Faulks v. United States - Opposition

No. 06-999

In the Supreme Court of the United States

CELESTINE FAULKS, PETITIONER

v.

UNITED STATES OF AMERICA

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

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
NINA GOODMAN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the procedural requirements of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Wash ington, 542 U.S. 296 (2004), precluded the district court from finding, by a preponderance of the evidence, that petitioner had violated a condition of supervised release, and then requiring her to serve a term of imprisonment upon revocation of her supervised release.

In the Supreme Court of the United States

No. 06-999

CELESTINE FAULKS, PETITIONER

v.

UNITED STATES OF AMERICA

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

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-4a) is not published in the Federal Reporter but is available at 195 Fed. Appx. 196.

JURISDICTION

The judgment of the court of appeals was entered on September 19, 2006. On December 12, 2006, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including January 17, 2007, and the petition was filed on that date. 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 Eastern District of Virginia, petitioner was convicted of conspiracy to defraud a financial insti tution, in violation of 18 U.S.C. 371, and bank fraud, inviolation of 18 U.S.C. 1344. C.A. App. 4-5, 12. She was sentenced to 30 months of imprisonment, to be followed by five years of supervised release. Id. at 13-14. After her release from prison, petitioner violated the terms of her supervised release. Pet. App. 2a. The district court revoked petitioner's supervised release and ordered her to serve an additional 36 months of imprisonment. Ibid. The court of appeals affirmed. Id. at 1a-4a.

1. In 1996, petitioner recruited individuals to open accounts at federally insured credit unions. Petitioner deposited worthless checks drawn on closed accounts or accounts with insufficient funds into those credit union accounts. Then, at petitioner's direction, the credit un ion account holders made cash withdrawals or obtained cashier's checks and gave the money to petitioner. Presentence Investigation Report ¶¶ 4-10 (PSR).

In 1998, petitioner was convicted of conspiracy to defraud a financial institution, in violation of 18 U.S.C. 371, and bank fraud, in violation of 18 U.S.C. 1344. C.A. App. 12. The PSR determined that petitioner's total offense level was 17, her criminal history category was I, and the resulting Sentencing Guidelines range was 24 to 30 months of imprisonment. PSR ¶¶ 66-68. The dis trict court sentenced petitioner to 30 months of impris onment. C.A. App. 13, 18. The court explained that it was sentencing petitioner "at the high end of the guide line range because she did not accept any responsibility for her crimes, the crimes were committed over a signifi cant period of time, and [petitioner] had recruited others to participate in the bank fraud scheme." Id. at 18.1

2. In July 2000, petitioner was released from prison and began to serve her term of supervised release. C.A. App. 19-20. On May 16, 2005, the United States Proba tion Office filed a petition to revoke petitioner's super vised release. Id. at 19-22. The petition alleged that petitioner had violated a condition of that release requir ing her not to "commit another federal, state, or local crime." Id. at 14; see id. at 19-22. The petition ex plained that petitioner had been charged in Virginia state court with forgery, obtaining money under false pretenses, and uttering forged checks. See id. at 21-22.2

On November 9, 2005, the district court held a hear ing to determine whether to revoke petitioner's super vised release. At the hearing, petitioner's counsel noted that petitioner had been indicted on state charges aris ing from "the same factual circumstances" that had prompted the revocation petition. C.A. App. 31. Coun sel asked the district court to "defer[] [the supervised release revocation proceedings] pending the outcome[]" of the state criminal case. Id. at 35. Counsel expressed concern that, in order for petitioner to defend herself against the alleged supervised release violations, she "would have to waive her privilege against self-incrimi nation [and] expose herself to cross-examination under oath," and her testimony could then be used against her in the state court proceedings. Id. at 31-32. The district court refused to postpone the revocation hearing. The court explained that the state criminal prosecution and the federal supervised release revocation proceedings were "separate matters" and that the preponderance-of- the-evidence standard, not the beyond-a-reasonable- doubt standard applicable in criminal trials, applied in revocation proceedings. Id. at 33-34; see id. at 176-177 (observing that "these proceedings are not controlling [in the state case] and cannot be used as any evidence of guilt on any criminal proceedings").

