JAMES ROBERT KEENER, PETITIONER V. UNITED STATES OF AMERICA No. 89-6786 In The Supreme Court Of The United States October Term, 1989 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. A1-A11) is reported at 892 F.2d 725. JURISDICTION The judgment of the court of appeals was entered on December 22, 1989. The petition for a writ of certiorari was filed on February 6, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT 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 narcotics that were not charged in the indictment. 2. Whether the government must prove beyond a reasonable doubt the existence of facts on which a district court may rely when imposing sentence under the Sentencing Guidelines. 3. Whether the district court made sufficient findings of fact to support its determination of the adjusted base offense level. Following a jury trial in the United States District Court for the Western District of Missouri, petitioner was convicted on one count of conspiring to distribute cocaine, in violation of 21 U.S.C. 841(a)(1) and 846, and on three substantive counts of distributing cocaine, in violation of 21 U.S.C. 841(a)(1). He was sentenced pursuant to the Sentencing Guidelines to concurrent seven-year terms of imprisonment, to be followed by a four-year term of supervised release. He also was ordered to pay a $5,000 fine and special assessments under 18 U.S.C. 3013 totalling $200. 1. a. The evidence at trial, which is not in dispute, showed that petitioner sold a government informant a total of 51 grams of cocaine in three controlled transactions for a total of $2600. Specifically, the informant bought a quarter of an ounce of cocaine from petitioner on September 28, 1987, for $600, a half-ounce of cocaine from petitioner on October 14, 1987, for $1,000, and one ounce of cocaine from petitioner and his co-conspirator Ronnie W. Gooden on November 10, 1987, for $1,600. Petitioner, Gooden, and the informant discussed the possibility of engaging in additional drug transactions. Petitioner and his co-conspirator told the informant they were afraid to take the informant to the place where the cocaine was warehoused because of recent arrests in the Oklahoma-Kansas area. In addition, in June 1987, the informant, before he began assisting the government, delivered an ounce of cocaine to Branson, Missouri, for petitioner and co-conspirator Gooden. Pet. App. A2-A3; Gov't C.A. Br. 4-6. b. The presentence report calculated that petitioner's Sentencing Guidelines range was 78-97 months' imprisonment, based on an adjusted offense level of 28 and a criminal history category of I. Presentence Report 4-6 (Oct. 13, 1988). The adjusted offense level was the level in the Guidelines, Section 2D1.1, for drug offenses involving 2.0 to 3.4 kilograms of cocaine. Presentence Report 4. /1/ The amount of drugs on which petitioner was sentenced was based on the 51 grams for which petitioner was convicted plus two kilograms that a second informant told the FBI he had purchased from petitioner and co-conspirator Gooden, one kilogram in February or March 1988 and the second about six weeks later. Presentence Report 3-4. Petitioner objected by letter dated November 4, 1988, to the portions of the presentence report based on information from the second informant. Addendum to Presentence Report (Nov. 16, 1988) attachment. The probation officer declined to revise the presentence report, noting that he had included the two kilograms in the calculations under Guidelines Section 1B1.3(a)(2), since they were distributed as part of the same course of conduct or common scheme or plan as the offense of conviction. He stated that "(i)n this case, the broader range of conduct related to distribution of cocaine which is similar to the offense for which defendant has been convicted," and noted that petitioner's objections "remained unresolved." Addendum to Presentence Report 2. At the sentencing hearing, petitioner objected to consideration of the two one-kilogram transactions on two grounds: the transactions did not occur, and he had not been informed that the transactions would be considered until he received the presentence report. 11/30/88 Tr. 258, 275, 285. At the hearing, the second informant testified about drug transactions with petitioner and co-conspirator Gooden. Specifically, he testified that between 1985 and September 1987, he sold petitioner's co-conspirator 24 ounces of cocaine for $1600 an ounce. /2/ He also testified that petitioner and co-conspirator Gooden sold him a kilogram of cocaine in February or March 1988 for $38,400, and that they sold him an additional kilogram four or five weeks later for the same price. Id. at 261-266; Pet. App. A3-A4; Gov't C.A. Br. 9-11. Petitioner offered no rebuttal, and neither petitioner nor his co-conspirator testified at sentencing. 