TRACY FELLS, PETITIONER V. UNITED STATES OF AMERICA No. 90-7358 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 Fourth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals, Pet. App. A1-A13, is reported at 920 F.2d 1179. The district court opinion upon sentencing, Pet. App. B1-B4, is not reported. JURISDICTION The judgment of the court of appeals was entered December 10, 1990. The petition for a writ of certiorari was filed March 11, 1991 (a Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether an upward adjustment in petitioner's sentence was properly based upon his leadership role in a cocaine distribution network rather than the number of subordinates used to commit the offenses of conviction. STATEMENT After a jury trial in the United States District Court for the Eastern District of Virginia, petitioner was convicted on five counts of distributing crack cocaine, in violation of 21 U.S.C. 841(a)(1). Petitioner was sentenced to 240 months in prison. The court of appeals affirmed. Pet. App. A1-A13. 1. The evidence at trial showed that, on five separate occasions in late 1988 and early 1989, petitioner, aided by his associate Jeff Richardson, sold large amounts of crack cocaine to undercover police informant Wendell Ford. Although petitioner negotiated the terms of each transaction, Richardson delivered the crack cocaine to Ford. In each of the first two sales, Ford paid Richardson $600 for one-half ounce of crack. In each of the next three sales, Ford paid $2,800 for two and one-half ounces of crack. Pet. App. A2-A4. In addition to introducing tape-recordings of the discussions between petitioner and Ford, the government also introduced recorded conversations that undercover Police Officer Scott had with petitioner on February 11, 1989. In discussing a planned purchase of four ounces of crack cocaine, petitioner told Scott he shortly would be receiving a replenished supply of crack from an associate who was "going to make a move for (him)." When petitioner subsequently was unable to locate one of "his boys," he told Scott not to worry because "(h)e can't make no move without me anyway, you know what I mean." Pet. App. A4. 2. After a jury convicted petitioner on the five counts of cocaine distribution charged in the indictment, the district court sentenced him to 240 months' imprisonment under the Sentencing Guidelines. The court determined that petitioner's offense level was 36 and his criminal history category was III, yielding a 235-293 month range from which the court selected its sentence. The court arrived at an offense level of 36 by, among other things, imposing a four level increase to the base offense level to account for petitioner's role as "an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." Sentencing Guidelines Section 3B1.1(a). The court justified this increase by explaining: The trial evidence shows that (petitioner) had Richardson, Ford, Scott, and Daley, plus the person in New York, as people working for him in that they supplied over 30 people with crack. (Petitioner) was a decision maker. He was the one to call the supplier in New York. He directed the other people in the organization. This shows that (petitioner) was an organizer in criminal activity with five or more participants. Pet. App. B2. 3. The court of appeals affirmed. Pet. App. A1-A13. First, the court rejected petitioner's only challenge to his convictions, holding that the district court properly allowed the government to introduce, under Fed. R. Evid. 404(b), tape-recordings and testimony of the February 11, 1989, discussions between petitioner and undercover Officer Scott regarding a planned crack cocaine transaction that never was consummated. Pet. App. A4-A6. The court upheld the district court's determinations that those conversations were relevant and not unduly prejudicial, because they "related temporally and substantively to (petitioner's) alleged crack cocaine distribution network * * *, supported the proposition that (petitioner) held a position of leadership within the organization and demonstrated his intent in the previous transactions." Id. at A5. Such evidence was important, explained the court, because "(a)lthough there was clear evidence of (petitioner's) involvement in drug distribution, he carefully distanced himself from the transactions by using others to actually handle the drugs." Ibid. Second, the court of appeals affirmed petitioner's sentence, holding that the district court properly increased his offense level by four to account for his role as "an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." Pet. App. A6-A13. The court held that a defendant's role in the "criminal activity" must be determined not just with respect to the specific offense(s) of conviction but rather on the basis of all "relevant conduct" as set forth in Sentencing Guidelines Sections 1B1.2 and 1B1.3. See Pet. App. A8-A10. Under those provisions, explained the court, the sentence for a defendant convicted of drug distribution offenses is based on all acts that are part of "the same source of conduct or common scheme or plan as the offense(s) of conviction." Id. at A11-A12 (quoting Guidelines Section 1B1.3; also citing Guidelines Section 2D1.1). The court recognized that other courts of appeals had limited adjustments based on the defendant's role to conduct committed as part of the offenses of conviction, Pet. App. A10 n.6, but explained that "(t)he failing of this interpretation is that nowhere in th(e relevant) Part of the Guidelines Manual is the term 'offense of conviction' employed, and the commentary to Section 1B1.3 cautions against reading guideline language in Chapters Two and Three in a