HASKELL WATSON, JR., PETITIONER V. UNITED STATES OF AMERICA HERMAN CURRY, PETITIONER V. UNITED STATES OF AMERICA No. 90-5590, No. 90-5771 In The Supreme Court Of The United States October Term, 1990 On Petitions For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-7) is reported at 902 F.2d 912. The opinion of the district court (Pet. App. 8-20) /1/ on the applicability of a mandatory minimum term of imprisonment to petitioners' offenses is reported at 703 F.Supp. 1493. The memorandum opinion of the district court (Pet. App. 21-24) staying petitioner's resentencing after remand from the court of appeals is not reported. JURISDICTION The judgment of the court of appeals was entered on June 5, 1990. The petition for a writ of certiorari in No. 90-5590 was filed on August 30, 1990. The petition in No. 90-5771 was not filed until September 5, 1990, and is therefore out of time under Rule 13.1 of the Rules of this Court. /2/ The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether, when the district court erroneously sentenced petitioners without regard to the Sentencing Guidelines and petitioners challenged the sentence on other grounds, the court of appeals erred in remanding for resentencing in accordance with the Sentencing Guidelines. STATEMENT After a jury trial in the United States District Court for the Northern District of Alabama, petitioners were convicted of conspiring to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. 846. They were sentenced to 10 years' imprisonment. The court of appeals affirmed petitioners' convictions but remanded for resentencing under the Sentencing Guidelines. Pet. App. 1-7. 1. The evidence at trial, the sufficiency of which is not in dispute, showed that petitioners and co-defendant's Ronald Hayes, Adam Butler, Jeffrey Lynn Howard, Sam Hayes, and Harold Singleton conspired to distribute large quantities of cocaine in the Birmingham, Alabama, area from 1986 to 1988. Ronald Hayes headed the organization. Petitioner Curry distributed drugs for Hayes, and petitioner Watson was the organization's Los Angeles supplier of cocaine. See Gov't C.A. Br. 6-22, 27-43. 2.a. Prior to petitioners' sentencing, the full district court had held that the Sentencing Reform Act of 1984, 28 U.S.C. 991 et seq., was unconstitutional. Consequently, the district court sentenced petitioners without regard to the Sentencing Guidelines. Concluding that the applicable statutes provided for a mandatory minimum 10-year term of imprisonment for a conspiracy involving more than five kilos of cocaine, the court sentenced petitioners and co-defendants Butler, Howard, and Sam Hayes to 10 years' imprisonment on the conspiracy count. See Pet. App. 11-19. /3/ b. On appeal, petitioners and co-defendants Howard and Sam Hayes argued that the district court had erred in applying the 10-year mandatory minimum term to the conspiracy count. Co-defendants Butler and Ronald Hayes contended that the district court erred in failing to sentence them in accordance with the Sentencing Guidelines. The court of appeals upheld both challenge to the sentences imposed by the district court and remanded for resentencing in accordance with the Sentencing Guidelines on all counts except for those charging Ronald Hayes with offenses completed prior to the effective date of the Sentencing Reform Act. Pet. App. 5-7 & n.6. Noting that the conspiracy of which petitioners were convicted did not end until after the effective date of the Guidelines, the court stated that petitioners (and other defendant's convicted on the conspiracy count) "are due to be resentenced under the guidelines." Id. at 6 n.6. c. After the remand, the district court stayed resentencing pending the disposition of requests for rehearing in the court of appeals and petitions for certiorari. Pet. App. 21-24. In the opinion granting the stay, the court volunteered its view that the petitions for rehearing pending before the appellate court had "considerable merit," and it characterized the court of appeals' mandate requiring resentencing in accordance with the Guidelines as "a gratuitous expression by the Court of Appeals" that was "totally outside the scope of the issus presented to that Court." Id. at 21-22. The district court added that the Guidelines would require sentences for some or all of the defendants that were more severe than the court had previously imposed; that neither the government nor petitioners had challenged the failure to employ the Guidelines on appeal; and that co-defendant Singleton, who had pleaded guilty and had not appealed his sentence, would retain the benefit of a sentence more lenient than the Guidelines would permit. Id. at 22-23. Finally, the court suggested that the court of appeals' mandate might "implicate the problem inherent in North Carolina v. Pearce, 395 U.S. 911 (1969)," since the court would not be able to identify conduct occurring after the original sentencing to support a sentence more severe than that initially imposed. Pet. App. 24. ARGUMENT Petitioners contend (Pet. 5-9) that because the government did not challenge their sentences on appeal the court of appeals erred in remanding for resentencing in accordance with the Sentencing Guidelines. In petitioners' view, the court's disposition exceeded the bounds of proper appellate review and violated their rights under the Due Process Clause. When the district court sentenced petitioners to 10-year terms of imprisonment, it was acting under the misconception that the Sentencing Guidelines were unconstitutional. As a result of petitioners' appeal, the sentences remained subject to appellate review when this Court upheld the Sentencing Guidelines in Mistretta v. United States, 488 U.S. 361 (1989). In remanding for resentencing in accordance with the Sentencing Guidelines, the court of appeals simply required the district court to comply with the statute that should have governed petitioners' sentences in the first place. Petitioners had no right -- based upon the Constitution, a statute, or any other source of law -- to retain the benefit of an illegal sentence that had not become final, and the court of appeals had no authority to provide for resentencing other than in accordance with the Sentencing Reform Act. In United States v. DiFrancesco, 449 U.S. 117 (1980), this Court held that the Double Jeopardy Clause does not prohibit an increase in a sentence resulting from a statutorily authorized appeal by the government. The Court explained that "the Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents its later increase" and that when Congress has provided that a sentence is subject to appeal "there can be no expectation of finality in the original sentence." Id. at 137, 139. See also Pennsylvania v. Goldhammer, 474 U.S. 28, 30 (1985). Consistent with the reasoning of DiFrancesco, the courts of appeals have held that, when either the defendant or the government has appealed a sentence erroneously imposed without regard to the Sentencing Guidelines, the proper disposition is a remand for resentencing in accordance with the Sentencing Reform Act. United States v. Jackson, 903 F.2d 1313, 1315 (10th Cir. 1990); United States v. Kane, 876 F.2d 734, 736-737 (9th Cir.), cert. denied, 110 S.Ct. 173 (1989). Accord United States v. Rose, 881 F.2d 386, 389 (7th Cir. 1989) (dicta). There are two sufficient grounds for these decisions. First, when either party has challenged a sentence on appeal, the defendant cannot reasonably expect the sentence to be final. See United States v. Andersson, 813 F.2d 1450, 1461 (9th Cir. 1987); Gauntlett v. Kelly, 849 F.2d 213, 218-219 (6th Cir. 1988). Second, a defendnat can acquire no legitimate expectation of finality in an illegal sentence imposed without regard to the Guidelines. United States v. Jackson, 903 F.2d at 1315-1316; United States v. Kane, 876 F.2d at 737. See also United States v. Rico, 902 F.2d 1065, 1069 (2d Cir. 1990); Fed. R. Crim. P. 35(a). When either party appeals a sentence imposed under the misconception that the Sentencing Reform Act was invalid, the Double Jeopardy Clause does not foreclose a remand for resentencing in accordance the Guidelines. United States v. Rose, 881 F.2d at 389. /4/ To be sure, petitioners have framed their claims in terms of due process, rather than double jeopardy. The Due Process Clause, however, no more entitles petitioners to retain the benefit of an illegal sentence than the Double Jeopardy Clause would. /5/ There can be no serious contention that a remand for resentencing in accordance with the sentencing regime that Congress has mandated "violates those 'fundamental conceptions of justice which lie at the base of our civil and political institutions,' * * * and which define 'the community's sense of fair play and decency.'" United States v. Lovasco, 431 U.S. 783, 790 (1977). In its remand, the court of appeals has directed only that petitioners be resentenced in accordance with the statute that should have governed their sentences in the first instance. That disposition does not violate principles of appropriate appellate review; to the contrary, an appellate court has no authority to remand for resentencing other than in accordance with the standards prescribed by the legislature -- the result that petitioners advocate. Finally, there is no merit to petitioners' contention that resentencing in accordance with the Guidelines would be vindictive within the meaning of North Carolina v. Pearce, supra. As this Court has made clear, most recently in Alabama v. Smith, 109 S. Ct. 2201, 2204 (1989), "'the evil the (Pearce) Court sought to prevent' was not the imposition of 'enlarged sentences after a new trial' but 'vindictiveness of a sentencing judge.'" The Pearce presumption of vindictiveness -- which requires the government to justify an enhanced sentence on the basis of facts arising after the initial sentencing -- arises only in those categories of cases in which there is a "'reasonable likelihood' * * * that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority." 109 S. Ct. at 2205. In this case, there is no likelihood whatever that any increases in petitioners' sentences will be the result of judicial vindictiveness -- i.e., an attempt to punish petitioners for the exercise of their right to appeal. To the contrary, the district court has made clear its belief that the appeals were warranted, and, assuming faithful application of the Guidelines, any increased sentences will be the product of the district court's compliance with the requirements imposed by the Sentencing Reform Act. It is not vindictive, within the meaning of Pearce and its progeny, for a district court to increase a defendant's sentence in order to comply with that Act. See Alabama v. Smith, supra (higher sentence that results from trial court's increased familiarity with the facts of a case is not unconstitutionally vindictive). CONCLUSION The petitions for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General LOUIS M. FISCHER Attorney OCTOBER 1990 /1/ The petitions in Nos. 90-5590 and 90-5771 are virtually identical. Our citations are to the petition in No. 90-5590 and its appendix. /2/ According to the petitions, petitions for rehearing filed by both petitioners were denied by the panel as untimely. 90-5590 Pet. 2 n.3; 90-5571 Pet. 2 n.3. A suggestions of rehearing in banc was denied on July 31, 1990. United States v. Hayes, 912 F.2d 1470. /3/ At the time of petitioners' offenses, 21 U.S.C. 841(a)(1) and (b)(1)(A)(ii)(II) prescribed a 10-year mandatory minimum term of imprisonment for possession of more than five kilos of cocaine with intent to distribute it and for distribution of that quantity of cocaine. In turn, 21 U.S.C. 846 (1982) provided that a conspiracy to commit either of those offenses was "punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed" for the substantive offenses. After the conspiracy with which petitioners were charged had ended, Section 846 was amended to provide that a person who conspires to violate Section 841 "shall be subject to the same penalties as those prescribed" for the substantive offenses. Petitioners contended that before this amendment Section 846 incorporated the maximum -- but not the minimum -- terms prescribed by Section 841. The court of appeals ultimately upheld that contention. See Pet. App. 5-6. /4/ This case does not present -- and we do not address -- the question whether a court of appeals would be justified in remanding for resentencing in accordance with the Sentencing Guidelines when a district court has imposed sentence without regard to the Guidelines but neither party has challenged the sentence on appeal. /5/ Compare Hoag v. New Jersey, 356 U.S. 464 (1958) (rejecting claim that Due Process Clause embodied doctrine of collateral estoppel), with Ashe v. Swenson, 397 U.S. 436 (1970) (different result under Double Jeopardy Clause). See generally United States v. Pimienta-Redondo, 874 F.2d 9, 12-16 (1st Cir.) (en banc), cert. denied, 110 S.Ct. 233 (1989);