ERVIN EARL RUTTER, PETITIONER V. UNITED STATES OF AMERICA No. 89-7490 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 Tenth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A20) is reported at 897 F.2d 1558. JURISDICTION The judgment of the court of appeals was entered on March 13, 1990. The petition for a writ of certiorari was filed on May 15, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court properly adjusted petitioner's base offense level under Sentencing Guidelines Section 1B1.3(a)(2) for trafficking in quantities of cocaine encompassed by counts of the indictment that were dismissed pursuant to a plea agreement. 2. Whether the district court's finding that petitioner was an organizer, leader, manager, or supervisor of criminal activity for purposes of Sentencing Guidelines Section 3B1.1(c) was clearly erroneous. 3. Whether the district court's findings at sentencing enabled petitioner to seek appellate review of his sentence. 4. Whether the Sentencing Guidelines violate due process by depriving criminal defendants of individualized sentencing. STATEMENT Petitioner was charged, in a four-count indictment, with two counts of distributing cocaine, in violation of 21 U.S.C. 841(a)(1), one count of distributing in excess of 500 grams of cocaine, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B)(ii), and one count of conspiring to possess with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1) and 846. He was convicted, upon his plea of guilty, of distributing in excess of 500 grams of cocaine and was sentenced to 78 months' imprisonment, to be followed by a four-year term of supervised release. The court of appeals affirmed his sentence. 1. Petitioner was arrested on August 26, 1988, while selling an undercover DEA agent two kilograms of cocaine less four ounces, for a total sale of 1,886.6 grams (or about 1.887 kilograms). 1 R. Doc. 2, at 1-2; Pet. App. A4 n.1. He was charged by complaint, the supporting affidavit of which stated that, in addition to selling cocaine on August 26th, he had sold the agent 26 grams for $200 on July 28, 1988, and 161 grams for $4,000 on July 30, 1988. He was subsequently indicted, with the August 26th sale charged under Count 3 of the indictment and the prior sales charged under Counts 1 and 2. Pet. App. A4 n.2; Gov't C.A. Br. 1-2. In the plea agreement, the parties stipulated that petitioner would plead guilty to Count 3 of the indictment and that the government would move to dismiss the remaining counts at the time of sentence. The parties calculated petitioner's base offense level at 26, see Sentencing Guidelines Section 2D1.1, based on the amount of cocaine sold on August 26th. They agreed that this level would be reduced by two points for acceptance of responsibility, Sentencing Guidelines Section 3E1.1, with a resulting offense level of 24 and a Sentencing Guideline range of 51 to 63 months. 1 R. Doc. 2, at 2-3; Pet. App. A1-A2; Gov't C.A. Br. 8-9. The plea agreement further provided, in pertinent part: "The parties also recognize that these stipulations are not binding on the court or the probation department. Further, it is understood that both parties reserve the right to file a statement in response to the probation department's presentence report, as provided in (Guidelines) Section 6A1.2(a). Finally, the parties acknowledge that the court is free, pursuant to the procedure set forth at (Guidelines) Sections 6A1.3 and 6B1.4, to reach its own findings regarding the facts and factors that are relevant to sentencing." 1 R. Doc. 2, at 3; Pet. App. A13 n.6; Gov't C.A. Br. 2-3, 9, 10-11. The presentence investigation report (PSI) indicated that petitioner had made admissions to the probation officer regarding the crimes charged in the indictment. Specifically, petitioner admitted that, on two occasions prior to the date of his arrest, he had sold the undercover agent a total of 116.4 grams of cocaine (an eighth of an ounce (or 3.54 grams) for $200, and four ounces (or 113.40 grams) for $4,000). Pet. App. A4 n.2; Gov't C.A. Br. 9, 11. He also admitted to the probation officer that he had used a man named Tom Shelton to "mule" the cocaine sold on August 26th from California to Colorado. Pet. App. A11; Gov't C.A. Br. 9, 11. Based upon these admissions, the probation department increased petitioner's base offense level of 26 by two points for selling more than two kilograms of cocaine, i.e., 1.887 kilograms plus 116.4 grams, see Sentencing Guidelines Section 2D1.1(3), and by another two points for acting as an organizer, leader, manager, or supervisor of criminal activity, see Sentencing Guidelines Section 3B1.1(c). The resulting level of 30 was then reduced by two points for acceptance of responsibility, see Sentencing Guidelines Section 3E1.1(a), for an offense level of 28 and a sentencing range of 78 to 97 months' imprisonment. Gov't C.A. Br. 9-10. 