FELINO RODRIGUEZ, PETITIONER V. UNITED STATES OF AMERICA No. 89-6119 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 Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-16) is reported at 882 F.2d 1059. JURISDICTION The judgment of the court of appeals was entered on August 15, 1989. On October 4, 1989, Justice Scalia extended the time for filing a petition for a writ of certiorari to and including November 13, 1989, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court properly imposed a sentence above the applicable Sentencing Guideline. STATEMENT Following a jury trial in the United States District Court for the Southern District of Ohio, petitioner was convicted on one count of possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced to a six-year term of imprisonment, to be followed by a five-year term of supervised release, and he was ordered to pay a special assessment of $50. 1. a. The evidence showed that petitioner or his associates completed or planned drug transactions involving a total of nine and one-half ounces of cocaine (269.325 grams). Specifically, on November 24, 1987, detectives Mike Spiert and Mike Powell from the Franklin County Sheriff's Department, acting undercover, purchased one ounce of cocaine for $1400 from Frank Hernandez and his girlfriend, Janine Leonard. To complete the transaction, Hernandez drove to petitioner's house. Pet. App. 2-3. During the November 24 meeting the detectives and Hernandez also discussed the detectives' future exchange of one-half ounce of cocaine for a VCR, clothes, and $100. Id. at 1-4. On November 27 and December 1, 1987, Detective Spiert discussed with Hernandez the possibility of purchasing eight ounces of cocaine. On December 3, Detectives Spiert and Powell went to Hernandez's house to complete the one-half ounce transaction. There, Detective Spiert again mentioned the possibility of purchasing eight ounces of cocaine, but no agreement was reached. When Hernandez and Leonard left to obtain the one-half ounce of cocaine, a surveillance team followed them and later observed their jeep at petitioner's house. Pet. App. 3. Shortly thereafter, petitioner was observed walking from his house to a nearby restaurant where he got into Hernandez's jeep with Hernandez. A woman left the jeep, went into the restaurant, and returned, and the three then returned to petitioner's house. Hernandez and Leonard left about 20 minutes later. Id. at 4. A search of petitioner's house the same day uncovered eight ounces of cocaine in individually wrapped packages, a .25 caliber automatic handgun, a briefcase containing $5850 in cash and petitioner's identification papers, and scales commonly used in drug trafficking. Petitioner was arrested after the cocaine was found. Pet. App. 4. b. The presentence report calculated that if petitioner were not a career offender, his Guideline sentence would be 30 to 37 months' imprisonment, based on a total offense level of 18 and a criminal history category of II. The report states that the offense involved 168.17 grams of cocaine, and the base offense level under Sentencing Guideline Section 2D1.1 for an offense involving 100 to 199 grams of cocaine is 18. Presentence Report 3. /1/ Petitioner's criminal history category was calculated on the basis of two prior convictions: on January 21, 1984, for attempted escape, for which a 90-day term of imprisonment was imposed, and on August 13, 1984, for possession of cocaine, for which a three-year term of imprisonment was suspended in favor of three years' probation and a $1,000 fine. Id. at 3-4. The presentence report provided additional details concerning petitioner's criminal history: It showed that petitioner entered the United States in a private vessel on May 29, 1980, from Havana, Cuba, after serving seven years of an eight-year prison sentence for breaking and entering. Presentence Report 5. The escape for which petitioner was convicted in 1984 occurred on October 29, 1983, following his arrest in New Orleans for "Aggravated Battery and Felon Possession (Theft)." Id. at 4. The presentence report reflects no disposition of those charges. Petitioner's prior drug offense was committed on May 7, 1984, within one week of his release from prison for the escape. Ibid. Petitioner and two co-defendants were arrested May 7, 1984, following execution of a search warrant at a residence in New Orleans that produced 112 grams of cocaine, eight marijuana cigarettes, four handguns, and a triple beam scale. Ibid. Following his August 13, 1984, conviction on that offense, petitioner was detained by the Immigration and Naturalization Service at the Atlanta Penitentiary. He was ordered deported on January 21, 1987, but on April 15, 1987, he was released from detention at Atlanta by way of the Federal Detention Center at Oakdale, Louisiana. He then spent two months in a halfway house in Detroit, Michigan. The instant offense occurred two or three months after petitioner's subsequent move to Columbus, Ohio. Id. at 4-5. Since coming to the United States, petitioner claimed, he was employed in New Orleans for two and one-half years at the Pepsi Cola Company and in Detroit, Michigan, by the Digitron Company. Pepsi-Cola has no record of petitioner's employment, and the probation officer was unable at the time the presentence report was prepared to verify the Digitron employment, from which petitioner said he had been fired. Presentence Report 6. The probation officer stated her belief that no aggravating or mitigating factors warranted a departure from the Sentencing