McClellan v. United States - Opposition

No. 07-1154

In the Supreme Court of the United States

STEPHEN DALE MCCLELLAN, 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
MATTHEW W. FRIEDRICH
Acting Assistant Attorney General
KIRBY A. HELLER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the district court violated petitioner's Sixth Amendment rights by finding facts, by the prepon derance of the evidence, that increased petitioner's advi sory Sentencing Guidelines range.

2. Whether the court of appeals properly reviewed petitioner's sentence for reasonableness.

In the Supreme Court of the United States

No. 07-1154

STEPHEN DALE MCCLELLAN, 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. A1-A5) is not published in the Federal Reporter but is reprinted in 257 Fed. Appx. 654.

JURISDICTION

The judgment of the court of appeals was entered on December 10, 2007. The petition for a writ of certiorari was filed on March 10, 2008. 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 Western District of North Carolina, peti tioner was convicted of conspiracy to possess in excess of 1.5 kilograms of methamphetamine with the intent to distribute it, in violation of 21 U.S.C. 841 (2000 & Supp. V 2005) and 18 U.S.C. 846. He was sentenced to 36 months of imprisonment, to be followed by three years of supervised release. Pet. App. A2, A10, A12. In an alternative judgment, petitioner was sentenced to 121 months of imprisonment, to be followed by three years of supervised release. Id. at A23, A25. The court of appeals remanded for resentencing in accordance with the alternative judgment. Id. at A1-A5.

1. Petitioner, along with six others, was charged with conspiracy to possess in excess of 1.5 kilograms of meth amphetamine with the intent to distribute it, in violation of 21 U.S.C. 841 (2000 & Supp. V 2005) and 18 U.S.C. 846. Pet. App. A2. At trial, petitioner admitted that he was addicted to methamphetamine and had possessed 20 grams of the illegal drug, but he denied participating in the more extensive conspiracy that government wit nesses described. C.A. App. 44-45; Pet. App. A41-A43.

A jury found petitioner guilty; it additionally found by special verdict that the conspiracy involved at least 1.5 kilograms of a substance containing methamphet amine, but that the government did not prove beyond a reasonable doubt that petitioner knew or could have reasonably foreseen that the conspiracy involved that amount. The jury was not asked to make any additional findings as to the amount of drugs attributable to peti tioner. Id. at A33.

The Presentence Investigation Report (PSR) calcu lated the base offense level to be 34, based on the 1.5 kilogram drug quantity attributed to the conspiracy. With a criminal history category of I, petitioner's sen tencing range under the Guidelines was 151 to 188 months of imprisonment. Pet. App. A33. The district court rejected the PSR calculations and concluded that it could sentence petitioner based only on the 20 gram drug quantity that petitioner had admitted to possess ing. Under that assumption, the base offense level was 20 and the Guidelines sentencing range was 33 to 41 months. The court sentenced petitioner to 36 months of imprisonment. Id. at A33-A34.

2. The government appealed and the court of appeals reversed and remanded for resentencing. It held that petitioner's sentence was unreasonable because the dis trict court had failed to calculate the advisory Guidelines range using all methamphetamine amounts properly attributable to petitioner under the advisory Guidelines and thus had imposed sentence as the result of an incor rect application of the Guidelines. Pet. App. A35-A37 & n.*.

3. On remand, the district court entered two amended judgments. One amended judgment reim posed a sentence of 36 months of imprisonment, reflect ing an advisory Guidelines range of 33 to 41 months based on the drug quantity that petitioner had admitted. In the district court's view, that was the "correct" range and a 36-month sentence was "reasonable" because a defendant could only be held responsible for a drug quantity that is found by a jury or admitted by the de fendant. Pet. App. A52-A54.

The court simultaneously issued an alternative amended judgment that imposed a sentence of 121 months of imprisonment. The court explained that the alternative sentence responded to the court of appeals' "directive for the Court to make its own findings" as to the drug quantity attributable to petitioner. Pet. App. A54. Based on the evidence at trial and as contained in the PSR, the court found that petitioner "knew, under stood and foresaw the involvement of the conspiracy in the amount of at least 500 grams [of methamphet amine]." Ibid. The resulting offense level of 32 pro duced an advisory Guidelines range of 121 to 151 months, which the court concluded "provide[d] an appro priate window for the imposition of a reasonable sen tence." Id. at A55.

The court made clear that, in imposing the alterna tive sentence of 121 months of imprisonment, it had con sidered the factors in 18 U.S.C. 3553(a) (2000 & Supp. V 2005):

So, there are two judgments. The first will be impos ing the original judgment. The alternative judg ment, if the Court [of Appeals] finds that I have the authority to find facts by a preponderance of the evi dence. Having sat at the trial and reviewed the pa pers filed in the case, the Court, by a preponderance of the evidence determines that an appropriate amount was 500 grams and imposed the alternative judgment * * * on the basis of offense level 32, and then taking again into consideration [United States v.] Booker, [543 U.S. 220 (2005),] the fact that the Guidelines are no longer mandatory, and 3553(a).