2. Petitioner and his counsel reviewed the PSI but made no objection to paragraphs 3 to 14, which pertained to the offense conduct and included petitioner's admissions to the probation officer about his role in the drug sales and about the total amount of cocaine that he had sold to the agent. Petitioner did file written objections to other portions of the PSI, and the probation officer responded to each objection. The district court entertained further discussion at the sentencing hearing. Pet. App. A16, A18. There, defense counsel contended that, because petitioner had pleaded guilty only to Count 3, the base offense level should be calculated only on the basis of the cocaine involved in that count. 2 R. 6-7. Counsel also denied that petitioner had played a supervisory or managerial role in the offense. Id. at 7-8. Neither petitioner nor his attorney requested an evidentiary hearing on this point. Pet. App. A19. Relying on the PSI, the district court made findings of fact regarding petitioner's role in the offense of conviction and the total quantity of cocaine that he had sold to the agent. Pet. App. A16-A18. Specifically, the court determined that petitioner had sold the agent more than two kilograms of cocaine and that petitioner had played a supervisory role by using Shelton as a mule in obtaining the cocaine associated with the offense of conviction. /1/ The court also found that petitioner had accepted responsibility for his conduct by pleading guilty and in his conversations with the probation officer. The court therefore adopted the conclusion of the PSI that the offense level was 28, and sentenced petitioner to 78 months' imprisonment. 2 R. 16-17; Pet. App. A2, A11-A12, A15-A16; Gov't C.A. Br. 3, 10, 12-13, 14. At no time did petitioner move to withdraw his guilty plea pursuant to Fed. R. Crim. P. 32(d). 2 R. 17; Pet. App. A15 n.8. 3. Petitioner appealed his sentence on several grounds. He contended that the district court had erred in computing the base offense level by considering amounts of cocaine encompassed in counts to which he had not pleaded guilty. He also challenged the district court's finding that he had played a supervisory role in the offense of conviction, and suggested that the district court's factual findings were so limited as to preclude meaningful appellate review. Finally, he argued that the Guidelines were unconstitutional because they denied him the right to individualized sentencing. The court of appeals affirmed. It ruled that the district court had "properly considered quantities (of cocaine) associated with not only the offense of conviction, but also those quantities which facilitated the commercial relationship between the defendant as drug dealer and the DEA agent as drug purchaser." Pet. App. A7-A8. The court of appeals explained that petitioner's sales of cocaine to the agent the month before he committed the offense of conviction constituted relevant conduct under Sentencing Guidelines Section 1B1.3(a)(2), Pet. App. A6-A7, and that the district court's "finding of an aggregated quantity of more than two kilograms of cocaine was not clearly erroneous given defendant's admissions and the corroborating affidavit of the DEA agent." Pet. App. A9. With regard to petitioner's claim about his supervisory status, the court of appeals upheld the district court's finding as not clearly erroneous, Pet. App. A10, ruling that it was supported by petitioner's "reliance upon co-defendant Shelton to 'mule' the two kilograms of cocaine involved in the August 26, 1988, transaction, together with defendant's admission through counsel that Shelton was to work for the defendant in supplying additional cocaine to the undercover agent," Pet. App. A12. Central to the court of appeals' resolution of the above two issues was its rejection of petitioner's claim regarding the insufficiency of the district court's factual findings. On this point, the court of appeals noted that petitioner had never challenged the accuracy of the admissions attributed to him in the PSI, and that the district court was therefore entitled to rely on those admissions, especially given petitioner's failure to request an evidentiary hearing. Pet. App. A15-A19. /2/ Finally, the court of appeals rejected petitioner's claim that the Sentencing Guidelines had deprived him of due process. Pet. App. A20. ARGUMENT 1. Petitioner renews his contention (Pet. 5-9) that the district court erred in adjusting his base offense level under Sentencing Guidelines Section 1B1.3(a)(2) by combining the amount of cocaine involved in his offense of conviction with the amounts involved in other counts. Specifically, he argues (Pet. 8) that this provision "should only be applied where a defendant has either admitted guilt to multiple counts or has been convicted of multiple counts" because Sentencing Guidelines Section 3D1.2 -- to which Section 1B1.3(a)(2) refers -- requires grouping (i.e., treating as a single count) of multiple counts of conviction. The courts