CHARLES OLIVER, PETITIONER V. UNITED STATES OF AMERICA No. 90-5933 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 Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A12) is not reported, but the judgment is noted at 912 F.2d 464 (Table). JURISDICTION The judgment of the court of appeals was entered on August 30, 1990. The petition for a writ of certiorari was filed on October 9, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). QUESTION PRESENTED Whether the district court properly sentenced petitioner above the range indicated by the Sentencing Guidelines, because petitioner's criminal record resembled that of a career offender. STATEMENT On December 2, 1987, petitioner was arrested in a parking lot in Charleston, South Carolina, after police received information that someone in the parking lot was randomly firing a gun. The arresting officers seized from petitioner a .38 caliber revolver, ammunition, and a switchblade knife. Petitioner had been released on parole five months earlier after serving 11 years in prison for armed robbery. Pet. App. A2. He pleaded guilty in the United States District Court for the District of South Carolina to possession of a firearm by a felon, in violation of 18 U.S.C. 922(g)(1). 1. The presentence report calculated the Sentencing Guideline imprisonment range to be four to ten months, based on a total offense level of 7 and a criminal history category of III. Pet. App. A21. /1/ The report catalogued petitioner's extensive criminal record in addition to his 1976 armed robbery conviction: (1) a 1959 housebreaking and larceny conviction; (2) a 1963 conviction for escape; (3) a 1963 petty larceny conviction; (4) convictions in 1964 for attempted armed robbery and aggravated assault and battery; (5) a 1964 conviction for disorderly conduct; (6) a 1966 charge, disposition unknown, of housebreaking and grand larceny; (7) convictions in 1966 for possession of a firearm and firing a pistol; (8) a 1967 conviction for carrying a pistol unlawfully; (9) a 1967 charge, disposition unknown, of grand larceny; and (10) a 1968 charge, disposition unknown, of assault and battery with intent to kill. /2/ Pet. App. A18-A20. None of those charges or convictions was used in determining petitioner's criminal history category, because the Sentencing Guidelines generally take into account only convictions that are less than 15 years old. See Sentencing Guidelines Section 4A1.2(e). /3/ Based on petitioner's lengthy criminal record, the presentence report noted that petitioner was "for all practical purposes, a career offender," Pet. App. A23, and suggested that "(a)n upward departure from the guidelines may be warranted because the criminal history category does not adequately represent the seriousness of his criminal record." Pet. App. A24. The district court agreed that petitioner's criminal history warranted an upward departure and sentenced petitioner to 37 month's imprisonment. The court justified the departure on the following grounds, Pet. App. 37: I have made an upward departure from the guidelines in this case, because I find that the defendant is, for all practical purposes, a career offender. He has been involved in violating the law since the early 1960's, and a number of his offenses involve entering places under the cover of darkness, and he's often had and used firearm's. I am of the opinion that this upward departure is warranted inasmuch as the criminal history category in this case does not adequately represent the seriousness of defendant's criminal record. 2. The court of appeals affirmed in an unpublished opinion. Pet. App. A1-A12. It first rejected petitioner's contention that the district court had misapplied the Guidelines by finding petitioner to be a "career offender," even though his prior offenses did not qualify him for that status under the Guidelines. The court held that while the district court had not found petitioner to be a career offender within the meaning of the Guidelines, it had properly exercised its discretion to depart from the Guidelines because petitioner's prior record resembled that of a career offender, Pet. App. A5, and his criminal history category significantly underrepresented his criminal record. Pet. App. A9. The court also found that petitioner's 37-month sentence was reasonable and that the district court had arrived at that sentence through a reasonable application of the principles of the Guidelines as applied to persons with criminal records similar to petitioner's. Pet. App. A10-A11. ARGUMENT Petitioner does not claim that he received an unreasonably harsh sentence. /4/ Nor does he dispute that his lengthy criminal record resembles that of a career offender. He contends only that the district court erred because it did not follow the correct procedure in selecting a sentence above the Guidelines level. 1. Under 18 U.S.C. 3553(b), a court must impose a sentence within the range set by the Guidelines unless "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." The Guidelines specifically contemplate upward departures when the criminal history category "significantly under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit further crimes." Guidelines Section 4A1.3. Petitioner contends that the district court failed to make the requisite finding that petitioner's criminal history category (Category III) underrepresented the seriousness of his prior conduct. The record, however, shows that the district court made just such a finding. The court made clear at the sentencing hearing why it was departing upward from the Guidelines range. Echoing the presentence report, which had outlined petitioner's extensive criminal career, the court explained that it was departing from the Guidelines range because of petitioner's prior record and the similarity of the charged offense to several of petitioner's prior offenses. /5/ As the court noted, petitioner had "been involved in violating the law since the early 1960's, and a number of his offenses involve entering places under the cover of darkness, and he's often had and used firearms." Pet. App. A37. A major portion of the lapse in petitioner's stream of criminal behavior occurred when he was incarcerated for 11 years on an armed robbery conviction, and even while in prison he had numerous disciplinary problems. Thus, there is no force to petitioner's claim that the court failed to find that petitioner's criminal history category (Category III) underrepresented the seriousness of his criminal record. /6/ None of the cases on which petitioner relies is helpful to him. In United States v. Burch, 873 F.2d 765 (5th Cir. 1989), the district court departed upward in sentencing because of the defendant's "previous involvement in drug activities." 