ROBERT EATON, PETITIONER V. UNITED STATES OF AMERICA No. 90-5800 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 Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. I) is unpublished, but it is noted at 908 F.2d 979. JURISDICTION The judgment of the court of appeals was filed on June 25, 1990. The petition for a writ of certiorari was filed on Monday, September 24, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner had adequate notice of the district court's intention to depart and grounds for a departure from the sentence prescribed by the Sentencing Guidelines, where the facts underlying the departure were set forth in the presentence report and the district court granted petitioner a postponement to address the grounds for departure. STATEMENT After a plea of guilty in the United States District Court for the Southern District of Florida, petitioner was convicted on one count of receiving, possessing, storing, and disposing of stolen money in excess of $5,000, in violation of 18 U.S.C. 2315. He was sentenced to 71 months' imprisonment, to be followed by three years' supervised release. The court of appeals affirmed (Pet. App. I). 1. Between April 1986 and April 1988, petitioner solicited approximately $1,300,000 from an investor for real estate transactions and then used the money for his own personal expenses. After petitioner agreed to plead guilty, the United States Probation Office prepared a presentence report. The report recommended that petitioner's base offense level be set at 4. The report recommended an increase of 11 in the offense level based on the amount of money involved in the offense, two levels because the offense involved more than minimal planning, two levels because petitioner abused a position of trust, and two levels for obstruction of justice, for a total offense level of 21. Petitioner had one prior conviction and therefore was assigned to criminal history category I. The report noted several other occasions on which petitioner had been charged with criminal conduct that had not resulted in a conviction. It also added that in the course of the activities that gave rise to his conviction in this case, petitioner had absconded with funds provided by several investors other than those whose complaint led to petitioner's conviction. Based on the combination of offense level 21 and criminal history category I, petitioner had a presumptive sentencing range of 37 to 46 months' imprisonment. The report concluded that the Probation Office "did not find any mitigating or aggravating circumstances concerning the offense or the offender that would allow a departure from the prescribed range." Presentence Report at 24. 2. The district court held a sentencing hearing on July 25, 1989. At that hearing, the government asked the court to depart upward from the sentence prescribed by the Guidelines for two reasons. The prosecutor argued that a departure was appropriate because the assets petitioner wrongfully obtained had never been recovered or accounted for (7/25/89 Tr. 9) and because of petitioner's long history of illegal conduct. In connection with the latter point, the government specifically noted that at least four investors other than the investor whose loss was the basis for the charged offense had lost money invested with petitioner. Id. at 11. Defense counsel responded to the government's request by stating that he was unaware that the government would request a departure. In response, the district court announced that, "since the government's position today comes as somewhat of a surprise to the defendant," it would recess the sentencing hearing for two days to allow petitioner to respond to the government's request for a departure. Id. at 13-14. When the sentencing hearing resumed two days later, defense counsel merely reiterated that he had had no prior notice that the government would ask for a departure. Counsel urged the court to sentence petitioner within the sentencing range prescribed by the Guidelines. 7/27/89 Tr. 4, 5. The court then found that petitioner had abused a position of trust within the meaning of Guideline 3B1.3. Accordingly, it set petitioner's offense level at 21, as the presentence report recommended. The court determined that it should depart from the Guidelines because petitioner's criminal history category did not adequately reflect the seriousness of his prior criminal conduct. Id. at 17. In particular, the court noted that the presentence report had detailed several other instances in which petitioner had misused a position of trust to defraud others, including other investors in the fraudulent real estate schemes that led to his conviction in this case. Id. at 18-19. On this basis, the court determined that criminal history category IV more accurately represented petitioner's prior criminal conduct. 3. The court of appeals summarily affirmed in an unpublished judgment order. ARGUMENT Petitioner contends (Pet. 9-13) that he received inadequate notice of the district court's intention to depart from the sentence prescribed by the Sentencing Guidelines, and of the prospective grounds for departure. This contention misstates the record. In fact, petitioner had ample notice of and opportunity to address the possibility of, and grounds for departure. Accordingly, his claim does not warrant review. 1. The presentence report prepared in petitioner's case set forth petitioner's prior offenses, the offenses for which he had been charged but not convicted, and the investors he defrauded in the scheme that led to his conviction in this case. Although petitioner and his counsel read the presentence report prior to sentencing and objected to some of its provisions, neither filed any objection to those portions of the report. At the initial sentencing hearing on July 25, 1989, the government explicitly asked the district court to depart upward from the Guidelines sentence on the ground that petitioner had a long prior history of criminal conduct. The prosecutor specifically referred to the other investors defrauded by petitioner's real estate scheme and noted that petitioner's defrauding of these investors was "not accounted for in the guidelines calculations because no criminal charges were filed." 7/25/89 Tr. 11. In response to this request, the district court recessed the sentencing hearing for the express purpose of allowing petitioner to respond to the prosecutor's charge. Yet, when the sentencing hearing resumed two days later, petitioner and his counsel simply urged the district court to sentence within the Guidelines range. The district court then departed from the Guidelines sentence on the precise ground that the prosecutor had asserted. /1/ In short, petitioner had notice of the possibility that the district court would depart and of the potential grounds for departure. Petitioner then was given two days to prepare to respond to this possibility. When the sentencing hearing resumed, petitioner wasted an opportunity to comment on the grounds for departure. Accordingly, petitioner cannot now complain in this Court that he had no notice of or opportunity to comment on the possibility or the grounds of departure. /2/ 2. This case need not be held for the Court's decision in Burns v. United States, No. 89-7260. In that case, a defendant who received a sentence representing an upward departure from the sentence prescribed by the Sentencing Guidelines asserts that the district court should have given him prior notice of its intention to depart from the Guidelines sentence. The petitioner in Burns claims that a defendant is entitled to know the grounds for an upward departure as well as the possibility of departure. In his view, notice is required when a ground is "not identified in the presentence investigative report * * * or by the parties." Pet. Reply Br. 1, Burns v. United States, No. 89-7260. In addition, the petitioner in Burns claims that "a postponement may be necessary" if notice is not given "prior to the sentencing hearing." Pet. Br. 26 n.16, Burns v. United States, No. 89-7260. In this case, the presentence report identified the facts underlying departure. The grounds for departure were then identified during the sentencing hearing, and the district court granted a postponement to allow petitioner to address the grounds for departure. In short, even if this Court accepts in full all aspects of the position of the petitioner in Burns, the petitioner here would not be entitled to relief. Accordingly, there is no reason to hold this petition pending the decision in Burns. 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 NOVEMBER 1990 /1/ Petitioner inaccurately asserts (Pet. 9) that the district court departed upward because it found that petitioner had abused a position of trust in committing his offenses. In fact, as the district court's sentencing memorandum makes clear, it simply increased petitioner's offense level on this ground. Moreover, the presentence report explicitly recommended that petitioner should receive an increase in offense level for this reason. Accordingly, petitioner cannot complain that he lacked notice that this factor would enter into the court's sentencing decision. /2/ For this reason, the cases on which petitioner relies are inapposite. In United States v. Otero, 868 F.2d 1412 (5th Cir. 1989), United States v. Nuno-Para, 877 F.2d 1409 (9th Cir. 1989), and United States v. Cervantes, 878 F.2d 50 (2d Cir. 1989), as petitioner himself notes (Pet. 10, 11), the district court did not mention the ground of departure until it pronounced sentence. For that reason, the courts of appeals found that the district court had failed to comply with Fed. R. Crim. P. 32. Here, as noted, the district court gave petitioner two days to prepare to respond to the proposed ground of departure.