HECTOR CRUZ-ROSARIO, PETITIONER V. UNITED STATES OF AMERICA No. 90-6609 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The First Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-15) is reported at 914 F.2d 20. JURISDICTION The judgment of the court of appeals was entered on September 12, 1990. The petition for a writ of certiorari was filed on December 7, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's due process rights were violated by a sentence that, in accordance with the Sentencing Guidelines, was more severe than the sentence imposed on a co-defendant who, unlike petitioner, accepted responsibility for his criminal conduct and gave substantial assistance to law enforcement officials. 2. Whether the district court properly determined under the Sentencing Guidelines that petitioner was a minor participant rather than a minimal participant in the offense of conviction. STATEMENT After a jury trial in the United States District Court for the District of Puerto Rico, Petitioner was convicted of distributing cocaine, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 84 months' imprisonment, to be followed by a four-year term of supervised release. The court of appeals affirmed (Pet. App. 1-15). 1. On April 19 and 20, 1989, Miguel Andaluz, an officer of the Puerto Rico Police Department posing as a prospective drug buyer, called co-defendant Roberto Vazquez-Carrera and arranged to buy five kilograms of cocaine. Vazquez-Carrera did not show up at the appointed time and place for the transaction. Instead, petitioner showed up and told Officer Andaluz that the deal had to be delayed. Andaluz called Vazquez-Carrera again, and they agreed the purchase would take place in a shopping center parking lot on April 24, 1989. Pet. App. 4-6. On the appointed day, Andaluz and a police informant drove to the parking lot, where they met petitioner and Vazquez-Carrera. Vazquez-Carrera and the informant left to get the cocaine, while petitioner and Andaluz waited in the parking lot. When Vazquez-Carrera and the informant returned, they were followed in a separate car by co-defendant Victor Vega-Encarnacion, the supplier of the cocaine. After Officer Andaluz inspected the cocaine, Vega-Encarnacion, Vazquez-Carrera, and petitioner were arrested. Pet. App. 6-9. 2. The district court determined that, under the Sentencing Guidelines, the base offense level for petitioner's offense was level 30, and petitioner's criminal history category was Category I. /1/ The court adjusted the offense level downward by two levels, finding that petitioner was a minor participant in the offense. See Guidelines Section 3B1.2. The resulting Guidelines range was 78-97 months' imprisonment. Petitioner was sentenced to 84 months' imprisonment. Pet. App. 12-13. Co-defendant Vazquez-Carrera pleaded guilty to two charges arising out of the cocaine transaction and was sentenced to 60 months' imprisonment. That sentence reflected downward departures based on his substantial assistance to law enforcement officials (Guidelines Section 5K1.1) and on his acceptance of responsibility for the offenses charged (Guidelines Section 3E1.1). See Pet. App. 13-14. /2/ 3. The court of appeals affirmed petitioner's conviction. Pet. App. 1-15. The court refused to review petitioner's claim that he was sentenced in retaliation for his decision to stand trial. The court held that it lacked appellate jurisdiction to review that claim under the relevant statute, 18 U.S.C. 3742(a). Pet. App. 14-15. /3/ The court did review, and rejected, petitioner's contention that the district court erred in finding him to be a minor, rather than a minimal, participant in the offense. The court of appeals found "ample justification" (Pet. App. 13) for the district court's determination. ARGUMENT 1. Petitioner does not dispute that the district court correctly applied the Sentencing Guidelines and imposed a sentence within the Guidelines range. See Pet. 7. Instead, relying on the fact that he received a longer sentence than co-defendant Vazquez-Carrera, petitioner contends that he was improperly penalized for his decision to stand trial. That contention is incorrect. a. As an initial matter, the court of appeals correctly concluded (Pet. App. 14-15) that petitioner's contention provides no basis for appellate review. The applicable statute, 18 U.S.C. 3742(a), does not permit review of a sentence that, like petitioner's, is correctly calculated under the Guidelines and within the Guidelines range. E.g., United States v. Meitinger, 901 F.2d 27, 29 (4th Cir.), cert. denied, 111 S. Ct. 519 (1990); United States v. Davis, 900 F.2d 1524, 1528-1529 (10th Cir.), cert. denied, 111 S. Ct. 155 (1990); United States v. Evidente, 894 F.2d 1000, 1003-1005 (8th Cir.), cert. denied, 110 S. Ct. 1956 (1990). Petitioner's sentence is not reviewable as a sentence "imposed in