BOBBI L. BRAND, PETITIONER V. UNITED STATES OF AMERICA No. 90-5787 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. 1a-6a) is reported at 907 F.2d 31. 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 is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's personal situation was so extraordinary as to warrant a downward departure from the Sentencing Guidelines. 2. Whether the court of appeals reviews upward departures from the Sentencing Guidelines more deferentially than downward departures. STATEMENT Following her plea of guilty in the United States District Court for the Northern District of West Virginia, petitioner was convicted of distribution of cocaine, in violation of 21 U.S.C. 841(a)(1). The district court sentenced her to a five-year term of probation and imposed a $50 special assessment. The court of appeals vacated the sentence and remanded for resentencing. Pet. App. 1a-6a. 1. Petitioner, a 24-year-old single mother of two (C.A. App. 6a), was asked by a government informant acting pursuant to an agreement with the government to come to his trailer with cocaine and cook it into "crack" (cocaine base). Petitioner went to the informant's trailer with approximately two grams of cocaine and cooked it into crack. Accompanying her was her 14-month-old child. The informant paid petitioner $200 for the crack and told her that he would be interested in obtaining some marijuana. Petitioner said that if the informant wanted marijuana, he would have to buy it from her. C.A. App. 2a-3a, 4a. 2. After petitioner's guilty plea, the probation office prepared a presentence report ("PSI"). The report calculated petitioner's base offense level at 14 because of the weight of the "crack" involved in the offense. The PSI then reduced the offense level by two points for petitioner's acceptance of responsibility. Her total offense level of 12, when coupled with her criminal history category of I, /1/ resulted in an applicable Sentencing Guidelines range of 10-16 months' incarceration. C.A. App. 4a-5a. The PSI found no factors warranting a departure from the Guidelines. C.A. App. 8a. At petitioner's sentencing, neither she nor the government objected to the PSI. C.A. App. 11a. In a colloquy with the district court, petitioner stated her expectation that she would be incarcerated. C.A. App. 13a. She also told the court that she had arranged for her seven-year-old child to live with her foster parents and for her younger child to live with her mother-in-law while she was in prison. C.A. App. 16a. Pursuant to a plea agreement, the government recommended the minimum Guideline sentence of 10 months, and stated that it would not object if the court divided the sentence between prison and community confinement. C.A. App. 15a. The court noted that petitioner was a single parent with two small children; that she was employable at the minimum wage because she lacked education; that she was not yet 25 years of age; that she was geographically removed from her natural family and strangers would be taking care of her children; that her life took an unfortunate turn because of a teenage pregnancy; that West Virginia, by providing her with food stamps, had recognized her as worthy of public support; that she had lacked proper guidance as a teenager; that by and large she had been a good mother; and that at least seven other sentencing courts had departed downwards from the Sentencing Guidelines on the basis of family considerations like those present in petitioner's case. C.A. App. 19a-23a. Finding that application of the Guidelines would have a "devastating impact" on petitioner's children (C.A. App. 21a), the court concluded that "society would not gain any of the objectives of the Sentencing Reform Act by imprisoning you and devastating the lives of those two youngsters." C.A. App. 23a. After obtaining a pledge from petitioner that she would be a good mother and a law-abiding citizen and would keep away from controlled substances (C.A. App. 24a), the court departed downwards from the Guidelines and sentenced her to a term of five years' probation without requiring confinement of any kind. Ibid. 3. The court of appeals vacated petitioner's sentence and remanded for resentencing. Pet. App. 1a-6a. Noting (id. at 4a) that family responsibilities are not ordinarily relevant in determining whether a sentence should be outside the Guidelines (see Sentencing Guideline Section 5H1.6), it stated (Pet. App. 4a) that the "sole question" it had to consider was whether petitioner's family responsibilities, which