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No. 09-446

 

In the Supreme Court of the United States

ANTHONY CALABRESE, PETITIONER

v.

UNITED STATES OF AMERICA

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

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
LANNY A. BREUER
Assistant Attorney General
DAVID E. HOLLAR
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
SupremeCtBriefs@usdoj.gov

QUESTIONS PRESENTED

1. Whether a district court, in sentencing a defen dant for both an offense under 18 U.S.C. 924(c) and a predicate crime of violence or drug trafficking crime, may reduce the sentence for the underlying crime in order to compensate for the mandatory minimum sen tence required for the Section 924(c) offense.

2. Whether the court of appeals incorrectly applied harmless-error principles in reviewing petitioner's ap peal by failing to consider the cumulative effects of al leged errors.

In the Supreme Court of the United States

No. 09-446

ANTHONY CALABRESE, PETITIONER

v.

UNITED STATES OF AMERICA

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

BRIEF FOR THE UNITED STATES IN OPPOSITION

 

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-16) is reported at 572 F.3d 362.

JURISDICTION

The judgment of the court of appeals was entered on July 14, 2009. The petition for a writ of certiorari was filed on October 13, 2009 (Tuesday following a holiday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for the Northern District of Illinois, petitioner was convicted of three counts of robbery of a commercial establishment, in violation of 18 U.S.C. 1951, and three counts of brandishing a firearm during and in relation to the commission of those robberies, in violation of 18 U.S.C. 924(c). He was sentenced to 751 months of im prisonment, to be followed by three years of supervised release. Pet. App. 30-42. The court of appeals affirmed. Id. at 1-16.

1. Between April and September 2001, petitioner orchestrated the armed robberies of three Chicago-area businesses. First, petitioner and several other men, one brandishing a pistol, bound two victims at a leather goods store with duct tape before stealing leather coats and roughly $10,000 in cash. Pet. App. 3-4. Next, indi viduals acting at petitioner's direction raided a tattoo parlor at gunpoint, tied up the occupants, stole the estab lishment's equipment, and pounded with a hammer the hands of one tattoo artist in retaliation for his tattooing of a mob boss's daughter. Id. at 4-5. Finally, petitioner and his associates robbed a butcher shop of $15,500. Petitioner himself wielded a firearm during that offense and told the shop's owner that if he did not keep quiet, his children would be killed. Id. at 5-6.

A few months after these events, one of petitioner's accomplices in two of the robberies, Ed Frank, began cooperating with the government. While wearing a wire, Frank met with petitioner, who made references to criminal activity, issued death threats, and beat Frank. Pet. App. 6-9.

2. A grand jury indicted petitioner on three counts of robbery of a commercial establishment, in violation of 18 U.S.C. 1951, and three counts of brandishing a fire arm during and in relation to the commission of those robberies, in violation of 18 U.S.C. 924(c). The district court denied petitioner's motion to sever the counts of the indictment and to try each robbery separately. Pet. App. 10. The case proceeded to trial, and, after hearing the testimony from many of petitioner's victims and ac complices, as well as the audio recording of Frank's con versation with petitioner, the jury found petitioner guilty on all six counts. Id. at 6-7.

3. In imposing sentence, the district court was re quired by 18 U.S.C. 924(c) to impose three consecutive terms of imprisonment of seven, 25, and 25 years for each of petitioner's three firearms convictions. Those sentences yielded a total mandatory minimum sentence of 57 years, or 684 months, to run consecutively to the sentence for any other count of conviction. See 18 U.S.C 924(c)(1)(A)(ii) and(C)(i). On the three robbery convic tions, which carried no mandatory minimum, the presentence investigation report (PSR) recommended a total advisory Guidelines range of 135 to 168 months of imprisonment. PSR 22; 7/18/08 Sent. Tr. 39. The PSR noted that, because petitioner was subject to the manda tory minimum sentences specified in Section 924(c), he was not subject to a six-level firearms enhancement in the base offense level for his robbery offenses. See Sen tencing Guidelines § 2B3.1(b)(2)(B) (imposing a six-level enhancement if a firearm is used during a robbery); Sen tencing Guidelines § 2K2.4 cmt. n.4 ("If a sentence un der [Section 924(c)] is imposed in conjunction with a sen tence for an underlying offense, do not apply any spe cific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when deter mining the sentence for the underlying offense.").

