DANIEL JOEL ANTON, PETITIONER V. UNITED STATES OF AMERICA No. 90-5740 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 order of the court of appeals (Pet. App. A) denying petitioner's motion for leave to appeal in forma pauperis is not reported. JURISDICTION The judgment of the court of appeals was entered on June 21, 1990. The petition for a writ of certiorari was filed on September 18, 1990. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the petitioner was properly denied leave to appeal in forma pauperis the Guidelines sentence he received pursuant to a plea agreement. 2. Whether petitioner received adequate information as to the required contents of a notice of appeal. STATEMENT Petitioner pleaded guilty to one count of conspiracy to possess more than 100 kilograms of marijuana with the intent to distribute it, in violation of 21 U.S.C. 846, and one count of money laundering, in violation of 18 U.S.C. 1956(a)(1). He was sentenced pursuant to the Sentencing Guidelines to concurrent terms of 97 months' imprisonment, to be followed by four years of supervised release. See generally United States Sentencing Comm'n, Guidelines Manual (1990). 1. The facts and circumstances of petitioner's crimes are set forth in the presentence report (PSR), which relies in turn on the superseding indictment, plea agreement, and related documents. Between July 1986 and April 1989, petitioner, his wife, her brother Glen Shipley, and Shipley's wife operated a marijuana cultivation and distribution ring in Texas. PSR 4. Shipley grew and processed marijuana on his ranch, and petitioner distributed it to wholesalers. PSR 6-12. Petitioner and his wife used proceeds from the drug operation to build a house and a pool for themselves near the Shipleys, using cash and a fictitious name in these transactions to disguise the illicit nature of the money. PSR 19-21, 24, 40. Petitioner, represented by appointed counsel, entered his guilty pleas pursuant to a plea agreement in which he forfeited the above property. In exchange for his pleas, the government agreed not to prosecute him for other crimes that he may have committed in the Western District of Texas. The plea agreement, which is signed by petitioner, states that it constitutes "the entire agreement" between the U.S. Attorney and petitioner. PSR 2-3; Plea Bargain Agreement, No. W-89-CR-44(3) (W.D. Tex. Oct. 30, 1989). /1/ The PSR informed petitioner that he faced prison terms of between five and forty years on the conspiracy count and up to twenty years on the money laundering count. PSR 29. It stated that his offense level was 30, his criminal history category was I, and his Guideline sentencing range was 97 to 121 months' imprisonment. Ibid. In calculating petitioner's offense level, the PSR denied him a two-point reduction for acceptance of responsibility under Sentencing Guideline 3E1.1. PSR 22. The PSR explained that the extent of petitioner's admission to being involved in a conspiracy with Shipley was his statement to the Probation Office that he "'was aware of the plants growing at the Shipleys and had planned on helping to distribute them.'" PSR 37-38. The Probation Office concluded that petitioner had not "demonstrated sincere contrition for his involvement in the instant offense." PSR 38. The PSR added two points to petitioner's offense level for his role in the offense under Guideline 3B1.1(c) (PSR 23, 38-39), and one point under Guideline 2S1.1(b)(2)(B) because the amount of drug money that he had laundered was between $100,000 and $200,000 (PSR 24, 40). Finally, the PSR cited several factors that might have warranted an upward departure -- namely, that petitioner was under indictment in another district for importing marijuana from Mexico when he committed these crimes (PSR 25-26, 34-35); he had been involved in the importation, cultivation, and distribution of marijuana for the past ten to fifteen years (PSR 6, 35); and his "entire livelihood has been earned through the commission of illegal activity" (PSR 35). 2. The district court overruled objections by petitioner to the PSR's determinations on acceptance of responsibility and the amount of money laundered, but sustained his objection to the role-in-offense enhancement. See Controverted Presentence Matters, No. W-89-CR-44(3) (W.D. Tex. Mar. 6, 1990). The court thus determined petitioner's offense level to be 28, and the 97-month prison term it imposed was within the applicable range (78-97 months). See Judgment, No. W-89-CR-44(3) (W.D. Tex. Mar. 8, 1990). 3. By letter dated March 6, 1990, the district court informed petitioner, inter alia, that he "may appeal (his) sentence * * * under certain circumstances set out in 18 U.S.C. Section 3742." Pet. App. B. Thereafter, petitioner filed a document entitled "Request for Notice of Appeal," dated March 12, 1990, in which he asked that "Notice of Appeals" be prepared and filed "on his behalf, in forma pauperis * * *." Pet. App. C. On March 15, 1990, the district court, pursuant to Fed. R. App. P. 24(a), filed a Certificate as to Good Faith in which it found that, "considering the record in the case and the requirement of FRAP 24(a), * * * the appeal is not taken in good faith," because petitioner "plead(ed) guilty at rearraignment and was sentenced within the Guidelines." Pet. App. D. On June 21, 1990, the court of appeals entered an order denying petitioner's motion to proceed in forma pauperis. Pet. App. A. /2/ ARGUMENT Petitioner contends (Pet. 6-13) that the courts below improperly denied him leave to appeal his sentence in forma pauperis and that he received insufficient notice as to what his notice of appeal should contain. Those claims do not warrant this Court's review. 