11/30/88 Tr. 272; Pet. App. A4. The district court found that the government had proved by a preponderance of the evidence that petitioner and co-conspirator Gooden sold the second informant two kilograms of cocaine. It adopted the conclusion of the presentence report that the base offense level for the offense was 28 and the criminal history category was I. It imposed concurrent sentences of seven years' imprisonment on each count, within the applicable Guideline range of 78-97 months' imprisonment. Pet. App. A4. /3/ In a written report of the reasons for imposing sentence, the court said that it resolved the dispute regarding the amount of drugs on which petitioner's sentence should be based as follows, Pet. App. B: The government submitted the testimony of (the second informant) who testified that between March 1 and July of 1988 he purchased two kilos of cocaine from (petitioner) and the co-defendant paying $32,500 for each kilo. In addition he testified that from 1985 to 1987 he sold defendant Gooden about 16 ounces of cocaine at $1,600 per ounce. The Court finds that the government proved by a preponderance of the evidence the matters objected to by (petitioner) in Paragraphs 8, 9, 10 and 11 of the presentence report. The court specified further that it imposed sentence near the lower end of the applicable guideline range because, "(e)ven though the Court finds that (petitioner) dealt in a considerable quantity of cocaine, the Court was of the opinion that the history of (petitioner's) conduct warranted a sentence near the lower guideline level." C.A. Br. for Appellant addendum 11. 2. The court of appeals affirmed. Pet. App. A1-A11. The court found that the district court "implicitly found" that the drug transactions with the second informant were part of the same course of conduct or common scheme or plan as the offense of conviction. Id. at A4. It held that the district court's use of the preponderance of the evidence standard for determining disputed facts at sentencing was consistent with due process under McMillan v. Pennsylvania, 477 U.S. 79 (1986). Pet. App. A5-A7. The court of appeals also held that the district court's finding that distribution of the two kilograms of cocaine to the second informant was part of the same course of conduct as the counts of conviction was not clearly erroneous. It reasoned that the transactions were similar to the offense of conviction, and were conducted in the same geographical area within a few months of those offenses. Thus, it concluded, "the sales to (the informant) demonstrate a pattern of continuous drug activity and the finding that they were part of the same course of conduct or common scheme or plan as the offenses of conviction cannot be said to be clearly erroneous." Pet. App. A7-A8. /4/ Dissenting in part, Judge McMillian stated that he would remand the case for further factfinding and resentencing. He concluded that the district court did not find that the drug transactions "were part of the same course of conduct or common scheme or plan as the offense of conviction" under Guidelines Section 1B1.3(a)(2), and that such a finding was a prerequisite to adding the two kilograms of cocaine to the amounts involved in the offense of conviction. He said that he was unwilling to infer, as the majority had, that the district court impliedly made that finding. He noted that the district court could have made such a finding and that, if it had, he would agree that the finding was not clearly erroneous. Pet. App. A10-A11. ARGUMENT 1. Petitioner contends that the district court improperly considered the uncharged drug transactions at sentencing and that doing so violated due process. Pet. 11-16. /5/ Petitioner did not raise that claim in the district court or the court of appeals. See 11/30/88 Tr. 258, 275, 285; C.A. Br. for Appellant 2, 10-18. He has therefore waived that claim. See, e.g., Solorio v. United States, 483 U.S. 435, 451 n.18 (1987); Berkemer v. McCarty, 468 U.S. 420, 443 (1983). Nevertheless, we discuss the contention below. As we explained in detail in our Brief in Opposition in United States v. Jorge Restrepo, cert. denied, 110 S. Ct. 1329 (1990) (No. 89-6229) (a copy of which has been provided to petitioner), the courts of appeals have uniformly held that the Guidelines require a district court to aggregate all relevant conduct, charged or uncharged, in calculating the base offense level for each count of conviction. /6/ Moreover, the text of the Guidelines expressly requires that the base offense level be calculated in that manner, that construction of the Guidelines' text is consistent with the interpretation held by the Sentencing Commission, and that interpretation is consistent with the Guidelines' underlying purpose. There is no merit to petitioner's claim that allowing a district court to consider uncharged conduct at sentencing violates due process. The Due Process Clause applies to the sentencing process. See Gardner v. Florida, 430 U.S. 349 (1977). But the defendant has already been convicted, and the question before the