narrow, conviction-based frame of reference absent express directin," id. at A11 (citing Guidelines Section 1B1.3 commentary n.5). The court observed that the other courts of appeals either "overlooked" the pertinent instructions or else mistakenly believed that Guideline Section 3B1.1, by referring to defendant's role in the "offense," was a specified exception to the general rule. Pet. App. A11. The court noted that the correctness of its holding was confirmed "by a clarifying November 1, 1990 amendment that provides that the defendant's role in the offense is to be determined 'on the basis of all conduct within the scope of Section 1B1.3 (Relevant Conduct), i.e., all conduct included under Section 1B1.3(a)(1)-(4), and not solely on the basis of elements and acts cited in the count of conviction.'" Pet. App. A13 (citing Guidelines Ch. 3, Pt. B, intro. commentary (Nov. 1, 1990)). Based on its legal conclusion, the court had little difficulty determining that petitioner was an "organizer or leader" of criminal activity involving five or more persons. The court listed four persons properly considered participants in petitioner's organization, Pet. App. A6-A7, /1/ and relied on petitioner's concession that "the record supports a finding that he supplied crack cocaine to at least 17 other individuals who were themselves distributors, and to whom the district court referred when considering the applicability of a role in the offense adjustment." Id. at A7. The court said those other individuals properly could be considered part of petitioner's drug distribution network because they were not "end users" but instead "were lower level distributors used by (petitioner) to market illegal drugs." Id. at A7-A8. /2/ ARGUMENT The court of appeals correctly interpreted the Sentencing Guidelines. Although other courts of appeals have read the Guidelines differently, those cases were decided before the Sentencing Commission issued a clarifying amendment. That clarification, which appears in the November 1990 edition of the Sentencing Guidelines Manual, definitively answers the sole question presented in this case and should end the division among the lower courts. 1. The Sentencing Guidelines indicate that adjustments based on the defendant's role are not limited to conduct committed as part of the offenses of conviction. The Sentencing Commission's introductory comments explain that "(o)ne of the most important questions for the Commission to decide was whether to base sentences upon the actual conduct in which the defendant engaged regardless of the charges for which he was indicted or convicted ('real offense' sentencing), or upon the conduct that constitutes the elements of the offense for which the defendant was charged and of which he was convicted ('charge offense' sentencing)." Guidelines Ch. 1, pt. A(4)(A), at 1.4. Although the Commission ultimately promulgated guidelines closer to a charge offense system than to a real offense system, it pointed out that the system it fashioned "does contain a significant number of real offense elements." Id. at 1.5. The Commission noted that "the guidelines take account of a number of commonly occurring real offense elements such as role in the offense, the presence of a gun, or the amount of money actually taken, through alternative base offense levels, specific offense characteristics, cross references and adjustments." Ibid. (emphasis added). Thus, in drug distribution offenses such as the ones for which petitioner was convicted, a defendant's offense level is determined not only upon the charged offenses, but also upon the "(t)ypes and quantities of drugs not specified in the count(s) of conviction." Guidelines Section 2D1.1 commentary n.12 (citing Guidelines Section 1B1.3(a)(2) (Relevant Conduct)). Petitioner does not dispute that sentencing courts must look beyond the specific offenses of conviction to determine the quantity of drugs involved for purposes of Guidelines Section 2D1.1. For purposes of Guidelines Section 3B1.1, however, petitioner insists that courts should examine only the defendant's role in the offenses of conviction (here, the number of subordinates petitioner used to accomplish the five cocaine sales) rather than conduct that is part of the same course of conduct or common scheme or plan (here, petitioner's cocaine distribution network). The contended anomaly is supported neither by logic nor by the Guidelines. Guidelines Section 1B1.2(a) expressly directs courts to "determine the applicable guideline range in accordance with Section 1B1.3." Section 1B1.3, in turn, defines "Relevant Conduct (Factors that Determine the Guideline Range)." It provides, with respect to drug distribution and certain other types of offenses, that both specific offense characteristics under Chapter 2 (e.g., drug quantity under Section 2D1.1) and adjustments under Chapter 3 (e.g., defendant's role in the offense) are based on "all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." Guidelines Section 1B1.3(a)(2) (emphasis added). /3/ The court of appeals recognized that its decision was contrary to the decisions of several other courts of appeals. Pet. App. A10 n.6 (citing cases); see also Pet. 12-16 (citing and discussing several of the same cases). After those earlier cases were decided, however, the Sentencing Commission issued a clarifying amendment that confirms the correctness of the holding of the court below. That clarifying amendment states: This Part provides adjustments to the offense level based upon the role the defendant played in committing the offense. The determination of a defendant's role in the offense is to be made on the basis of all conduct within the scope of Section 