1. It is well settled that leave to appeal in forma pauperis may be denied when the appeal is taken in bad faith, i.e., when the issues to be raised on appeal are frivolous. See, e.g., Coppedge v. United States, 369 U.S. 438, 445 (1962); Ellis v. United States, 356 U.S. 674, 675 (1958); Farley v. United States, 354 U.S. 521, 522-523 (1957). /3/ Rule 24(a) of the Federal Rules of Appellate Procedure accordingly provides that if, as in this case, a district court certifies that the appeal of a defendant proceeding in forma pauperis is not taken in good faith, the defendant must move for leave from the court of appeals to continue the appeal. /4/ Petitioner contends that the court of appeals and the district court improperly denied him an opportunity to proceed in forma pauperis. He contends that his appeal has merit because his concurrent 97-month prison terms "may not have met his expectation" (Pet. 7) and that an evidentiary hearing -- as opposed to the record on appeal, which he suggests might be "insufficient" to support his claim -- would show that he "expect(ed) a Level 20 guidelines base assuring him a sentence not in excess of 48 months" (id. at 7 n.1). The courts below correctly determined that that contention is frivolous. The record establishes that any "expectation" petitioner may have had of a shorter sentence would have been objectively unreasonable and would have amounted to little more than an unjustified hope of leniency. As we have explained (pp. 2-4, supra), petitioner, while represented by counsel whose competence he does not challenge, received a Guidelines sentence after entering a negotiated plea. His plea agreement, which recited that it embodied "the entire agreement" between petitioner and the U.S. Attorney, made no reference whatsoever to sentence. And the presentence report -- which recommended a higher sentence than petitioner in fact received, and which articulated several bases for an upward departure -- expressly stated that petitioner faced a mandatory minimum sentence of five years and a maximum of forty years on the conspiracy count, and up to twenty years on the money laundering count. Thus, petitioner had no reasonable basis for expecting to receive a different sentence, and the courts below correctly concluded that his appeal was frivolous. /5/ The rulings below do not, contrary to petitioner's contention (Pet. 11-12), deprive him of any rights enjoyed by individuals represented by retained counsel. The question is not whether petitioner may appeal his sentence, but whether the public should be required to subsidize that appeal when the courts below have reviewed the matter and determined that the appeal was not taken in good faith. See United States v. Boutwell, 896 F.2d 884, 888 (5th Cir. 1990) (Gee, J.) ("(i)t is clear from the Rule that certification by the court that an appeal is not taken in good faith means only that the defendant is not entitled to proceed (in forma pauperis) on appeal"). Petitioner offers no reason why this question should be answered in the affirmative. /6/ 2. The second question petitioner presents -- "(w)hether one proceeding in forma pauperis is entitled to notice that Notice of Appeal should include statement of issues due appellate review" (Pet. 2, 12-13) (emphasis in original) -- is moot. The district court did not base its finding of lack of good faith upon petitioner's admitted failure (Pet. 6) to comply with Rule 24's requirement that he include in his motion a statement of the issues that he intends to raise on appeal. Rather, it relied upon its review of the record and upon the fact that petitioner "plead guilty at rearraignment and was sentenced within the Guidelines." Pet. App. D. Petitioner concedes (Pet. 8) that the district court "correctly perceived (his) issue," which -- as we have explained -- is frivolous in any event. 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 DECEMBER 1990 /1/ Petitioner's co-defendants also pleaded guilty to various offenses arising out of the drug operation. PSR 1a. /2/ Petitioner does not indicate what, if any, papers he filed with the court of appeals that resulted in the issuance of this order. Nor does he indicate whether he requested that counsel be appointed for the purpose of challenging the district court's certification. See Johnson v. United States, 352 U.S. 565, 566 (1957) (court of appeals must afford counsel to one who challenges certification "unless he insists on being on his own"). /3/ Cf. Anders v. California, 386 U.S. 738, 744 (1967) (a non-frivolous claim is one that is "arguable on (its) merits"); Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989) (discussing the standards for determining frivolousness in a civil case under 28 U.S.C. 1915(a)). /4/ Fed. R. App. P. 24(a) (Leave to Proceed on Appeal in Forma Pauperis from the District Court to the Court of Appeals) states in pertinent part: (A) party who has been permitted to proceed in an action in the district court in forma pauperis * * * may proceed on appeal without further authorization unless, before or after the notice of appeal is filed, the district court shall certify that the appeal is not taken in good faith * * *, in which event the district court shall so state in writing the reasons for such certification * * *. * * * (I)f the district court shall certify that the appeal is not taken in good faith * * *, the clerk shall forthwith serve notice of such action. A motion for leave so to proceed may be filed in the court of appeals within 30 days after service of notice of the action of the district court. * * * /5/ Indeed, petitioner's written objections to the PSR included no allegation that this information contradicted his "expectations" at the time of plea. Nor does he claim to have voiced any surprise about the length of his prison term at the time of sentence, or to have moved to withdraw his guilty pleas on the ground that he had entered them under a misapprehension as to his sentencing exposure. He makes no attempt to overturn them even now. /6/ In Boutwell, the Fifth Circuit held that a defendant who seeks to appeal in forma pauperis is subject to the district court's Rule 24(a) certification of good faith regardless of whether he was represented by retained or appointed counsel in the district court. That court observed that the Ninth Circuit's decision in United States v. Dangdee, 608 F.2d 807 (1979), seems to hold, however, that a defendant who was represented by appointed counsel in the district court is entitled to "preferential treatment" in the form of an exemption from the district court's certification. 896 F.2d at 885. Petitioner concedes that "'(t)his simply cannot be so.'" Pet. 11 (quoting Boutwell, 896 F.2d at 887). Thus, there is no reason for this Court to resolve the differences between the two cases. Dangdee has been cited only infrequently, and even then, not for the precise proposition that the Fifth Circuit rejected in Boutwell.