KRISTOPHER K. ANDERSON, PETITIONER V. UNITED STATES OF AMERICA No. 90-5016 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 Sixth Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals, Pet. App. 1, is unreported. JURISDICTION The judgment of the court of appeals was entered on June 12, 1990. The petition for a writ of certiorari was filed on June 29, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether, under the Sentencing Guidelines, a quantity of drugs that is not part of the offenses of which the defendant was convicted may be used to calculate his sentence. STATEMENT Following a jury trial in the United States District Court for the Eastern District of Michigan, petitioner was convicted on one count of conspiring to distribute cocaine, in violation of 21 U.S.C. 846; and on one count of possessing cocaine with the intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced to a total of 365 months' imprisonment, /1/ to be followed by a three-year term of supervised release. The court of appeals affirmed. 1. a. On January 31, 1989, DEA agents saw Olantjuna Brown buy a ticket at the Detroit train station, and then go outside the station to retrieve a gym bag from a BMW driven by petitioner. The agents approached and spoke with Brown. After learning that Brown was the subject of outstanding misdemeanor warrants, the agents arrested him and searched the gym bag, where they found 287 small bags of cocaine marked with prices. The gross amount of cocaine totalled 427 grams; laboratory tests showed that the cocaine was 97% pure. C.A. App. 19-23, 38-41, 59-61, 73. Brown identified petitioner as the driver of the BMW, and said that he was on his way to Battle Creek to sell the cocaine for petitioner when he was arrested. To assist in petitioner's capture, Brown used his pager to call petitioner, saying that he had left the train in Dearborn and had put the cocaine in a locker because he was being followed by three men. Petitioner agreed to meet Brown at the Dearborn station. When petitioner did so, he was arrested by the DEA agents. C.A. App. 25-27, 41-43, 61-62. After his arrest, petitioner was given Miranda warnings and spoke with the agents. Petitioner first said that the cocaine belonged to Brown and that he had simply given Brown a ride. Later, however, petitioner confessed to distributing cocaine. Petitioner said that he had supplied Brown with cocaine to sell in Battle Creek; that Brown was to bring petitioner $12,000 from the sale of the drugs; and that Brown had previously sold cocaine for him out of various houses in Battle Creek. /2/ This particular package of cocaine, petitioner said, was the last of a two-kilogram purchase that he had made from Armond Norfleet. C.A. App. 27-29, 48. /3/ Petitioner told the agents that he had been in the cocaine business for approximately one year and that he had more than one source of supply. Petitioner said that he bought cocaine from Armond Norfleet and through the mail from a source in California. /4/ Initially, petitioner obtained cocaine one kilogram at a time, but later began to receive five-kilogram shipments, and had received ten-kilogram shipments at least twice. He paid $18,000 per kilogram, reselling the cocaine for $23,000 to $25,000 in the Detroit area. Based in part on the information petitioner supplied to the agents, the agents obtained a search warrant for Norfleet's apartment. Petitioner also used his pager to contact Norfleet, asking Norfleet whether he had additional quantities of cocaine. Later that evening, the agents executed the search warrant at Norfleet's apartment, where they seized one and one-half kilograms of cocaine along with some cars and 16 or 18 firearms. Petitioner said that he did not use cocaine himself, and that "it was just a business for him." C.A. App. 38. See also id. at 30-38, 45-46, 49. b. At trial, Brown testified that in August 1988 petitioner had asked Brown to assist his "little operation in Battle Creek" by selling cocaine for petitioner from various houses. C.A. App. 51. Brown agreed, and sold cocaine for petitioner in Battle Creek on at least 15 or 20 occasions from August 1988 to January 1989. According to Brown, the sales began with one ounce quantities and increased to one-eighth kilogram quantities. Id. at 51-57. Petitioner testified in his defense. He said that he had been using cocaine since 1986, that Brown was a casual acquaintance to whom he had given a ride without realizing that Brown was involved in cocaine trafficking, and that he went to Battle Creek to visit a girlfriend. Petitioner claimed that Armond Norfleet was someone from whom he bought only a gram or two for personal use, and that he had given Norfleet's name to the agents only because they told him that he could be sentenced to life imprisonment for the amount of cocaine involved in the case. He conceded that he had told the agents that he had a source of cocaine in California, but he claimed that the story was false. He also said that he had made up the story about distributing large quantities of cocaine. C.A. App. 77-88. 