After hearing testimony from several witnesses, C.A. App. 36-120, the court found that the preponderance of the evidence established that petitioner had obtained an ATM card and PIN number from a woman named Violet Blow, had deposited two checks drawn on a closed bank account into Blow's account at Wachovia Bank, and had directed Blow to withdraw the funds the following morn ing, while petitioner waited outside the bank. Id. at 180- 187. Petitioner, testifying on her own behalf, denied any involvement in the scheme. Id. at 149-150. She con tended that another woman, Leslie Williams, had com mitted the offenses. Id. at 173-175, 178. Petitioner tes tified that bank surveillance photographs of the person who deposited the second check resembled Williams. Id. at 151-153.3 Petitioner further claimed that the govern ment's witnesses were "all Leslie Williams' friends." Id. at 157.4

The district court found that petitioner was not a "believable witness." C.A. App. 180. After "dealing with [petitioner] for years," the court was "one hundred per cent sure" and "would find * * * beyond a reasonable doubt" that petitioner was the person pictured in the bank surveillance photos. Id. at 184-185. The court con cluded that petitioner had committed the supervised release violations, revoked petitioner's supervised re lease, and ordered her to serve an additional 36 months of imprisonment. Id. at 185-187, 193; see id. at 201-203 (Order).

At a hearing on petitioner's motion for reconsidera tion of the revocation order, Leslie Williams testified that she had not deposited checks into or withdrawn funds from Violet Blow's bank account. C.A. App. 220- 221. In denying petitioner's reconsideration motion, the district court found that Williams "does not have the same physical characteristics as [petitioner] or the indi vidual in the surveillance photographs." Id. at 232-233 & n.1. In particular, the court noted, petitioner is "older (by about twenty years), is much thinner, and has a lighter complexion" than Williams. Id. at 232 n.1.

3. On appeal, petitioner's counsel filed a brief pursu ant to Anders v. California, 386 U.S. 738 (1967), in which he argued that the imposition of an additional term of imprisonment following the revocation of peti tioner's supervised release was unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005). Pet. App. 2a; see Pet. C.A. Br. 7-13. Petitioner filed a pro se supplemen tal brief in which she challenged the sufficiency of the evidence supporting the district court's revocation rul ing. Pet. App. 2a.

The court of appeals affirmed the district court's judgment in an unpublished, per curiam opinion. Pet. App. 1a-4a. The court rejected the argument that the supervised release revocation and additional sentence were unconstitutional under Blakely and Booker. Id. at 2a. The court observed that this Court's opinion in Booker had included the supervised release statute, 18 U.S.C. 3583, in a listing of provisions of the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq., that re mained valid after the Court's decision. Pet. App. 2a (citing Booker, 543 U.S. at 258). The court of appeals also rejected petitioner's challenge to the sufficiency of the evidence to support the revocation decision. Id. at 3a. Noting that the government had presented the testi mony of several witnesses "who explained the fraudulent scheme masterminded by [petitioner] and her role therein," the court concluded that the district court was "well within bounds" in rejecting as "incredible" peti tioner's claim that Williams had perpetrated the fraud. Ibid.

ARGUMENT

Petitioner contends (Pet. 7-29) that the district court's conduct of supervised release revocation pro ceedings leading to the revocation of supervised release and the imposition of a sentence of imprisonment was contrary to Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004). Those cases require that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence ex ceeding the maximum authorized by the facts estab lished by a plea of guilty or a jury verdict must be ad mitted by the defendant or proved to a jury beyond a reasonable doubt." United States v. Booker, 543 U.S. 220, 244 (2005). Petitioner claims that the finding that she violated her supervised release subjected her to criminal punishment not authorized by the jury verdict on her underlying offenses, and the supervised-release violation was not charged by indictment or proved to a jury beyond a reasonable doubt. The court of appeals correctly rejected that claim, and it does not warrant this Court's review.

