PETER JAMES WILLIAMS, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-5849

   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 Seventh Circuit

   Brief For The United States

                             OPINION BELOW

   The opinion of the court of appeals, Pet. App. A1-A8, is reported
at 901 F.2d 1394.

                             JURISDICTION

   The judgment of the court of appeals was entered on May 4, 1990.
Justice Stevens extended the time in which to file a petition for a
writ of certiorari to October 1, 1990, and the petition was filed on
that date.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether a district court is required to notify the defendant in
advance of its intent to depart upward from the range of sentences
prescribed by the Sentencing Gudelines, and of the grounds for
departure.

                               STATEMENT

   After a plea of guilty in the Untied States District Court for the
Northern District of Illinois, petitioner was convicted on one count
of robbery from a federally insured bank, in violation of 18 U.S.C.
2113(a).  He was sentenced to 63 months' imprisonment, to be followed
by a five-year term of supervised release.  The court of appeals
affirmed.  Pet. App. A1-A8.

   1. On January 15, 1988, petitioner entered the First Illinois Bank
in Evanston, Illinois, and robbed a teller of $3,689 at gunpoint.
Pet. App. A3;  Gov't C.A. Br. 4.  After he was apprehended, petitioner
pleaded guilty to one count of bank robbery.  Before sentencing, the
district court referred petitioner's case to the United States
Probation Office for preparation of a presentence report.  The
presentence report stated that petitioner had twice before robbed the
First Illinois Bank in Evanston and had committed the instant offense
while he was on probation from the Illinois state conviction growing
out of those robberies.  The report noted that if petitioner had been
sentenced separately for the two prior bank robberies, he would have
been considered a career offender within the meaning of the Guidelines
and thus he would have received a significantly enhanced sentence.
The report concluded that an upward departure might be appropriate in
this case, because petitioner's criminal history calculation seriously
underrepresented his prior criminal activity.  Gov't C.A. Br. 5-6.

   At sentencing, the district court determined that petitioner's
offense level under the Sentencing Guidelines was 20 and that he fell
into criminal history category III.  A range of 41 to 51 months'
imprisonment is the presumptive sentence under the Sentencing
Guidelines.  Pet. App. A3.  During petitioner's counsel's allocution,
the district court expressed its concern that petitioner had
heightened the danger that violence would occur during his offenses by
carrying a gun while under the influence of drugs.  Id. at A18.
Petitioner's counsel addressed this concern.  Id. at A19-A20.  The
district court also told petitioner's counsel that "the pattern of
conduct is the thing that is and has been the most troublesome to me
in what we deal with in your client's case." Id. at A20.  Petitioner's
counsel also responded to this concern.  Ibid.

   The district court concluded that an upward departure was
appropriate for three reasons.  First, the court agreed with the
presentence report that petitioner's criminal history score
underrepresented his prior criminal activity.  Second, the court
determined to depart because of the repeat nature of petitioner's bank
robberies.  Third, the court departed upward because of the danger
created by petitioner's commission of the robberies with a firearm
while he was under the influence of drugs.  Pet. App. A3.

   2. On appeal, petitioner claimed that the district court relied on
improper grounds for departure and that he did not receive proper
notice of the court's decision to depart.  The court of appeals
rejected both contentions.  It held that each of the grounds on which
the court decided to depart was proper under the Sentencing
Guidelines.  Pet. App. A3-A7.  The court of apeals also concluded that
petitioner had received adequate notice of the district court's
decision to depart from the Guidelines range because "during the
course of the hearing and before imposing sentence, the district judge
highlighted all of the grounds he relied upon to justify the
departure." Id. at A7-A8.  The court of appeals also noted that the
district court had given petitioner's counsel several opportunities to
object to the grounds of departure both before and after imposing
sentence.  Id. at A8.

                               ARGUMENT

   Petitioner's sole contention in this Court is that the district
court erred by failing to give him adequate notice of its intention to
depart from the sentence required by the Sentencing Guidelines.  Pet.
9-15.  Petitioner claims that such notice is required by the Due
Process Clause, Federal Rule of Criminal Procedure 32, and the
Sentencing Guidelines themselves.

   On June 28, 1990, this Court granted certiorari in Burns v. United
States, No. 89-7260.  In Burns, as in this 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 notice of its intention to depart from the
Guidelines sentence.  As petitioner points out, Burns raises
essentially the same issue as petitioner presents for review.  Pet. 9.
 This case is arguably distinguishable from Burns for two reasons.
First, the petitioner here received notice of the possibility of an
upward departure in the presentence report.  Second, the district
court below specifically invited petitioner's counsel to object to the
grounds of departure raised at the sentencing hearing.

   Notwithstanding those differences, the Court's disposition in Burns
might control the validity of the court of appeals' reasoning in this
case.  The petitioner in Burns claims that a defendant is entitle 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 ('PSI report') or
by the parties." Pet. Reply Br. 1, Burns v. United States, No.
89-7260.  Petitioner here received advance notification of only one of
the three grounds on which the district court based its departure.  In
addition, although the district court allowed petitioner's counsel to
object to all of the potential grounds for departure at the sentencing
hearing, 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.  The petitioner
in this case did not receive pre-hearing notice of two of the grounds
on which the district court relied.  Because the petitioner here might
have a valid claim to notice if this Court accepts the submission of
the petitioner in Burns, this petition for writ of certiorari should
be held pending the disposition of Burns.

                              CONCLUSION

   The petition for a writ of certiorari should be held and disposed
of as appropriate in light of the disposition of Burns v. United
States, No. 89-7260.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   J. DOUGLAS WILSON

      Attorney

   OCTOBER 1990