Guidelines. Presentence Report 7. c. At the July 5, 1988, sentencing proceeding, the district court found that the applicable Guideline range was 30 to 37 months' imprisonment. Tr. 20. But the court found that aggravating factors not adequately taken into account by the Sentencing Commission warranted a sentence "toward the upper end of the congressionally authorized (maximum) sentence" of 20 years' imprisonment. Id. at 21. See 21 U.S.C. 841(b)(1)(C). The court cited the fact that petitioner "arrived in the United States illegally in 1980 when the government of Cuba cleaned out its prisons and * * * was apparently serving a term (of imprisonment) he had not yet finished serving at the time he was released from prison in Cuba and came to the United States," Tr. 21. The court noted that in the years petitioner has been in the United States he did not "rehabilitate (himself) and establish (himself) as (a) law abiding and productive member() of the society." Ibid. The court found that "he has not established any work skills; he has not established any record of employment; he has not educated himself; he has apparently not even acquired a working knowledge of the English language in eight years." Id. at 22. The court noted further that: (Petitioner) has a prior drug conviction; he resorted to the present activities of sale of drugs a very short period of time after he was released from the halfway house which was designed for the purpose of integrating him into the work force. And as soon as he was released from the strictures of that program (he) embarked upon a criminal career involving the sale of drugs which the Court has no doubt whatsoever that if this defendant were released now or three years from now * * * he would likewise immediately engage in a career of criminal activity. Ibid. Citing the need to protect the public and to deter future crimes by petitioner, the court sentenced petitioner to a six-year term of imprisonment, to be followed by a five-year term of supervised release conditioned on petitioner's remaining gainfully employed, not engaging in criminal activity, and being subject to random drug testing. Id. at 23. 2. The court of appeals affirmed. Pet. App. 1-16. It held that the district court's upward departure from the Guideline sentence was reasonable on three grounds cited by the district court: petitioner's Cuban conviction, his propensity to commit future crimes, and the fact that he had maintained himself primarily through criminal activity since he arrived in the United States. Id. at 14-15. /2/ In reaching this conclusion, the court of appeals applied the three-step analysis for review of Guidelines departures set forth by the First Circuit in United States v. Diaz-Villafane, 874 F.2d 43, 49-50, cert. denied, 110 S. Ct. 177 (1989): First, the court of appeals must determine as a question of law, subject to plenary review, whether the circumstances on which the district court relied are sufficiently "unusual" to warrant a departure from the Guidelines. Second, the court of appeals must decide as a factual matter, subject to review under the clearly erroneous standard, whether those factors are present in the case. Finally, the court must determine whether the direction and degree of departure is "reasonable," having due regard for the factors to be considered in imposing sentence and the particular reasons cited by the district court for the sentence. In finding the departure reasonable, the court below also stated that it agreed with the Fifth Circuit's statement in United States v. Roberson, 872 F.2d 597, 606-607, cert. denied, 110 U.S. 175 (1989), that a district court has broad authority to depart from the Guidelines. Pet. App. 15-16. ARGUMENT Petitioner argues that the court of appeals did not follow the correct approach in assessing the district court's decision to depart from the sentencing range defined by the Sentencing Guidelines. Pet. 18-20. He claims that the courts of appeals are in disagreement over the correct analysis of sentencing departures, and he invites this Court to announce a standard that, in his view, better reflects the intent of the Sentencing Commission. Pet. 6-17, 20. This Court need not accept petitioner's invitation. 1. There is no conflict among the circuits regarding the analysis to be used by an appellate court in reviewing a district court's decision to depart from the sentencing range defined by the Sentencing Guidelines. The Sixth Circuit in this case and in United States v. Joan, 883 F.2d 491, 493-496 (1989), /3/ applied the standard of review adopted by the First Circuit in United States v. Diaz-Villafane, 874 F.2d at 49-50. The Fourth, Tenth, and District of Columbia Circuits have endorsed that approach as well. United States v. Summers, No. 89-5116 (4th Cir. Jan. 2, 1990); United States v. White, No. 89-3003 (10th Cir. Jan. 8, 1990); United States v. Burns, No. 88-3161 (D.C. Cir. Jan. 12, 1990). None of the cases cited by petitioner rejected it. In fact, the analysis used by the Second, Third, and Fifth Circuits in those cases is not materially different from the one endorsed by the courts listed above. See, e.g., United States v. Sturgis, 869 F.2d 54, 56 (2d Cir. 1989) (essentially using Diaz-Villafane analysis); United States v. Uca, 867 F.2d 783, 786 (3d Cir. 1989) (stating that an appellate court must engage in plenary review of the issue addressed by the first prong of Diaz-Villafane); United States v. Ryan, 866 F.2d 604, 610 (3d Cir. 1989) (same); United States v. Roberson, 872 F.2d at 602, 606-607 (essentially applying the first and third prongs of Diaz-Villafane; the second one was not in issue). /4/ Petitioner claims, however, that the courts of appeals disagree whether district courts have broad or narrow discretion to depart from the Guidelines. Pet. 6-10, 13-17. That claim lacks merit. The Sentencing Commission has explained that a departure from the Guidelines is warranted if an aggravating or mitigating factor is present that was not adequately considered by the Commission, or if such a factor was considered, but nevertheless is present in the case to an unusual degree. Sentencing Guideline Section 5K2.0. /5/ The cases cited by petitioner stating that district courts have broad discretion involved a factor not covered by the Guidelines, or an express policy statement by the Commission that a departure may be warranted in certain instances. See, e.g., Joan, 883 F.2d at 493-496; United States v. Correa-Vargas, 860 F.2d 35 (2d Cir. 1988). By contrast, the only decision petitioner cites stating that a district court's authority to depart is narrow, United States v. Uca, supra, involved a situation in which the Guidelines covered the facts of the case, and the question was whether there were "unusual circumstances" present warranting a departure nonetheless. 867 F.2d at 787-790. The Uca case, on which petitioner chiefly relies, therefore does not conflict with the other decisions he cites. The analysis set forth in Diaz-Villafane is also consistent with the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq., 28 U.S.C. 991-998. Under 18 U.S.C. 3553(a)(4) and (b), the district court must impose a sentence of the kind and within the range recommended by the Sentencing Commission in the applicable Sentencing Guideline unless the court finds an aggravating or mitigating circumstance of a kind or to a degree not adequately considered by the Commission that should result in a different sentence. If the court departs from the Guidelines, it must give the specific reasons for doing so. 18 U.S.C. 3553(c)(2). Unless a sentence is consistent with a plea bargain, a defendant may appeal a sentence above the Guideline range, and the government may appeal a sentence below that range. 18 U.S.C. 3742(a)(3), (b)(3), and (c). The question on appeal is whether the departure is unreasonable in light of the factors that the trial judge must consider in imposing sentence, see 18 U.S.C. 3551-3586, and the reasons the judge gave for the sentence, 18 U.S.C. 3742(e)(3). The court of appeals must give "due regard" to the district court's opportunity to judge the credibility of witnesses; it must accept the district court's factual findings unless they are clearly erroneous; and it must give "due deference" to the district court's application of the Guidelines to the facts. 18 U.S.C. 3742(e). If the court of appeals concludes that a departure is unreasonable, it must vacate the sentence and remand the case for further proceedings. 18 U.S.C. 3742(f)(2). The analysis adopted by the First Circuit in Diaz-Villafane derives directly from those statutory requirements. The first two prongs -- whether the factor identified by the district court as a basis for departure is a legally permissible and factually sufficient ground for a departure -- derive from the requirement of 18 U.S.C. 3553(b) that the basis for a departure be an aggravating or mitigating circumstance not adequately considered by the Sentencing Commission that should result in a different sentence. In addition, since the first prong involves a question of law and the second a question of fact, it is entirely natural to have a different standard of review applicable to each one. See Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 & n.15 (1982). As petitioner notes, Pet. 11, the third prong -- whether the direction and degree of the departure is reasonable -- stems from 18 U.S.C. 3742(e)(2). A court of appeals can independently review this mixed question of law and fact, see Turner v. Safley, 482 U.S. 78, 93-94 n.* (1987); Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 501 (1984), although it must give deference to the district court's judgment under 18 U.S.C. 3742(e). See 18 U.S.C. 3553(b), (c). The analysis set forth in Diaz-Villafane is therefore consistent with the Act and reasonable. 2. Petitioner's factbound claim that the district court improperly departed from the Guidelines in his case does not merit the attention of this Court. The Guidelines contain a number of policy statements pertinent to this case regarding circumstances in which a departure may be warranted. For example, the Guidelines allow a district court to depart if the defendant's criminal history category "does not adequately reflect the seriousness of (his) past criminal conduct or the likelihood that (he) will commit other crimes." Sentencing Guideline Section 4A1.3. In that respect, the Guidelines permit a departure if the defendant received a prior sentence in a foreign country that was not included in computing his criminal history, Section 4A1.3(a); if he engaged in prior similar adult criminal conduct not resulting in a criminal conviction, Section 4A1.3(e); or if he engaged in prior similar misconduct that was adjudicated in a civil proceeding, Section 4A1.3(c). See also, e.g., United States v. Roberson, 872 F.2d at 606-608; United States v. Fisher, 868 F.2d 128 (5th Cir. 1989). The Guidelines also expressly recognize that the degree to which a defendant earns his livelihood from criminal activity is relevant to his sentence. Sentencing Guideline Section 5H1.9. The size of a reasonable