DAMUS B. VANOVER, PETITIONER V. UNITED STATES OF AMERICA No. 89-6495 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 Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. B29-B34) is reported at 888 F.2d 1117. /1/ JURISDICTION The judgment of the court of appeals was entered on November 6, 1989. The petition for a writ of certiorari was filed on January 5, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the Sentencing Guidelines violate due process by depriving criminal defendants of the right to individualized sentencing. 2. Whether the indictment sufficiently alleged that petitioner was serving a sentence for a judgment of conviction at the time of his escape. STATEMENT 1. On August 10, 1988, a two-count superseding indictment was returned in the United States District Court for the Eastern District of Michigan charging petitioner, who had previously been committed to the custody of the Attorney General by virtue of a judgment and commitment order, with escape, in violation of 18 U.S.C. 751, and with criminal contempt, in violation of 18 U.S.C. 401. Pursuant to a plea agreement, petitioner thereafter pleaded guilty to the escape count; in return it was agreed that the government would dismiss the contempt count and that petitioner's sentence would "not exceed three months above the lower limit of the guideline range that the court finds to be applicable." J.A. 8-11. /2/ Petitioner was later sentenced to a Guidelines sentence of 27 months' imprisonment, to be followed by a three-year term of supervised release. 2. The court of appeals affirmed, rejecting petitioner's various challenges to the adequacy of the indictment and the plea proceedings and to the applicability of the Sentencing Guidelines. 888 F.2d at 1120-1122. In particular, the court of appeals held that the Guidelines did not violate due process by unduly limiting the ability of the sentencing court to consider mitigating factors and to impose individualized sentences. Id. at 1120. The court also held that the indictment adequately alleged an offense under the escape statute. Id. at 1120-1122. As the court pointed out, Section 751 punishes as a felony an escape from custody "based on a 'conviction of any offense.'" 888 F.2d at 1121. Although this indictment did not specify the offense for which petitioner was incarcerated at the time of his escape, it did allege that petitioner had been committed to the custody of the Attorney General since 1985 "by virtue of a judgment and commitment order" issued by a federal court. Id. at 1118 n.1, 1121. In accord with other courts considering the issue, the court of appeals concluded that "this language sufficiently allege(d) that (petitioner) was in custody for 'conviction of any offense' within the meaning of the statute." Id. at 1121. ARGUMENT 1. 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., 28 U.S.C. 991-998 (Supp. V 1987), 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 to have considered it. See, e.g., 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. 1989); United States v. Bolding, 876 F.2d 21, 22-23 (4th Cir. 1989); United States v. Pinto, 875 F.2d 143, 144-146 (7th Cir. 1989); United States v. Allen, 873 F.2d 963 (6th Cir. 1989); United States v. Seluk, 873 F.2d 15, 16 (1st Cir. 1989); United States v. Brittman, 872 F.2d 827, 828 (8th Cir. 1989); United States v. Vizcaino, 870 F.2d 52, 54-56 (2d Cir. 1989); United States v. White, 869 F.2d 822 (5th Cir.), cert. denied, 110 S. Ct. 560 (1989); United States v. Frank, 864 F.2d 992, 1008-1010 (3d Cir. 1988), cert. denied, 109 S. Ct. 2442 (1989). Because petitioner's claim is without merit and has been uniformly rejected by the courts of appeals, this Court should deny certiorari here, as it did when the identical issue was recently raised in Chambless v. United States, cert. denied, 110 S. Ct. 560 (1989). Relying primarily on district court opinions that were decided prior to Mistretta or that have been overruled by the court of appeals decisions cited above, petitioner contends that the Guidelines violate due process since they mechanistically circumscribe the authority of district courts to impose individualized sentences. Pet. 7-15. Petitioner's claim is contrary to 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 noncapital 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). /3/ 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 escape 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. 