Petitioner requested that the court "impose no addi tional time" on the robbery counts. 7/18/08 Sent. Tr. 65; see Def. Sent. Memo. 7 (asking to be sentenced to the "statutory mandatory minimum sentence, 684 months"). While acknowledging at the sentencing hearing that the exact sentence on the robbery counts "may be an aca demic discussion" because petitioner was already in his late 40's and "would be an extremely old man * * * if he were to live out his sentence of 57 years" required by statute, petitioner's counsel nevertheless advocated for an "extremely low" additional period of imprisonment. 7/18/08 Sent. Tr. 67.

The district court noted that it was required by United States v. Roberson, 474 F.3d 432 (7th Cir. 2007), to "consider the robberies at issue here independent of the 924(c) add-ons." Pet. App. 45. In undertaking that evaluation, the district court balanced the "violent na ture" of petitioner's offense against several mitigating factors. Id. at 46. The court noted that petitioner had taken advantage of his time in prison to complete educa tional and vocational training and had strong family sup port. Ibid. It also recognized that, in light of the con secutive 57-year sentence it was required to impose, additional time was not needed to protect the public from further crimes. Id. at 46-47. After weighing these factors, the court varied from the Guidelines and im posed a sentence of 67 months, less than half of the low end of the advisory Guidelines range. Id. at 47. The district court further stated that, had it been permitted to consider the consecutive firearms sentences in setting the punishment for the robbery convictions, it would have analyzed the sentence differently on those counts. Id. at 45.

4. The court of appeals affirmed. Pet. App. 1-16. The court first rejected petitioner's claim that the dis trict court had abused its discretion in denying his sev erance motion. Id. at 10-12. It disagreed with peti tioner's contention that "the evidence was shaky as to his involvement in each individual robbery," instead deeming that evidence to be "overwhelming." Id. at 11- 12. The court of appeals also noted that the district court had instructed the jury to consider each count sep arately and that much of the evidence of the other rob beries would have been admissible at separate trials under Federal Rule of Evidence 404(b). Ibid. In light of these considerations, the court concluded that any prejudicial spillover from trying the counts together "was harmless" and thus that petitioner had "failed to establish that holding a single trial caused him actual prejudice." Id. at 12.

The court next found that the district court commit ted no abuse of discretion in permitting the jury to hear the audiotape of petitioner's conversation with Frank. Pet. App. 12-13. The court of appeals held that a "rea sonable person" could conclude "that the conversation on the audiotape was relevant and that, with the worst parts excised, its probative value was not substantially outweighed by the danger of unfair prejudice." Id. at 12. After finding that the contents of the audiotape were plainly relevant, the court recognized that the question of prejudice was "a closer call." Id. at 13. In the end, however, the court concluded that, while it would have been reasonable for the district court to provide the jury with a transcript instead of playing the tape itself, it was equally reasonable to think "that the tape worked better overall." Ibid. The court therefore found "no abuse of discretion." Ibid.

The court of appeals also rejected petitioner's claim of insufficient evidence, which was grounded in an attack on the credibility of the witnesses who testified against him. Pet. App. 13-14. The court refused to second-guess the jury on that point, concluding that "minor inconsis tencies" in the testimony of some of petitioner's accom plices or the possible existence of a "motive to lie" did not render that testimony legally incredible, and that, if those witnesses were believed, the jury had received more than sufficient evidence to convict. Id. at 14.