Pet. App. A55-A56.

4. The government appealed the amended judgment imposing a sentence of 36 months of imprisonment. The court of appeals held that, under the Fourth Circuit's post-Booker precedent, the district court was required to make findings on drug quantity in applying the advi sory Guidelines. Pet. App. A4. It reasoned that "a dis trict court does not violate the Sixth Amendment by making factual findings as to drug quantity by a prepon derance of the evidence as long as the fact-finding does not enhance the sentence beyond the maximum term specified in the substantive statute." Ibid. Accordingly, it vacated the amended judgment and remanded for resentencing "in accordance with the district court's alternative amended judgment." Ibid. On remand, the district court resentenced petitioner to 121 months of imprisonment. 1:04-cr-0074-LHT-DLH-5 Docket entry No. 223 (W.D. N.C. Jan. 8, 2008).

ARGUMENT

Petitioner contends (Pet. 9-12) that the court of ap peals violated his Sixth Amendment rights when it re manded with instructions to impose an alternative sen tence based on judicial factual findings that increased his advisory Sentencing Guidelines range. He also con tends (Pet. 12-17) that the court of appeals' review for reasonableness was inconsistent with this Court's deci sion in Gall v. United States, 128 S. Ct. 586 (2007), and that its remand instructing the district court to impose the alternative amended judgment denied the district court the opportunity to consider whether an out-of- Guidelines sentence was warranted in light of the fac tors in 18 U.S.C. 3553(a) (2000 & Supp. V 2005). Those contentions are without merit, and further review is not warranted.1

1. a. Petitioner was sentenced under advisory Guide lines in accordance with United States v. Booker, 543 U.S. 220 (2005). Booker held that any fact (other than a prior conviction) necessary to support a sentence ex ceeding the maximum authorized by a guilty plea or jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. Id. at 244. By sever ing provisions of the Sentencing Reform Act of 1984, Pub. L. No. 98-473, § 211, 98 Stat. 1987, to make the Guidelines advisory rather than mandatory, Booker remedied the constitutional problem presented by man datory federal Sentencing Guidelines: the maximum sentence authorized by the jury verdict in federal crimi nal cases is now the statutory maximum for the offense under the United States Code. As long as the sentence imposed does not exceed that statutory maximum, the court may constitutionally impose sentence based on facts it finds by a preponderance of the evidence. See id. at 233 (noting that, "when a trial judge exercises his discretion to select a specific sentence within a de fined range, the defendant has no right to a jury deter mination of the facts that the judge deems relevant"). Here, the maximum sentence authorized by the jury verdict was 20 years of imprisonment, see 21 U.S.C. 841(b)(1)(C) (Supp. V 2005), more than the 121 months to which petitioner was sentenced.

The Court reaffirmed in Cunningham v. California, 127 S. Ct. 856, 866 (2007), that "there was no disagree ment among the Justices" that judicial fact-finding un der advisory Sentencing Guidelines "would not implicate the Sixth Amendment." And, in Rita v. United States, 127 S. Ct. 2456, 2465-2466 (2007), the Court again con firmed that its "Sixth Amendment cases do not automat ically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence." See id. at 2467 (noting Booker's recognition that fact-finding by judges does not implicate the constitutional issues confronted in that case if the Guidelines are not "binding").

Since Booker, the courts of appeals have uniformly held that a sentencing judge generally may find, by a preponderance of the evidence, facts relevant to deter mining the advisory Guidelines range. See, e.g., United States v. Grier, 475 F.3d 556, 567-568 (3d Cir.) (en banc), cert. denied, 128 S. Ct. 106 (2007); United States v. Kilby, 443 F.3d 1135, 1140 (9th Cir. 2006); United States v. Garcia, 439 F.3d 363, 369 (7th Cir. 2006); United States v. Vaughn, 430 F.3d 518, 525-527 (2d Cir. 2005), cert. denied, 547 U.S. 1060 (2006); United States v. Yeje- Cabrera, 430 F.3d 1, 23 (1st Cir. 2005); United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005), cert. denied, 127 S. Ct. 121 (2006); United States v. Magallanez, 408 F.3d 672, 683-685 (10th Cir.), cert. denied, 546 U.S. 955 (2005); United States v. Yagar, 404 F.3d 967, 972 (6th Cir. 2005); United States v. Mares, 402 F.3d 511, 519 & n.6 (5th Cir.), cert. denied, 546 U.S. 828 (2005); United States v. Duncan, 400 F.3d 1297, 1304-1305 (11th Cir.), cert. denied, 546 U.S. 940 (2005).

b. Petitioner relies on Justice Scalia's statement in Rita that the Court's opinion in that case does "not rule out as-applied Sixth Amendment challenges to sentences that would not have been upheld as reasonable on the facts encompassed by the jury verdict or guilty plea," Pet. 11 (quoting Rita, 127 S. Ct. at 2479 (Scalia, J., con curring in part and concurring in the judgment)); see Gall, 128 S. Ct. at 602-603 (Scalia, J., concurring). He contends that his Sixth Amendment rights were violated because his sentence "would not be mandated by the Fourth Circuit but for the existence of a judicial finding of drug quantity." Pet. 11-12. As an initial matter, the Fourth Circuit did not "mandate" a particular sentence; rather, it determined that the district court's alternative sentence reflected a correct application of the Guidelines (taking into account the district court's own drug quan tity findings) and a correct exercise of discretion under Section 3553(a) and Booker. See pp. 4-5, infra. The court of appeals did not decree that the quantity find ings required a higher sentence.