of appeals, including the Tenth Circuit, have uniformly rejected the argument that relevant conduct under Section 1B1.3(a)(2) consists solely of crimes of which a defendant has been convicted. See, e.g., United States v. Gerante, 891 F.2d 364, 368-369 (1st Cir. 1989); /3/ United States v. Bedoya, 878 F.2d 73, 75-76 (2d Cir. 1989); /4/ United States v. Williams, 880 F.2d 804, 805-806 (4th Cir. 1989); United States v. Gordon, 876 F.2d 1121, 1125-1126 (5th Cir. 1989); /5/ United States v. Ykema, 887 F.2d 697, 700 (6th Cir. 1989), cert. denied, 110 S. Ct. 878 (1990); /6/ United States v. Vopravil, 891 F.2d 155, 157-159 (7th Cir. 1989); /7/ United States v. Sleet, 893 F.2d 947 (8th Cir. 1990); /8/ United States v. Restrepo, No. 88-3207 (9th Cir. May 8, 1990), slip. op. 4496-4502; /9/ United States v. Shorteeth, 887 F.2d 253, 255 (10th Cir. 1989); United States v. Alston, 895 F.2d 1362 (11th Cir. 1990). /10/ Section 1B1.3(a)(2) states that when calculating the base offense level for offenses of a character for which Guidelines Section 3D1.2(d) would require that multiple counts of conviction be grouped, the district court must consider all acts and omissions that were part of the same course of conduct or a common scheme or plan as the offense of conviction. /11/ In turn, Guidelines Section 3D1.2(d) requires that multiple counts of conviction be grouped when the offense level is based largely on the quantity of some fungible item (such as drugs or money). /12/ Guidelines p. 3.13. Accordingly, since Guidelines Section 3D1.2(d) would require that multiple drug convictions be grouped, /13/ Guidelines Section 1B1.3(a)(2) requires that a district court consider all relevant conduct when calculating the base offense level for a particular drug conviction. As the Seventh Circuit explained in United States v. White, 888 F.2d at 497: Section 1B1.3(a)(2) * * * * calls for inclusion of amounts in "offenses of a character for which Section 3D1.2(d) would require grouping" (emphasis added (by the court)). The subjunctive ("would") indicates a contrary-to-fact condition. When offenses are "of a character" described in Section 3D1.2(d) -- that is, when the base offense score depends on the quantity sold, stolen, etc. -- and when these offenses "would" be grouped in the event of conviction, then the amounts are added whether or not there has been a conviction. Any doubt left by the text is resolved by Application Note 2, specifying that "multiple convictions are not required." See also United States v. Blanco, 888 F.2d at 910-911. /14/ The unambiguous import of Guidelines Section 1B1.3(a)(2)'s Application Note 2 is confirmed by the Background to the same provision. See id. p. 1.20 ("in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the base offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction"). The Sentencing Commission's commentary, which the court of appeals properly "consider(ed) essential in correctly interpreting and uniformly applying the guidelines on a national basis," Pet. App. A7; cf. Robertson v. Methow Valley Citizens Council, 109 S. Ct. 1835, 1850 (1989) (an agency's interpretation of its own regulation is "controlling" unless it is "'plainly erroneous or inconsistent with the regulation'") (citation omitted), is consistent with the Guidelines themselves and shows that a district court must aggregate drug quantities underlying the count of conviction with those that are not the basis of a conviction to calculate the appropriate base offense level. /15/ In sum, the district court's adjustment of petitioner's base offense level by aggregating the amounts of the drugs he sold was required by the text of the Guidelines and was consistent with the Sentencing Commission's interpretation of them. 2. Petitioner next argues (Pet. 9-11) that the district court erred in finding that he had played a supervisory role in the offense of conviction and was thus subject to a two-level sentencing enhancement under Guidelines Section 3B1.1(c). He does not deny that the court of appeals applied the appropriate legal standard -- i.e., the clearly-erroneous standard -- in reviewing the district court's factual finding. Rather, he claims that "(n)o evidence was presented to support (the district court's) conclusion," and he relies on the fact that the parties had "stipulated in the plea agreement that no role-in-offense adjustments existed." Pet. 9. This fact-bound contention does not warrant further review. Petitioner's argument fails for three reasons. First, the plea agreement expressly recognized that its stipulations were "not binding on the court or the probation department" and that the court was "free, pursuant to the procedure set forth at (Sentencing Guidelines) Sections 6A1.3 and 6B1.4, to reach its own findings regarding the facts and factors relevant to sentencing." 