Salva, 902 F.2d 483, 487 (7th Cir. 1990); United States v. Thomas, 894 F.2d 996, 997 (8th Cir.), cert. denied, 110 S. Ct. 1935 (1990); United States v. Turner, 881 F.2d 684, 687 (9th Cir.), cert. denied, 110 S. Ct. 199 (1989); United States v. Rutter, 897 F.2d 1558, 1564 & n.7 (10th Cir.), cert. denied, 111 S. Ct. 88 (1990). /11/ In Burns v. United States, No. 89-7260 (argued Dec. 3, 1990), the question presented is whether a district court must notify a defendant in advance of its intent to depart upward from the sentencing range prescribed by the Guidelines, and of its grounds for the departure. Since the instant case involves a sentence within the Guidelines range, it does not implicate the question at issue in Burns. /12/ We note that petitioner benefited from the fact that he was sentenced as a career offender under the Guidelines rather than as a prior drug offender under the recidivist provisions of 21 U.S.C. 841. His 1980 state felony conviction for possession of a controlled substance actually made him subject to a maximum sentence of thirty years, not twenty years. See 21 U.S.C. 841(b)(1)(C). If the government had sought to enhance his sentence under 21 U.S.C. 841(b)(1)(C), he would have been entitled to notice under 21 U.S.C. 851. But since the government did not seek to do so, Section 851 was inapplicable, as we have explained. /13/ Rose v. Mitchell, 443 U.S. 545 (1979), cited by petitioner (Pet. 14), is not to the contrary. The issue in Rose was whether the respondents were entitled to federal habeas corpus relief on their claim of racial discrimination in the selection of foremen for Tennessee grand juries. This Court assumed without deciding that such discrimination would require that a subsequent conviction be set aside (443 U.S. at 551 n.4), but ruled against the respondents on the merits of the discrimination claim (id. at 574). Thus, Rose did not involve the jurisdictional effect of an unsigned federal indictment. Moreover, in interpreting Rose in Hobby, 468 U.S. at 348, this Court recognized that "(t)he investigative and administrative powers and responsibilities conferred upon the grand jury foreman in Tennessee * * * stand in sharp contrast to the ministerial powers of the federal counterpart, who performs strictly clerical tasks and whose signature on an indictment is a mere formality" (emphasis added). Petitioner's reliance upon Hammond v. Brown, 323 F. Supp. 326, 336 (N.D. Ohio), aff'd, 450 F.2d 480 (6th Cir. 1971), is also misplaced. That case notes that an unsigned indictment is void under Ohio, not federal, law.