ANTHONY EDWARDS, PETITIONER V. UNITED STATES OF AMERICA No. 90-5380 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 Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A) is unreported, but the judgment is noted at 899 F.2d 21 (Table). JURISDICTION The judgment of the court of appeals was entered on February 26, 1990. A petition for a writ of certiorari was filed on August 6, 1990, and is therefore out of time under Rule 13.1 of the Rules of this Court. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's offense level was properly increased by two points under Sentencing Guideline Section 2D1.1(b)(1), which provides for such an increase if a firearm "was possessed during the commission of the offense." STATEMENT Petitioner pleaded guilty in the United States District Court for the Middle District of Florida to conspiracy to possess more than 50 grams of crack cocaine with intent to distribute it, in violation of 21 U.S.C. 846. He was sentenced to 188 months' imprisonment, to be followed by four years of supervised release. The court of appeals affirmed. 1. The facts underlying petitioner's offense were established at a suppression hearing and in the presentence report. On May 31, 1988, the Tampa Electric Company reported to the policy a theft of electricity from a local residence. Two officers investigating the report knocked at the side door of the house in question. Within minutes, the officers heard glass breaking and saw three men, including petitioner, fleeing through a rear window. Two of the men were armed, /1/ and one pointed a gun at the officers. A fourth man walked out the front door. After capturing two of the men, the officers recovered a nine-millimeter automatic weapon discarded by one of petitioner's co-conspirators. In a warrant-authorized search of the house, the officers found 688 grams of cocaine and a nine millimeter Glock pistol. Petitioner was subsequently arrested and charged with drug offenses relating to the activities in the house. Gov't C.A. Br. 4-6, 10-11. Petitioner was sentenced pursuant to the Sentencing Guidelines. Sentencing Guideline Section 2D1.1(b)(1) provides for a two-point increase in the offense level if a firearm "was possessed during the commission of" a drug trafficking crime. At the sentencing hearing, defense counsel argued that that Guideline is unconstitutional because it does not require proof of scienter. S. Tr. 9-11. The district court overruled the objection and held that the government was not required to prove that petitioner knew that guns were present during the offense. S. Tr. 11-12. The court noted that the commentary to Guideline Section 2D1.1 requires an increase in the offense level if a gun was present, whether or not the gun was in the possession of the defendant. S. Tr. 17. Accordingly, the court increased petitioner's offense level by two points. /2/ After reducing the offense level two points for acceptance of responsibility, the court found that the final offense level was 36, with a guideline range of 188 to 235 months' imprisonment. S. Tr. 18-19. The court sentenced petitioner to the minimum sentence in that range, 188 months' imprisonment. S. Tr. 26. 2. The court of appeals affirmed in an unpublished per curiam opinion. The court held that the sentencing judge was not required to determine whether petitioner had used a weapon in order to increase his offense level by two points under Section 2D1.1(b)(1). The court noted that petitioner "was legally responsible for the conduct engaged in by his accomplices during the course and in furtherance of the conspiracy," and that "(a)t least two of them possessed firearms in carrying out the conspiracy." Pet. App. A3. Accordingly, the court concluded, the sentencing judge properly took the presence of the firearms into account. Id. at A3-A4. ARGUMENT The court of appeals correctly upheld the two-level increase in petitioner's base offense level due to the presence of firearms during the cocaine conspiracy. At the time petitioner was sentenced, Guideline Section 2D1.1(b)(1) directed the sentencing judge to increase by two the base offense level for a drug trafficking offense "(i)f a firearm or other dangerous weapon was possessed during commission of the offense." /3/ The commentary explains that "(t)he enhancement for weapons possession reflects the increased danger of violence when drug traffickers possess weapons. The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." Application Note 3. As the commentary makes clear, the adjustment does not depend on proof that the defendant possessed the gun. Rather, it applies whenever the weapon was present and connected with the offense. Petitioner's contention that the court had to find that he possessed the firearm, or knew it was present, finds no support in the text of the Guideline or its explanatory commentary. United States v. Lanese, 890 F.2d 1284, 1292 (2d Cir. 1989) (knowledge of co-participant's possession of firearm is not required), cert. denied, 110 S. Ct. 2207 (1990); United States v. Otero, 890 F.2d 366, 367 (11th Cir. 1989) (same). The general principles of relevant conduct under the Guidelines support this conclusion. At the time of petitioner's sentencing, Guideline Section 1B1.3(a) provided that in determining the offense level, the court should take into account "all acts or omissions committed or aided and abetted by the defendant, or by a person for whose conduct the defendant is legally accountable." /4/ Under the principles of Pinkerton v. United States, 328 U.S. 640 (1946), petitioner properly deemed accountable for his co-conspirators foreseeable possession of the firearms in execution of the narcotics conspiracy. Therefore under Guideline Section 1Ba.3(a), it was permissible for the court to find petitioner responsible for his co-conspirators' possession of firearms. See United States v. Vidal, No. 90-1055 (8th Cir. Oct. 2, 1990), slip op. 7-9; United States v. Garcia, 909 F.2d 1346, 1349-1350 (9th Cir. 1990) (adjustment proper where co-defendant's possession of gun was reasonably foreseeable due to the large quantity of drugs involved); United States v. Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990) (quantity of narcotics sufficient to support inference that co-conspirator's possession of a gun was reasonably foreseeable); United States v. White, 875 F.2d 427, 433 (4th Cir. 1989) (adjustment proper where co-participant's possession of a firearm was reasonably foreseeable). The record plainly supports the two-level "firearms" enhancement in this case. Petitioner was one of the three men who escaped through the back window, and at least two of those men were armed. Another gun remained inside the house along with a substantial quantity of crack cocaine. Petitioner does not dispute that the firearms were connected with the offense and that he was a participant in the conspiracy to possess the cocaine with intent to distribute it at the very time that his co-conspirators possessed multiple firearms. On that record, the court properly imposed the two-point enhancement on petitioner. /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 PATTY MERKAMP STEMLER Attorney OCTOBER 1990 /1/ The officers believed that petitioner was one of the armed men. /2/ Petitioner made no statement at the sentencing hearing as to whether or not he knew that the guns were present. /3/ Sentencing Guideline Section 2D1.1(b)(1) was amended effective November 1, 1989. "(D)angerous weapon (including a firearm)" was substituted for "a firearm or other dangerous weapon." The pertinent commentary was not changed. /4/ Sentencing Guideline Section 1B1.3 was amended effective November 1, 1989. The phrase "for which the defendant would be otherwise accountable" was substituted for the phrase "by a person for whose conduct the defendant is legally accountable." /5/ Contrary to petitioner's claim (Pet. 8), the trial court did not equate Guideline Section 2D1.1(b)(1) with 18 U.S.C. 924(c), which prescribes a mandatory minimum five-year sentence for anyone who "uses or carries a firearm" in relation to a drug trafficking crime. To the contrary, the district court simply noted that if the government were able to meet the higher standard of proof required for the statutory offense, petitioner could be subjected to even greater punishment. S. Tr. 10.