trial court is what sentence within the statutory range should be imposed. Accordingly, the primary concern of due process at sentencing is with the reliability of the information on which the sentence is based. See Williams v. Oklahoma, 358 U.S. 576, 584 (1984); Williams v. New York, 337 U.S. 241 (1949); United States v. Brady, No. 89-50079 (9th Cir. Jan. 30, 1990); United States v. Romano, 825 F.2d 725, 728 (2d Cir. 1987). Rule 32, Fed. R. Crim. P., contains procedures designed to assure the accuracy of that information: The presentence report must contain information concerning the defendant and his offense and the Guideline that the probation officer believes should apply to the case. Fed. R. Crim. P. 32(c)(2). Before sentencing, copies of the presentence report must be provided to the defendant, his counsel, and the government, and the defendant must have an opportunity to comment on the report. Fed. R. Crim. P. 32(a)(1) and 32(c)(3) (A). If there is an allegation of a factual inaccuracy in the report, the district court must either make a finding as to the accuracy of the allegation, or it must determine that such a finding is unnecessary because the matter will not be considered in sentencing. Fed. R. Crim. P. 32(c)(3)(D). See also Guidelines Section 6A1.3. Here, the accuracy of the information was assured. The presentence report described at length the allegations of the second informant. Petitioner took advantage of his opportunity to object to the information in the presentence report and was given an opportunity to see the FBI reports regarding that informant's statements before sentencing. /7/ Petitioner was given an additional opportunity at the sentencing hearing to challenge the accuracy of that information, to confront and cross-examine the second informant, and to call witnesses in his own behalf. Finally, the district court made findings that permitted meaningful appellate review. Pet. App. A6. /8/ 2. Petitioner also contends that due process requires the government to prove uncharged criminal conduct beyond a reasonable doubt, rather than by a preponderance of the evidence. Pet. 17. That claim does not warrant review by this Court. a. There is no conflict among the circuits on the burden and standard of proof that applies to a district court's factual findings under the Sentencing Guidelines. The courts of appeals that have addressed the issue have ruled that the burden of proof falls on the party seeking an adjustment of the base offense level. Thus, the government bears the burden of proof when it seeks an upward adjustment, and the defendant bears the burden of proof when he seeks a downward adjustment. United States v. Rutter, No. 89-1015 (10th Cir. Mar. 13, 1990), slip op. 3-4; United States v. Rodriguez, 896 F.2d 1031, 1033 (6th Cir. 1990); United States v. Howard, 894 F.2d 1085, 1089-1090 (9th Cir. 1990); United States v. McDowell, 888 F.2d 285, 291 (3d Cir. 1989); United States v. Urrego-Linares, 879 F.2d 1234, 1238-1239 (4th Cir.), cert. denied, 110 S. Ct. 346 (1989). The courts of appeals have also uniformly ruled that the preponderance standard, not the reasonable-doubt or clear-and-convincing-evidence standard, governs factual findings made under the Guidelines. United States v. Wilson, No. 89-50236 (9th Cir. Apr. 6, 1990), slip op. 3432; United States v. Alston, No. 88-8802 (5th Cir. Mar. 8, 1990), slip op. 2019-2020; United States v. Frederick, No. 89-6009 (10th Cir. 1990), slip op. 4-9; Howard, 894 F.2d at 1089-1090; United States v. Carroll, 893 F.2d 1502, 1506 (6th Cir. 1990); United States v. Blanco, 888 F.2d 907, 909 (1st Cir. 1989); United States v. White, 888 F.2d 490, 499 (7th Cir. 1989); United States v. McDowell, 888 F.2d 285, 290-291 (3d Cir. 1989); United States v. Guerra, 888 F.2d 247, 250-251 (2d Cir. 1989); United States v. Ehret, 885 F.2d 441, 444 (8th Cir. 1989), cert. denied, 110 S. Ct. 879 (1990); Urrego-Linares, 879 F.2d at 1237-1238. b. There is also no merit to petitioner's contention that due process requires that the government prove beyond a reasonable doubt any facts used to enhance a defendant's sentence under the Sentencing Guidelines. Before the advent of the Guidelines, it was settled law that the reasonable-doubt standard did not apply to the findings made at sentencing, and that the preponderance standard satisfied due process concerns. McMillan v. Pennsylvania, 477 U.S. 79, 84-93 (1986); United States v. Lee, 818 F.2d 1052, 1057 (2d Cir. 1987), cert. denied, 464 U.S. 956 (1988); United States v. Davis, 710 F.2d 104, 106 (3d Cir.) (collecting cases), cert. denied, 464 U.S. 1001 (1983). /9/ Neither the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq. and 28 U.S.C. 991-998, nor the Guidelines require the government to bear a greater burden of proof. This Court rejected a virtually identical claim in McMillan v. Pennsylvania, supra. In McMillan, this Court upheld over a due process challenge a state law allowing proof by a preponderance of the evidence that a defendant possessed a firearm during the commission of an offense to serve as the basis for a mandatory minimum five-year term of incarceration within the statutory maximum term of imprisonment. 