1. At petitioner's initial sentencing for her conspir acy and bank fraud convictions, the district court had authority to "include as a part of the sentence" a term of supervised release. 18 U.S.C. 3583(a). During a super vised release term, the defendant is required to comply with court-imposed conditions. 18 U.S.C. 3583(d). If the district court "finds by a preponderance of the evidence that the defendant violated a condition of supervised release," the court is authorized to "revoke [the] term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release," up to specified limits based on the seriousness of the underlying offense. 18 U.S.C. 3583(e)(3).

Those provisions of Section 3583 were in effect when petitioner committed her offenses of conviction in 1996. Therefore, the statutory maximum sentence that peti tioner could have received for those offenses included a 30-year term of imprisonment on the bank fraud count, see 18 U.S.C. 1344, a five-year term of imprisonment on the conspiracy count, see 18 U.S.C. 371, a five-year term of supervised release, see 18 U.S.C. 3583(b)(1), and an additional three-year term of imprisonment if she vio lated any condition of her supervised release, see 18 U.S.C. 3583(e)(3). Petitioner was sentenced within that statutory maximum to an initial 30-month term of im prisonment and a five-year term of supervised release, followed by an additional three-year term of imprison ment, when it was established that she had committed violations of her supervised release conditions. There was no Apprendi error.

Petitioner's contention (Pet. 22-29) that imposition of the additional three-year term of imprisonment was un constitutional under Apprendi lacks merit. A proceed ing to revoke a defendant's term of supervised release is fundamentally different from an initial sentencing pro ceeding. Unlike initial sentencing, the revocation of su pervised release does not impose punishment for a new offense. Instead, the revocation of supervised release modifies the already-authorized punishment for an ear lier offense-the offense of conviction. Because the re vocation of supervised release does not impose any pun ishment that is not already authorized by the jury ver dict on the underlying offense, it does not implicate Apprendi.

Although this Court has applied the Apprendi rule to a variety of sentencing regimes, the Court has never extended the rule beyond initial sentencing proceedings. See Apprendi, 530 U.S. at 468-469 (statutory enhance ment to sentence); Ring v. Arizona, 536 U.S. 584, 592-595 (2002) (capital sentencing); Blakely, 542 U.S. at 299-300 (determinate sentencing guidelines); Booker, 543 U.S. at 227-229 (same). Moreover, the Court made clear in Booker that there is no constitutional defect in the statutory provisions permitting violations of super vised release to be found by the district court by a pre ponderance of the evidence. The Court noted that many provisions of the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq., are "perfectly valid" notwithstand ing the Booker decision, and it specifically listed the su pervised release statute, 18 U.S.C. 3583, as an example of a valid provision. See Booker, 543 U.S. at 258.

Petitioner's contrary view depends on the premise that a district court, when revoking supervised release and reimprisoning a defendant, imposes punishment for the violation of supervised release. That premise is in correct. In Johnson v. United States, 529 U.S. 694 (2000), decided just one month before Apprendi, this Court noted the "serious constitutional questions that would be raised by construing revocation and reimpris onment as punishment for the violation of the conditions of supervised release." Id. at 700. One of several consti tutional problems that would be raised by that approach, the Court explained, is the fact that "the violative con duct * * * need only be found by a judge under a pre ponderance of the evidence standard, not by a jury be yond a reasonable doubt." Ibid. The Court concluded that "[t]reating postrevocation sanctions as part of the penalty for the initial offense * * * avoids these diffi culties. * * * We therefore attribute postrevocation penalties to the original conviction." Id. at 700-701. Thus, rather than punishing a defendant for violating a condition of supervised release, revocation of supervised release is part of the authorized punishment imposed for the underlying offense. See, e.g., United States v. Fareed, 296 F.3d 243, 247 (4th Cir.) (noting that this Court "held in Johnson that post-revocation prison sen tences are sentences for the original federal crime, not punishment for the violation of the terms of supervised release"), cert. denied, 537 U.S. 1037 (2002).5