Turning to petitioner's sentence, the court of appeals recognized that the district court had properly applied the holding in Roberson "that the mandatory add-on sentence flowing from using a gun in a crime of violence may not be used to justify a lower sentence on the un derlying offense." Pet. App. 14 (citing Roberson, 474 F.3d at 436). While accepting for purposes of argument petitioner's claim that "the law may possibly be differ ent in other circuits," the court reasoned that "the rule we adopted [in Roberson] is the only choice consistent with separation-of-powers principles" and noted that at least three other courts of appeals had agreed with its conclusion. Id. at 15-16. Considering petitioner's "piv otal role" in three violent robberies, the court of appeals concluded that petitioner's "below-guidelines concurrent sentences of 67 months on each of the three robbery counts is not unreasonable." Id. at 16.

ARGUMENT

1. Petitioner contends (Pet. 12-21) that the decision below perpetuates a disagreement among the courts of appeals concerning whether a district court may con sider the effect of consecutive mandatory minimum sen tences when fashioning a sentence on other counts of conviction. There is no circuit conflict on that question, and the decision below is correct. Any disagreement between the decision below and various district court decisions does not warrant this Court's attention, espe cially because petitioner himself has conceded that the dispute in this case is largely academic. Further review therefore is not warranted.

a. As petitioner acknowledges (Pet. 4, 13), four courts of appeals have concluded that a district court may not consider a consecutive sentence imposed for a violation of 18 U.S.C. 924(c) when selecting a reasonable sentence for the predicate offense under 18 U.S.C. 3553(a). See Pet. App. 14; United States v. Chavez, 549 F.3d 119, 135 (2d Cir. 2008); United States v. Hatcher, 501 F.3d 931, 933 (8th Cir. 2007), cert. denied, 128 S. Ct. 1133 (2008); United States v. Franklin, 499 F.3d 578, 584-585 (6th Cir. 2007).

The reasoning and result of those decisions are cor rect. Section 3553(a) requires a court to consider a host of general factors in setting a defendant's total sen tence, but those standards do not apply where "other wise specifically provided." 18 U.S.C. 3551(a). Section 924(c)(1)(D)(ii) specifically provides that, "[n]otwith standing any other provision of law, no term of imprison ment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprison ment imposed for the crime of violence or drug traffick ing crime during which the firearm was used, carried, or possessed." As the courts of appeals have recognized, that prohibition on concurrent sentences is intended to ensure that the penalties for using or carrying a firearm during a crime of violence are imposed over and above any sentence for the underlying crime.1 Chavez, 549 F.3d at 134; Roberson, 474 F.3d at 434-436.

Petitioner's argument conflicts with Congress's pro hibition in Section 924(c)(1)(D) on concurrent punish ments. Reducing the sentence on the underlying crime to compensate for the mandatory minimum sentence under 18 U.S.C. 924(c) would effectively result in a sen tence for that crime that, to the extent of the reduction, runs concurrent with the sentence for the 924(c) offense. See Chavez, 549 F.3d at 135 ("if the court reduces the prison term imposed for that underlying count on the ground that the total sentence is, in the court's view, too severe, the court conflates the two punishments and thwarts the will of Congress"). Thus, as the court of appeals concluded, the proper way to reconcile the Con gressional commands in Sections 3553(a) and 924(c) is to require that a sentencing judge determine the appropri ate punishment for the underlying offense without refer ence to the mandatory sentence required under Section 924(c).

