JORGE ALBERTO RESTREPO, PETITIONER V. UNITED STATES OF AMERICA No. 89-6229 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 Fourth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinions of the court of appeals (Pet. App. 1a-7a) and the district court (Pet. App. 8a-14a) are unreported. JURISDICTION The judgment of the court of appeals was entered on October 11, 1989. The petition for a writ of certiorari was filed on December 8, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court properly adjusted petitioner's base offense level under Sentencing Guidelines Section 1B1.3(a)(2) for trafficking in quantities of narcotics that were not charged in the indictment. 2. Whether the government must prove beyond a reasonable doubt the existence of facts on which a district court may rely when imposing sentence under the Sentencing Guidelines. STATEMENT Petitioner pleaded guilty in the United States District Court for the Eastern District of Virginia to one count of conspiring to distribute and to possess cocaine with the intent to distribute more than five kilograms, in violation of 21 U.S.C. 841(a)(1) and 846; to one count of traveling in interstate commerce to promote a business enterprise involving the distribution and possession of cocaine with the intent to distribute it, in violation of the Travel Act, 18 U.S.C. 1952(a)(3), and 18 U.S.C. 2; and to one count of using a telephone to facilitate the distribution and possession of cocaine with the intent to distribute it, in violation of 21 U.S.C. 843(b). He was sentenced pursuant to the Sentencing Guidelines to a total of 168 months (14 years) in prison, to be followed by a total of five years' supervised release, and ordered to pay a $5,000 fine and a total of $150 in special assessments. 1. a. The agreed statement of facts in co-conspirator Jose Joaquin Boronat's case /1/ and the government proffer at petitioner's plea proceeding, 9/2/88 Tr. 15-18, /2/ show that beginning in March 1988, petitioner and a Drug Enforcement Administration (DEA) informant began negotiating a multi-kilogram distribution of cocaine. Id. at 15. It was clear from their conversations that petitioner was communicating with others, including individuals in New York and his brother-in-law, Jaime Acosta, /3/ to arrange the transaction. Ibid. On June 24, 1988, Boronat flew from Ft. Lauderdale, Florida, to New York City, where he rented a car and picked up approximately 12 kilograms of cocaine. C.A. App. 20. The next day, petitioner flew from Miami, Florida, to Washington National Airport where he met the informant. They drove to a hotel in Springfield, Virginia, to meet Boronat. There, they were joined by a DEA undercover agent acting as the purchaser. 9/2/88 Tr. 16. When Boronat arrived from New York with the cocaine, he met petitioner and the undercover agent in the hotel parking lot. After Boronat showed the agent the cocaine, it was placed in a pillowcase and transferred to the agent, who had $249,000 in cash in the hotel room to pay for it. There were 12.0413 kilograms of cocaine that was 81 to 88 percent pure. 9/2/88 Tr. 17; C.A. App. 20-21. b. In connection with sentencing, the court considered transcripts of the negotiations between petitioner and the informant, and of the meeting the day of the transaction between petitioner, the informant, and the undercover agent. See, e.g., C.A. App. 63-64, 89, 495-496, 515-516, 550. They show the following: On March 7, 1988, the informant, identifying himself as petitioner's brother-in-law's, i.e., Acosta's, friend called petitioner in Florida, who said that supplies in Florida were "dry," but that something might be available later that week. The informant told petitioner he would like to arrange a 10-kilogram transaction in Virginia for the right price. Petitioner quoted a price of $13,500 to $14,000 per kilogram. The informant stated he did not like to travel with cocaine and would pay extra to have the cocaine delivered. Petitioner agreed to have 10 kilograms ready when the informant called again. GX N-2, at 1-5. A week later, on March 15, petitioner told the informant that "10 (kilograms) is ok" and he would talk to a friend of his about delivering it to Virginia. Petitioner quoted a price of $14,500 per kilogram, plus $1,000 per kilogram for the driver. When the informant said, "I'll take twelve," petitioner agreed immediately and said that he would make arrangements the next day for a car with a stash compartment, a driver, and the cocaine. GX N-3, at 3-4. The next day, petitioner told the informant that he should come to Florida and buy a car for the cocaine, because there was such a demand in Florida that no one wanted to deliver it elsewhere. Petitioner suggested alternatively that he and the informant should go to New York to obtain cocaine for $16,000 or $16,500. Petitioner declined to drive the cocaine from New York to Virginia, but he said that he would consider driving a car with a stash compartment from Florida to Virginia. GX N-4, at 1-2, 4-7. Several telephone calls later, on March 24, petitioner told the informant that the transaction for as much cocaine as the informant wanted could be completed in Virginia for $16,250. The informant said that he wanted at least 12 kilograms and possibly as much as 15. Petitioner agreed. GX N-6, at 1-2. After further conversations between the informant and petitioner and Acosta, GX N-7 to N-15, petitioner agreed on June 21, to mail the informant a one-gram sample, commenting that he had never sent a sample by mail before. GX N-20A, N-20B. Petitioner also said that "as soon as something happens I have to do that the same day * * * because * * * (t)hat (cocaine) goes fast * * * right away." GX N-20, at 3. On June 24, petitioner told the informant that the cocaine was in New York. Petitioner said the transaction could be completed in New York and that he would need to convince others to complete the transaction in Virginia. GX N-19A. Petitioner called later that day to confirm the arrangements, saying that Acosta had told him not to sell the cocaine for less than $20,500 a kilogram and that the price in New York was $19,500. Petitioner and the informant agreed to a price of $20,750 per kilogram for delivery in Virginia. GX N-19B, at 1-2, 6-15. On June 25, the informant met petitioner at National Airport, and they drove to a hotel in Virginia. GX N-14. During the several-hour wait in the hotel room for Boronat to arrive with the cocaine, petitioner, the informant, and the undercover agent discussed drug activity. GX 34. Petitioner said that he had sold cocaine the previous week in Miami for $18,500 per kilogram. Id. at 3. He told the undercover agent he could sell him 10-20 kilograms a week in Miami with cash up front. Petitioner said he had two or three suppliers but the supply was uneven and two weeks earlier cocaine had been unavailable. Id. at 4-5. /4/ After petitioner and the undercover agent counted the money, GX 34, at 10-11, /5/ petitioner said that he would return to Florida to complete a 20-kilogram transaction, and that he had completed a 3-kilogram transaction the night before. Id. at 13. See also GX 35. Later he said that for three years he "(did) * * * keys through L.A." using three airline stewardesses who took four or five kilograms every two or three weeks. GX 35, at 8. Petitioner told the undercover agent that their next transaction could be for 20 to 30 kilograms and that he could give him a good price. Petitioner said that he was taking care of Acosta's business while he was in Colombia, that he was working on commission, and that both he and Acosta were making money. He also said he had "been in the business" since he was 17, and that he had quit college because he was making more money than a doctor. GX 34, at 19-20. Petitioner and the DEA agent agreed that when Boronat called, they would meet him in the parking lot and petitioner would tell Boronat to wait in the hotel restaurant until petitioner brought him the money. They also agreed they would take the cocaine from the stash compartment to the hotel room, where petitioner would receive the money. GX 36, at 4-5. After Boronat called for directions, GX 38 at 8-9, the DEA agent picked up a pillowcase to hold the cocaine. Petitioner commented that he had delivered 20 pounds of marijuana "the other day" to a man who put it in a clear plastic garbage bag. GX 39, at 1-2. c. The probation officer calculated that petitioner's adjusted offense level was 34 and criminal history category was I, which resulted in a sentencing range of 151-188 months' imprisonment. See Sentencing Guidelines 5.1-5.2 (Table) (Nov. 1, 1989) (Guidelines). /6/ The government argued that petitioner's base offense level should be 36, the level applicable to offenses involving more than 50 kilograms of cocaine. C.A. App. 121. /7/ Petitioner argued that he should be sentenced only for the 12-kilogram transaction. Id. at 136-140. Petitioner also argued that his base offense level should be reduced since he was only a minor participant in the overall conspiracy, and was not an organizer. Id. at 140-144. In written findings, the district court stated that there was ample evidence to hold petitioner responsible for 15-49.9 kilograms of cocaine, citing the 12-kilogram transaction to which he pleaded guilty and the 3-kilogram transaction that occurred "a few days before this transaction." Pet. App. 9a-10a. /8/ The court also said that the record left "no substantial or serious doubt that (petitioner) exercised a 'supervisory or managerial role in the offense' and therefore presents 'a greater danger to the public' or is 'more likely to recidivate.'" Id. at 11a-12a (citing Guidelines Section 3B1.1, at 3.6 Commentary). Finally, the court explained that the sentence was in the middle of the guidelines range, since, although this was petitioner's first conviction, "it (was) by no means his first illegal narcotics venture. On the contrary, the Court believes that (petitioner) has been involved in drug distribution for many years." Pet. App. 13a-14a. 2. The court of appeals affirmed. Pet. App. 1a-7a. It held that the government had the burden of proving by a preponderance of the evidence that petitioner was responsible for trafficking in more than the 12 kilograms described in the indictment. Id. at 6a-7a. After reviewing the record, the court held that the government "easily met that burden." Ibid. ARGUMENT 1. Petitioner contends that the district court improperly considered uncharged criminal conduct in calculating the offense level under Guidelines Section 1B1.3(a)(2). Pet. 17-20. In particular, he argues that the district court should not have attributed to him the 3-kilogram transaction that the court found took place a few days before the 12-kilogram transaction of which petitioner was convicted. Petitioner also maintains that the decision in this case conflicts with the Ninth Circuit's decision in United States v. Restrepo, 883 F.2d 781 (1989). a. In Restrepo, the Ninth Circuit ruled that a district court may not consider criminal conduct (in particular, quantities of drugs) of which the defendant has not been convicted. 883 F.2d at 786. The court noted that Guidelines Section 1B1.3(a)(2), which defines when a district court must consider a defendant's related criminal conduct, incorporates Section 3D1.2, which relates to multiple counts of conviction. Because Guidelines Section 3D1.2 is limited to convictions, the court reasoned, the same limitation must apply to Guidelines Section 1B1.3(a)(2). Accordingly, the Ninth Circuit ruled, a district court may consider related criminal conduct under the Guidelines only when the defendant has been convicted of that conduct. 883 F.2d at 786. At best, the court concluded, the Guidelines are ambiguous and any ambiguity must be resolved in a defendant's favor. Ibid. /9/ We agree with petitioner that the Fourth Circuit's decisions in this case and in United States v. Williams, 880 F.2d 804 (4th Cir. 1989), conflict with the Ninth Circuit's decision in Restrepo. In fact, nine circuits (including the Fourth) have held that the Sentencing Guidelines require a district court to aggregate all relevant conduct, charged or uncharged, in calculating the base offense level for each count of conviction. United States v. Blanco, 888 F.2d 907, 909-911 (1st Cir. 1989) (Breyer, J.); /10/ United States v. Bedoya, 878 F.2d 73, 75-76 (2d Cir. 1989); /11/ United States v. Gordon, 876 F.2d 1121, 1125-1126 (5th Cir. 1989); /12/ United States v. Ykema, 887 F.2d 697, 700 (6th Cir. 1989), cert. denied, No. 89-6220 (Jan. 22, 1990); /13/ United States v. Vopravil, No. 89-1837 (7th Cir. Dec. 6, 1989), slip op. 4-5 & n.4; /14/ United States v. Mann, 877 F.2d 688, 690 (8th Cir. 1989); United States v. Shorteeth, 887 F.2d 253, 255 (10th Cir. 1989); United States v. Scroggins, 880 F.2d 1204, 1211-1212 (11th Cir. 1989). The First and Seventh Circuits have also considered and expressly rejected the Ninth Circuit's decision in Restrepo. Blanco, 888 F.2d at 910-911; United States v. White, 888 F.2d 490, 493, 496-498 (7th Cir. 1989). See also Vopravil, slip op. 4-5 n.4 (noting the conflict). The Ninth Circuit stands alone. Nonetheless, we do not believe that the Court should resolve that conflict in this case, for several reasons. First, petitioner did not raise his claim in the courts below. In the court of appeals petitioner argued that the government should have been required to prove beyond a reasonable doubt that he was involved in the 3-kilogram transaction and that the proof of that transaction was insufficient to support an increase in the offense level. Appellant's C.A. Br. 1, 34-40; Appellant's C.A. Reply Br. 4-8. Petitioner did not claim that uncharged conduct evidence cannot be considered at all in calculating the offense level even if that evidence is satisfactorily proved. Thus, petitioner has not preserved his claim. See, e.g., Solorio v. United States, 483 U.S. 435, 451 n.18 (1987); Berkemer v. McCarty, 468 U.S. 420, 443 (1984). Second, the government has filed a rehearing petition and en banc suggestion in the Ninth Circuit in the Restrepo case. Our submission is still pending before that court, which has called for, and has received, a response. The Ninth Circuit's decision in Restrepo therefore is not yet final. (We will advise the Court of any further action taken by the Ninth Circuit in the Restrepo case.) Third, the Sentencing Commission is presently considering a revision to the Guidelines to make clear that the Ninth Circuit's Restrepo decision is wrong. That revision, which will reiterate what nine circuits have already held to be the law, may eliminate any need for review by this Court. b. Petitioner's claim clearly lacks merit. In fact, the Guidelines are clear and straightforward on this point, as the First and Seventh Circuits have explained. Blanco, 888 F.2d at 910-911; White, 888 F.2d at 496-497. i. Guidelines Section 1B1.3(a)(2) states that when calculating the base offense level for offenses of a character for which Guidelines Section 3D1.2(d) would require that multiple counts of conviction be grouped (i.e., treated as one), the district court must consider all acts and omissions that were part of the same course of conduct or a common scheme or plan as the offense of conviction. /15/ In turn, Guidelines Section 3D1.2(d) requires that multiple counts of conviction be grouped when the offense level is based largely on the quantity of some fungible item (such as drugs or money) involved. /16/ Guidelines 3.13. Accordingly, since Guidelines Section 3D1.2(d) would require that multiple drug convictions be grouped, Guidelines Section 1B1.3(a)(2) requires that a district court consider all relevant conduct when calculating the base offense level for a particular drug conviction. If there were any doubt on this point, Application Note 2 to Guidelines Section 1B1.3 makes clear that "multiple convictions are not required." Guidelines p. 1.19 See also id. p. 1.20 Background ("the applicability of subsection (a)(2) does not depend upon whether multiple counts are alleged"). As the Background Notes explain, the relevant conduct guideline allows the district court to determine the base offense level by including "(c)onduct that is not formally charged." Ibid. For example, "in a drug distribution case, quantities and types of drugs not specified in the count of conviction are to be included in determining the base offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction." Ibid. /17/ The Sentencing Commission's commentary, which is entitled to substantial weight, White, 888 F.2d at 497; cf. Robertson v. Methow Valley Citizens Council, 109 S. Ct. 1835, 1850 (1989) (an agency's interpretation of its own regulation is "controlling" unless it is "'plainly erroneous or inconsistent with the regulation'") (citation omitted), is consistent with the Guidelines themselves and shows that a district court must aggregate drug quantities underlying the count of conviction with those that are not the basis of a conviction to calculate the appropriate base offense level. That analysis is easily applied in petitioner's case. Petitioner was convicted of drug trafficking. The applicable guideline, Section 2D1.1, has several "base offense levels," each one corresponding to a different quantity of drugs. Guidelines pp. 2.40-2.45. Thus, because Guidelines Section 3D1.2 would require that all counts of conviction be grouped, Guidelines Section 1B1.3(a)(2) required the district court to consider all other drug transactions for which petitioner was responsible that were part of the same course of conduct or a common scheme or plan, even if petitioner was not convicted of those crimes. /18/ The district court therefore properly considered the 3-kilogram transaction in setting the base offense level. The Ninth Circuit in Restrepo misread Guidelines Section 3D1.2. As the Seventh Circuit explained in White, 888 F.2d at 497: Section 1B1.3(a)(2) has a "plain meaning", but not the one Restrepo ascribed to it. It calls for inclusion of amounts in "offenses of a character for which Section 3D1.2(d) would require grouping" (emphasis added (by the court)). The subjunctive ("would") indicates a contrary-to-fact condition. When offenses are "of a character" described in Section 3D1.2(d) -- that is, when the base offense score depends on the quantity sold, stolen, etc. -- and when these offenses "would" be grouped in the event of conviction, then the amounts are added whether or not there has been a conviction. Any doubt left by the text is resolved by Application Note 2, specifying that "multiple convictions are not required." See also Blanco, 888 F.2d at 910-911. Blanco explained further that the reference in Guidelines Section 1B1.3(a)(2) to the grouping guideline "is designed only to pick out a certain subset of all crimes, namely the subset of 'fungible item' crimes, such as those involving drugs and money, which are listed specifically in the cross-reference multiple count subsection." 888 F.2d at 911 (emphasis added). /19/ ii. The Ninth Circuit in Restrepo also misunderstood the role that the multiple counts guidelines, Sections 3D1.1-3D1.5, play in the sentencing process. Those guidelines do not even come into play until after a district court has calculated the base offense level by aggregating the relevant nonconviction conduct with the conduct underlying the defendant's conviction. Guidelines Sections 1B1.1(a)-(d), 1B1.2. At sentencing, a district court first must select the guideline pertinent to the offense of conviction, id. Sections 1B1.1(a), 1B1.2; then aggregate the relevant conduct to determine the "base offense level," id. Sections 1B1.1(b), 1B1.2(b); and then adjust the base offense level for specific offense characteristics, the role of the victim and the defendant, obstruction of justice, etc., id. Section 1B1.1(c). See Blanco, 888 F.2d at 909. Only after the court has adjusted the offense level for each count does the court turn to the multiple counts guidelines in order to calculate a single offense level for all counts of conviction. Id. Section 1B1.1(d). /20/ Because the multiple counts guidelines do not come into play until the relevant nonconviction conduct has been considered for the purpose of identifying the base offense level for each count of conviction, the multiple counts guidelines do not address nonconviction conduct. When the judge reaches that point, a defendant's nonconviction conduct is no longer an issue, since it has already been considered. The judge must determine how to impose a single sentence where he has two or more counts of conviction, each with its own adjusted offense level. With respect to those counts that are closely related (as with the two counts of conviction in Restrepo), the highest adjusted offense level for any count becomes the offense level for the entire group. Guidelines Section 1D1.3. iii. The Ninth Circuit's interpretation of Guidelines Section 1B1.3 is also inconsistent with the theory underlying the Guidelines. Before the Guidelines went into effect, district courts could (and did) consider a wide range of information about the defendant at sentencing, including (perhaps especially) other criminal actions that he committed or for which he was responsible. See 18 U.S.C. 3557 (1976) (renumbered as 18 U.S.C. 3661); McMillan v. Pennsylvania, 477 U.S. 79, 92 (1986); United States v. Grayson, 438 U.S. 41 (1978); Williams v. New York, 337 U.S. 241 (1949). The guidelines did not end that practice; instead, they structure a district court's analysis of such information. As Judge Breyer explained in Blanco, 888 F.2d at 909-910, the "relevant conduct" guideline, Section 1B1.3, reflects a compromise adopted by the Commission between a "real offense" sentencing system and a "charge offense" system. The Sentencing Commission's analysis of pre-Guidelines sentencing practices revealed that, with respect to drug offenses, the actual period of imprisonment served by an offender reflected the actual amount of drugs involved in the crime, not the amount charged in the indictment or proved at trial. At the same time, considerations of fairness and efficiency argued in favor of tying the sentence to the facts proved at trial. The Commission therefore adopted a compromise under which a district court would determine the applicable guideline by looking to the offense of conviction, but would make adjustments based on the offender's actual conduct. See also White, 888 F.2d at 496; Guidelines 1.5-1.6; Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 8-12, 25-28 (1988). The Ninth Circuit's approach in Restrepo is utterly inconsistent with that compromise. iv. The Ninth Circuit's interpretation of Guidelines Section 1B1.3 also lacks any basis in common sense. Under the Ninth Circuit's rule, a defendant who engaged in only one drug transaction would be treated in the same manner as a defendant who had engaged in 100 or more transactions for which he had not been convicted. Moreover, under the Ninth Circuit's rule a defendant convicted on only one count could receive a greater sentence than a defendant convicted on multiple counts, even if the total amount of drugs, both charged and uncharged, were the same. That is so since the decision in Restrepo presumably does not apply to cases in which a defendant is convicted on only one count, since in those cases the multiple counts guideline, Section 3D1.2(d), does not apply. The fact that the Ninth Circuit's reading of Guidelines Section 1B1.3 leads to a result so totally at odds with common sense is a powerful reason for rejecting that interpretation. 2. Petitioner argues that the district court should have required the government to prove beyond a reasonable doubt the existence of facts that increased his base offense level under the Sentencing Guidelines. Pet. 22-29. Petitioner also claims that the district court erred in not informing him before sentencing what burden and quantum of proof the court would apply when making such findings. Pet. 20-22. Those claims do not warrant review by this Court. a. There is no conflict among the circuits on the burden and standard of proof that applies to a district court's factual findings under the Sentencing Guidelines. The courts of appeals that have addressed the issue have ruled that the burden of proof falls on the party seeking an adjustment of the base offense level. Thus, the government bears the burden of proof when it seeks an upward adjustment, and the defendant bears the burden of proof when he seeks a downward adjustment. United States v. Howard, No. 89-30093 (9th Cir. Jan. 25, 1990), slip op. 832-833; United States v. McDowell, 888 F.2d 285, 291 (3d Cir. 1989); United States v. Urrego-Linares, 879 F.2d 1234, 1238-1239 (4th Cir.), cert. denied, 110 S. Ct. 346 (1989). Cf. United States v. Carroll, No. 88-2260 (6th Cir. Jan. 9, 1990), slip op. 8 & n.1 (the government bears the burden of proving the facts necessary to justify an upward adjustment; leaving open whether the defendant bears the burden of proving the facts necessary to justify a downward departure). The courts of appeals have also ruled that the preponderance standard, not the reasonable-doubt or clear-and-convincing-evidence standard, governs factual findings made under the Guidelines. Howard, slip op. 834-835; United States v. Sleet, No. 89-1686 (8th Cir. Jan. 9, 1990), slip op. 3; Carroll, slip op. 8-9; Blanco, 888 F.2d at 909; White, 888 F.2d at 499; McDowell, 888 F.2d at 290-291; United States v. Guerra, 888 F.2d 247, 250-251 (2d Cir. 1989); Urrego-Linares, 879 F.2d at 1237-1238. The decision below is fully consistent with the foregoing decisions. There is also no merit to petitioner's contention that due process requires that the government prove beyond a reasonable doubt any facts used to enhance a defendant's sentence under the Sentencing Guidelines. Before the advent of the Guidelines, it was settled law that the reasonable-doubt standard did not apply to the findings made at sentencing, and that the preponderance standard satisfied due process concerns. McMillan, 477 U.S. at 84-93; United States v. Lee, 818 F.2d 1052, 1057 (2d Cir. 1987), cert. denied, 484 U.S. 956 (1988); United States v. Davis, 710 F.2d 104, 106 (3d Cir.) (collecting cases), cert. denied, 464 U.S. 1001 (1983). /21/ Neither the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq., 28 U.S.C. 991-998, nor the Sentencing Guidelines require the government to bear a greater burden of proof. This Court rejected a virtually identical claim in McMillan v. Pennsylvania, supra. In McMillan, this Court upheld over a due process challenge a state law allowing proof by a preponderance of the evidence that a defendant possessed a firearm during the commission of an offense to serve as the basis for a mandatory minimum five-year term of incarceration within the statutory maximum term of imprisonment. 477 U.S. at 84-93. The Court explained that, as a general rule, the reasonable-doubt standard applies only to the factual findings necessary to convict the defendant of a crime. Id. at 84-91. Also, a defendant who has been found guilty beyond a reasonable doubt of a charged offense is subject to imprisonment for the maximum term set by law. Id. at 92 n.8. The purpose of the sentencing process, in a discretionary or a guidelines system, is to fix the point within that maximum at which sentence should be imposed. The preponderance standard, the Court held, is a permissible means of carrying out that task. Id. at 92-93. See also, e.g., McDowell, 888 F.2d at 291; Guerra, 888 F.2d at 250-251. Petitioner attempts to distinguish McMillan on the ground that the facts used to support the base offense level determination under the Sentencing Guidelines are "akin" to the elements of the offense, unlike the facts at issue in McMillan. Pet. 28-29. But McMillan considered and rejected an identical argument. Like the statutory scheme in McMillan, the Sentencing Guidelines "neither alter() the maximum penalty for the crime committed nor create() a separate offense calling for a separate penalty; (the Guidelines) operate() solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding(s)," 477 U.S. at 87-88. There is no reason wny a higher standard of proof should apply to the findings made under the Sentencing Guidelines than to the mandatory minimum sentencing scheme considered in McMillan. Petitioner argues that the reasonable-doubt standard is necessary to ensure that a sentence will not rest on materially false information. Pet. 27-28. Rule 32(c)(3)(D), Fed. R. Crim. P., however, protects against inaccurate factual findings by allowing a party to challenge the facts set forth in the presentence report, and by requiring the district court to make findings on disputed facts or avoid relying on them. The Rule 32 procedure, coupled with the preponderance standard, is sufficient to assure that the facts on which a sentencing court relies are not materially false. McDowell, 888 F.2d at 291; Guerra, 888 F.2d at 250-251. /22/ b. Petitioner's related claim -- that the district court should have announced before sentencing the burden and standard of proof that it would use, Pet. 20-21 -- also does not warrant further review. Petitioner cites no authority supporting that contention, and we know of none. Moreover, petitioner was free to argue to the district court that it should place on the government the burden of proof under the reasonable doubt standard, and petitioner was also free to present evidence to support his claim that the base offense level for his crimes should not be adjusted upwards. The district court's actions therefore did not disable petitioner from presenting his side of the story at sentencing. /23/ 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 KAREN SKRIVSETH Attorney FEBRUARY 1990 /1/ Petitioner and Boronat were indicted together. They were both charged on the conspiracy and facilitation counts and on one substantive trafficking count. Each defendant was also charged in separate Travel Act counts. On August 31, 1988, Boronat pleaded guilty pursuant to a plea agreement on one count of conspiracy. C.A. App. 24-38. On September 2, 1988, petitioner pleaded guilty on three counts without a plea agreement. 