Consequently, when a defendant is convicted of an offense and receives a term of supervised release, the maximum term of imprisonment to which he is exposed is already established, based on his admissions or a jury verdict, to include time in prison if supervised release is revoked. The revocation of supervised release does not enlarge the defendant's maximum potential prison term. Instead, it represents the withdrawal of the right to con tinue on a release status that was conditional at the out set. See United States v. Huerta-Pimental, 445 F.3d 1220, 1225 (9th Cir.) ("[I]mposition of imprisonment fol lowing the revocation of supervised release is part of the original sentence authorized by the fact of conviction and does not constitute additional punishment beyond the statutory maximum."), cert. denied, 127 S. Ct. 545 (2006).6

In that respect, the revocation of supervised release is comparable to the revocation of parole or probation rather than initial criminal sentencing. See Johnson, 529 U.S. at 710-711 (noting the "similarity" between su pervised release and parole); see also, e.g., United States v. Hall, 419 F.3d 980, 985 n.4 (9th Cir.) ("Parole, probation, and supervised release revocation hearings are constitutionally indistinguishable and are analyzed in the same manner."), cert. denied, 126 S. Ct. 838 (2005); United States v. Jones, 299 F.3d 103, 109 (2d Cir. 2002) ("[T]he constitutional guarantees governing revo cation of supervised release are identical to those appli cable to revocation of parole or probation."). In parole or probation revocation proceedings, the full sweep of rights associated with a criminal trial does not apply. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 480 (1972) ("[R]evocation of parole is not part of a criminal prose cution and thus the full panoply of rights due a defen dant in such a proceeding does not apply to parole revo cations."); Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) ("Probation revocation, like parole revocation, is not a stage of a criminal prosecution."). Likewise, the Sixth Amendment rights accorded in a criminal prosecution do not apply to supervised release revocation. See United States v. Carlton, 442 F.3d 802, 809 (2d Cir. 2006) ("[I]t is evident that the constitutional rights afforded a defen dant subject to revocation of supervised release for vio lation of its conditions are not co-extensive with those enjoyed by a suspect to whom the presumption of inno cence attaches."); United States v. Work, 409 F.3d 484, 491 (1st Cir. 2005) ("The law is clear that once the origi nal sentence has been imposed in a criminal case, fur ther proceedings with respect to that sentence are not subject to Sixth Amendment protections.").

That conclusion is consistent with the established understanding that parole, probation, or "a sentence of supervised release by its terms involves a surrender of certain constitutional rights." Carlton, 442 F.3d at 809. See, e.g., United States v. Knights, 534 U.S. 112, 119 (2001) ("Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled.") (internal quotation marks and citation omitted). Part of the punishment entailed by parole, probation, or supervised release is the imposition of "reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." Ibid. And "it has long been understood that a fundamental and unchallenged condition of probation is that the pro bationer surrender his right to trial by jury should the government seek revocation, and thus imprisonment." United States v. Cranley, 350 F.3d 617, 621 (7th Cir. 2003). Likewise, one of the conditions placed on a defen dant's liberty in supervised release is that the super vised release may be revoked and imprisonment reim posed based on a judicial finding by a preponderance of the evidence of a violation of the terms of that release. See 18 U.S.C. 3583(e)(3).

