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No. 08-820

 

In the Supreme Court of the United States

DONALD W. BAIN, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
RITA M. GLAVIN
Acting Assistant Attorney
General
VIJAY SHANKER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals correctly deter mined that the district court had not applied a presump tion of reasonableness in sentencing petitioner within the advisory Sentencing Guidelines range.

2. Whether a criminal defendant's contention on appeal that the district court committed procedural er rors in imposing a criminal sentence is reviewable only for plain error when the defendant never informed the district court of his objections.

In the Supreme Court of the United States

No. 08-820

DONALD W. BAIN, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

 

BRIEF FOR THE UNITED STATES IN OPPOSITION

 

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-22) is reported at 537 F.3d 876.

JURISDICTION

The judgment of the court of appeals was entered on August 8, 2008. A petition for rehearing was denied on October 6, 2008 (Pet. App. 42). The petition for a writ of certiorari was filed on December 29, 2008. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States District Court for the Southern District of Iowa, petitioner was convicted of receiving and distributing child por nography, in violation of 18 U.S.C. 2252(a)(2), and pos sessing child pornography, in violation of 18 U.S.C. 2252(a)(4)(B). He was sentenced to 210 months of im prisonment, to be followed by ten years of supervised release. The court of appeals affirmed. Pet. App. 1-22, 37.

1. On February 9, 2005, agents of the Federal Bu reau of Investigation executed a search warrant at peti tioner's house. The agents seized three computers and numerous computer disks containing hundreds of im ages and digital movies depicting minors engaged in sexual acts. The images in petitioner's collection were extremely graphic and depicted sadistic violence, tor ture, and rape. Petitioner admitted to the agents that he had engaged in online trading of child-pornography files from his home. Pet. App. 2; Gov't C.A. Br. 2-5.

2. A grand jury in the Southern District of Iowa returned an indictment charging petitioner with one count of receiving and distributing child pornography, in violation of 18 U.S.C. 2252(a)(2), and one count of pos sessing child pornography, in violation of 18 U.S.C. 2252(a)(4)(B). Petitioner pleaded guilty to both counts. Gov't C.A. Br. 1.

3. The Probation Office prepared a Presentence Investigation Report (PSR). The PSR recommended a base offense level of 22 under the advisory Sentenc ing Guidelines. PSR ¶ 29. It also recommended several offense-level enhancements: (1) two levels under Guide lines § 2G2.2(b)(2) because some material involved mi nors under age 12; (2) five levels under Guidelines § 2G2.2(b)(3)(B) because petitioner had traded the mate rial for more child pornography; (3) four levels under Guidelines § 2G2.2(b)(4) because some material por trayed sadism, masochism, or other depictions of vio lence; (4) two levels under Guidelines § 2G2.2(b)(6) be cause petitioner had used a computer to receive and dis tribute material; and (5) five levels under Guidelines § 2G2.2(b)(7)(D) because the offense involved more than 600 images. PSR ¶ 30. The PSR recommended a de crease of three levels for acceptance of responsibility, resulting in a total offense level of 37. Id. ¶¶ 36, 37. With a criminal history category of I, petitioner's advi sory Guidelines range was 210 to 262 months of impris onment. Id. ¶ 85.

At the sentencing hearing-which took place after this Court's decision in Rita v. United States, 127 S. Ct. 2456 (2007), but before the Court's decision in Gall v. United States, 128 S. Ct. 586 (2007)-the district court accepted the PSR's Guidelines calculations. Pet. App. 25. Petitioner requested the statutory minimum sen tence of 60 months, and the court responded:

I can't do that. Hang on. In order to go below the Guidelines pursuant to 3553 which are viewed in the Eighth Circuit now as affirmed by the United States Supreme Court as presumptively reasonable, there's got to be a ground for a variance. I mean, what are the grounds for a variance of as much as two-thirds to three-fourths of the sentence under the Guide lines?

Id. at 29-30.

Petitioner acknowledged that "[a] grounds for vari ance that make it acceptable in the Guidelines does not exist," but argued that his character, history, and low likelihood of recidivism justified a lenient sentence. Pet. App. 30. The government disagreed with petitioner's claim that his offense was an aberration, but it sug gested that a sentence at the bottom of the advisory Guidelines range would be sufficient. Id. at 34-35.

