DONNY JOEL HARVEY, PETITIONER V. UNITED STATES OF AMERICA No. 90-5530 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 Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals, Pet. App. 1a-5a, is reported at 897 F.2d 1300. /1/ JURISDICTION The judgment of the court of appeals was entered on March 26, 1990. A petition for rehearing was denied on June 7, 1990. The petition for a writ of certiorari was filed on August 6, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the court of appeals correctly determined that a police officer had reasonable suspicion to stop and frisk petitioner. 2. Whether the district court's statement of its reasons for departing upward from the Sentencing Guidelines was adequate. STATEMENT Following a jury trial in the United States District Court for the Western District of Texas, petitioner was convicted on one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g)(1). He was sentenced to five years' imprisonment, to be followed by three years' supervised release. The court of appeals affirmed. 1. The evidence at trial showed that on the evening of February 13, 1988, police officers in Waco, Texas, arrived at the home of James Jordan to execute a warrant. The warrant authorized the arrest of Jordan, the search of Jordan's house, and the arrest of any persons arriving at or leaving the house. While police officers were searching the house, and after methamphetamine and firearms had already been discovered, petitioner drove into an alley next to the house and got out of his truck. One of the officers approached petitioner, and asked him to identify himself and state whether he was armed. When petitioner made no response, that officer frisked him and found a loaded handgun in his back pocket. 897 F.2d at 1301-1303. The district court found invalid that portion of the warrant authorizing the arrest of anyone entering or leaving the premises because it failed to identify with particularity the persons to be arrested. The district court nevertheless refused to suppress petitioner's gun because the officers were acting in good faith reliance on the warrant when they arrested petitioner. 897 F.2d at 1303. Following petitioner's conviction, the district court sentenced petitioner to 60 months' imprisonment -- the maximum under the statute at that time. /2/ Given petitioner's base offense level of 9 and criminal history category of V (out of a possible VI), the Sentencing Guidelines specified a range of 18 to 24 months' imprisonment. The district court departed upward from that range, however, because "the guidelines do not adequately take into account the criminal history of (petitioner)." 897 F.2d at 1305. The district court explained that the Guidelines' criminal history rating substantially underrepresented petitioner's criminality: "(petitioner) has been able to manipulat the criminal justice system basically all of his adult life to his advantage, and the time for his doing that has now come to an end." 897 F.2d at 1305. 2. The court of appeals affirmed. In its view, the police were justified in stopping and frisking petitioner under Terry v. Ohio, 392 U.S. 1 (1968), wholly apart from any reliance on the warrant. Accordingly, the court of appeals did not reach the good faith issue. Instead, the court observed that at the time petitioner drove up and parked next to the Jordan house, the officers had already found drugs and weapons inside. Moreover, the officers also knew that the house was frequently used to consummate drug transactions. Furthermore, the officer who approached petitioner knew from his experience that it was common for people who dealt in methamphetamine to carry weapons. Finally, that officer asked petitioner directly if he was armed and received no reply. From all these facts, the court of appeals concluded, the police officer "could properly infer that there was a distinct possibility that (petitioner) was armed." 897 F.2d at 1303-1304. /3/ The court of appeals also affirmed the adequacy of the district court's statement of reasons for its upward departure from the range of sentences prescribed by the Sentencing Guidelines. It adhered to its prior holdings that an upward departure from the Guidelines is proper where the criminal history category does not adequately reflect a defendant's past criminal history. It found the district court's statement of reasons to be adequate, and did not require an explanation why that court did not use the next higher criminal history category (level VI). 897 F.2d at 1306. ARGUMENT 1. Petitioner contends, Pet. 1-5, that the court of appeals' decision upholding the police officer's stop and frisk under Terry v. Ohio, 392 U.S. 1 (1968), conflicts with this Court's decision in Ybarra v. Illinois, 444 U.S. 85 (1979). In Ybarra, police officers obtained a warrant to search a tavern for narcotics. In executing the warrant, the officers subjected every one of the tavern's patrons to a pat-down search for weapons and found narcotics on the person of one of them. This Court found that search to be unlawful because the police did not have probable cause to believe that any of the customers was involved in narcotics trafficking or reasonable suspicion to believe any of them was armed and dangerous. The Court reasoned that "(t)he 'narrow scope' of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place." 