Petitioner's proposed extension of Apprendi to su pervised release revocation proceedings would seriously undermine the government's interest in effectively su pervising prisoners following their release from impris onment. See, e.g., Samson v. California, 126 S. Ct. 2193, 2200 (2006) (emphasizing importance of State's "inter ests in reducing recidivism and thereby promoting rein tegration and positive citizenship among probationers and parolees"); United States v. Johnson, 529 U.S. 53, 59 (2000) ("Congress intended supervised release to as sist individuals in their transition to community life."). The difficulties that petitioner's approach would create are well illustrated by her contention (Pet. 26-27) that her supervised release violations should have been charged by indictment. That would indeed be a neces sary consequence of a holding that Apprendi applies. See United States v. Cotton, 535 U.S. 625, 627 (2002). But indicting a defendant for a supervised release viola tion would conflict with the settled understanding that such revocation does not punish the defendant for a new offense. See Johnson, 529 U.S. at 700. It would also produce the anomaly that, if the supervised release vio lation truly increased the punishment for the underlying offense, as petitioner's Apprendi argument implies, the indictment for the original offense would have to include that fact. But that would not be possible, because the supervised release violation does not occur until after conviction.

The implications of petitioner's theory could extend far beyond proceedings governing the revocation of su pervised release. The factual determinations supporting revocation of probation and parole would likely become subject to Apprendi as well.7 Indeed, the institution of parole itself could be swept into the Sixth Amendment. Although the decision to release a prisoner on parole is generally discretionary, there may be factual findings that must accompany any decision to grant or withhold parole. Petitioner's proposed theory might well apply to such findings. Similarly, the facts supporting prison disciplinary proceedings that result in the withdrawal of good-time credits might also fall within Apprendi's do main if petitioner's theory were accepted. Those poten tial outcomes counsel against extending Apprendi to post-sentencing determinations that have an effect on the amount of prison time served.

2. a. Every court of appeals that has addressed the issue has held that Apprendi does not apply to revoca tion of a defendant's supervised release followed by im position of an additional term of imprisonment. See United States v. Dees, 467 F.3d 847, 854-855 (3d Cir. 2006), petition for cert. pending, No. 06-10826 (filed Apr. 18, 2007); United States v. Cordova, 461 F.3d 1184, 1186- 1188 (10th Cir. 2006); Huerta-Pimental, 445 F.3d at 1223-1225; Carlton, 442 F.3d at 807-810; United States v. Hinson, 429 F.3d 114, 116-119 (5th Cir. 2005), cert. denied, 126 S. Ct. 1804 (2006); Work, 409 F.3d at 489- 492; United States v. Coleman, 404 F.3d 1103, 1104-1105 (8th Cir. 2005) (per curiam); Pet. App. 2a.

Petitioner attempts to undermine that uniform con clusion by arguing (Pet. 7, 14-19) that the courts of ap peals have taken "conflicting approaches" in reaching the same result. That is incorrect. Although the courts of appeals have sometimes advanced different reasons for their common conclusion, there is no inconsistency in the reasons on which the courts have relied. In any event, any divergence in reasoning does not change the essential fact that the holdings of all the courts of ap peals are identical: Apprendi does not constrain the revocation of supervised release, and Section 3583(e)(3) is constitutional. This Court "reviews judgments, not statements in opinions." California v. Rooney, 483 U.S. 307, 311 (1987) (per curiam) (quoting Black v. Cutter Labs., 351 U.S. 292, 297 (1956)). Absent disagreement among the circuits about the constitutionality of Section 3583(e)(3), this Court's review is not warranted.

b. Petitioner also contends (Pet. 19-22) that the court of appeals' decision conflicts with several state- court decisions. None of the cases on which petitioner relies is a decision of a state court of last resort, how ever, and thus any conflict between one of those deci sions and the decision below would not warrant the exer cise of this Court's certiorari jurisdiction. See Sup. Ct. R. 10(a). In any event, there is no conflict. None of the state-court decisions addresses the constitutionality of the federal supervised release statute or any analogous question.