The district court then stated:

It is a terribly painful Presentence Report to read because of what you are throwing away here. You said there's no legal speed limit on the Internet. That's true enough, but you have had the benefit your whole life of loving, supportive relationships and you had a moral compass that was better than any speed limit sign on the Internet. You knew when you were doing it that it was wrong, you just didn't know how serious the punishment is for this offense and so you are right, you have-you're going to pay dearly, your wife is going to pay dearly, everybody associated with you is going to pay dearly and it is painful because you were by all accounts very suc cessful, a contributing member to your community, certainly to your workplace, it is harsh.

Pet. App. 35. The court added that it had considered the Section 3553(a) factors, and it observed that "the num ber of images involved here and the amount of trading of files puts this case above the garden variety." Ibid.

The district court then stated that the Sentencing Guidelines "are presumed reasonable here in the Eighth Circuit Court of Appeals." Pet. App. 36. The court noted that the Guidelines "are not mandatory," but it recognized that they are "an important though not sin gularly controlling factor to be considered." Ibid. The court then stated that "[b]ased on all the circumstances of this case the Court concludes that a sentence at the bottom of the range is sufficient to address the essential sentencing considerations." Id. at 37. It therefore sen tenced petitioner to 210 months of imprisonment. Ibid. After imposing sentence, the court asked petitioner's counsel, "do you have anything else?" Id. at 41. Counsel replied, "[n]o, your Honor." Ibid.

4. The court of appeals affirmed. Pet. App. 1-22.

a. The court first considered petitioner's argument that the district court had committed procedural sen tencing error by treating the Sentencing Guidelines as presumptively reasonable, in violation of Rita, and by requiring extraordinary circumstances to justify a non- Guidelines sentence, in violation of Gall. Pet. App. 5. The court held that the district court's references to the presumption of reasonableness were references to an appellate presumption, not to a sentencing-court pre sumption, and that the district court's approach there fore was not inconsistent with Rita. Id. at 6.

The court of appeals then held that the district court had "committed Gall error by requiring extraordinary circumstances to justify the requested non-guidelines sentence." Pet. App. 6-7; see id. at 6-8. The court noted that petitioner had requested a non-Guidelines sentence, but it found that request insufficient to preserve his claim of Gall error. Id. at 8-10. The court explained that, in order to preserve such a claim for plenary appel late review, a defendant "must object to the district court's erroneous application of the law." Id. at 9. Be cause petitioner had failed to raise such an objection at sentencing, the court of appeals reviewed the claim for plain error only. Id. at 9-10. Applying plain-error re view, the court held that the district court's Gall error had not affected petitioner's substantial rights because petitioner had not shown a reasonable probability that he would have received a lower sentence if the error had not occurred. Id. at 11-12.

The court of appeals next reviewed, under an abuse- of-discretion standard, the substantive reasonableness of petitioner's sentence. Because the district court had committed Gall error and therefore had not "independ ently reach[ed] the same conclusion" as the Sentencing Commission with respect to the proper sentence, the court of appeals did not apply the normal appellate pre sumption of reasonableness to the within-Guidelines sentence. Pet. App. 13. The court nevertheless found the sentence substantively reasonable. Noting the dis trict court's "detailed consideration of the § 3553(a) factors," id. at 16, the court found itself unable to say that a 210-month sentence was "outside the range of choice dictated by the facts of the case," id. at 17 (quot ing United States v. Jones, 507 F.3d 657, 659 (8th Cir. 2007)).

b. Judge Benton filed a concurring opinion. Pet. App. 17-22. In his view, because the district court had committed Gall error, that court could not have seri ously considered petitioner's arguments for a 60-month sentence, and "therefore the entire § 3553(a) explanation is tainted by the Gall error." Id. at 20. Judge Benton stated that, because the court of appeals had "no reliable basis for substantive review, this sentence should be reversed and remanded for resentencing in order to ful fill the mandate of Gall." Id. at 21. Judge Benton nev ertheless concurred in the court of appeals' decision af firming petitioner's sentence because circuit precedent requiring plain-error review of unpreserved Gall error did not allow a remand. Id. at 22.

ARGUMENT

Petitioner contends (Pet. 14) that the court of ap peals "circumvent[ed]" this Court's decision in Rita v. United States, 127 S. Ct. 2456 (2007), when it held that the district court had not applied a presumption of rea sonableness to the Sentencing Guidelines range. He further argues (Pet. 23) that the court of appeals "cir cumvent[ed]" this Court's decision in Gall v. United States, 128 S. Ct. 586 (2007), when it held that petitioner had not preserved his claim of procedural error at sen tencing. Those claims lack merit, and the decision of the court of appeals is consistent with both Rita and Gall. Further review is not warranted.

