PHILLIP DALE SELFA, PETITIONER V. UNITED STATES OF AMERICA No. 90-5422 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 Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 17-23) is not yet reported. JURISDICTION The judgment of the court of appeals was entered on June 14, 1990. The petition for a writ of certiorari was filed on August 10, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether Fed. R. Crim. P. 11 and due process require that a defendant be informed at the time of plea of his Guidelines sentencing range and of the fact that he will be sentenced as a career offender. STATEMENT Petitioner pleaded guilty in the United States District Court for the Eastern District of California to one count of conspiracy to commit bank robbery and two counts of bank robbery, in violation of 18 U.S.C. 371 and 2113(a). He was sentenced to 210 months' imprisonment, to be followed by a three-year term of supervised release. He was also ordered to pay $2,101.00 in restitution. The court of appeals affirmed (Pet. App. 17-23). 1. The facts are set forth in the Presentence Report (PSR) and are not in dispute. /1/ In essence, petitioner -- while on parole for one of two prior bank robbery convictions -- robbed two banks in California, one on January 24, 1989, and the other on January 30, 1989. He obtained $4,202.00 from the first bank and $6,894 from the second. He was captured as he attempted to make his getaway from the second bank. He admitted to the police that he had robbed two other California banks earlier that month. PSR 2-4, 7, 8, 11. /2/ 2.a. Before pleading guilty, petitioner signed a plea agreement in which he acknowledged that the court, in its discretion, could "sentence him to a maximum sentence of twenty years each on counts two and three and five years on count one, all of which sentences could run consecutively, additionally, the court could impose a fine of $250,000 on each count." Letter of United States Attorney David F. Levi to Assistant Federal Defender Carl Larson, dated February 21, 1989; PSR 2. Petitioner further acknowledged that there was no agreement between him and the government "regarding any recommendation which the government will make as to sentencing," and that "no government representative, nor anyone else has made representations, promises or statements concerning any sentence that will be imposed, except as set forth" in the agreement. Ibid. In exchange for his guilty plea, the government agreed not to prosecute petitioner for the other two January robberies or to seek enhanced punishment based upon them. Ibid.; PSR 2, 15. b. The PSR reiterated the terms of the plea agreement, determined that petitioner was a career offender whose sentencing range was 210 to 240 months, indicated that he would have been a candidate for an upward departure had he not been a career offender, and recommended that he be sentenced to 225 months' imprisonment in view of "the severity of the offense and his significant arrest record." PSR 16; see PSR 2, 8, 11, 16-18. Petitioner made no objections to the PSR. 3. At the sentencing hearing, defense counsel acknowledged that he had reviewed the PSR with petitioner. Reporter's Transcript on Appeal 59. The court found that petitioner was a career offender. Id. at 61-62. Neither petitioner nor his attorney objected to this determination. Counsel asked the court to impose a sentence of 210 months, and the court granted the request. Id. at 64-65. ARGUMENT 1. Petitioner argues (Pet. 7) for the first time in this Court that he was denied due process because the district court "failed to explain the nature of the crime with which he was charged." Petitioner's failure to raise this claim in the courts below forecloses review by this Court. United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977); Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970). In any event, the claim lacks merit. Petitioner does not deny that the district court adequately explained the elements of the crime of bank robbery to him at the time of plea. Instead, he contends that the court was also obliged to inform him that bank robbery is a crime of violence within the meaning of Guideline Section 4B1.1, which in pertinent part requires that a defendant have "at least two prior felony convictions of either a crime of violence or a controlled substance offense" in order to be classified as a career offender. Petitioner cites no relevant authority for the novel proposition that, before entering a guilty plea, a court must explain the elements and significance of prior crimes, as well as the elements of the crime to which the defendant is pleading guilty. The career offender Guideline does not alter the elements of any criminal offense and, hence, has no bearing on whether a defendant understands "the nature of the charge to which (a) plea is offered." Fed. R. Crim. P. 11(c)(1). Moreover, since petitioner pleaded guilty to an offense that includes the elements of "force and violence" or "intimidation" (see Pet. App. 22), he could hardly have failed to appreciate that bank robbery is a crime of violence. 