State v. Buehler, 136 P.3d 64 (Or. Ct. App. 2006), on which petitioner principally relies, did not involve a chal lenge to a sentence imposed after revocation of a term of probation or supervised release. Instead, the court held that the defendant's original sentence violated Blakely and Apprendi because the trial court departed upward from a presumptive sentence of probation to a sentence of imprisonment based on facts that were not admitted by the defendant or found by a jury. Id. at 65-66. Simi larly, both State v. Gibson, No. 05 COA 032, 2006 WL 2256994 (Ohio Ct. App. Aug. 8, 2006) (unpublished), and State v. McMahan, 621 S.E.2d 319 (N.C. Ct. App. 2005), review allowed, 640 S.E.2d 390 (N.C. 2006), involved challenges to the sentences imposed at the defendants' original sentencing proceedings. Neither case involved a claim that Apprendi requires the finding that the de fendant violated the conditions of probation to be made by a jury beyond a reasonable doubt.

Likewise, in State v. Beaty, 696 N.W.2d 406 (Minn. Ct. App. 2005), the defendant did not contend that Apprendi applied to the trial court's finding that he vio lated the conditions of his probation. On the contrary, the defendant "admitted the violations," id. at 408, and instead raised a standard Blakely challenge to the sen tence imposed. He argued that the sentence "was an upward durational departure from the presumptive guidelines sentence," and the facts supporting the de parture therefore should have been found by the jury. Id. at 408, 412. Unlike the defendant in Beaty, peti tioner does not claim that the district court erred in sen tencing her above the advisory Sentencing Guidelines range.8

Nor does State v. France, No. E2003-01293-CCA- R3CD, 2004 WL 1606987 (Tenn. Crim. App. July 19, 2004) (unpublished decision), conflict with the decision in this case. In France, the court merely noted that Blakely "call[ed] into question" the validity of the State's overall sentencing scheme. Id. at *2 n.1. The court's actual holding was based entirely on unrelated state-law grounds. Id. at *4-*5.

3. Even if the Apprendi question that petitioner raises otherwise warranted this Court's review, this case would be an inappropriate vehicle for resolving it. Peti tioner forfeited the claim that the revocation of her su pervised release and the imposition of an additional term of imprisonment violated Apprendi because she did not raise that claim in the district court. Petitioner did not cite Apprendi, Blakely, or Booker during the super vised release proceedings, and did not contend that the proceedings violated her Fifth Amendment right to a grand jury indictment or her Sixth Amendment right to a jury finding of guilt beyond a reasonable doubt. See C.A. App. 31-35. Instead, petitioner requested that the court "defer[]" the revocation hearing pending resolu tion of the state charges against her, on the ground that her testimony at the revocation hearing might be viewed as a waiver of her Fifth Amendment privilege against self-incrimination, permitting that testimony to be used against her in the state prosecution. Id. at 31-32, 35.

Because petitioner did not preserve her Apprendi claim in the district court, that claim may be reviewed only for plain error. Fed. R. Crim. P. 52(b). Under the plain error standard, an error does not warrant reversal on appeal unless a defendant can show that it was "clear" or "obvious" and affected his substantial rights. United States v. Olano, 507 U.S. 725, 732-734 (1993). Even then, reversal is not warranted unless the defen dant can show that the error seriously affected the fair ness, integrity, or public reputation of the proceedings. Id. at 736.

Petitioner cannot satisfy that standard. Even assum ing arguendo that the district court's imposition of an additional term of imprisonment based on its finding of a supervised release violation was error, the error was not plain. This Court has never extended Apprendi be yond initial sentencing proceedings, and the Court in Booker deemed the supervised release provisions "per fectly valid." Booker, 543 U.S. at 258. In light of the uniform authority in the courts of appeals holding that the revocation of supervised release does not implicate Apprendi, any error cannot have been "clear" or "obvi ous." Olano, 507 U.S. at 734.