2. Petitioner also contends (Pet. 15-18) that the count of the superseding indictment alleging the escape charge was defective because it did not identify the offense for which he was incarcerated at the time of his escape. In the absence of such an allegation, petitioner asserts that it is impossible to determine whether the grand jury charged him under the felony or the misdemeanor provisions of 18 U.S.C. 751. As the court below correctly held, petitioner's claim is without merit. As this Court stated in Hamling v. United States, 418 U.S. (1974), "(i)t is generally sufficient that an indictment set forth the offense in the words of the statute itself." By its plain terms, Section 751 imposes felony liability on anyone who "escapes or attempts to escape from the custody of the Attorney General * * * if the custody or confinement is by virtue of an arrest on a charge of felony or conviction of any offense." By contrast, escape constitutes a misdemeanor violation only "if the custody or confinement is for extradition, or for exclusion or expulsion proceedings under the immigration laws, or by virtue of an arrest or charge of or for a misdemeanor, and prior to conviction." The superseding indictment in this case alleged that petitioner escaped on June 14, 1987, from his designated place of confinement after "having been lawfully committed to the custody of the Attorney General on May 13, 1985, by virtue of a judgment and commitment order of the United States District Court for the Eastern District of Michigan." J.A. 6; 888 F.2d at 1118 n.1. As the court of appeals observed, the phrase "judgment and commitment order" is a term of art that "sufficiently identifies the custody as one due to an underlying conviction." Id. at 1121. Since all escapes from confinement occasioned by a criminal conviction are punishable as felonies under Section 751, it is immaterial whether the prior underlying criminal conviction was on a felony or a misdemeanor charge. It is also unnecessary for the indictment to identify by name the underlying criminal offense of which the defendant was convicted. 888 F.2d at 1122 n.9. Fairly read, the indictment alleged that petitioner was confined at the time of his escape by virtue of his conviction of an offense. No more was required to allege the offense of felony escape. See United States v. Richardson, 687 F.2d 952, 965 (7th Cir. 1982); United States v. McCray, 468 F.2d 446, 448 (10th Cir. 1972). Petitioner errs in claiming, Pet. 15-17, that the decision below conflicts with United States v. Edrington, 726 F.2d 1029 (5th Cir. 1984). In Edrington, the indictment alleged that the defendant had escaped from an "institution in which he was confined by direction of the Attorney General," 726 F.2d at 1030 n.1, but was wholly silent as to the basis for the defendant's confinement. Holding that "the underlying basis of the accused's federal custody or confinement is an essential element of the offense proscribed by Section 751(a)," the court found the indictment deficient "because it contain(ed) no reference to the underlying basis of (the defendant's) federal custody." 726 F.2d at 1031. As in Edrington, the court of appeals here ruled that "it is essential that the indictment specify the basis for custody," 888 F.2d at 1121; however, because the more precise language used in this indictment identified the basis of petitioner's confinement as a "judgment and commitment order" issued by a district court, the court below found that the present case was factually distinguishable from Edrington. 888 F.2d at 1122. As petitioner notes, Pet. 16, there is also language in Edrington to the effect that an indictment must allege custody "pursuant to conviction of an identified federal offense." 726 F.2d at 1031. But the court below correctly stated that that particular language was dicta and was ambiguous as to "what identification the Edrington court intended to require." 888 F.2d at 1122. In the absence of any subsequent holding by the Fifth Circuit that an identification of the reason for incarceration like the one in this case would be inadequate, there is no conflict that warrants review by this Court. /4/ 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 ROBERT J. ERICKSON Attorney APRIL 1990 /1/ Since the petition appendix contains a retyped version of the court of appeals' opinion that differs from the reported version, we will refer to the reported version. /2/ "J.A." refers to the joint appendix filed in the court of appeals. /3/ 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); 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, 108 S. Ct. 2829 (1988). "If, despite their inflexibility, mandatory sentencing provisions withstand due process scrutiny, so too must the sentencing guidelines." United States v. Erves, 880 F.2d at 379. /4/ United States v. Green, 797 F.2d 855 (10th Cir. 1986), also does not conflict with the decision below. In Green, the indictment alleged that the defendant escaped from custody due to his "arrest for the offense of violation of federal parole." As an alternative ground for decision, Green concluded that the indictment was insufficient, because Section 751 did not include an arrest for a parole violation as a form of "custody" within the meaning of that law. 797 F.2d at 858. By contrast, petitioner escaped from custody based on his conviction for a federal offense, and that form of custody fits squarely within Section 751.