1. a. This Court held in Rita that, although a court of appeals may apply a "presumption of reasonableness" to a within-Guidelines sentence, "the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply." 127 S. Ct. at 2465. The sentencing court's task is to consider the PSR, to listen to the arguments of the government and the defendant, and then to impose a sentence after eval uating the factors set out in 18 U.S.C. 3553(a). Ibid. The Court reiterated that point in Gall, stating that, in considering the Section 3553(a) factors, the district court "may not presume that the Guidelines range is reasonable." 128 S. Ct. at 596-597.

The Eighth Circuit has recognized and applied that principle. See, e.g., United States v. Henson, 550 F.3d 739, 740 (2008), petition for cert. pending, No. 08-8933 (filed Feb. 20, 2009); United States v. Toothman, 543 F.3d 967, 970 (2008) ("A sentence within the Sentencing Guidelines range is accorded a presumption of substan tive reasonableness on appeal, although the sentencing court does not enjoy the presumption's benefit when it determines the merits of the arguments by the prosecu tion or the defense that a Guidelines sentence should not apply."). The court in this case did not hold otherwise. Pet. App. 5-6.

Petitioner does not contend that the court of appeals articulated an incorrect legal standard in this case. In stead, he asserts (Pet. 21-23) that the court misread the record when it concluded that the district court had not applied a presumption of reasonableness. This Court generally does not grant review, however, "when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law." Sup. Ct. R. 10.

b. In any event, the decision of the court of appeals is correct. Based on the record in this case, the court correctly concluded that the district court had not ap plied a presumption that a within-Guidelines sentence would be reasonable. Pet. App. 6. Significantly, the district court never stated that it was applying a pre sumption of reasonableness. Petitioner relies (Pet. 22- 23) on the district court's statements, in response to his request for a non-Guidelines sentence, that "there's got to be a ground for a variance," Pet. App. 30; that "the Guidelines * * * are viewed in the Eighth Circuit now as affirmed by the United States Supreme Court as pre sumptively reasonable," id. at 29-30; and that "[t]he Sentencing Guidelines are presumed reasonable here in the Eighth Circuit Court of Appeals," id. at 36. Those statements do not indicate, however, that the district court itself applied a presumption of reasonableness. The Eighth Circuit has never held that district courts must apply a presumption of reasonableness in sentenc ing a defendant. Thus, the district court's statements- which expressly refer to the Eighth Circuit-are most naturally read as simply acknowledging the appellate presumption of reasonableness.

The district court's actions in sentencing petitioner also confirm that it did not apply a presumption of rea sonableness. As a matter of procedure, the court con sulted the properly calculated Guidelines range, consid ered the other Section 3553(a) factors, and fully ex plained the reasons for its sentence. Pet. App. 35-37. In particular, the court repeatedly made clear its independ ent view that a substantial sentence was necessary to reflect the seriousness of the offense and to provide the necessary general deterrence, given the nature of the crimes that petitioner committed and the fact that "the number of images involved here and the amount of trad ing of files puts this case above the garden variety." Id. at 35. Both the court's process and its ultimate con clusion reflect independent judicial analysis, a balancing of factors, and the "adversarial testing contemplated by federal sentencing procedure" and Section 3553(a). Rita, 127 S. Ct. at 2465. Nothing in the record suggests that the sentencing court was swayed by a belief that the Guidelines range was presumptively reasonable.1

Nor is there any indication that the district court wished to impose a lower sentence but felt legally con strained from doing so. Instead, the court carefully bal anced the competing factors of petitioner's personal his tory against the court's view that child-pornography offenses are among the most serious and harmful crimes and that petitioner's conduct was "above the garden va riety." Pet. App. 35. Given the seriousness of the of fense and the need for deterrence, the court concluded that a sentence of 210 months of imprisonment was ap propriate. Id. at 35-37; see id. at 37 ("I conclude that the Guideline system adequately addresses the circum stances of this defendant.") (emphasis added).