1B1.3 (Relevant Conduct), i.e., all conduct included under Section 1B1.3(a)(1)-(4), and not solely on the basis of elements and acts cited in the count of conviction. Guidelines Ch. 3, Pt. B, intro. commentary (Nov. 1, 1990) (emphasis added). The clarifying amendment, which appears in the November 1990 edition of the Sentencing Guidelines Manual, definitively answers the question dividing the lower courts and should eliminate future decisions in conflict with that of the court below. Thus, for example, while petitioner relies upon the Ninth Circuit decision in United States v. Zweber, 913 F.2d 705 (9th Cir. 1990), see Pet. 13, that court more recently has cited the clarifying amendment and the opinion in this case to disavow "dicta" from Zweber and to hold instead that role adjustments under Guidelines Section 3B1.1 are not limited to the offenses of conviction. United States v. Lillard, No. 90-30202 (9th Cir. Mar. 29, 1991); accord United States v. Mir, 919 F.2d 940, 945 (5th Cir. 1990) (citing clarifying amendment in rejecting contrary implications of United States v. Barbontin, 907 F.2d 1494 (5th Cir. 1990), a case relied upon by petitioner, see Pet. 13, 15-16). /4/ 2. Contrary to petitioner's suggestion, Pet. 17-18, the court of appeals properly included as part of his drug distribution network the numerous "other individuals who were themselves distributors" supplied with crack cocaine by petitioners. See Pet. App. A7. Petitioner relies on a district court case holding that customers purchasing drugs for their own personal use ordinarily are not considered part of a drug network, see United States v. Weidner, 703 F. Supp. 1350, 1354 (N.D. Ind. 1988), aff'd, 885 F.2d 873 (7th Cir. 1989), but the court of appeals correctly distinguished petitioner's role, Pet. App. A7-A8, noting that his customers were not "end users" but instead "were lower level distributors used by him to market illegal drugs." Finally, there is no merit to petitioner's assertion, Pet. 20-21, that the court of appeals "erred in interpreting 'relevant conduct' to include totally unrelated transactions as 'part of the same course of conduct or common scheme or plan as the offense of conviction.'" The court of appeals, consistent with the definition of "relevant conduct" in Guidelines Section 1B1.3, recognized throughout its opinion that petitioner's role in the offense could only be determined with reference to transactions that were "part of the same course of conduct or common scheme or plan as the offense of conviction." See Pet. App. A12, A13. That petitioner and his associate Richardson conducted the five specific drug transactions giving rise to the offenses of conviction as part of petitioner's larger drug network is supported by the court's prior holding permitting the introduction of petitioner's admissions made during a later drug transaction. See Pet. App. A4-A6. The court held that this later drug transaction, although not charged separately in the case, "related temporally and substantively to (petitioner's) alleged crack cocaine distribution network" that was involved in the present case. Id. at A5; see also ibid. (petitioner's admissions during this later transaction "were relevant evidence that supported the proposition that (he) held a position of leadership within the organization and demonstrated his intent in the previous transactions"). The court of appeals' rejection of petitioner's claim is factbound and does not merit further review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General SEAN CONNELLY Attorney MAY 1991 /1/ The district court, by counting two persons working undercover for the police and by not counting petitioner himself, had listed five such persons. Pet. App. B2. The court of appeals held that the two undercover agents should not have been counted because they were not "criminally responsible" for the offense but that petitioner himself should have been counted. Pet. App. A6-A7. /2/ Since Guidelines Section 3B1.1(a) also requires a four level upward adjustment where a defendant organizes or leads a criminal activity that is "otherwise extensive," the court of appeals suggested enhancement might have been justified here regardless of the precise number of persons involved. Pet. App. A8 n.2. In light of its holding that petitioner organized or led a cocaine distribution scheme involving five or more persons, however, the court did not rely on this alternative basis for affirming petitioner's sentence. /3/ The Commission's intent in this regard is confirmed by the application notes to Guidelines Section 1B1.2, which reiterate that specific offense characteristics and "any other applicable sentencing factors," including "various adjustments," are to be determined based on the definition of all "relevant conduct" set forth in Guidelines Section 1B1.3. See Pet. App. A9 n.4 (quoting Application Notes 2 and 3 to Guidelines Section 1B1.2). Moreover, Section 1B1.3 itself requires that all relevant conduct as defined therein be considered "unless otherwise specified"; as the court of appeals held, "no language in the Role guidelines specifies or indicates a different intent." Pet. App. A9-A10. /4/ Petitioner does not claim that the clarifying amendment cannot be applied to him retroactively. He could not succeed on that claim in any event because the clarifying amendment only confirmed the decision dictated by the Guidelines already in effect at the time he committed the offenses of which he was convicted. See United States v. Joyner, 924 F.2d 454, 458 (2d Cir. 1991); cf. Miller v. Florida, 482 U.S. 423, 430 (1987) (there is no ex post facto problem unless offender is "disadvantage(d)" by retroactive law).