Moreover, petitioner could not establish that any error affected her substantial rights or seriously af fected the fairness, integrity, or public reputation of judicial proceedings. Petitioner did not contest the gov ernment's evidence showing that worthless checks were deposited into an account at Wachovia Bank or that funds were withdrawn from the account illegally. The only fact in dispute at the supervised release revocation hearing was whether the person pictured in bank sur veillance photos depositing one of the checks was peti tioner or was instead Leslie Williams, as petitioner claimed. In light of the district court's findings on the differences in age and appearance between petitioner and Williams, and the court's conclusion "beyond a rea sonable doubt" that petitioner was the person depicted in the bank photos, C.A. App. 184-185, 232-233 & n.1, petitioner's claim of mistaken identity was insufficient to raise a serious dispute about her involvement in the illegal bank transactions. Cf. Cotton, 535 U.S. at 633 (fourth component of plain-error test not satisfied when relevant fact is "essentially uncontroverted") (quoting Johnson v. United States, 520 U.S. 461, 470 (1997)).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
NINA GOODMAN
Attorney

MAY 2007

1 In an interview with the probation officer, petitioner claimed that a neighbor who resembled her had committed the crimes, that photo graphs introduced at trial were actually pictures of the neighbor, and that petitioner's fingerprints were found on one of the checks used in the commission of the offenses because the neighbor had given pet itioner the check. PSR ¶ 16.

2 The Probation Office subsequently submitted an addendum to the petition which noted that petitioner had been indicted by a state grand jury on the forgery and uttering charges. C.A. App. 23-24; see id. at 34- 35.

3 Several of petitioner's relatives and friends also testified that the bank photos did not appear to be petitioner. C.A. App. 122-123, 133- 134, 139, 141, 145, 148.

4 Petitioner also testified that her wallet had been stolen and that another person told her that Williams had the wallet. C.A. App. 153- 154. Petitioner acknowledged, however, that there was no suggestion that her identification was used in any of the bank transactions. Id. at 160-161.

5 For that reason, the revocation of supervised release is quite different from the criminal contempt fines at issue in International Union, United Mine Workers v. Bagwell, 512 U.S. 821 (1994), on which petitioner relies (Pet. 9-10, 28). In that case, the Court concluded that fines of $52 million were "criminal," and triggered the right to trial by jury, in part because they punished the union for violating an injunction entered by the district court. Bagwell, 512 U.S. at 826-830, 837-838. The imprisonment imposed upon revocation of supervised release, in contrast, does not punish the defendant for violating the terms of supervised release. Instead, it is part of the punishment authorized for the underlying offense, and a defendant enjoys the right to a jury trial before that punishment may be imposed.

6 Petitioner asserts that her "1998 conviction authorized a maximum sentence under the then-mandatory Guidelines of 30 months' imprison ment." Pet. 23. By modifying the Sentencing Reform Act to make the Guidelines advisory, however, Booker remedied the constitutional problem presented by the mandatory Guidelines. See Booker, 543 U.S. at 258-260. Thus, the maximum sentence authorized by the jury verdict in a federal criminal case is now the statutory maximum for the offense under the United States Code. To the extent that petitioner's argument is based on the fact that she was convicted and sentenced before the decision in Booker, when the effective maximum was lower than the maximum specified by statute, petitioner presents a transitional issue that is of diminishing importance and does not warrant this Court's review.

7 Although petitioner asserts that "supervised release is funda mentally distinguishable from parole" (Pet. 17), the formal declaration by a State to a parolee that the individual remains in "legal custody" (Pet. 12 n.12) (quoting S. Rep. No. 225, 98th Cong., 1st Sess. 122 (1983)) does not seem a particularly significant factor under a doctrine whose "relevant inquiry is not one of form, but of effect." Pet. 25 (quoting Apprendi, 530 U.S. at 494). And petitioner makes no effort to distin guish revocation of probation from revocation of supervised release.

8 Chapter 7 of the Sentencing Guidelines, which applies to violations of probation or supervised release, was understood as advisory even be fore Booker. See, e.g., Huerta-Pimental, 445 F.3d at 1224 ("Because the revocation of supervised release and the subsequent imposition of additional imprisonment is, and always has been, fully discretionary, it is constitutional under Booker.").