b. Contrary to petitioner's argument, there is no conflict among the courts of appeals on this question. Petitioner first points (Pet. 4-5, 14) to several district court decisions imposing sentences for predicate of fenses significantly below the advisory Guidelines range on defendants who also received mandatory consecutive sentences under Section 924(c). See United States v. Barton, 442 F. Supp. 2d 301, 303-304 (W.D. Va. 2006), aff'd, 216 Fed. Appx. 355 (4th Cir.), cert. denied, 552 U.S. 835 (2007); United States v. Ciszkowski, 430 F. Supp. 2d 1283, 1289 (M.D. Fla. 2006), aff'd, 492 F.3d 1264 (11th Cir. 2007); United States v. Ezell, 417 F. Supp. 2d 667, 678 (E.D. Pa. 2006), aff'd, 265 Fed. Appx. 70 (3d Cir.), cert. denied, 129 S. Ct. 655 (2008); United States v. Angelos, 345 F. Supp. 2d 1227, 1260-1261 (D. Utah 2004), aff'd, 433 F.3d 738 (10th Cir.), cert. denied, 549 U.S. 1077 (2006). But those district court decisions are not precedential and do not establish a conflict war ranting this Court's review. See Sup. Ct. R. 10(a). Al though each judgment was affirmed, none of the courts of appeals considering them expressed any opinion on the propriety of the sentence the district court imposed. Nor did the courts of appeals "allow[]" (Pet. 14) the dis trict courts to take the actions they did. Because the government did not cross-appeal in any of those cases, the courts of appeals had no power to correct the im proper sentences even if they had wished to do so. See Greenlaw v. United States, 128 S. Ct. 2559, 2562 (2008). When squarely faced with a government challenge to such a sentence, there is no reason to doubt that the Third, Fourth, Tenth, or Eleventh Circuits would agree with the analysis of the four courts of appeals that have confronted the issue and conclude that district courts may not reduce the sentence for an underlying predicate offense to compensate for the mandatory minimum sen tence required by 18 U.S.C. 924(c).

Petitioner incorrectly argues (Pet. 15-16) that there is a conflict between the decision below and United States v. Vidal-Reyes, 562 F.3d 43 (1st Cir. 2009). Vidal-Reyes deals not with a consecutive sentence under 18 U.S.C. 924(c) but with the federal aggravated identity theft statute, 18 U.S.C. 1028A. Unlike 18 U.S.C. 924(c), that statute specifies that the district court shall not reduce the term of imprisonment "for the felony during which the means of identification was transferred, pos sessed, or used" to take into account the mandatory con secutive sentence specified in Section 1028A(a)(1). 18 U.S.C. 1028A(b)(2). To give effect to the plain meaning of that provision, the First Circuit held that district courts may consider the mandatory minimum sentence "when sentencing for non-predicate offenses." Vidal- Reyes, 562 F.3d at 51. In reaching that conclusion, how ever, the court of appeals explicitly considered the cases interpreting 18 U.S.C. 924(c), including the Seventh Cir cuit's decision in Roberson, and found them "easily dis tinguishable" based on "significant differences" in the relevant statutory text. Vidal-Reyes, 562 F.3d at 52. Among other things, the court in Vidal-Reyes noted in particular that the cases interpreting Section 924(c) have applied its "bar on considering the mandatory term in sentencing on other counts of conviction" only "to sen tencing for predicates of the § 924(c) offense." Ibid. The First Circuit therefore expressed in dicta the view that there existed "an implied sentencing limitation in § 924(c) that mirrors the express sentencing limitation in the text of § 1028A(b)(3), which applies to predicate offenses only." Ibid. The convictions at issue here were all predicate offenses to petitioner's convictions under Section 924(c), and therefore, even under the First Cir cuit's reasoning, the district court in this case could not have considered the mandatory minimum penalty on the firearms offenses when imposing sentence.

There is similarly no merit to petitioner's contention (Pet. 17-18) that the decision of the court of appeals con flicts with United States v. Guthrie, 557 F.3d 243 (6th Cir. 2009). In Guthrie, as in this case, the district court imposed a predicate offense sentence of approximately half the advisory Guidelines range. Id. at 247. While the Sixth Circuit upheld the reasonableness of that sen tence, it specifically reaffirmed its holding in Franklin that a court may not "try[] to negate the mandatory min imum sentence for use of a firearm during a crime of violence." Id. at 255. Because there was no evidence other than "mere inference" that the below-range sen tence for the predicate offense in Guthrie reflected an attempt to compensate for the consecutive sentence mandated by Section 924(c), rather than an honest and independent evaluation of the other factors under 18 U.S.C. 3553(a), the panel found no violation of Frank lin.2 Guthrie is thus consistent both with Franklin and the decision below.