departure is not subject to a mathematical analysis. United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989). "(T)he mere fact that a departure sentence exceeds by several times the maximum recommended under the Guideline is of no independent consequence in determining whether the sentence is reasonable." United States v. Roberson, 872 F.2d at 606 n.7 (collecting cases). As the court of appeals found, Pet. App. 14-16, the departure in this case was reasonable. As the court explained, the departure was warranted by three factors cited by the district court: The Guidelines did not take into account petitioner's Cuban conviction; /6/ the Guidelines range did not reflect the likelihood that petitioner would commit additional crimes while on release; and the Guidelines range did not reflect the fact that petitioner engaged in criminal activity for a livelihood. Those factors are lawful bases for a departure, and petitioner does not claim that the district court's finding that they were present in this case is clearly erroneous. /7/ In short, petitioner's sentence is entirely reasonable, and no further review of his claims is warranted. 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 JANUARY 1990 /1/ In fact, the base offense level should have been 20, and the applicable Guideline range should have been 37 to 46 months' imprisonment. The offense of conviction involved a planned transaction for eight ounces of cocaine (226.8 grams). The other two transactions with the detectives constituted part of the same course of conduct as the offense of conviction and should also have been included as part of the conduct relevant to the offense of conviction. See Sentencing Guideline Section 1B1.3(a)(2). Thus, the whole course of conduct involved 269.33 grams of cocaine. The drug offense Guideline provides a base offense level of 20 for offenses involving 200 to 299 grams of cocaine. Sentencing Guideline Section 2D1.1(3) (Table). /2/ The court of appeals also held, Pet. App. 12, that the district court should not have considered petitioner's national origin or inability to speak English in imposing sentence. See Sentencing Guideline Section 5H1.10; cf. Sentencing Guideline Section 5H1.2. /3/ As petitioner notes, Pet. 12-13, in addition to adopting the three-pronged standard of Diaz-Villafane, Joan also describes seven factors that are relevant to the last prong, i.e., whether the departure was reasonable. The Sixth Circuit's suggestion in Joan does not create any "confusion," as petitioner asserts, Pet. 13, since those factors are ones that appellate courts would naturally consider in assessing the reasonableness of the district court's sentence. /4/ Petitioner claims that the Diaz-Villafane standard does not adequately reflect the intent of the Sentencing Commission. Pet. 13. We note, however, that Judge Breyer, a member of the Sentencing Commission, was a member of the panel in Diaz-Villafane, and that Judge Wilkins, another Commissioner, was a member of the panel in Summers, which followed Diaz-Villafane. /5/ The Sentencing Commission's general policy statement regarding departures is set forth in Section 5K2.0, which provides in part that: Circumstances that may warrant departure from the guidelines pursuant to (18 U.S.C. 3553(b)) cannot, by their very nature be comprehensively listed and analyzed in advance. The controlling decision as to whether and to what extent departure is warranted can only be made by the court at the time of sentencing. Nonetheless, the present section seeks to aid the court by identifying some of the factors that the Commission has not been able to fully take into account in formulating precise guidelines. Any case may involve factors in addition to those identified that have not been given adequate consideration by the Commission. Presence of any such factor may warrant departure from the guidelines, under some circumstances, in the discretion of the sentencing judge. Similarly, the court may depart from the guidelines, even though the reason for departure is listed elsewhere in the guidelines (e.g., as an adjustment or specific offense characteristic), if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate. /6/ If that offense had been committed in the United States, it would have added three points to petitioner's criminal history score, because it resulted in imprisonment for more than one year and one month. Sentencing Guideline Section 4A1.1(a). /7/ The record also reveals additional considerations, on which the courts below did not rely, justifying a departure above the Guidelines sentence. First, petitioner's drug involvement was not adequately reflected by the Guideline the judge applied. The contemplated transaction with the undercover detectives was for an amount higher than that used by the judge. Petitioner also was involved in three transactions over a short period of time and for increasing amounts, demonstrating that he was able to supply narcotics on short notice and in fairly substantial quantities. Second, petitioner's criminal history score underrepresented his record for a reason not cited by the district court: His probationary sentence for drug possession resulted in his detention in Atlanta as an illegal alien for several years. Under the circumstances, that incarceration might well be viewed as the functional equivalent for criminal history purposes of a sentence for more than one year and one month (which would have added three points toward his criminal history score), rather than a probationary sentence (which adds only one point).