Petitioner notes (Pet. 22) that the district court said "I can't do that" in response to petitioner's request for a non-Guidelines sentence. That does not demonstrate that the court believed it was not permitted to impose a non-Guidelines sentence, since an equally plausible in terpretation is that the court simply did not see any ba sis for varying in this case. Indeed, the court expressly stated that the Guidelines are not mandatory, Pet. App. 36, and it asked petitioner to provide reasons for a vari ance of the magnitude petitioner had requested, id. at 30 ("[W]hat would the grounds be for a variance of the magnitude you are talking about?"). Moreover, that lat ter request was entirely appropriate. See Gall, 128 S. Ct. at 594 ("[A] district judge must give serious con sideration to the extent of any departure from the Guidelines and must explain his conclusion that an unus ually lenient or an unusually harsh sentence is appropri ate in a particular case with sufficient justifications.").

c. Petitioner also contends (Pet. 22) that the court of appeals erred in presuming that the district court had correctly applied the law. The court of appeals, how ever, was merely applying the settled rule that, where ambiguity exists, the "usual presumption * * * is that a district court is aware of the law that it is called upon to apply." United States v. Russell, 870 F.2d 18, 20 (1st Cir. 1989); see United States v. Carty, 520 F.3d 984, 992 (9th Cir.) (en banc) ("We assume that district judges know the law and understand their obligation to con sider all of the § 3553(a) factors, not just the Guide lines."), cert. denied, 128 S. Ct. 2491 (2008). The court of appeals did not rule out the possibility of error by the district court; it simply concluded that petitioner had failed to demonstrate that the district court's ambiguous statements were erroneous.

2. Petitioner asserts (Pet. 28-34) that the court of appeals erred in applying plain-error review to his claim of procedural sentencing error. That claim lacks merit.

a. The courts of appeals agree that where, as here, a district court asks the parties if they have any objec tions to the sentence and "the relevant party does not object, then plain-error review applies on appeal to those arguments not preserved in the district court." United States v. Vonner, 516 F.3d 382, 385 (6th Cir.) (en banc), cert. denied, 129 S. Ct. 68 (2008). Contrary to pe titioner's suggestion that the "circuits are all over the board with differing standards of review," Pet. 33, "no court of appeals * * * has rejected this * * * ap proach to clarifying objections to a criminal sentence." Vonner, 516 F.3d at 391; see, e.g., In re Sealed Case, 527 F.3d 188, 191-192 (D.C. Cir. 2008) ("Appellant did not object to the district judge's failure to explain his rea sons either orally or in writing * * * . We therefore review the sentence for plain error."); id. at 198 n.3 (Kavanaugh, J., dissenting) (same); United States v. Perkins, 526 F.3d 1107, 1111 (8th Cir. 2008) ("Because Perkins did not object to the district court's articulation of its reasoning, we review that issue for plain error."); United States v. Mangual-Garcia, 505 F.3d 1, 15 (1st Cir. 2007) (applying plain-error review to "the conten tion by both appellants that the district court failed ade quately to explain its reasons for imposing the particular sentence within the range"), cert. denied, 128 S. Ct. 2081 (2008); United States v. Verkhoglyad, 516 F.3d 122, 127-128 (2d Cir. 2008) (same); United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir.) (same), cert. denied, 129 S. Ct. 625 (2008); United States v. Knows His Gun, 438 F.3d 913, 918 (9th Cir.) (same), cert. denied, 547 U.S. 1214 (2006); United States v. Lopez-Flores, 444 F.3d 1218, 1220-1221 (10th Cir. 2006) (applying plain-error review to a challenge "to the method by which the district court arrived at [a] sen tence"), cert. denied, 127 S. Ct. 3043 (2007); see also United States v. Dragon, 471 F.3d 501, 505 (3d Cir. 2006) (applying plain-error review to a claim that "the District Court failed to adequately consider the parsi mony provision of [18 U.S.C.] 3553(a)").2

b. Petitioner is also incorrect in his assertion (Pet. 23) that the decision below, applying plain-error review to an unpreserved procedural error, "circumvent[s]" this Court's decision in Gall. As the Court explained in Gall, a court of appeals reviews a sentence under a two-step procedure. The court of appeals "must first ensure that the district court committed no significant procedural error." Gall, 128 S. Ct. at 597. Second, "[a]ssuming that the district court's sentencing decision is procedurally sound, the appellate court should then consider the sub stantive reasonableness of the sentence imposed under an abuse-of-discretion standard." Ibid.

Nothing in Gall suggests that parties are no longer obligated to raise all arguments concerning the appro priate procedures at sentencing. The decision in Gall therefore does not call into question this Court's prior statement that courts of appeals, in reviewing criminal sentences, should apply "ordinary prudential doctrines, * * * [such as] whether the issue was raised below and whether it fails the 'plain-error' test." United States v. Booker, 543 U.S. 220, 268 (2005). A procedural error at sentencing is subject to the general principle that any error "not brought to the [district] court's attention" is forfeited on appeal, unless it meets the four-part stan dard for reversible plain error. Fed. R. Crim. P. 52(b); see United States v. Olano, 507 U.S. 725, 732 (1993).