violation of law," 18 U.S.C. 3742(a)(1). Before the Guidelines were adopted, it was well established that "(a) defendant cannot rely upon his co-defendants' sentence as a yardstick for his own," as petitioner seeks to do. United States v. Castillo-Roman, 774 F.2d 1280, 1283-1284 (5th Cir. 1985). Thus, a defendant convicted after a trial cannot complain merely because his sentence is longer than the sentence imposed on a co-defendant who pleaded guilty. See, e.g., United States v. Lindell, 881 F.2d 1313, 1324-1325 & n.19 (5th Cir. 1989), cert. denied, 110 S. Ct. 1152 (1990); United States v. Rooney, 866 F.2d 28, 33 (2d Cir. 1989); United States v. Benny, 786 F.2d 1410, 1421 (9th Cir.), cert. denied, 479 U.S. 1017 (1986); United States v. Garcia, 785 F.2d 214, 227-228 (8th Cir.), cert. denied, 475 U.S. 1143 (1986). The Sentencing Guidelines do not alter this principle. The Guidelines provide for sentences based not only on the offense but also upon information specific to each defendant, for example, the defendant's criminal history and his role in the offense. Application of the Guidelines will therefore often lead to differences among the sentences of co-defendants, but courts have rejected the notion, advanced here, that "a() Guidelines-mandated sentence * * * could be the product of unfair disparity." United States v. Sanchez Solis, 882 F.2d 693, 699 (2d Cir. 1989). See, e.g., United States v. Goff, 907 F.2d 1441, 1446-1447 (4th Cir. 1990); United States v. Richardson, 901 F.2d 867, 869-870 (10th Cir. 1990); United States v. Monzon, 869 F.2d 338, 347 (7th Cir.), cert. denied, 490 U.S. 1075 (1989. /4/ The difference between petitioner's sentence and Vazquez-Carrera's sentence is the product of "Guidelines-mandated sentenc(ing)" (Sanchez Solis, 882 F.2d at 699). Although the base offense levels for petitioner's and Vazquez-Carrera's drug convictions were the same, the district court adjusted Vazquez-Carrera's offense level downward, pursuant to Guidelines Section 3E1.1, because he accepted responsibility for his criminal behavior, and, pursuant to Guidelines Section 5K1.1, because he lent substantial assistance to the government. Neither of these provisions applied in petitioner's case. /5/ Thus, the sentence imposed on petitioner, though different from that imposed on his co-defendant, was in complete accordance with the Sentencing Guidelines. For that reason, the court of appeals properly refused to review petitioner's disparity claim. b. Petitioner was not denied due process merely because his co-defendant received a more lenient sentence based on the co-defendant's acceptance of responsibility and cooperation with the government. Due process principles do not preclude a sentencing regime that provides incentives for such conduct. In arguing to the contrary, petitioner relies (Pet. 7-8) on North Carolina v. Pearce, 395 U.S. 711 (1969), Bordenkircher v. Hayes, 434 U.S. 357 (1978), United States v. Goodwin, 457 U.S. 368 (1982), and Wasman v. United States, 468 U.S. 559 (1984). Petitioner's reliance is misplaced. In those decisions, this Court held that neither the prosecutor nor a sentencing judge may file more serious charges or impose a more severe sentence to penalize a criminal defendant for exercising a protected procedural right. That holding was in each case premised on the need to guard against increased punishments "actually motivated by vindictive retaliation." Wasman, 468 U.S. at 564. See also Blackledge v. Perry, 417 U.S. 21, 27 (1974); Chaffin v. Stynchcombe, 412 U.S. 17, 25 (1973). Thus, the rule in Pearce and its progeny only applies where there is a "realistic likelihood of vindictiveness." Bordenkircher, 434 U.S. at 362. The rule does not apply where, as here, the punishment complained of reflects the operation of a statutorily mandated sentencing scheme. In Corbitt v. New Jersey, 439 U.S. 212, 222 (1978), this Court recognized the government's "legitimate interest" in encouraging guilty pleas. Based on this recognition, the Court upheld a statutory scheme authorizing more lenient sentences for defendants who pleaded guilty than for those who stood trial. Because the statutory scheme furthered a legitimate government interest, it did not impose a "needless or arbitrary burden on the defendant's constitutional rights." Id. at 223. /6/ The reasoning in Corbitt applies here. The government has a strong interest in providing incentives to encourage defendants to accept responsibility for their criminal conduct and aid law enforcement officials. /7/ The Guidelines provide those incentives through adjustments that result in more lenient sentences. It is neither arbitrary nor punitive to withhold this benefit from defendants who, like petitioner, choose not to engage in conduct that the government may legitimately encourage. /8/ 2. Petitioner contends (Pet. 11) that the district court erred in finding him to be a minor participant, rather than a minimal participant, in the offense. The court of appeals correctly rejected that contention, finding "ample justification" (Pet. App. 13) for the district court's determination. Petitioner provides no basis for setting aside the findings of the lower courts. See United States v. Maldonado-Campos, 920 F.2d 714, 717 (10th Cir. 1990)(to warrant "minimal participant" adjustment, defendant must establish that he was plainly among the least culpable of the participants). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General ROBERT J. ERICKSON Attorney APRIL 1991 /1/ Although the indictment alleged that the cocaine weighed 5,266 grams, it was stipulated at trial that the cocaine weighed 4,366 grams. See Pet. App. 11 n.2. The district court relied on the stipulated amount to determine the base offense level. /2/ Codefendant Vega-Encarnacion stood trial with petitioner and was also convicted of distributing cocaine in violation of 21 U.S.C. 841(a)(1). Vega-Encarnacion was sentenced to 150 months' imprisonment, based on a base offense level of 30, which was adjusted upward two levels for his role as an "organizer, leader, manager, or supervisor" in the offense (Guidelines Section 3B1.1(c)). /3/ 18 U.S.C. 3742(a) provides: (a) * * * A defendant may file a notice of appeal * * * for review of an otherwise final sentence if the sentence -- (1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; or (3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range, or includes a more limiting condition of probation or supervised release under section 3563(b)(6) or (b)(11) than the maximum established in the guideline range; or (4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable. /4/ As explained in the text, petitioner is wrong in contending that his sentence was "imposed in violation of the law" (18 U.S.C. 3742(a)(1) on the ground that it differed from Vazquez-Carrera's sentence. Based on this erroneous contention, petitioner takes the position (Pet. 10) that he had a right to be present at Vazquez-Carrera's sentencing hearing. Petitioner does not cite any support for this position. In any event, petitioner's sentencing hearing occurred before Vazquez-Carrera's, and petitioner was allowed before his hearing to review and discuss with counsel the presentence report on Vazquez-Carrera. Pet. 10. Under these circumstances, petitioner's exclusion from Vazquez-Carrera's hearing caused no prejudice to petitioner. /5/ The district court did adjust petitioner's offense level downward under Guidelines Section 3B1.2(b), finding that petitioner was a minor participant in the offense. /6/ See also Thigpen v. Roberts, 468 U.S. 27, 30 n.4 (1984) (no presumption of vindictiveness attaches when a prosecutor brings enhanced charges after a defendant elects to stand trial); United States v. Goodwin, supra; Bordenkircher v. Hayes, 434 U.S. at 364-365 (a prosecutor may warn a defendant that the defendant will face increased charges if he does not plead guilty, and may enhance the charges if defendant chooses to stand trial). /7/ Although defendants who plead guilty will often receive an adjustment for acceptance of responsibility, Guidelines Section 3E1.1(c) makes clear that "(a) defendant who enters a guilty plea is not entitled to a sentencing reduction under this section as a matter of right." By the same token, "(c)onviction by trial * * * does not automatically preclude * * * such an adjustment." Guidelines Section 3E1.1, Application Note 2. /8/ Petitioner contends (Pet. 7-9) that the result reached by the First Circuit here conflicts with its decision in United States v. Mazzaferro, 865 F.2d 450 (1st Cir. 1989). Mazzaferro was a pre-Guidelines case in which two co-defendants who pleaded guilty received ten-year sentences, while a third co-defendant who stood trial received a 20-year sentence. In Mazzaferro, the court remanded for resentencing of the third co-defendant, relying on Bordenkircher v. Hayes to hold that the sentencing court was required to explain the substantial disparity in the sentences. We believe that Mazzaferro was wrongly decided; in any event, it is inapposite here. The court in Mazzaferro indicated that it would not have remanded for resentencing if the Guidelines had applied in the case before it, because the Guidelines would have produced no more than a 31-month difference in sentences. Id. at 460. The difference in the sentences imposed in the present case is smaller than the difference that the Mazzaferro court would have found acceptable, and is explained by the operation of the Guidelines. Under these circumstances, Mazzaferro would not require a different result. In any event, any tension between Mazzaferro and later First Circuit decisions is for that court to address. See Wisniewski v. United States, 353 U.S. 901, 902 (1957).