2. Petitioner also argues (Pet. 9) that Fed. R. Crim. P. 11(c)(1) obliged the court to advise him of his Guidelines sentencing range, in addition to the statutory maximum sentence of twenty years. Petitioner is incorrect. Defendants are not entitled to sentencing predictions under the Guidelines any more than they were entitled to such predictions before the Guidelines became effective. See United States v. Salva, 902 F.2d 483, 487 (7th Cir. 1990) (collecting cases). Contrary to petitioner's contention (Pet. 8), Rule 11(c)(1) does not require "that the trial court judge must specify any applicable sentencing guidelines." Although the Rule was amended, effective December 1, 1989, to require the district court to inform a defendant that the court is required to consider any applicable Sentencing Guidelines, the amendment does not apply to petitioner, who pleaded guilty and was sentenced before the effective date. In any event, the Notes to Rule 11 by the Advisory Committee on Rules make clear that "the amendment does not require the court to specify which Guidelines will be important" because "it will be impracticable, if not impossible, to know which Guidelines will be relevant prior to the formulation of a presentence report and resolution of disputed facts." As the court of appeals correctly observed (Pet. App. 23), a district court "is usually not in a position at the time of a plea to advise the defendant with any precision as to the range within which the sentence might fall." In pertinent part, Rule 11(c)(1) requires the court to inform a defendant of "the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law." Since 18 U.S.C. 2113(a) prescribes no minimum penalty, the court satisfied the Rule when it advised petitioner of the statutory maximum sentence. The court was not in addition obliged to specify his Guidelines sentencing range. See United States v. Fernandez, 877 F.2d 1138, 1142-1143 (2d Cir. 1989); United States v. Henry, 893 F.2d 46, 48-49 (3d Cir. 1990); United States v. Salva, 902 F.2d at 487; United States v. Thomas, 894 F.2d 996, 997 (8th Cir.), cert. denied, 110 S. Ct. 1935 (1990); United States v. Turner, 881 F.2d 684, 687 (9th Cir.), cert. denied, 110 S. Ct. 199 (1989); United States v. Rutter, 897 F.2d 1558, 1564 and n.7(10th Cir.), cert. denied, No. 89-7490 (October 1, 1990). /3/ 3. Finally, petitioner claims (Pet. 7, 8) that Fed. R. Crim. P. 11(c)(1) required the district court to warn him at the time of plea that he would be sentenced as a career criminal. Rule 11(c)(1) makes no reference to such a requirement. In any event, however, any such warning would have been superfluous. The sentence petitioner received was precisely the sentence that he himself, through counsel, requested. In addition, petitioner expressly acknowledged in the plea agreement that he could receive consecutive twenty-year prison terms on the bank robbery counts, and a consecutive five-year prison term on the conspiracy count. /4/ In light of this acknowledgement, he can hardly complain that the severity of his sentence -- which was substantially lower than the statutory maximum and the PSR recommendation, and at the lower end of the Guidelines range -- was "unexpected." Pet. 9. Finally, at the sentencing hearing, the court discussed the impact that his career offender status would have on his sentence, yet neither he nor his attorney expressed any surprise during this discussion or attempted to withdraw his plea on this basis. See United States v. Babineau, 795 F.2d 518, 521 (5th Cir. 1986) (defendant's failure to attempt to withdraw plea at time of sentencing indicates that asserted violation of Rule 11 did not affect decision to plead guilty); Lilly v. United States, 792 F.2d 1541, 1544-1545 (11th Cir. 1986) (same). /5/ 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 NOVEMBER 1990 /1/ A transcript of the plea proceedings was apparently never ordered. In the briefs below, each side cited to the PSR as the source of its Statement of Facts. See Pet. C.A. Br. 2; Gov't C.A. Br. 3. /2/ Petitioner's codefendant, Donald Stewart Clayton, served as a getaway driver. Clayton pleaded guilty to conspiracy and to the first bank robbery, and was sentenced to 31 months' imprisonment plus restitution of $2,101.00. PSR 1; Reporter's Transcript on Appeal 57-58. /3/ Petitioner's reliance upon Van Moltke v. Gillies, 332 U.S. 708 (1948), is misplaced. Because that case involved the validity of an uncounseled guilty plea, it is of no relevance to this case. /4/ We note that in Burns v. United States, No. 89-7260, this Court has granted certiorari to resolve the question whether a district court must notify a defendant in advance of its intent to depart upward from the sentencing range prescribed by the Guidelines, and of its grounds for the departure. Since the instant case involves a sentence within the Guidelines range, it does not present the question at issue in Burns. /5/ Marvel v. United States, 380 U.S. 262 (1965), cited by petitioner, is not to the contrary. There, in a one-paragraph per curiam opinion, this Court vacated and remanded for a hearing "as to whether petitioner had been misled by the trial judge as to the maximum sentence." The vacated opinion (Marvel v. United States, 335 F.2d 101 (5th Cir. 1964)), reveals that the defendant pleaded guilty after the trial court had told him that his maximum sentence would be five years, when in fact it might have extended to six. No such misrepresentation as to maximum sentence occurred here.