c. Contrary to petitioner's argument (Pet. 18-20), the court of appeals' reasoning does not conflict with Kim brough v. United States, 552 U.S. 85 (2007). Kim brough permits district courts to vary from the advisory Sentencing Guidelines range based on general disagree ments with the Guidelines themselves. Id. at 101. But Kimbrough does not authorize sentencing courts to dis agree with Acts of Congress governing their actions or to impose sentences in violation of statutory commands. As this Court explained in Kimbrough, "sentencing courts remain bound by the mandatory minimum sen tences" Congress specifies. Id. at 107. Similarly, sen tencing courts must respect the congressional directive in Section 924(c)(1)(D)(ii) that the sentence selected for a predicate offense not run concurrently with the man datory minimum sentence commanded in Section 924(c)(1)(A)-a directive that would be thwarted by re ducing the otherwise-appropriate sentence on the predi cate offense because of the Section 924(c) sentence. Nothing in Kimbrough counsels otherwise.

d. Finally, even if the Court wished to address the question presented, petitioner's case would not provide a suitable vehicle. Petitioner, age 49, is currently sched uled for release from imprisonment on July 19, 2061. Even were the 67-month sentence imposed for his rob bery convictions to be eliminated entirely, the unchal lenged 57-year mandatory minimum sentence petitioner faces for his firearms convictions would extend his term of imprisonment well beyond his natural life expectancy. Any error in this case thus would be essentially aca demic and would not justify this Court's review.

2. Petitioner also contends (Pet. 21-26) that the court of appeals misapplied principles of harmless error and cumulative error analysis. The court of appeals' correct rejection of that argument does not merit this Court's review.

The general principles governing harmless-error analysis are well settled. When a court of appeals con cludes that an error occurred during a criminal proceed ing, it must nonetheless affirm the judgment if the error had no effect on the outcome of the trial or the substan tial rights of the parties. Fed. R. Crim. P. 52(a); see Kotteakos v. United States, 328 U.S. 750, 760 (1946). If a court finds more than one error, it must consider the cumulative effect of all those errors in evaluating harm lessness. Taylor v. Kentucky, 436 U.S. 478, 487 n.15 (1978); United States v. Diharce-Estrade, 526 F.2d 637, 642 (5th Cir. 1976).

The cumulative error doctrine has no application here. "[A] cumulative-error analysis should evaluate only the effect of matters determined to be error, not the cumulative effect of non-errors." United States v. Rivera, 900 F.2d 1462, 1471 (10th Cir. 1990). In this case, the court of appeals rejected each of petitioner's three claims of error on the merits. Considering the deferential standard of review, the court found no abuse of discretion and no evidence of actual prejudice to peti tioner in the district court's refusal to sever the counts of the indictment for trial. Pet. App. 10-12. It also found no reversible error in the admission of the audio tape, and it concluded that more than sufficient evidence was introduced to support the convictions. Id. at 12-14. Although the court did hold in the alternative that any error on the severance issue was harmless, it found no error at all on petitioner's other two claims. And when only a single trial error is found, there is nothing to cu mulate under the cumulative-error doctrine. Cf. United States v. Conner, 583 F.3d 1011, 1027 (7th Cir. 2009).

 

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
LANNY A. BREUER
Assistant Attorney General
DAVID E. HOLLAR
Attorney

FEBRUARY 2010

1 An application note to the Sentencing Guidelines provision corre sponding to 18 U.S.C. 924(c) recognizes that "a term of imprisonment imposed [under Section 924(c)] shall run consecutively to any other term of imprisonment." Sentencing Guidelines § 2K2.4 cmt. n.2(B). The commentary further directs that, when sentencing a defendant for both a Section 924(c) offense and the underlying crime, the district court should not "apply any specific offense characteristic for posses sion, brandishing, use, or discharge of an explosive or firearm when de termining the sentence for the underlying offense," because "[a] Sen tence under this guideline accounts for any explosive or weapon en hancement for the underlying offense of conviction." Sentencing Guide lines § 2K2.4 cmt. n.4. As noted above, see p. 3, supra, the PSR fol lowed that instruction in calculating petitioner's advisory Guidelines range on the robbery offenses.

2 In any event, any intracircuit conflict between Franklin and Guth rie should be resolved by the Sixth Circuit. The existence of such intra circuit tension does not give rise to a need for this Court's review. See Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam).