BRIAN JOHN TIBESAR, PETITIONER V. UNITED STATES OF AMERICA No. 89-7036 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 Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-4) is reported at 894 F.2d 317. JURISDICTION The judgment of the court of appeals was entered on January 29, 1990. The petition for a writ of certiorari was filed on March 26, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether a criminal defendant who has been sentenced within the applicable Guidelines range under the Sentencing Reform Act of 1984 may appeal from the district court's refusal to depart downward from the Guidelines in imposing sentence. STATEMENT After a jury trial in the United States District Court for the District of Minnesota, petitioner was convicted of escape from the custody of the Attorney General, in violation of 18 U.S.C. 751(a). He was sentenced under the provisions of the Sentencing Reform Act of 1984 to 30 months' imprisonment, to be served consecutively to the sentence he was serving at the time of his escape, and to a two-year term of supervised release. The court of appeals affirmed (Pet. App. 1-4). 1. The facts are summarized in the briefs of the parties in the court of appeals (Gov't C.A. Br. 1; Pet. C.A. Br. 3-5). In 1985, petitioner pleaded guilty in federal court to one count of bank burglary, in violation of 18 U.S.C. 2113(b), and was sentenced to a term of five years' imprisonment. Petitioner was first incarcerated at the Federal Medical Center in Rochester, Minnesota, and later at the Federal Prison Camp in Duluth, Minnesota, where he remained until November 5, 1987. On that date, petitioner was transferred to the Volunteers of America Residential Center (VOA Center) -- a private half-way house in Minneapolis, Minnesota, that housed federal prisoners on a contract basis -- in anticipation of his scheduled release date in March 1988. On December 1, 1987, petitioner left the VOA Center to go to his place of employment, but failed to return to the VOA Center that evening as was required by the provisions of his confinement. /1/ A warrant was subsequently issued for petitioner's arrest for escaping from federal custody. Petitioner remained at large until January 27, 1988, when he was spotted by federal officers at the apartment complex where petitioner's brother lived. Although petitioner initially eluded the officers on foot, he was arrested two hours later near the apartment complex. 2. Under Sentencing Guideline Section 2P1.1(a)(1), the district court determined that the base offense level for petitioner's escape offense was level 13 and that no adjustments in the offense level were appropriate (Pet. C.A. Br., Addendum B, p.9). Because petitioner had four prior felony convictions, the court further determined that his criminal history score placed him in Category V (ibid.). /2/ The resulting Guidelines range therefore indicated that a sentence of 30-37 months' imprisonment be imposed. The district court rejected petitioner's request for a downward departure from the Guidelines range and instead imposed the minimum Guidelines sentence of 30 months' imprisonment (ibid.). /3/ 3. The court of appeals affirmed petitioner's sentence (Pet. App. 1-4). The court of appeals noted that sentencing judges have discretion to depart from the applicable Guidelines range in limited circumstances, but the sentencing court in this case declined to do so. Relying on its decision in United States v. Evidente, 894 F.2d 1000 (8th Cir. 1990), the court of appeals accordingly held that it "lack(ed) authority (under 18 U.S.C. 3742) to review a sentencing court's exercise of its discretion resulting in a refusal to depart from the sentencing range established by the applicable guidelines" (Pet. App. 4). ARGUMENT Petitioner contends (Pet. 10-12) that the court of appeals erred in holding that it was without authority to review the decision of the district court to impose a sentence within the applicable Guidelines range rather than to depart from the Guidelines. The decision below, however, is consistent with the text and structure of the Sentencing Reform Act of 1984, Congress's purposes in limiting appellate review of criminal sentences, and the decision of every other court of appeals that has considered the issue. Review of by this Court is therefore not warranted. 1. There is no right of appeal in criminal cases absent statutory authorization. See, e.g., United States v. DiFrancesco, 449 U.S. 117, 131 (1981); Abney v. United States, 431 U.S. 651, 656 (1977). Prior to the enactment of the Sentencing Reform Act of 1984, appellate courts were generally without authority to review sentences that were imposed within the penalty range provided by statute. See Dorszynski v. United States, 418 U.S. 424, 431 (1974); United States v. Tucker, 404 U.S. 443, 447 (1972). "The Sentencing Reform Act expanded appellate review (of sentences) but limited it to certain categories of claims." United States v. Colon, 884 F.2d 1550, 1552 (2d Cir.), cert. denied, 110 S. Ct. 553 (1989). The Act "authorizes limited appellate review of the sentence. It permits a defendant to appeal a sentence that is above the defined range, and it permits the Government to appeal a sentence that is below that range. It also permits either side to appeal an incorrect application of the guideline." Mistretta v. United States, 109 S. Ct. 647, 652 (1989). The Act does not, however, provide for appellate review of a sentencing judge's refusal to make a discretionary departure downwards from the applicable Guidelines range. a. Under 18 U.S.C. 3742(a), criminal defendants may appeal if a sentence "(1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; (3) is greater than the sentence specified in the applicable guideline range * * *; or (4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable." /4/ Petitioner's claim that the district court abused its discretion in failing to depart below the applicable guideline range does not fall within any of these delineated categories. As an initial matter, petitioner's claim cannot be appealed under Section 3742(a)(3) or (a)(4) because the Sentencing Commission provided a specific Guideline for the offense of escape (see Sentencing Guideline Section 2P1.1(a)), and the sentence