In any event, for the reasons explained above, as long as the sentencing court's legal discretion extends to the maximum established by the United States Code, any such as-applied Sixth Amendment challenge must fail. And even if an as-applied challenge were available, peti tioner could not establish that his 121-month sentence would be unreasonable for the drug conspiracy found by the jury. Cf. Rita, 127 S. Ct. at 2473 (Stevens, J., con curring). This Court has recently denied review in sev eral cases that involved similar claims, see, e.g., Brad ford v. United States, 128 S. Ct. 1446 (2008); Alexander v. United States, 128 S. Ct. 1218 (2008), and the same result is warranted here, especially because petitioner did not raise an as-applied challenge to the alternative amended judgment in the court below, and the court of appeals did not address such a challenge in its opinion. This Court's "traditional rule * * * precludes a grant of certiorari * * * when the question presented was not pressed or passed upon below." United States v. Williams, 504 U.S. 36, 41 (1992) (internal quotation marks and citation omitted).

2. a. Petitioner contends (Pet. 12-15) that the court of appeals' decision ordering entry of the alternative judgment was inconsistent with Gall, supra, because it treated the Guidelines sentence as presumptively cor rect and failed to assess reasonableness in light of the Section 3553(a) factors. That argument is without merit for two reasons.

First, petitioner did not cross-appeal the alternative sentence; nor did he challenge the 121-month sentence as unreasonable in his response to the government's appeal. As a result, the court of appeals was asked nei ther whether the 121-month sentence was reasonable nor whether the district court adequately addressed the Section 3553(a) factors. Instead, the court of appeals considered only the question raised in the government's appeal and correctly held that the district court erred in failing to make a judicial finding of drug quantity in sen tencing petitioner to 36 months of imprisonment.

Second, petitioner's reliance on Gall is misplaced because the alternative 121-month sentence was within, not outside, the properly calculated Guidelines range. To the extent that the court of appeals treated that Guidelines sentence as "presumptively correct," Pet. 15, this Court's decision in Rita establishes that an appel late court may do so consistent with the Sixth Amend ment. 127 S. Ct. at 2465 ("[T]he courts of appeals' 'rea sonableness' presumption * * * simply recognizes the real-world circumstance that when the judge's discre tionary decision accords with the Commission's view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.").

b. Finally, petitioner contends that the court of ap peals "ordered the district court to impose a guideline sentence to the exclusion of all other factors." Pet. 17. The district court, however, recognized its authority to impose an out-of-Guidelines sentence and stated that it had "considered the factors noted in 18 U.S.C. § 3553(a)." Pet. App. A55. "[T]aking * * * into consid eration Booker, the fact that the Guidelines are no lon ger mandatory, and 3553(a)," id. at A56, the district court concluded that the Guidelines range of 121-151 months "provide[d] an appropriate window for the impo sition of a reasonable sentence." Id. at A55. See Rita, 127 S. Ct. 2468 ("[W]hen a judge decides simply to apply the Guidelines to a particular case, doing so will not nec essarily require lengthy explanation. Circumstances may well make clear that the judge rests his decision upon the Commission's own reasoning that the Guide lines sentence is a proper sentence (in terms of § 3553(a) and other congressional mandates) in the typical case, and that the judge has found that the case before him is typical.").

The district court made clear that, if the court of ap peals determined that the district court had the author ity to sentence petitioner based on judicial findings of drug quantity, then the alternative sentence should be imposed. Pet. App. A55-A56 ("So, there are two judg ments. The first will be imposing the original judgment. The alternative judgment, if the Court [of Appeals] finds that I have the authority to find facts by a preponder ance of the evidence."). Under those circumstances, the court of appeals properly ordered the district court to resentence petitioner to the alternative sentence.

4. CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
MATTHEW W. FRIEDRICH
Acting Assistant Attorney General
KIRBY A. HELLER
Attorney

MAY 2008

1 This petition for a writ of certiorari is technically interlocutory, because it seeks review of the court of appeals' remand to the district court for resentencing. Ordinarily, the interlocutory posture of a case "of itself alone furnishe[s] sufficient ground for the denial" of a petition for a writ of certiorari. Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916). Here, however, the scope of the remand was limited to the ministerial task of imposing the specific sentence dictated by the court of appeals.