1 R. Doc. 2, at 3. Second, as petitioner concedes (Pet. 9-10), the district court based its determination on the PSI, which reflected petitioner's admission to the probation officer that he had used Thomas Shelton as a mule for the two kilograms of cocaine that he sold on August 26th. 2 R. 16. Even now, petitioner does not deny that he made that admission or that it was true; the district court was clearly entitled to consider it. See Guidelines 6A1.3 Commentary ("In determining the relevant facts, * * * * (a)ny information may be considered, so long as it has 'sufficient indicia of reliability to support its probable accuracy'") (citations omitted); see also Guidelines Section 6B1.4(d) ("The court is not bound by the stipulation, but may with the aid of the presentence report determine the facts relevant to sentencing") and id. Commentary p. 6.8 ("the court is not obliged to accept the stipulation of the parties. * * * (T)he court cannot rely exclusively upon stipulations in ascertaining the factors relevant to the determination of sentence. Rather, * * * the court will consider the stipulation, together with the results of the presentence investigation, and any other relevant information"). Petitioner makes much (Pet. 10, 11) of the fact that at sentencing the prosecutor indicated his understanding that Shelton did not act as a "mule" for the drugs underlying the offense of conviction, but was instead going to perform that service for petitioner in future drug transactions. 2 R. 14. But those remarks suggest nothing more than that the government entered the plea agreement with incomplete information about the true nature of petitioner's role in that offense. /16/ Third, petitioner never requested an evidentiary hearing concerning his role in the offense. Thus, he is hardly in a position to claim, as he nevertheless does (Pet. 11), that "(t)here is no reliable evidence in the record which would suggest that (he) organized anything." Under these circumstances, the court of appeals correctly held that the district court's characterization of petitioner as a supervisor in the offense of conviction was not clearly erroneous. Pet. App. A12-A13. 3. Petitioner next contends (Pet. 11-12) that the district court's factual findings regarding his supervisory status and the amount of drugs he sold to the agent were so limited as to render the court of appeals "unable to determine whether the trial court relied on unreliable information * * *." The court of appeals, however, professed no such inability. To the contrary, it properly found that "the district court made record findings regarding the quantity of cocaine involved and the defendant's role in the case," that "(b)oth of those findings are based upon statements made by the defendant to the probation officer and are corroborated by the affidavit of the DEA agent," and that "the defendant did not challenge those paragraphs in the presentence report (paras. 3-14) pertaining to the offense conduct (and) * * * * contain(ing) admissions by the defendant to the probation officer concerning quantity and involvement which support the district court's findings on these points." Pet. App. A17-A18. The court of appeals specifically noted, Pet. App. A19, that "(n)o reason, such as unreliability, has been advanced to disregard the defendant's statements as related by the presentence report." There is thus no merit to petitioner's claim that the record was insufficient to allow petitioner to seek appellate review of his sentence. 4. Petitioner again argues (Pet. 12-14) that the Sentencing Guidelines violated due process by denying him individualized sentencing. In his view, the Guidelines impermissibly circumscribe the authority of district courts to impose sentences that give due regard to the age, education, vocational skills, and other attributes of individual defendants. This claim does not warrant the attention of this Court. In Mistretta v. United States, 109 S. Ct. 647 (1989), this Court upheld the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq. and 28 U.S.C. 991-998, against a variety of constitutional challenges. This case raises a due process challenge to the Sentencing Reform Act that was not addressed in Mistretta, but that has been rejected by every court of appeals that has considered it. See, e.g., United States v. Seluk, 873 F.2d 15, 16 (1st Cir. 1989); United States v. Vizcaino, 870 F.2d 52, 54-56 (2d Cir. 1989); United States v. Frank, 864 F.2d 992, 1008-1010 (3d Cir. 1988), cert. denied, 109 S. Ct. 2442 (1989); United States v. Bolding, 876 F.2d 21, 22-23 (4th Cir. 1989); United States v. White, 869 F.2d 822 (5th Cir.), cert. denied, 110 S. Ct. 560 (1989); United States v. Allen, 873 F.2d 963 (6th Cir. 1989); United States v. Pinto, 875 F.2d 143, 144-146 (7th Cir. 1989); United States v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, 110 S. Ct. 416 (1989); United States v. Brady, 895 F.2d 538 (9th Cir. 1990); United States v. Thomas, 884 F.2d 540, 542-544 (10th Cir. 1989); United States v. Erves, 880 F.2d 376, 379 (11th Cir.), cert. denied, 110 S. Ct. 184 (1989). This Court has denied certiorari in several of the above cases, and there is no reason for a different result here. Relying primarily on district court opinions that were decided before Mistretta or that have been reversed by the court of appeals decisions cited above (Pet. 13-14), petitioner ignores the general rule that "the authority to define and fix the punishment for crime is legislative." Ex Parte United States, 242 U.S. 27, 42 (1916). As this Court has stated, "in non-capital cases, the (formerly) established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes." Lockett v. Ohio, 438 U.S. 586, 604-605 (1978). See also Sumner v. Shuman, 483 U.S. 66, 75 (1987); Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (lead opinion). Cf. McMillan v. Pennsylvania, 477 U.S. 79, 92 (1986) (in upholding a state minimum sentencing statute, the Court noted "some difficulty fathoming why the due process calculus would change" when the legislature removed discretion from the sentencing court). Thus, in cases not involving capital punishment or life imprisonment, e.g., Solem v. Helm, 463 U.S. 277 (1983), this Court has never doubted the legislative authority to divest courts of their sentencing discretion by establishing mandatory minimum punishments. See Mistretta, 109 S. Ct. at 650; Lockett, 438 U.S. at 603 ("legislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in non-capital cases"); Ex Parte United States, 242 U.S. at 42 (holding that district courts have no power to sentence below statutorily-imposed mandatory minimum sentence levels). /17/ Because Congress could properly eliminate sentencing discretion entirely, it can take the less drastic measure of limiting the scope of that discretion by directing the Sentencing Commission to fix the weight that should be accorded to various sentencing factors and to define appropriate ranges within which district courts may select a sentence. As the Seventh Circuit explained in United States v. Pinto, 875 F.2d at 145 (citation omitted): Criminals aren't entitled to sentences devised by judges rather than legislatures. * * * Judicial discretion in sentencing comes late to our history. From the beginning of the Nation, Congress specified precise sentences. * * * Blackstone extolled uniformity (in sentencing) as "one of the glories of English law" because punishment "is not left in the breast of any judge" but is meted out "without respect of persons." Although "(f)ederal judges have long been used to individualized sentencing, and many judges prefer it," the constitutional determination "whether, and to what extent(,) to continue or modify this system is a matter of legislative prerogative." United States v. Brittman, 872 F.2d at 828. Accordingly, with respect to the non-capital offense at issue here, "there is no constitutional right to judicial discretion in individualized sentencing" under the Guidelines. United States v. Vizcaino, 870 F.2d at 56. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General VICKI S. MARANI Attorney JULY 1990 /1/ Shelton pleaded guilty to simple possession of cocaine. Pet. App. A12 n.5. /2/ Because the district court had failed to attach a written statement of its findings to the PSI, as required by Fed. R. Crim. P. 32(c)(3)(D), the court of appeals remanded the case for that ministerial purpose. Pet. App. A19-A20. /3/ See also United States v. Blanco, 888 F.2d 907, 909-911 (1st Cir. 1989) (Breyer, J.); United States v. Wright, 873 F.2d 437, 440-441 (1st Cir. 1989) (Breyer, J.). Judge Breyer is a member of the Sentencing Commission. /4/ See also United States v. Fernandez, 877 F.2d 1138, 1141-1142 (2d Cir. 1989); United States v. Guerrero, 863 F.2d 245, 248-250 (2d Cir. 1988). /5/ See also United States v. Taplette, 872 F.2d 101, 105-106 (5th Cir.), cert. denied, 110 S. Ct. 128 (1989); United States v. Sarasti, 869 F.2d 805, 806-807 (5th Cir. 1989). /6/ See also United States v. Smith, 887 F.2d 104, 106-108 (6th Cir. 1989); United States v. Sailes, 872 F.2d 735, 738-739 (6th Cir. 1989). /7/ See also United States v. White, 888 F.2d 490, 496-498 (7th Cir. 1989). /8/ See also United States v. Mann, 877 F.2d 688, 690 (8th Cir. 1989). /9/ See also United States v. Turner, 898 F.2d 705 (9th Cir.), cert. denied, No. 89-7346 (May 29, 1990). When the court below decided this case and criticized, Pet. App. A9, the Ninth Circuit's decision in United States v. Restrepo, 883 F.2d 781 (1989), it was apparently unaware that the Ninth Circuit had withdrawn its opinion in that case only eleven days earlier. See 896 F.2d 1228. The Ninth Circuit now follows the rule in the other circuits. /10/ See also United States v. Scroggins, 880 F.2d 1204, 1211-1212 (11th Cir. 1989), cert. denied, 110 S. Ct. 1816 (1990). /11/ Sentencing Guidelines Section 1B1.3(a)(2) provides that: Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level * * * shall be determined on the basis