9/2/88 Tr. 19-20. The remaining counts were dismissed. The appeals by petitioner and Boronat were consolidated. /2/ Citations to the record and exhibits are taken from the government's brief in the court of appeals. /3/ Acosta was the original target of the investigation. The informant told the DEA that Acosta had been his source for ten kilograms of cocaine over a two- or three-year period. C.A. App. 17, Presentence Report; GX N-2, at 5. (Citations to "N- . . ." are to transcripts of taped conversations.) /4/ Petitioner describes as "obvious exaggeration and puffing," Pet. 7, the fact that he discussed cocaine deals at the same time that he said cocaine was unavailable. The transcripts, however, make it clear that although the supply of cocaine was uneven, petitioner had access to cocaine when it was available. The transcripts also make clear that the delays in the transaction for which petitioner was convicted were caused primarily by the difficulty of transporting cocaine to Virginia, not by its unavailability in Florida. /5/ Petitioner asserts that he did not know the purchase price for the transaction, that he never counted the money, and that he did not even want to see it. Pet. 9. He cites as authority for these claims his version of the facts given to the probation officer before sentencing. The district court was not required to believe petitioner. /6/ For convenience, all references in this brief will be to the 1989 edition of the Sentencing Guidelines. For purposes of this case, there is no material difference between the 1989 edition and earlier ones. /7/ The government based that claim on the 12 kilograms involved in the June 25, 1988, offense; the 20-kilogram transaction that petitioner negotiated with the undercover agent on the same day; the 3-kilogram transaction that petitioner said that he had completed on June 24, 1988; and the 20-kilogram transaction that petitioner had in process in Florida. C.A. App. 122. /8/ Following an evidentiary hearing, the district court found at sentencing that petitioner's base offense level was 34 since petitioner had trafficked in 15-49.9 kilograms of cocaine. The court found that there was ample evidence to attribute to petitioner both the June 24, 1988, three-kilogram transaction and the 20-kilogram transaction in process in Florida. C.A. App. 577. The court declined to attribute the 20-kilogram transaction under discussion with the agent to petitioner because the court found that the record was ambiguous whether petitioner could produce that amount. Id. at 578. The court also found ample evidence that petitioner was an organizer or manager of the criminal activity. Ibid. The court also stated that petitioner was "in the business," rather than having been engaged in a single transaction. Id. at 594-595, 596. The court also increased the base offense level by two points for petitioner's role in the offense, and then reduced it by two points for petitioner's acceptance of responsibility. Id. at 578. The district court did not mention in its written findings the 20-kilogram transaction that petitioner had in process in Florida, see p. 6, supra, nor did the court mention whether it attributed that transaction to petitioner at sentencing. Whether or not that transaction is included, the 3-kilogram transaction is sufficient when added to the 12-kilogram transaction to place petitioner's transactions in the 15 to 49.9 kilogram range, especially in light of the court's finding that petitioner was in the drug trafficking business. /9/ Judge Boochever dissented. In his view the Sentencing Commission's commentaries made clear that a district court must consider related criminal conduct even if it did not result in a conviction. 883 F.2d at 787-788. /10/ See also United States v. Wright, 873 F.2d 437, 440-441 (1st Cir. 1989) (Breyer, J.). Judge Breyer is a member of the Sentencing Commission. /11/ See also United States v. Fernandez, 877 F.2d 1138, 1141-1142 (2d Cir. 1989); United States v. Guerrero, 863 F.2d 245, 248-250 (2d Cir. 1988). /12/ See also United States v. Taplette, 872 F.2d 101, 105-106 (5th Cir. 1989); United States v. Sarasti, 869 F.2d 805, 806-807 (5th Cir. 1989). /13/ See also United States v. Smith, 887 F.2d 104, 106-108 (6th Cir. 1989); United States v. Sailes, 872 F.2d 735, 738-739 (6th Cir. 1989). /14/ See also United States v. White, 888 F.2d 490, 496-498 (7th Cir. 1989). /15/ Guidelines Section 1B1.3(a)(2) provides that: (i) (T)he base offense level where the guideline specifies more than one base offense level * * * shall be determined on the basis of the following: * * * * * (2) solely with respect to offenses of a character for which Section 3D1.2(d) would require the grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or a common scheme or plan as the offense of conviction. /16/ Guidelines Section 3D1.2(d) provides in part that: Counts are grouped together if the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm * * *. In fact, Guidelines Section 3D1.2(d) expressly incorporates Guidelines Section 2D1.1, which is the relevant guideline for drug trafficking. See Guidelines p. 3.13. See also id. p. 1.9 (the rules in Chapter 3 Part D "essentially provide" that "(w)hen the conduct involves fungible items, e.g., separate drug transactions or thefts of money, the amounts are added and the guidelines apply to the total amount"). /17/ Similarly, the Sentencing Commission's commentary on the drug conspiracy guideline, Guidelines Section 2D1.4, p. 2.53, shows that the guidelines contemplate that a drug conspirator will be held accountable for amounts beyond the amount seized if that amount "does not reflect the scale of the offense." See White, 888 F.2d at 498-499. The judge must estimate the quantity of drugs and consider, inter alia, "similar transactions in controlled substances by the defendant." Guidelines p. 2.53. /18/ That is so whether the relevant conduct was initially charged, but was later dismissed, Bedoya, 878 F.2d at 75-76, was initially charged, but was later reduced in plea bargaining, Wright, 873 F.2d at 440-441, or was even the subject of an acquittal at trial, White, 888 F.2d at 499 (dictum). /19/ Because the Guidelines are clear on this question, the rule of lenity does not come into play, since the rule is just "a tie-breaker when there is an otherwise-unresolved ambiguity." White, 888 F.2d at 497. /20/ After the court applies the multiple counts guidelines, the judge must adjust the single offense level for acceptance of responsibility, if any, and he must determine the defendant's criminal history category. By considering the criminal history category and the final offense level, the judge ascertains the permissible guideline range. Guidelines Section 1B1.1(e)-(h). /21/ In fact, trial courts historically imposed sentence without an established burden or standard of proof. McMillan, 477 U.S. at 91. /22/ The court of appeals also correctly found that the government "easily met (its) burden." Pet. App. 7a. The three-kilogram transaction petitioner told the agent he completed on June 24, 1989, is plainly attributable to him. That transaction when added to the 12-kilogram transaction for which he was convicted, is sufficient by itself to require the use of the guideline applicable to trafficking in 15 to 49.9 kilograms of cocaine. Guidelines Section 2D1.1. Petitioner's statement to the agent of his recent criminal conduct, particularly since it provided specific information regarding the amount and date of the transaction, demonstrates its reliability. Cf. Fed. R. Evid. 801(d)(2). Furthermore, the accuracy of the statement is bolstered by the fact that the government offered financial records that showed that petitioner had made three mortgage payments in the three weeks preceding June 24, including one on June 23, and a car/mobile telephone payment of more than $300 on June 23 even though he claimed he had no money. The district court also correctly determined that petitioner had been in the drug distribution business for many years and that he was an organizer of the transaction for which he was convicted. Pet. App. 13a-14a. Petitioner told the agent he had been "in the business" since he was a teenager; petitioner had no employment history even though he was more than 30 years old, Pet. App. 14a; he talked about sending four or five kilograms of cocaine every two or three weeks to Los Angeles, GX 35, at 8; he said he delivered 20 pounds of marijuana "the other day," GX 39, at 1-2; he was arranging by telephone a 20-kilogram transaction with "Orlando" while awaiting delivery of the 12 kilograms of cocaine that is the X subject of the offense of conviction, GX 34, at 13; GX 35, at 1-2; and he told the agent he could supply him with 20 or 30 kilograms of cocaine for a good price, GX 34, at 19-20. Petitioner demonstrated a knowledge of fluctuating prices and supplies of cocaine in Miami, New York, and Los Angeles. His knowledge combined with specific details he provided regarding past and ongoing drug transactions and the fact that he obtained the 12 kilograms of cocaine on credit left no doubt that he could complete a 20-kilogram transaction in the future. Similarly, the fact that he was able to arrange a large, multi-state cocaine transaction using an out-of-state driver and car and New York suppliers, showed that he was an organizer of the offense. Petitioner plainly organized the 12 kilogram transaction and had trafficked in more than 15 kilograms of cocaine. /23/ Petitioner's complaint that the district court failed to identify the facts on which it relied at sentencing, Pet. 22, also does not merit review. The district court made extensive findings of fact, including the written findings appended to the petition. Pet. App. 8a-14a.