2. The presentence investigation report prepared by the probation office noted that the trial testimony showed that petitioner had admitted to agents that "over the past year, he had received packages of one kilogram, five kilograms, and on two occasions received packages containing 10 kilograms of cocaine from his source in California" and that "he had recently obtained a two kilogram supply of cocaine from a source in Detroit, Michigan." Report 3. The probation office used the 26-kilogram total of these amounts in calculating a Guidelines base offense level of 34. The probation office further added two points for petitioner's role as an organizer of a drug distribution network, and two points for obstruction of justice because of petitioner's false trial testimony, increasing the total offense level to 38. Id. at 8. Petitioner's three prior convictions placed him in criminal history category III, resulting in a Sentencing Guidelines imprisonment range of 292-365 months. That total was reduced to the statutory maximum of 20 years or 240 months for each offense. Id. Worksheet D. At sentencing, defense counsel objected to the calculations in the presentence report. He conceded that there was an evidentiary basis for a calculation based on 26 kilograms of cocaine. 11/7/89 Tr. 3. Nonetheless, he argued that the court should find that petitioner's statement to the agents was insufficient to establish he had distributed 26 kilograms of cocaine; that conduct that does not result in a criminal conviction should not be considered in computing a Guidelines sentence; and that the cocaine he said he acquired from California should have been excluded from the calculation because it was not part of the same course of conduct as his involvement with Brown. Id. at 3-8. The district court rejected those arguments and agreed with the probation officer's assessment that petitioner's sentence warranted a base offense level of 34, because he had trafficked in at least 26 kilograms of cocaine. The court noted that the total amount came from the words of petitioner himself and that at least nine kilograms of that amount was corroborated by petitioner's co-defendant Brown. Id. at 15-17. 3. The court of appeals summarily affirmed in an unpublished judgment order. Pet. App. 1. ARGUMENT Petitioner contends that uncharged and unproven conduct -- the 26 kilograms of California cocaine revealed in his statement -- was improperly added to the 2 kilograms that he obtained in Detroit in calculating his Guidelines sentence. He argues that his statements to the agents about the 26 kilograms of cocaine were insufficiently reliable to be used to enhance his sentence, and were not part of "the same course of conduct or common scheme or plan" as the offenses for which he was convicted. 1. Petitioner's claim, Pet. 8-9, that his own admission was unreliable and should not have been used to calculate his sentence runs counter to the fundamental sentencing principle that "a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it came." United States v. Tucker, 404 U.S. 443, 446 (1972). A judge "may legitimately consider the evidence heard during trial, as well as the demeanor of the accused." United States v. Grayson, 438 U.S. 41, 50 (1978). The Sentencing Reform Act of 1984, 18 U.S.C. 3551-3742 and 28 U.S.C. 991-998, specifically 18 U.S.C. 3661, incorporated that principle, and so too did the Sentencing Guidelines, see Sections 1B1.4 and 6A1.3. Admissions to law enforcement officers while in custody do not constitute an exception to that rule. In fact, admissions are a reliable form of evidence, and may be introduced at trial to prove a defendant's guilt. See Fed. R. Evid. 801(d)(2)(A). In addition, under the Guidelines the courts have used admissions to enhance the base offense level of a sentence. See United States v. Smith, Nos. 89-1521SI & 89-1701SI (8th Cir. July 27, 1990), slip op. 7; United States v. Williams, 894 F.2d 208, 214 (6th Cir. 1990). Cf. United States v. Sarasti, 869 F.2d 805, 807 (5th Cir. 1989). As the court commented in United States v. Paden, 908 F.2d 1229, 1235 (5th Cir. 1990) (citation omitted), the "statements are sufficiently reliable because they came directly from (the defendant). Once it was shown that the statements were sufficiently reliable (the defendant) had 'the burden of showing that this information upon which the district court relied in sentencing was materially untrue.'" Here, petitioner attempted to show in his trial testimony and his counsel's argument at sentencing that the information that he had bought and sold 26 kilograms of cocaine was unreliable. The district court, however, was entitled to reject petitioner's argument. Petitioner therefore did not establish that his admission was unreliable. /5/ 2. Petitioner also claims that his purchase and sale of the 26 kilograms of cocaine that he obtained from California was not part of the course of conduct that should have been used to fix his sentence. Pet. 9-12. That claim also does not warrant further review. Under Guidelines Section 2D1, the base offense level for controlled substance offenses is based on the amount of