OSCAR PRINCE GARCIA, PETITIONER V. UNITED STATES OF AMERICA No. 90-7713 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States OPINION BELOW The opinion of the court of appeals, Pet. App. B1-B7, is unreported. JURISDICTION The judgment of the court of appeals was entered on March 18, 1991. The petition for a writ of certiorari was filed on April 15, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's agreement to the government's statement of facts at his guilty plea hearing constituted a "stipulation that specifically establishes" a more serious offense than the offense of which petitioner was convicted within the meaning of Sentencing Guidelines Section 1B1.2. 2. Whether the district court erred when it declined to depart below the applicable Guidelines range for substantial assistance to law enforcement. STATEMENT Petitioner pleaded guilty in the United States District Court for the Western District of Texas to one count of using a communication device to facilitate a drug felony, in violation of 21 U.S.C. 843(b). He was sentenced to 27 months' imprisonment, to be followed by one year of supervised released. He was also ordered to pay a $500 fine and a $50 special assessment. 1. At petitioner's plea proceeding, the government stated that, if the case were brought to trial, the Government's evidence would show that on or about April 1, 1990, in the Midland-Odessa Division of the Western District of Texas various telephone calls were either received or made into either Big Spring or Stanton, Texas to facilitate the delivery of two quantities of cocaine, one being 1 ounce and one being 3 ounces. Border Patrol Agent() Willie Morales would testify, as well as P.K. Brenner, DEA chemist would testify that the substance facilitated by these telephone conversations was indeed cocaine. And DEA Agent Bill Ford would testify as to taping of the various conversations by the defendant to what I would call a cooperating individual. In substance that is the Government's case, Your Honor. ³7/10/90 Tr. 11-12. The district court asked petitioner whether he "agree(d) with that." Id. at 12. He responded in the affirmative. Ibid. The district court accepted guilty plea and ordered the probation officer to prepare a presentence report. a. The probation officer calculated petitioner's adjusted offense level to be 16 and his criminal history category to be III. Although the base offense level for the offense of which petitioner was convicted was 12, see Guidelines Section 2D1.6 (1989), the probation officer noted that Guidelines Section 1B1.2(a) requires the district court to use the Guideline "most applicable to the stipulated offense" if the guilty plea "contain(s) a stipulation that specifically establishes a more serious offense than the offense of conviction." In this case, the probation officer found that the factual proffer to which petitioner stipulated at his plea hearing (quoted in full above) acknowledged the attempted sale of cocaine to the undercover agent and thus established the offense of possession with intent to distribute cocaine. Presentence Report 4-5. Applying Guidelines Section 2D1.1(3) (1989) to the 126.7 grams of cocaine HCL seized from petitioner and his car, Presentence Report 3, the probation officer determined petitioner's offense level to be 16 (a base offense level of 18 adjusted downward two points for acceptance of responsibility). That offense level, with petitioner's criminal history category of III, yielded a Sentencing Guidelines range of 27 to 33 months' imprisonment. If the probation officer had calculated petitioner's Guidelines range using the Guideline for the offense of conviction, petitioner's offense level would have been 10 (a base offense level of 12 adjusted downward 2 points for acceptance of responsibility). With the same criminal history category of III, petitioner's Guidelines range would have been 10 to 16 months' imprisonment. b. Petitioner objected to the presentence report primarily on two grounds. First, petitioner maintained that his offense level should be 10 rather than 16 because the stipulation at his plea hearing did not specifically establish that he possessed cocaine. 8/25/90 Tr. 16-19. Second, petitioner contended that Guidelines Section 5K1.1 violates the Fifth Amendment's Due Process Clause insofar as it conditions a downward departure for substantial assistance to law enforcement authorities on a motion by the government, id. at 21-22; assuming that condition to be unconstitutional, petitioner further contended that the probation officer erred in failing to recommend a downward departure for his assistance to local police in a "reverse sting" operation (i.e., one in which the police sell rather than buy drugs), id. at 21-23. The district court "disallow(ed)" petitioner's objections and accepted the probation officer's recommendation that the applicable Guidelines range was 27 to 33 months' imprisonment. 8/21/90 Tr. 21-22. After hearing petitioner's allocution, the court sentenced him to 27 months' imprisonment. Id. at 27. It explained: I will not depart from the guidelines, 27 to 33 months. But because of your cooperation with Big Spring and the Midland officers, I will sentence you at the lower end of the guidelines. Ibid. 2. The court of appeals affirmed in an unpublished opinion. Pet. App. B1-B7. Citing United States v. Braxton, 903 F.2d 292, 298 (4th Cir. 1990), rev'd, No. 90-5358 (May 28, 1991), it held that petitioner's guilty plea contained a stipulation to a more serious offense (possession with intent to distribute cocaine) than the offense of conviction (using a communication facility in furtherance of a drug offense). Pet. App. B3-B5. The court observed that "(t)he factual background expressed in the Presentence Investigation Report, to which (petitioner) offered no objection, * * * establishe(d) both possession and intent to distribute. In the absence of an objection, the factual statements in the Presentence Investigation Report are stipulated facts." Id. at B4-B5 (emphasis in original; footnote omitted). The court held that "the district court's decision to impose a sentence to reflect a more serious