444 U.S. at 94. As the court of appeals below noted in distinguishing the facts in Ybarra: Unlike the instant case, Ybarra involved the wholesale search of all individuals present during the execution of a search warrant. In contrast, the instant case involved the search of one individual, (petitioner), and, as Ybarra instructs, (the officer's) suspicion was "directed at the person to be frisked (petitioner). 897 F.2d at 1304. /4/ The court of appeals was clearly correct in finding that the officer reasonably suspected petitioner of being armed and dangerous. Petitioner notwithstanding, Pet. 3-4, the facts known to the officers at the time of the stop and frisk amounted to much more than an "unparticularized suspicion or hunch," and the court of appeals' reasoning upholding the pat-down search is not tantamount to holding that everyone present at the scene may be searched. At the time petitioner drove up to the house and got out of his truck, the officers had already found drugs and weapons inside the house. They also knew, from the affidavit accompanying the search warrant application, that the house was a center for drug distribution and associated traffic among known drug dealers and customers. The officer who approached petitioner also knew from personal experience that most people he had investigated for drug trafficking over the previous two years had had some kind of weapn in their residence or on their person. That officer's suspicions were further raised when petitioner gave no answer when asked directly whether he had a weapon. The facts in the officer's possession gave him more than a reasonable suspicion to believe that petitioner might well be a participant in the narcotics trade and a threat to the officers engaged in the search inside the house. The officer had ample justification to perform an investigative stop. /5/ Nor did the decision here amount to a holding that anyone present during the execution of a search may be lawfully searched as well. The court of appeals explicitly rejected any such suggestion when it stated, "we emphasize that we do not countenance the search of any individual who happens to be no more than on the premises where a narcotics warrant is being executed. The mere presence of an individual on such premises with nothing more does not suffice to justify a stop and frisk search under Terry." 897 F.2d at 1304 n.2. The court of appeals' holding clearly rested on its finding that in this case the officer had reasonably suspected petitioner of being armed. 2. Petitioner also challenges the court of appeals' affirmance of his sentence. He asserts a conflict with other decisions from the same court of appeals, as well as with decisions from three other courts of appeals, which he says hold that a sentencing court must state on the record that it has considered and rejected the next higher criminal history category before departing beyond that level. Pet. 5-6. In fact, as the court of appeals explained, there is no conflict with its own precedent nor with any of the other opinions cited by petitioner. The departure was a reasonable one under the circumstances and it was adequately explained by the district court. The district court found the Sentencing Guidelines' range too low to reflect the petitioner's serious criminal history. Specifically, the Guidelines did not account for any of the substantial offenses petitioner perpetrated more than 10 years ago, including: assault on a police officer, possession of marijuana, carrying a prohibited weapon, and unlawful possession of a weapon. 897 F.2d at 1305 n.3. In light of the fact that petitioner's criminal history spanned "basically all of his adult life," the district court not unreasonably concluded that the Guidelines' criminal history rating substantially underrepresented petitioner's criminality. 897 F.2d at 1305. Although the district court did not specifically address why it did not simply adjust petitioner's criminal history category, the reason is apparent from the Sentencing Guidelines themselves: petitioner already was assigned the second highest criminal history rating; assignment to the highest level, as the court of appeals pointed out, would only "have provided for a sentencing range of between 21 and 27 months," 897 F.2d 1305 n.4 -- three months more than the range the district court found inadequate to "take into account the criminal history of (petitioner)." Id. at 1305. The cases on which petitioner relies at most support the proposition that a district court contemplating an upward departure based on the criminal history of a defendant in a low criminal history category should consider an adjustment of that defendant's criminal history category. That proposition has no application where, as here, the defendant is already assigned to the second highest criminal history category, and the higher sentencing range permits only a three months' longer sentence. Thus, in United States v. Lopez, 871 F.2d 513 (5th Cir. 1989), the court of appeals upholding petitioner's sentence found erroneous a district court's upward departure from a Guidelines sentence predicated on a criminal history category I to one that presupposed the applicability of category V. The court of appeals ruled that the district court should have explained why it disregarded the intervening criminal history categories. As the court of appeals here explained, Lopez was confined to cases where defendants have low criminal history scores; in this case, petitioner was already in category V, and the use of the next category would have resulted in a maximum sentence only three months longer than the maximum provided for in category VI. 897 F.2d at 1305 n.4. In its statement of reasons for the departure, the district court noted that the criminal history unaccounted for by the Guidelines was substantial. Under these circumstances, that statement provided a sufficient explanation for the departure. In United States v. Rios, 876 F.2d 24 (5th Cir. 1989), also decided by the circuit affirming petitioner's sentence, the district court imposed, instead of a Guidelines sentence in category IV of 10 to 16 months, a sentence of three years, the statutory maximum. The district court gave as its reasons for this departure the defendant's prior history and his status as an illegal alien. The court of appeals found these reasons inadequate because the illegal immigration status had already been taken into account and the defendant's prior history did not appear to justify more than an upward adjustment to one of the next higher criminal history categories. The double-counting aspect of Rios is not present here and makes that case dissimilar to petitioner's. The cases from other circuits cited by petitioner are similarly distinguishable. In United States v. Cervantes, 878 F.2d 50 (2d Cir. 1989), and United States v. Miller, 874 F.2d 466 (7th Cir. 1989), the Second and Seventh Circuits reversed upward departures premised on the proposition that the Guidelines did not adequately reflect the defendants' criminal histories. As in Lopez, the courts of appeals in both cases faced defendants with low criminal history scores where the district courts skipped over intervening categories to impose substantially higher sentences without any apparent explanation as to how the sentencing judge had arrived at the sentence imposed. As the court of appeals below explained in distinguishing its own circuit's decision in Lopez, the rule applicable to defendants in low criminal history categories cannot benefit petitioner, whose assignment to the second highest category prevented a further adjustment on this basis from increasing his sentence by more than three months. In United States v. Jackson, 883 F.2d 1007 (11th Cir. 1989), also cited by petitioner, the court of appeals affirmed a departure where the district court specifically found that the next higher criminal history category more accurately reflected that defendant's criminal history, with reasons that were clearly identifiable and supported by the record. None of these cases suggests that the courts that decided them would have treated petitioner's case any differently than did the court below. 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 KATHLEEN A. FELTON Attorney OCTOBER 1990 /1/ The copy of the court of appeals' decision attached as an appendix to the petition for a writ of certiorari is incomplete. We accordingly cite to the reported decision throughout. /2/ 18 U.S.C. 922(g) now carries a maximum sentence of 10 years. Pub. L. 100-690, Title VI, Section 6462, Nov. 18, 1988, 102 Stat. 4374. The corresponding Sentencing Guideline (2K2.1) has also been revised; as of November 1, 1989, the base offense level is 12 rather than 9. /3/ The court of appeals "emphasize(d)" that the result reached in this case does "not countenance the search of any individual who happens to be no more than on the premises where a narcotics warrant is being executed. The mere presence of an individual on such premises with nothing more does not suffice to justify a stop and frisk search under Terry." 897 F.2d at 1304 n.2. /4/ This quotation demonstrates that, contrary to petitioner's contention, Pet. 2-3, the court of appeals did not distinguish Ybarra on the basis that one person was searched instead of a whole group. The court of appeals specifically determined that the reasonable suspicion absent in Ybarra was present and properly focused on petitioner here. /5/ Petitioner discounts one of the factors relied upon by the court of appeals -- the failure of petitioner to answer the officer's question whether he was armed -- because he claims that the frisk was already underway when this question was asked. Pet. 3 & n.4. The evidence on this point was in conflict, but both courts below apparently resolved this factual dispute by finding that the officer's question about weapons preceded the frisk. In its opinion and order denying the motion to suppress, the district court stated: "(Officer) Moore approached the (petitioner), then asked (petitioner) if he was armed. (Petitioner) did not reply. Officer Moore testified that he was concerned for his safety and 'patted down' the (petitioner)." R. 235-236. It appears from the court of appeals' opinion that that court accepted the district court's conclusion. See 897 F.2d at 1304. That factual finding, concurred in by both lower courts, is not normally open for review in this Court. United States v. Reliable Transfer Co., Inc., 421 U.S. 397, 401 n.2 (1975); Berenyi v. Immigration Director, 385 U.S. 630, 635 (1967). In any event, even if petitioner is correct that the officer began frisking him before asking if he was armed, the officers' knowledge that the house they were searching was the center of a drug distribution business and that many vehicles, identified with people known to be associated with narcotics, had been seen coming to and going from the house, gave them reasonable suspicion to believe that anyone arriving at that particular house at that time was a likely drug customer and quite possibly armed.