drugs involved in the defendant's conduct. As petitioner concedes, Pet. 10, the courts of appeals have agreed that the sentencing court is not limited to the drugs involved in the offense of conviction when calculating the offense level for a controlled substance offense. Instead, pursuant to Guidelines Section 1B1.3(a)(2), the court may calculate the sentence based on "all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." E.g., United States v. Rutter, 897 F.2d 1558 (10th Cir. 1990); United States v. White, 888 F.2d 490, 496-498 (7th Cir. 1989); United States v. Blanco, 888 F.2d 907, 909-911 (1st Cir. 1989); United States v. Ykema, 887 F.2d 697, 699 (6th Cir. 1989), cert. denied, 110 S. Ct. 878 (1990); United States v. Mann, 877 F.2d 688, 690 (8th Cir. 1989); United States v. Scroggins, 880 F.2d 1204, 1211-1212 (11th Cir. 1989), cert. denied, 110 S. Ct. 1816 (1990); United States v. Williams, 880 F.2d 804, 805-806 (4th Cir. 1989); United States v. Taplette, 872 F.2d 101, 105-106 (5th Cir.), cert. denied, 110 S. Ct. 128 (1989); United States v. Guerrero, 863 F.2d 245, 248-250 (2d Cir. 1988). /6/ The courts of appeals also have agreed that a district court's determination that an action by the defendant is part of the "same course of conduct" within the meaning of Guidelines Section 1B1.3(a)(2) is a factual finding subject to the clearly erroneous standard of review. United States v. Vazzano, 906 F.2d 879, 883 (2d Cir. 1990); United States v. Gooden, 892 F.2d 725, 728 (8th Cir. 1989), cert. denied, 110 S. Ct. 2594 (1990); United States v. Gerante, 891 F.2d 364, 368 (1st Cir. 1984). In this case, there was sufficient evidence to support the district court's finding. Petitioner admitted to the DEA agents that he had imported at least 26 kilograms of cocaine from California over the past year, and that Brown had sold cocaine for him out of various houses in Battle Creek. According to Brown, petitioner recruited him to assist in petitioner's Battle Creek "operation," and he sold cocaine for petitioner on at least 15-20 occasions for a six-month period between August 1988 and January 1989. Brown sold numerous plastic bags containing small quantities of cocaine, and was entrusted with increasing quantities of cocaine, beginning with one ounce quantities and increasing to one-eighth kilogram quantities. From petitioner's admissions and Brown's trial testimony, the district court had a sufficient basis for concluding that petitioner was selling cocaine from "crack" houses in Battle Creek, that petitioner therefore needed a steady supply of cocaine, and that petitioner used the cocaine he had received from California in that "operation." For these reasons, the district court's finding that the California cocaine was part of the same course of conduct or common scheme or plan as the offenses of conviction was not clearly erroneous. The decision in this case does not conflict with the Seventh Circuit's decision in United States v. White, supra. White involved a 1986 conspiracy and 1988 sales of cocaine. The defendant's sources of cocaine in 1988 were not the conspirators in 1986, and his customers also differed. The trial judge did not find that the offenses were related in any way; the only common denominator between the defendant's 1986 and 1988 conduct was that both involved the same drug, cocaine. Indeed, the prosecutor did not contend that they were part of a single scheme or course of conduct. 888 F.2d at 500. By contrast, in this case, petitioner obtained the California cocaine from the same source over the course of a year before the offenses of conviction; petitioner was operating "crack" houses, and therefore needed a steady supply of cocaine; and petitioner used his co-conspirator Brown to distribute part of the cocaine. Accordingly, there was sufficient evidence to support the district court's conclusion that petitioner's prior transactions were part of a series of offenses that culminated in the offense of conviction. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General SIDNEY M. GLAZER Attorney SEPTEMBER 1990 /1/ Petitioner received 240 months' imprisonment on the conspiracy count and 125 months' imprisonment on the substantive count, the terms to run consecutively. /2/ The agents were able to locate three or four houses where the cocaine had been sold. C.A. App. 29. /3/ The agents told petitioner that they would conduct a latent fingerprint examination on the package of cocaine taken from Brown. Petitioner replied that his fingerprints would not be found on the package, since it had been put together by a 15-year-old girl, not by him. C.A. App. 29. /4/ Petitioner also mentioned a third source in Florida, but did not identify him. C.A. App. 31, 45. /5/ The district court docket sheet shows that, prior to trial, petitioner moved to suppress his statement to the DEA agents. The district court denied the suppression motion. C.A. App. 4. /6/ The Ninth Circuit agreed with that rule in United States v. Restrepo, 903 F.2d 648 (1990). On September 6, 1990, however, that court, on its own motion, granted rehearing en banc in that case.