477 U.S. at 84-93. The Court explained that, as a general rule, the reasonable-doubt standard applies only to the factual findings necessary to convict the defendant of a crime. Id. at 84-91. Also, a defendant who has been found guilty beyond a reasonable doubt of a charged offense is subject to imprisonment for the maximum term set by law. Id. at 92 n.8. The purpose of the sentencing process, in a discretionary or a guidelines system, is to fix the point within that maximum at which sentence should be imposed. The preponderance standard, the Court held, is a permissible means of carrying out that task. Id. at 92-93. See also, e.g., McDowell, 888 F.2d at 291; Guerra, 888 F.2d at 250-251. Like the statutory scheme in McMillan, the Guidelines "neither alter() the maximum penalty for the crime committed nor create() a separate offense calling for a separate penalty; (the Guidelines) operate() solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding(s)," 477 U.S. at 87-88. There is no reason why a higher standard of proof should apply to the findings made under the Guidelines than to the mandatory minimum sentencing scheme considered in McMillan. 3. Finally, petitioner contends, Pet. 17-18, that the court of appeals erred in holding that the district court implicitly found that the two one-kilogram transactions were part of the same course of conduct or common scheme as the counts of conviction, see Pet. App. A4, A10-A11. Petitioner claims that the district court record was inadequate to permit meaningful appellate review. Those fact-bound claims do not merit the attention of this Court. Under Fed. R. Crim. P. 32(c)(3)(D), the district court is required to make findings as to the accuracy of a fact contested at sentencing or to make a determination that such a finding is unnecessary because the court does not intend to rely on the fact at sentencing. There is no requirement that the finding be in any particular form. See United States v. Burch, 873 F.2d 765, 767-768 (5th Cir. 1989); United States v. Perrera, 842 F.2d 73, 76 (4th Cir.), cert. denied, 109 S. Ct. 102 (1988). It is only necessary that the court of appeals be able to determine from the record whether the district court found the challenged fact in favor of or against the defendant and whether the fact affected the sentence. United States v. Funt, 896 F.2d 1288 (11th Cir. 1990). Only where the record is silent as to whether the judge relied on the challenged fact is remand for findings required. See United States v. Santamaria, 788 F.2d 824 (1st Cir. 1986); United States v. Stewart, 770 F.2d 825, 832 (9th Cir. 1985), cert. denied, 474 U.S. 1103 (1986). See also United States v. Rodriguez, No. 88-6020 (5th Cir. Mar. 29, 1990) (court may adopt presentence report without more specific findings where there is no rebuttal evidence and facts have an adequate basis on the record). Here, petitioner was provided with a copy of the presentence report, which described the two one-kilogram transactions in detail and expressly relied on Guidelines Section 1B1.3(a)(2) as the basis for including the two kilograms in the amount of drugs on which petitioner's sentence was calculated. Petitioner objected to the use of the two kilograms in calculating his sentence on the ground that there were no such transactions and that he did not know that the transactions would be considered until he received the presentence report. The district court expressly rejected those contentions. /10/ Petitioner did not claim in the district court that if the transactions had taken place, they were not part of the same course of conduct or a common scheme or plan as the offenses of conviction. Accordingly, no specific finding on that question was required. In any event, the record clearly demonstrated that petitioner's offenses of conviction were not isolated events, but were part of an ongoing pattern of drug trafficking. The informant who testified at trial first became an informant following a dispute with petitioner over a previous uncharged transaction. Petitioner had ready access on a moment's notice to at least one ounce of cocaine, and knew where the supply of cocaine was warehoused. The transactions among petitioner, his co-conspirator, and the two informants occurred in the same time period and in the same geographic area. Since it is clear from the record that the district court accepted the presentence report's findings and rejected petitioner's challenge, see Perrera, 842 F.2d at 76, no purpose would be served by a remand for further findings by the district court. 