ROBERT BENSON WOODS, PETITIONER V. UNITED STATES OF AMERICA No. 90-6169 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. 1a-8a, is reported at 907 F.2d 1540. JURISDICTION The judgment of the court of appeals was filed on July 27, 1990. The petition for a writ of certiorari was filed on October 25, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court was bound to accept the stipulation of facts in petitioner's plea agreement when calculating petitioner's sentence under the Sentencing Guidelines. 2. Whether the district court properly sentenced petitioner based on all of the amphetamine involved in the conspiracy for which he was convicted. 3. Whether the facts underlying petitioner's sentence had to be proved beyond a reasonable doubt. 4. Whether the court's and the probation officer's development of information relevant to sentencing violated the separation of powers doctrine. STATEMENT After a plea of guilty in the United States District Court for the Northern District of Texas, petitioner was convicted of conspiracy to manufacture, to possess with intent to distribute, and to distribute amphetamine, in violation of 21 U.S.C. 841(a)(1). Petitioner was sentenced to 240 months' imprisonment, to be followed by five years' supervised release. The court of appeals affirmed. Pet. App. 1a-8a. 1. In November 1988, petitioner and codefendants Robert Lee Jones and Gary Lusk twice sold 108 grams of amphetamine to an informant working for the Drug Enforcement Administration (DEA). Pet. App. 2a. Those sales provided the basis for a warrant to search petitioner's house, at which DEA agents found petitioner and codefendant John Hansen in possession of an additional 223 grams of amphetamine. Ibid. Further investigation revealed that petitioner operated three different amphetamine laboratories in Texas and Oklahoma. Ibid. At the laboratory in Van Zandt County, Texas, agents arrested Hanson with one and a half pounds of liquid amphetamine; a subsequent search revealed an additional 350 milliliters of that substance. Id. at 2a n.1. The grand jury indicted petitioner for conspiracy to manufacture and to distribute amphetamine (Count I), distribution of amphetamine (Counts II and III), and possession of amphetamine with intent to distribute it (Count IV). Pet. App. 9a-12a. Pursuant to a plea agreement, petitioner agreed to plead guilty to the conspiracy count (Count I) in return for the dismissal of the three substantive counts (Counts II through IV). Id. at 13a-17a. The plea agreement stated petitioner's understanding that he could receive up to 20 years' imprisonment and "that the matter of sentencing is reserved solely to the United States District Court." Id. at 13a-14a (emphasis in original). The plea agreement also contained a statement of the facts supporting petitioner's plea. That statement recited that petitioner and his codefendants had possessed or distributed approximately 440 grams of amphetamine and that that amount "represents the total amount of amphetamine possessed or distributed in the conspiracy alleged in this indictment." Id. at 16a-17a. The district court accepted petitioner's guilty plea. Petitioner's codefendants also agreed to plead guilty to the conspiracy count. After entering their guilty pleas, petitioner's codefendants told the probation officer assigned to prepare the presentence report of petitioner's involvement in amphetamine production beyond that charged in the three substantive counts of the indictment. Specifically, they told the probation officer that petitioner was responsible for the liquid amphetamine discovered at the Van Zandt laboratory. Gov't C.A. Br. 6-7. At a sentencing hearing held inter alia to determine responsibility for the amphetamine discovered at the Van Zandt laboratory, the district court gave petitioner an opportunity to withdraw his guilty plea. Petitioner declined the offer. Gov't C.A. Br. 7. The court then called the probation officer who prepared the presentence report as a witness to testify to the amount of amphetamine involved in the conspiracy. Codefendant John Hansen also testified on this subject. After hearing this testimony, the court declined to accept the stipulation in the plea agreement that the conspiracy involved only 440 grams of methamphetamine. The court instead found that the liquid amphetamine found at the Van Zandt laboratory should be included when determining petitioner's offense level under the Sentencing Guidelines. Pet. App. 3a. When the additional amphetamine was included, petitioner's sentencing range under the Guidelines became 262 to 327 months' imprisonment. Because this range exceeded the statutory maximum of 20 years, the court imposed a sentence of 20 years' imprisonment on petitioner. The court added that even if it had accepted the amount of amphetamine stated in the plea agreement as the basis for calculating petitioner's offense level, it would have departed upward from the Guidelines sentence to impose the same sentence that petitioner actually received. C.A. App. 55. 2. The court of appeals affirmed. Pet. App. 1a-8a. First, it held that the district court was not bound to accept the parties' stipulation as to the amount of drugs involved in the conspiracy. It noted that the Guidelines themselves provide that the court may determine the facts relevant to sentencing. Id. at 3a-4a. Second, the court of appeals rejected petitioner's argument that the district court should not have considered the evidence that additional amounts of drugs were involved in the conspiracy. The court again noted that the Guidelines specifically reject this limitation and held that "in setting (a) sentence, a judge may consider conduct for which a defendant has not been convicted." Id. at 4a-5a. Third, the court rejected petitioner's assertion that uncharged conduct that is used in calculating a defendant's sentence must be proved beyond a reasonable doubt. Id. at 5a-6a. Fourth, the court held that the probation officer's role under the Sentencing Guidelines does not violate the separation of powers doctrine. Id. at 6a-8a. ARGUMENT 1. Petitionerr first contends that the district court was bound by the stipulation in the plea agreement of the amount of amphetamine involved in the conspiracy. He asserts that once the court had adopted his plea, it had to sentence based on the amount of amphetamine stipulated in the plea agreement. Pet. 10-13. As the court of appeals observed, the Guidelines specifically reject petitioner's argument. Guideline 6B1.4 allows the parties to stipulate to the facts relevant to sentencing, but subsection (d) of that Guideline provides that "(t)he court is not bound by the stipulation, but may with the aid of the presentence report, determine the facts relevant to sentencing." The Commentary to this provision explains that "the court cannot rely exclusively upon stipulations in determining the factors relevant to the determination of sentence. Rather, in determining the factual basis for the sentence, the court will consider the stipulation, together with the results of the presentence investigation, and any other relevant information." Based on this provision, every court of appeals to consider this issue has held that the court may rely on facts developed by the probation officer but not contained in the facts stipulated in a plea agreement. See United States v. Garcia, 902 F.2d 324, 326-327 (5th Cir. 1990); United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir. 1990); United States v. Rutter, 897 F.2d 1558, 1564 (10th Cir.), cert. denied, 111 S. Ct. 88 (1990); United States v. Howard, 894 F.2d 1085, 1089 n.2 (9th Cir. 1990); United States v. Gaines, 888 F.2d 1122, 1123 (6th Cir. 1989); United States v. Forbes, 888 F.2d 752, 754 (11th Cir. 1989); United States v. Nunley, 873 F.2d 182, 187 (8th Cir. 1989). /1/ Relying on this Court's decision in Santobello v. New York, 404 U.S. 257 (1971), petitioner asserts that once the district court accepted the plea agreement, it could not deviate from the stipulation of facts. But the plea agreement did not purport to limit the district court's sentencing discretion. To the contrary, it expressly stated that petitioner could receive up to 20 years' imprisonment and that the sentencing decision was reserved solely to the district court. Petitioner's claim of a conflict with Santobello presupposes that the factual stipulation was an agreement to a specific Guideline range, rather than the summary of the factual basis for the plea that is required by Federal Rule of Criminal Procedure 11(f). But in light of the provisions of the agreement reserving the sentencing decision to the district court, petitioner's stipulation to possessing or distributing approximately 440 grams of amphetamine is more reasonably understod as a statement in satisfaction of Rule 11(f), rather than an agreement to be sentenced within a specific Guideline range. /2/ 2. Petitioner contends that the district court violated his rights under the Fifth and Sixth Amendments when it sentenced him based on conduct not alleged in the indictment. Pet. 14-17. In fact, the district court sentenced petitioner based only on conduct alleged in the indictment. Count One of the indictment -- to which petitioner pleaded guilty -- alleged that petitioner participated in a conspiracy to manufacture, to distribute, and to possess with intent to distribute amphetamine from February 1988 to November 1988. The district court sentenced petitioner based on the amount of amphetamine that the district court found to be involved in the conspiracy, not on any conduct not charged in the indictment. In any event, every court of appeals to have considered the question has held that a district court may rely on conduct not charged in the indictment in determining a sentence, and this Court has denied petitions for writs of certiorari in several of those cases. See United States v. Restrepo, 903 F.2d 648 (9th Cir. 1990); /3/ United States v. Rutter, 897 F.2d 1558 (10th Cir.), cert. denied, 111 S. Ct. 88 (1990); United States v. White, 888 F.2d 490, 496-498 (7th Cir. 1989); United States v. Blanco, 888 F.2d 907, 909-911 (1st Cir. 1989); United States v. Ykema, 887 F.2d 697, 699 (6th Cir. 1989), cert. denied, 110 S. Ct. 878 (1990); United States v. Mann, 877 F.2d 688, 690 (8th Cir. 1989); United States v. Scroggins, 880 F.2d 1204, 1211-1212 (11th Cir. 1989), cert. denied, 110 S. Ct. 1816 (1990); United States v. Williams, 880 F.2d 804, 805-806 (4th Cir. 1989); United States v. Taplette, 872 F.2d 101, 105-106 (5th Cir.), cert. denied, 110 S. Ct. 128 (1989); United States v. Guerrero, 863 F.2d 245, 248-250 (2d Cir. 1988). 3. Petitioner contends that the district court was required to find the facts supporting its sentencing decision beyond a reasonable doubt. Pet. 18-21. This claim is foreclosed by this Court's decision in McMillian v. Pennsylvania, 477 U.S. 79 (1986), and, again, has been rejected by every court of appeals to have considered the issue, see United States v. Ross, 905 F.2d 1050, 1054 (7th Cir.), cert. denied, 111 S. Ct. 172 (1990); United States v. Wilson, 900 F.2d 1350, 1353-1354 (9th Cir. 1990); United States v. Frederick, 897 F.2d 490, 492 (10th Cir.), cert. denied, 111 S. Ct. 171 (1990); United States v. Alston, 895 F.2d 1362, 1372-1373 (11th Cir. 1990); United States v. Silverman, 889 F.2d 1531, 1535 (6th Cir. 1989); United States v. Casto, 889 F.2d 562, 569-570 (5th Cir. 1989), cert. denied, 110 S. Ct. 1164 (1990); United States v. Burke, 888 F.2d 862, 869 (D.C. Cir. 1989); United States v. Guerrra, 888 F.2d 247, 250-251 (2d Cir. 1989), cert. denied, 110 S. Ct. 1833 (1990); United States v. McDowell, 888 F.2d 285, 290-291 (3d Cir. 1989); United States v. Urrego-Linares, 879 F.2d 1234, 1237-1238 (4th Cir.), cert. denied, 110 S. Ct. 346 (1989); United States v. Wright, 873 F.2d 437, 441 (1st Cir. 1989). 4. Petitioner's final contention is that the probation officer and the district court assumed a prosecutorial role at his sentencing hearing in violation of the separation of powers doctrine. Pet. 22-26. Specifically, petitioner claims that the court's elicitation of evidence from the probation officer that the court then used to sentence petitioner "crossed over the line between the judicial and executive function." Pet. 24. Petitioner's contention that the district court cannot call and question witnesses at his sentencing hearing is contradicted by Federal Rule of Evidence 614. Rule 614 expressly gives the district court authority to call and interrogate witnesses at trial, and thus by implication allows that practice at sentencing, where the rules of evidence are relaxed. See Fed. R. Evid. 614 Advisory Committee note ("the authority of a judge to call witnesses is well established"). It is also well established that at sentencing, the district judge may "conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." United States v. Tucker, 404 U.S. 443, 446 (1972). Because the court has the right to call witnesses and consider information from any reliable source at sentencing, the court is not performing a function of the executive branch when it develops its own information during sentencing. For similar reasons, the probation officer's development of information also did not violate the separation of powers doctrine. In Mistretta v. United States, 488 U.S. 361, 394 n. 20 (1989), this Court stated that nonadjudicatory activities may be undertaken by auxiliary bodies within the judicial branch without offending the separation of powers doctrine. See also Yound v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987) (judicial branch may appoint private attorney to prosecute criminal contempt cases); Morrison v. Olson, 487 U.S. 654 (1988) (judiciary may appoint special prosecutor). Indeed, this Court has rejected the idea that probation officers cannot properly function within the judicial branch of government. See Williams v. New York, 337 U.S. 241, 249-250 (1949) (dictum) (probation officers' reports "have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information"). Moreover, contrary to petitioner's argument, the probation officer's role is not a prosecutorial one. Reliable information is necessary to accurate sentencing, and investigation is necessary to obtain reliable information. The probation officer compiles information and presents it in a neutral form to the sentencing judge; the officer's objective is to provide the court with as much relevant information as possible, not to obtain the greatest possible sentence for the defendant. The district court remains the ultimate decisionmaker. Nothing in this process involves an activity solely reserved to the executive. Thus, although the probation officer is an arm of the court, "the judiciary's power to appoint an independent investigator to gather information for sentencing is entirely consistent" with the separation of powers doctrine. United States v. Belgard, 894 F.2d 1092, 1096 (9th Cir.), cert. denied, 111 S. Ct. 164 (1990). 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 J. DOUGLAS WILSON Attorney DECEMBER 1990 /1/ This petition need not be held pending resolution of Braxton v. United States, No. 90-5358, certiorari granted (Nov. 13, 1990). At issue in that case is the interpretation of the proviso to Guideline 1B1.2(a), which requires the selection of the Guideline "most applicable to the stipulated offense" "in the case of conviction by a plea of guilty * * * containing a stipulation that specifically establishes a more serious offense than the offense of conviction." The district court in Braxton sentenced the defendant based on a Sentencing Guideline other than the one applicable to his offense, because the court determined that another Guideline more accurately defined the defendant's conduct. The proper construction of the proviso can have no bearing on the outcome in petitioner's case, because petitioner did not stipulate to a more serious offense than the offense of conviction. Petitioner pleaded guilty to conspiracy involving a controlled substance, and his offense level was determined by the Guideline applicable to that offense, based on the amount of amphetamine actually involved in the offense. /2/ If petitioner intended to enter into an agreement to a specific Guideline range, he should have insisted on entering into a plea agreement in accordance with Federal Rule of Criminal Procedure 11(e)(1)(C), which governs "agree(ments) that a specific sentence is the appropriate disposition of the case. Petitioner instead entered into an agreement under Rule 11(e)(1)(A), simply providing for the dismissal of the substantive counts of the indictment. Pet. 3. /3/ The Ninth Circuit has granted rehearing en banc in Restrepo, but only to consider the government's burden of proof when it seeks to have the defendant sentenced based on conduct not charged in the indictment.