implicitly formed the basis for the district court's downward departure, were extraordinary. It then found (id. at 5a) that they were not, explaining that "(a) sole custodial parent is not a rarity in today's society, and imprisoning such a parent will by definition separate the parent from the children. It is apparent that in many cases the other parent may be unable or unwilling to care for the children, and that the children will have to live with relatives, friends, or even in foster homes." /2/ Acknowledging that some unique family responsibilities might justify a downward departure, the court did not find them in the instant case and concluded that "petitioner's situation, though unfortunate, is simply not out of the ordinary" (Pet. App. 5a). Accordingly, it ruled (ibid.) that "the district court's implicit finding that the situation was extraordinary was clearly erroneous" (see United States v. Summers, 893 F.2d 63, 66-67 (4th Cir. 1990)), vacated petitioner's sentence and remanded for resentencing. Pet. App. 6a. ARGUMENT 1. Petitioner contends (Pet. 8-14) that the court of appeals erred when it vacated her sentence and remanded for resentencing. In support of the contention, she argues that the "several reasons" (id. at 13) relied on by the district court for its downward departure from the Sentencing Guidelines showed that her personal situation was so extraordinary as to warrant that departure. This fact-bound claim does not merit further review by this Court. While the Guidelines contemplate a downward departure when "the court finds that there exists (a) * * * mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines" (18 U.S.C. 3553(b)), no such mitigating circumstances existed here, and the district court's implicit finding to the contrary was, as the court of appeals correctly concluded, clearly erroneous. Among the factors weighing in favor of downward departure, the district court noted (C.A. App. 19a-23a) petitioner's status as a single parent with two small children, her employment history, her lack of education, her age, her geographical separation from her natural family, the likelihood that strangers would have to care for her children, her prior teenage pregnancy, her receipt of food stamps, her lack of proper guidance as a teenager, and her efforts to be a good mother. It is clear, however, that the Sentencing Commission considered all of these factors in formulating the Guidelines. Petitioner's status as a single parent, her children, her geographical separation from her natural family, the role that strangers would play in caring for her children, her pregnancy and lack of guidance while a teenager, and her efforts to be a good mother all fall within the scope of Guideline Section 5H1.6, which states that "(f)amily ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the guidelines." Petitioner's age falls within the scope of Guideline Section 5H1.1 (age not ordinarily relevant); her employment history and her lack of education fall within the scope of Guidelines Sections 5H1.2 (education and vocational skills not ordinarily relevant) and 5H1.5 (previous employment record not ordinarily relevant); and her receipt of food stamps falls within the scope of Guideline Section 5H1.10 (inter alia, socio-economic status not relevant in determining sentence). In these circumstances, the court of appeals properly identified (Pet. App. 4a) the "sole question" it was required to answer as whether petitioner's situation was "extraordinary," and rightly concluded, on this record, that it was not. As the court of appeals observed (id. at 5a), single custodial parents are not rarities, and incarceration necessarily separates such parents from their children, who may as a result be required to live in foster homes. The court of appeals therefore accurately described petitioner's situation as "unfortunate" but "not out of the ordinary" (ibid.). This fact-bound determination does not warrant further review by this Court. /3/ 2. Petitioner's suggestion that the court of appeals reviews upward departures from the Guidelines more deferentially than downward departures (see Pet. 14-16) likewise does not merit this Court's review. In support of this suggestion, petitioner cites two cases, in addition to the instant case, where the court of appeals reversed downward departures; /4/ five cases where it affirmed upward departures; /5/ three cases where it affirmed refusals to depart downward; /6/ and one case where it affirmed a downward departure in what petitioner characterizes as a "limited exception" (id. at 15) to its general practice. /7/ Petitioner's citation of a few appellate cases fails even to raise an issue as to whether the Fourth Circuit systematically reviews downward departures differently from upward departures. First, the most reasonable conclusion to draw from petitioner's list is simply that, in the particular group of cases that petitioner brings to this Court's attention, the Fourth Circuit found that district courts erred more frequently in departing downward than in departing upward. Petitioner advances no reason to believe that the court of appeals erred in any of the cited cases, nor that the cases she cites are in any way representative of the Fourth Circuit's docket. Second, defendants -- who have nothing to lose and much to gain by appealing an upward departure -- would be unlikely to be as selective in appealing upward departures as the government is in appealing downward departures. /8/ Because the government appeals of downward departures are likely to be screened far more carefully in advace, it would be unsurprising if, on average, the government's success rate in obtaining reversals of such departures is greater than the success rate of defendants in obtaining reversals of upward departures. 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 M. GANNON Attorney NOVEMBER 1990 /1/ Although petitioner had no prior record, she was at the time of her sentencing subject to an outstanding state warrant in New Jersey for cocaine possession. When the New Jersey prosecutor learned that petitioner was being prosecuted in federal court for the instant offense, he declined to seek extradition. C.A. App. 5a. /2/ The court relied in part on its recent affirmance of a district court's refusal to depart downward in the face of mitigating circumstances similar to petitioner's. See United States v. Daly, 883 F.2d 313, 319 (4th Cir. 1989), cert. denied, 110 S. Ct. 2622 (1990). /3/ Moreover, to the extent that the district court grouped factors considered by the Sentencing Commission into a composite factor that the Commission purportedly did not consider, its approach was properly rejected by the court of appeals. "(The Guidelines) must be applied on a factor-by-factor basis. See United States v. Aguilar-Pena, 887 F.2d 347, 353 (1st Cir. 1989). To condone a 'totality of the circumstances' approach would allow a judge * * * to nullify the guidelines approach to sentencing." United States v. Pozzy, 902 F.2d 133, 138 (1st Cir. 1990), petition for cert. pending, No. 90-5292. /4/ United States v. Van Dyke, 895 F.2d 984 (4th Cir.), cert. denied, No. 89-7757 (Oct. 2, 1990); United States v. Summers, 893 F.2d 63 (4th Cir. 1990). /5/ United States v. Lacy, 900 F.2d 256 (4th Cir. 1990) (table); United States v. Atkins, 896 F.2d 1368 (4th Cir.) (table), cert. denied, 110 S.Ct. 1792 (1990); United States v. Bailey, 896 F.2d 1368 (4th Cir. 1990) (table); United States v. McKenley, 895 F.2d 184 (4th Cir. 1990); United States v. Mahler, 891 F.2d 75 (4th Cir. 1989). /6/ United States v. Nisely, 900 F.2d 257 (4th Cir. 1990); United States v. Bayerle, 898 F.2d 28 (4th Cir.), cert. denied, No. 89-1934 (Oct. 2, 1990); United States v. Sheffer, 896 F.2d 842, 845-846 (4th Cir.), cert. denied, No. 90-5112 (Nov. 13, 1990). In Bayerle, the Fourth Circuit held that refusals to depart downward were generally not reviewable, and accordingly dismissed the appeal. See 898 F.2d at 30-31. In Nisely, the court dismissed the appeal without opinion, apparently relying on Bayerle. Thus, neither Bayerle nor Nisely involved a judgment by the Fourth Circuit that a district court had acted correctly in refusing to depart downward. /7/ United States v. Ghannam, 899 F.2d 327 (4th Cir. 1990). /8/ Indeed, 18 U.S.C. 3742(b)(3) requires that the government obtain "the personal approval of the Attorney General or the Solicitor General" before filing a notice of appeal of a criminal sentence that "is less than the sentence specified in the applicable guideline range * * *." Congress enacted this provision specifically "in order to assure that such appeals are not routinely filed for every sentence below the guidelines." S. Rep. No. 225, 98th Cong. 1st Sess. 154 (1983). Records maintained by the Office of the Solicitor General show that in fiscal year 1990, from October 1, 1989 to September 30, 1990, the Solicitor General authorized only 131 appeals in federal sentencing cases nationwide; approximately half, an estimated 65, of these appeals involved downward departures from the Sentencing Guidelines.