actually imposed was within the specified Guidelines range. Nor does petitioner's claim involve the incorrect application of a Guidelines provision. If Section 3742(a)(2) were interpreted "to allow appeals for departure-related decisions as incorrect application of the guidelines, (it) would render section 3742(a)(3) redundant. Because Congress could not have intended such a specific provision to be mere surplusage, we conclude that Congress did not intend for departure-related decisions, including refusals to depart, to be appealable under section 3742(a)(2)." United States v. Franz, 886 F.2d 973, 978 (7th Cir. 1989). Finally, a sentence imposed within the applicable Guidelines range is not "imposed in violation of law" under Section 3742(a)(1). That subsection "was largely intended to ensure that the appellate review previously available for claims that a sentence was in excess of the statutory maximum, was based on impermissible considerations, or was the result of some other demonstrable error of law * * * would be retained." United States v. Colon, 884 F.2d at 1553. Petitioner's sentence of 30 months' imprisonment was well within the maximum five-years' punishment provided for violations of 18 U.S.C. 751(a), and there is no claim that petitioner's sentence was based on material misinformation or constitutionally impermissible considerations. Thus, petitioner's sentence was not "imposed in violation of law" within the meaning of that phrase under the Sentencing Reform Act. b. A different interpretation of the phrase "imposed in violation of law" is not required by petitioner's argument -- drawn from Judge Becker's dissenting opinion in United States v. Denardi, 892 F.2d 269, 282 (3d Cir. 1989) -- that a sentence within the applicable Guidelines range may nonetheless be greater than necessary to comply with the specified purposes of sentencing under the Sentencing Reform Act (see 18 U.S.C. 3553(a)) and, hence, "in violation of law" under Section 3742(a)(1). Pet. 12. The acceptance of this argument would undermine the limited provisions for appellate review marked out by the statute. The sentencing objectives identified in Section 3553(a) are so broadly framed that under petitioner's approach, "every sentence (would be) appealable on grounds amounting to a claim of unreasonableness." United States v. Colon, 884 F.2d at 1553. Such an expansive construction of Section 3742(a)(1) would be inconsistent with the carefully limited appeal rights provided by the statute. See also United States v. Franz, 886 F.2d at 979 n.7. Congress quite deliberately "establishe(d) a limited practice of appellate review of sentences" (S. Rep. No. 225, 98th Cong., 2d Sess. 149 (1983)) and imposed "restrictions on the use of appellate review" designed to avoid "unnecessary appeals" (id. at 154). United States v. Franz, 886 F.2d at 979 n.7. From this, "it is evident that Congress did not intend section 3742 to be a vehicle for the appeal of every sentence and that Congress considered appellate review of most sentences within the guidelines to be unnecessary." Id. at 979. 2. Petitioner also suggests that review is required because the courts of appeals have been less than "clearly unanimous in rejecting appellate review of failures to depart" from the Guidelines. Pet. 11. That suggestion of a conflict is incorrect. Every court of appeals that has considered the question has held that the discretionary refusal of a sentencing judge to depart from the applicable Guidelines range is not reviewable under Section 3742(a). See United States v. Davis, No. 89-1086 (10th Cir. Apr. 16, 1990), slip op. 9-13; United States v. Meitinger, No. 89-5071 (4th Cir. Apr. 10, 1990), slip op. 6; United States v. Evidente, 894 F.2d at 1003-1005; United States v. Denardi, 892 F.2d at 269, 271-272; United States v. Tucker, 892 F.2d 8 (1st Cir. 1989); United States v. Draper, 888 F.2d 1100, 1105 (6th Cir. 1989); United States v. Franz, supra; United States v. Colon, 884 F.2d at 1552-1556; United States v. Fossett, 881 F.2d 976, 989 (11th Cir. 1989); United States v. Buenrostro, 868 F.2d 135, 139 (5th Cir. 1989). /5/ Because the courts of appeals have reached a consistent construction of the statute on this issue, this Court's review is not necessary to establish uniform application of the law. 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 JUNE 1990 /1/ Prisoners at the VOA Center are specifically advised of the rules of confinement that apply to them at the time of their arrival at the VOA Center (Pet. C.A. Br. 4 n.1). In addition, petitioner was disciplined on several occasions for curfew violations prior to December 1, 1987 (Gov't C.A. Br. 1). /2/ In addition to the bank burglary conviction for which he was serving sentence at the time of his escape, petitioner had two prior convictions for burglary and one prior conviction for receipt of stolen property (Pet. C.A. Br. Addendum C, pp. 3-6). /3/ Petitioner argued that a downward departure was appropriate because he was serving a pre-Guidelines sentence at the time of his escape and because he escaped from a non-secure institution (Pet. C.A. Br. Addendum B, pp. 10-11; Addendum D, pp. 3-5). /4/ 18 U.S.C. 3742(b) authorizes the government to appeal from adverse sentencing rulings in circumstances comparable to those set forth for a defendants's appeal in Section 3742(a). Consequently, the appellate rights of the government and the defendant are symmetrical: just as the government has no general authority to challenge a district judge's refusal to depart from the Guidelines upwards, so, too, the defendant may not protest on appeal that the district judge failed to exercise his discretionary authority to depart from the Guidelines downwards. /5/ As several of these courts have recognized, however, a district court's failure to depart from the applicable Guidelines range may be appealable if it is based on the legally erroneous view that the court lacked authority to depart. See United States v. Evidente, 894 F.2d at 1005; United States v. Fossett, 881 F.2d at 979. There was no such error here: the district court was well aware that it possessed the authority to depart below the Guidelines range in sentencing petitioner; it simply exercised its discretion not to do so.