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No. 08-1149

 

In the Supreme Court of the United States

DEREK CUNNINGHAM, PETITIONER

v.

UNITED STATES OF AMERICA

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

MEMORANDUM FOR THE UNITED STATES
IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

In the Supreme Court of the United States

No. 08-1149

DEREK CUNNINGHAM, PETITIONER

v.

UNITED STATES OF AMERICA

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

MEMORANDUM FOR THE UNITED STATES
IN OPPOSITION

Petitioner contends (Pet. 7-15) that this Court should grant certiorari to resolve the circuit conflict on the ques tion whether the holding of United States v. Booker, 543 U.S. 220 (2005), which remedied the constitutional defect in the Sentencing Guidelines by rendering them advisory, applies in a sentence modification proceeding under 18 U.S.C. 3582(c). This Court has received several other peti tions raising the same basic claim. As the government has explained in its brief in opposition to the first of those peti tions, see Rhodes v. United States, No. 08-8318 (filed Mar. 27, 2009), cert. denied (Apr. 27, 2009), although the courts of appeals are divided on this issue, this Court's review of that issue is not currently warranted.1 This Court recently denied certiorari in Rhodes and in two other cases present ing the same question. See Dunphy v. United States, No. 08-1185 (May 18, 2009); Melvin v. United States, No. 08- 8664 (May 18, 2009). There is no reason for a different re sult here.

Seven of the eight courts of appeals to consider the issue have held (correctly, in the government's view) that Booker does not apply in sentence modification proceedings under Section 3582(c). See U.S. Br. in Opp. at 15-16, Rhodes, su pra (No. 08-8318) (citing cases); see also United States v. Doe, No. 08-3968, 2009 WL 1151939 (3d Cir. Apr. 30, 2009). Although the Ninth Circuit's decision in United States v. Hicks, 472 F.3d 1167 (2007), is inconsistent with these deci sions, Hicks is the subject of a pending government appeal in United States v. Fox, No. 08-30445 (9th Cir. filed Nov. 21, 2008). On March 13, 2009, the government filed its opening brief in the Ninth Circuit in Fox, and on April 13, 2009, the government filed a petition for an initial en banc review, which is currently pending before a merits panel, urging the Ninth Circuit to overrule its decision in Hicks. If the Ninth Circuit agrees that Hicks should be overruled, the current circuit conflict will disappear. If the court of appeals rejects the government's argument and affirms Hicks, the government would retain the option of seeking this Court's review at that time. The pendency of the pro ceedings in Fox, therefore, renders this Court's review of the issue premature.2

It is therefore respectfully submitted that the petition for a writ of certiorari should be denied.

ELENA KAGAN
Solicitor General

MAY 2009

1 We have served petitioner with a copy of the government's brief in opposition in Rhodes.

2 The government waives any further response to the petition unless this Court requests otherwise.