of the following: * * * * * (2) solely with respect to offenses of a character for which Section 3D1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction. /12/ Sentencing Guidelines Section 3D1.2(d) provides in part that: Counts are grouped together if the offense level is determined largely on the basis of the total of the amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm * * *. In fact, Guidelines Section 3D1.2(d) expressly incorporates Section 2D1.1, which is the relevant guideline for drug-trafficking. See Guidelines p. 3.13. See also id. p. 1.9 (the rules in Chapter 3 Part D "essentially provide" that "(w)hen the conduct involves fungible items, e.g., separate drug transactions or thefts of money, the amounts are added and the guidelines apply to the total amount"). /13/ Petitioner concedes (Pet. 8) that the offense to which he pleaded guilty "is an offense which requires grouping under Section 3D1.2(d)." /14/ Blanco explained further that the reference in Guidelines Section 1B1.3(a)(2) to the grouping guideline "is designed only to pick out a certain subset of all crimes, namely the subset of 'fungible item' crimes, such as those involving drugs and money, which are specifically listed in the cross-reference multiple count subsection." 888 F.2d at 911 (emphasis added). /15/ The Commentary will make this even more explicit by means of a clarifying amendment proposed by the Sentencing Commission that is due to take effect on November 1, 1990. See 55 Fed. Reg. 19,188, 19,194 (1990). The proposed amendment provides as follows (emphasis added): The Commentary to Section 1B1.3 captioned "Application Notes" is amended in Note 2 by deleting the last sentence and inserting in lieu thereof: "Offenses of a character for which Section 3D1.2(d) would require grouping of multiple counts, as used in subsection (a)(2), applies to offenses for which grouping of counts would be required under Section 3D1.2(d) had the defendant been convicted of multiple counts. Application of this provision does not require the defendant, in fact, to have been convicted of multiple counts. For example, where the defendant engaged in three drug sales of 10, 15, and 20 grams of cocaine, as part of the same course of conduct or common scheme or plan, subsection (a)(2) provides that the total quantity of cocaine involved (45 grams) is to be used to determine the offense level even if the defendant is convicted of a single count charging only one of the sales. If the defendant is convicted of multiple counts for the above noted sales, the grouping rules of Chapter Three, Part D (Multiple Counts) provide that the counts are grouped together. Although Chapter Three, Part D (Multiple Counts) applies to multiple counts of conviction, it does not limit the scope of subsection (a)(2). Subsection (a)(2) merely incorporates by reference the types of offenses set forth in Section 3D1.2(d); thus, as discussed above, multiple counts of conviction are not required for subsection (a)(2) to apply." The Commentary to Section 3D1.2 captioned "Application Notes" is amended in Note 4 by renumbering example (4) as (5), and by inserting the following immediately before "But": "(4) The defendant is convicted of two counts of distributing a controlled substance, each count involving a separate sale of 10 grams of cocaine that is part of a common scheme or plan. In addition, a finding is made that there are two other sales, also part of the common scheme or plan, each involving 10 grams of cocaine. The total amount of all four sales (40 grams of cocaine) will be used to determine the offense level for each count under Section 1B1.3(a)(2). The two counts will then be grouped together under this subsection to avoid double counting." Reason for amendment: This amendment clarifies the intended scope of Section 1B1.3(a)(2) in conjunction with Chapter Three, Part D (Multiple Counts) to ensure that the latter is not read to limit the former only to conduct of which the defendant was convicted." /16/ At sentencing, petitioner admitted through counsel that Shelton was to work for him in supplying additional cocaine to the undercover agent. 2 R. 15; Pet. App. A12. /17/ Quite apart from the Sentencing Guidelines, courts have consistently upheld the constitutionality of various statutory provisions that impose mandatory minimum penalties for certain offenses. See, e.g., United States v. Dombrowski, 877 F.2d 520, 530-531 (7th Cir. 1989), cert. denied, No. 89-5282 (June 4, 1990); United States v. Kidder, 869 F.2d 1328, 1330-1334 (9th Cir. 1989); United States v. Rodriquez-Suarez, 856 F.2d 135, 137-138 (11th Cir. 1988), cert. denied, 109 S. Ct. 875 (1989); United States v. Holmes, 838 F.2d 1175, 1178-1179 (11th Cir.), cert. denied, 486 U.S. 1058 (1988). "If, despite their infelxibility, mandatory sentencing provisions withstand due process scrutiny, so too must the sentencing guidelines." United States v. Erves, 880 F.2d at 379.