This Court has regularly applied the plain-error rule in circumstances where a timely objection would have permitted the trial court to avoid error. The Court has noted the benefits of "concentrat[ing] * * * litigation in the trial courts, where genuine mistakes can be cor rected easily." United States v. Vonn, 535 U.S. 55, 72 (2002) (applying plain-error review to an unpreserved claim that the district court failed to hold an adequate guilty-plea colloquy); see Puckett v. United States, No. 07-9712 (Mar. 25, 2009), slip op. 4-6. Indeed, "the point of the plain-error rule [is that] * * * the defendant who just sits there when a mistake can be fixed" cannot "wait to see" whether he is satisfied with the judgment, and, if not, complain to the court of appeals later on. Vonn, 535 U.S. at 73. This Court has already made clear that it will not "creat[e] out of whole cloth * * * an exception to [Rule 52(b)]." Johnson v. United States, 520 U.S. 461, 466 (1997). Nothing about the present case compels a contrary result.

Petitioner suggests (Pet. 30-31) that the court of ap peals' application of plain-error review conflicts with Federal Rule of Criminal Procedure 51(b), which pro vides that "[a] party may preserve a claim of error by informing the court-when the court ruling or order is made or sought-of the action the party wishes the court to take, or the party's objection to the court's action and the grounds for that objection." Fed. R. Crim. P. 51(b). Petitioner's reliance on Rule 51(b) is misplaced. Under Rule 51(b), petitioner's request for a variance from the Guidelines range preserved his challenge to the substan tive reasonableness of the sentence that was ultimately imposed, and the court of appeals therefore reviewed the reasonableness of that sentence for abuse of dis cretion. Pet. App. 12-13. With respect to the district court's asserted Gall error, however, petitioner did not satisfy the requirement of Rule 51(b), because he never "inform[ed] the court" of "the action [he wished] the court to take," i.e., not requiring extraordinary circum stances for a variance. See Vonner, 516 F.3d at 391 ("Nor is it the case that a request for a variance in the district court by itself preserves all procedural and sub stantive challenges to a sentence," and counsel has an "obligation to raise all arguments concerning the appro priate procedures at sentencing and the bases for a lower or higher sentence.").3

c. Finally, petitioner suggests (Pet. 10-11) that the court of appeals erred in concluding that, notwithstand ing the district court's plain error in applying an "ex traordinary circumstances" requirement, the error did not affect petitioner's substantial rights. To the extent petitioner contends that the court of appeals erred in holding that the district court's error was harmless, that case-specific argument does not warrant this Court's review. In any event, in light of the district court's statements that petitioner "knew when [he was] doing it that it was wrong," Pet. App. 35, and that the large num ber of images and extensive amount of trading "put[] this case above the garden variety," ibid., the court of appeals correctly concluded that there was no reason able probability that the district court would have im posed a lower sentence but for its Gall error.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
RITA M. GLAVIN
Acting Assistant Attorney
General
VIJAY SHANKER
Attorney

APRIL 2009

1 Petitioner's reliance (Pet. 20-21) on United States v. Ross, 501 F.3d 851 (7th Cir. 2007), is misplaced. Ross differs from this case because the district court there erroneously stated that the "lowest sentence possible" was the bottom of the Guidelines range. Id. at 854 (emphasis added).

2 Petitioner suggests (Pet. 29) that the decision below is inconsistent with United States v. Burnette, 518 F.3d 942 (8th Cir. 2008). The court in Burnette held, however, in accord with the decision in this case, that "[p]rocedural sentencing errors are forfeited, and therefore may be reviewed only for plain error, if the defendant fails to object in the district court." Id. at 946. In any event, any intra-circuit conflict would not warrant this Court's review. See Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam).

3 This Court has denied several similar petitions involving the stan dard of review in procedural-error sentencing cases where the defen dant made no objection in the district court. See, e.g., Gomez v. United States, No. 08-7778 (Mar. 23, 2009); Vasquez-Rodriguez v. United States, No. 08-7046 (Mar. 23, 2009); Vaughn v. United States, 129 S. Ct. 998 (2009) (No. 08-6064); Commodore v. United States, 129 S. Ct. 487 (2008) (No. 07-11206); Vonner v. United States, 129 S. Ct. 68 (2008) (No. 07-1391). There is no reason for a different result here.