873 F.2d at 767. The court of appeals reversed because, inter alia, the defendant's prior offenses may already have been factored into the calculation of his criminal history category. Id. at 768. In this case, by contrast, the district court specifically found that petitioner's criminal history category did not accurately reflect the seriousness of his prior record. In United States v. Wells, 878 F.2d 1232 (9th Cir. 1989), the district court's only explanation for its upward departure was a rote recitation of the standard for departure. The Ninth Circuit reversed because the district court had not articulated any reason why an upward departure was justified in that particular case. Likewise, in United States v. Cervantes, 878 F.2d 50 (2d Cir. 1989), the court held that the sentencing court's "cryptic" explanation that it was departing because the defendant had a "pretty bad record * * * (a) man has jumped bail" did not state an adequate reason for departing. 878 F.2d at 54-55 (also finding that the district court may have relied on impermissible factors in deciding to depart). In Wells, Burch, and Cervantes, the district courts failed to provide the reviewing courts with any meaningful basis for deciding whether the upward departure was "reasonable." 18 U.S.C. 3742(e). In this case, by contrast, the district court explained that it was departing because petitioner's prior record of involvement in serious crimes, as detailed in the presentence report, was similar to the record of a career offender, and that as a result petitioner's criminal history category significantly understated the seriousness of petitioner's record, which could more accurately have been characterized as equivalent to a career offender's criminal history category (Category VI in the Guidelines). The court of appeals therefore had no trouble discerning the basis for the district court's departure decision and determining whether that decision was reasonable. 2. Petitioner also attacks the district court's failure to use the criminal history categories as the yardstick for measuring the extent of its departure. When departing from the Guidelines, the Sentencing Commission recommends that the court "use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable." Guidelines Section 4A1.3. The district court selected a sentence roughly in accordance with the Guideline range applicable to career offenders. See United States v. Gardner, 905 F.2d 1432, 1438-1439 (10th Cir.) (endorsing reference to the career offender provisions when that is the closest analogy in the Sentencing Guidelines), cert. denied, 111 S. Ct. 202 (1990). If petitioner had been sentenced as a career offender, he would have been subject to a sentence of 41 to 51 months' imprisonment. See Guidelines Section 4B1.1(F) (base offense level for an offense with a statutory maximum penalty of five years' imprisonment is 17; reduction of 2 points is granted because of acceptance of responsibility credit; career offender's criminal history category in every case is Category VI). By sentencing petitioner to 37 months' imprisonment, the district court thus treated petitioner somewhat more leniently than would have been the case if petitioner had been sentenced as a true career offender. That disposition was entirely sensible. As the court of appeals noted, the district court apparently arrived at the 37-month sentence by referring to the career offender Guideline to select petitioner's offense level, but treating petitioner's criminal history category as if it were lower than Category VI, the category that would have applied if petitioner had been found to be a true career offender. Because that approach to calculating petitioner's sentence was reasonable and responsive to the policies underlying departures from the Guidelines, the court of appeals properly upheld petitioner's sentence. 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 THOMAS E. BOOTH Attorney DECEMBER 1990 /1/ The report found the offense level to be 7 by starting from the then-applicable base offense level of 9 for a violation of 18 U.S.C. 922(g) and subtracting 2 points for acceptance of responsibility. Pet. App. A3. Petitioner's criminal history category was III because of his 1976 conviction for armed robbery and because he committed the instant offense shortly after being released on parole. /2/ In addition, while petitioner was incarcerated on his 1976 armed robbery conviction, 21 disciplinary actions were taken against him, 10 of them "major." Pet. App. A17. /3/ If petitioner had had two countable felony convictions for a crime of violence or a controlled substance offense, he would have been treated as a career offender. See Guidelines Section 4B1.1. /4/ United States v. Schmude, 901 F.2d 555, 560 (7th Cir. 1990) (Pet. 5), is therefore beside the point. Schmude held that the district court was justified in departing upward from the Guidelines, but that the sentence impose was unreasonably high. /5/ The district court properly based its departure decision in part on the similarity of petitioner's previous misconduct to the offense on which he was being sentenced. See United States v. Schmude, 901 F.2d 555, 559 (7th Cir. 1990); United States v. De Luna-Trujillo, 868 F.2d 122, 125 (5th Cir. 1989); United States v. Fisher, 868 F.2d 128, 130 (5th Cir.), cert. denied, 110 S. Ct. 111 (1989). /6/ Category III would have been the applicable criminal history category if petitioner's only prior offense had been the armed robbery for which he was on parole at the time he committed the instant offense.