offense was not clearly erroneous." Id. at B6. The court of appeals also upheld the district court's refusal to depart downward based on petitioner's substantial assistance to the government. "The district court's refusal to depart from the Guidelines in the instant case was a permissible exercise of its discretion and hardly a violation of the law." Pet. App. B6. ARGUMENT 1. Petitioner is correct that his stipulation to the government's factual proffer at his plea hearing did not specifically establish his possession of cocaine with the intent to distribute it. Pet. 6-7; Pet. C.A. Br. 9-10. Guidelines Section 1B1.2(a) requires the sentencing court to apply the Guideline most applicable to the stipulated offense "in the case of conviction by a plea of guilty or nolo contendere containing a stipulation that specifically establishes a more serious offense than the offense of conviction." As this Court held in Braxton v. United States, No. 90-5358 (May 28, 1991), slip op. 5: the only stipulation relevant to our inquiry is (at most) that which occurred at the Rule 11(f) hearing, since Section 1B1.2 refers not to a stipulation in isolation, but to "a plea . . . containing a stipulation." (Emphasis added.) ³Accord Sentencing Guidelines Section 1B1.2, Application Note 1 (1990) (stipulated facts must be "established by the plea"). The facts establishing the offense of possession with intent to distribute cocaine must therefore be found in petitioner's stipulation to the government's factual proffer at his guilty plea hearing, and not in his acceptance of the factual recitation in the presentence report prepared for the subsequent sentencing hearing. In this case, the factual proffer to which petitioner stipulated at the plea hearing said only that petitioner made "telephone calls * * * to facilitate the delivery of two quantities of cocaine, one being 1 ounce and one being 3 ounces." 7/10/90 Tr. 11-12 (emphasis added). Because petitioner did not stipulate to possession of cocaine at his plea hearing, the presentence report is incorrect in concluding that "(t)he facts presented to the Court establish a more serious crime than the offense of conviction and (petitioner) agreed to the statement of facts." Presentence Report 5. The district court therefore erred when, in reliance on the presentence report, it "disallow(ed)," 8/21/90 Tr. 21, petitioner's objection to application of the Guideline for possession with the intent to distribute cocaine, Guidelines Section 2D1.1(3) (1989). The court of appeals also erred when it relied on "(t)he factual background expressed in the Presentence Investigation Report" to "establish() both possession and intent to distribute." Pet. App. B4-B5. Since the stipulation at petitioner's plea hearing did not establish possession of cocaine with the intent to distribute it, the courts below erred when they invoked the Guideline for that more serious offense, Guidelines Section 2D1.1(3) (1989), rather than the communications offense to which petitioner pleaded guilty, Guidelines section 2D1.6 (1989). /*/ 2. Petitioner renews his contentions, Pet. 9-12, that Guidelines Section 5K1.1 unconstitutionally denies the defense the same opportunity as the prosecutor to seek a downward departure from the applicable Guidelines range for substantial assistance to law enforcement, and that the district court improperly declined to consider a downward departure on that basis in his case. The constitutional question petitioner poses is not properly presented in this case. The district court considered petitioner's claim that he provided substantial assistance to law enforcement authorities, 8/21/90 Tr. 19-20, 22-25, but found that his cooperation did not warrant departure below the Guideilnes range, id. at 27 (quoted at p. 4, supra). The court's refusal of a defendant's request to depart below the Guideilnes range is not reviewable unless that refusal is illegal. 18 U.S.C. 3742(a)(1), (3); United States v. Rojas, 868 F.2d 1409 (5th Cir. 1989). Since the district court based its decision not to depart on the merits of petitioner's cooperation and not on any bar to departure in the statute or Guidelines, the premise for petitioner's constitutional challenge is absent here. In any event, the courts of appeals have consistently upheld the constitutionality of Guidelines Section 5K1.1 against similar challenges. See, e.g., United States v. Santos, No. 90-1369 (3d Cir. May 3, 1991); United States v. Gardner, No. 90-2005 (6th Cir. Apr. 24, 1991); United States v. Valencia, 913 F.2d 378, 386 (7th Cir. 1990) (decided after United States v. Curran, 724 F.Supp. 1239 (C.D. Ill. 1989), on which petitioner relies, Pet. 10-11); United States v. Spees, 911 F.2d 126 (8th Cir. 1990); United States v. Lewis, 896 F.2d 246, 247 (7th Cir. 1990); United States v. Ayarza, 874 F.2d 647 (9th Cir. 1989), cert. denied, 110 S. Ct. 847 (1990). As the commentary to Guidelines Section 5K1.1 and the opinions of the courts of appeals explain, the requirement of a motion by the government is not arbitrary, see Chapman v. United States, No. 90-5744 (May 30, 1991), slip op. 11 (Due Process Clause requires only that sentence not be based "on an arbitrary distinction"), because the government is in the best position to evaluate the "substantiality" of the defendant's assistance to law enforcement. See United States v. Ayarza, 874 F.2d at 653; United States v. White, 869 F.2d 822, 829 (5th Cir.), cert. denied, 109 S. Ct. 3172 (1989). CONCLUSION The petition for a writ of certiorari should be granted, the sentence vacated, and the case remanded for further consideration in light of Braxton v. United States, No. 90-5358 (May 28, 1991). Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General KAREN SKRIVSETH Attorney JUNE 1991 /*/ After petitioner was sentenced, the Sentencing Commission amended Guidelines Section 2D1.6 by deleting base offense level 12 and substituting a statement that the base offense level for facilitating a drug offense is "the offense level applicable to the underlying offense." See Sentencing Guidelines, App. C, Amend. 320 (1990). That amendment, however, is not applicable to petitioner.