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 KAREN SKRIVSETH Attorney MAY 1990 /1/ Guidelines Section 2D1.1 was amended effective November 1, 1989, but that amendment does not apply to this case. /2/ Only petitioner had been charged here with offenses occurring before November 1, 1987, and the conspiracy charge referred only to November 10, 1987. /3/ The Guidelines range that would have applied if petitioner had been sentenced only for trafficking in 51 grams of cocaine would have been 21-27 months' imprisonment, based on an adjusted offense level of 16 and criminal history category I. /4/ The court of appeals also rejected petitioner's claim that the evidence was insufficient to establish his guilt of the offenses charged. Pet. App. A8-A9. Petitioner does not pursue that claim here. /5/ Petitioner raised the narrower claim that proof of uncharged conduct by a preponderance of the evidence violates due process. That claim is discussed below in Point 2 of this brief. /6/ See, e.g., United States v. Gerante, 891 F.2d 364, 368-369 (1st Cir. 1989); United States v. Bedoya, 878 F.2d 73, 75-76 (2d Cir. 1989); United States v. Williams, 880 F.2d 804 (4th Cir. 1989); United States v. Alston, No. 88-8802 (5th Cir. Mar. 8, 1990), slip op. 2017-2018; United States v. Ykema, 887 F.2d 697, 700 (6th Cir.), cert. denied, 110 S.Ct. 878 (1990); United States v. Vopravil, 891 F.2d 155, 157-159 (7th Cir. 1989); United States v. Sleet, 893 F.2d 947 (8th Cir. 1990); United States v. Turner, No. 89-30036 (9th Cir. Mar. 12, 1990), slip op. 2666-2667; United States v. Rutter, No. 89-1015 (10th Cir. Mar. 13, 1990), slip op. 6-10; United States v. Alston, 895 F.2d 1362 (11th Cir. 1990). Petitioner mistakenly relies on the Ninth Circuit's decision in United States v. Dario Restrepo, 883 F.2d 781 (1989). Pet. 21-22. We noted in our Brief in Opposition in Jorge Restrepo that the Ninth Circuit in Dario Restrepo disagreed with the view of the other courts of appeals (on grounds not at issue here). After we filed our brief in opposition in Jorge Restrepo, however, the Ninth Circuit withdrew its opinion in Dario Restrepo, No. 88-3207 (Mar. 2, 1990), so there is no longer a conflict among the circuits. Moreover, the Ninth Circuit now appears to follow the rule in the other circuits. See Turner, slip op. 2666-2667. /7/ For the first time in this Court, petitioner complains, Pet. 12-14, that if he had been indicted and tried for the two one-kilogram transactions, he would have been entitled to exculpatory information about the transactions under Brady v. Maryland, 373 U.S. 83 (1963), and to statements by government witnesses under Jencks v. United States, 353 U.S. 657 (1957). That complaint is meritless. There was no exculpatory information available as to those transactions, as the district court found, 11/30/88 Tr. 286-287, and petitioner was given an opportunity before sentencing to examine the reports regarding the informant's statements. Thus, the requirements of Brady and Jencks were met here, and petitioner has not been affected by the fact that the two one-kilogram transactions were considered at sentencing, rather than at trial. /8/ Petitioner relies in part on the faulty premise that the testimony at the sentencing hearing caused his sentence to be higher than that which was permitted for the offense for which he was convicted. Pet. 20. On the contrary, the testimony of the second informant was used to assist the district court in determining where within the statutory maximum sentence for the offense of conviction petitioner's sentence should be imposed, not to increase that statutory maximum. Thus, the full panoply of due process rights at trial was not required. Compare Specht v. Patterson, 386 U.S. 605 (1967). (Those rights, as the court of appeals found, were nevertheless provided. See Pet. App. A6.) As this Court explained in McMillan v. Pennsylvania, 477 U.S. 79, 92 n.8 (1986) (citation omitted), "(o)nce the reasonable-doubt standard has been applied to obtain a valid conviction, 'the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him.'" Since Congress has set the maximum sentence that may be imposed, "all that is left to determine at sentencing is where in the permissible zone the defendant's sentence will fall. Although this decision can be, and most often is critical, it is rarely ever as crucial as the initial decision finding guilt." United States v. McDowell, 888 F.2d 285, 290 (3d Cir. 1989). See also United States v. Wilson, No. 89-50236 (9th Cir. Apr. 6, 1990), slip op. 3430. /9/ In fact, trial courts historically imposed sentence without an established burden or standard of proof. McMillan, 477 U.S. at 91. /10/ Even if the two kilograms were not directly attributable to the same course of conduct and hence properly used to determine the base offense level for the cocaine trafficking, they could have formed the basis for an upward departure from the applicable Guidelines range as uncharged conduct not adequately reflected in petitioner's criminal history score. See Guidelines Section 4B1.3.