Dunphy v. United States - Opposition

No. 08-1185

In the Supreme Court of the United States

GENA MARIE DUNPHY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH 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. 08-1185

GENA MARIE DUNPHY, PETITIONER

v.

UNITED STATES OF AMERICA

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

MEMORANDUM FOR THE UNITED STATES
IN OPPOSITION

Petitioner contends (Pet. 7-26) that Court should grant certiorari to resolve the circuit conflict on the question 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 petitions raising the same basic claim. As the government has ex plained in its brief in opposition to the first of those peti tions, see United States v. Rhodes, No. 08-8318 (filed Mar. 27, 2009),1 although the courts of appeals are divided on this issue, this Court's review of that issue is not currently war ranted.

Six of the seven 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 (No. 08-8318) (citing cases). Although the Ninth Circuit's deci sion in United States v. Hicks, 472 F.3d 1167 (2007), is in consistent with these decisions, 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 peti tion for an initial en banc review urging the Ninth Circuit to overrule its decision in Hicks. If the court of appeals grants the government's petition and agrees that Hicks should be overruled, the current circuit conflict will disap pear. If the court of appeals denies the government's peti tion (or grants the petition and reaffirms Hicks), the gov ernment would retain the option of seeking this Court's review at that time. The pendency of the proceedings in Fox, therefore, renders this Court's review of the issue pre mature.2

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

ELENA KAGAN
Solicitor General

APRIL 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.