JORGE VASALLO, PETITIONER V. UNITED STATES OF AMERICA No. 90-6798 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 Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App.) is not reported, but the decision is noted at 918 F.2d 182 (Table). JURISDICTION The judgment of the court of appeals was entered on October 12, 1990. The petition for a writ of certiorari was filed on December 10, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner was improperly prohibited from presenting evidence and argument at the sentencing hearing to support his claim that he was entitled to a downward adjustment in his sentence for acceptance of responsibility under Sentencing Guidelines Section 3E1.1. STATEMENT Petitioner pleaded guilty in the United States District Court for the Northern District of Georgia to possessing more than five kilograms of cocaine with intent to distribute it (21 U.S.C. 841(a)(1)), conspiracy to commit that offense (21 U.S.C. 846), and travelling in interstate commerce to facilitate the commission of an unlawful activity (18 U.S.C. 1952). He was sentenced to a term of 174 months' imprisonment, to be followed by five years of supervised release, and fined $250,000. The court of appeals affirmed without opinion. Pet. App. 1. In November 1988, codefendants Francisco DeLeon and Gabriela DeLeon introduced petitioner to an undercover FBI agent posing as a potential supplier of large quantities of cocaine. As a result of that meeting, petitioner, Gabriela DeLeon, and the FBI agent flew to Atlanta, Georgia, where, according to petitioner, the agent would meet a person who was "well connected" to cocaine distribution networks in several east coast cities. In Atlanta, the agent was introduced to codefendant Jorge Sablon. In a videotaped meeting attended by Sablon, petitioner, Gabriela DeLeon, and the agent, Sablon agreed to purchase 30 kilograms of cocaine from the agent as a test of the agent's ability to provide large quantities of cocaine. Thereafter, on January 11, 1989, the agent met Sablon and petitioner in the lobby of an Atlanta hotel. While petitioner remained in the lobby, Sablon went to the agent's room and inspected 30 kilograms of cocaine that the agent displayed. When Sablon returned to the lobby, he and petitioner were arrested. Gov't C.A. Br. 4-8. 2. After the government had presented two days of testimony in petitioner's jury trial, petitioner agreed to plead guilty. Petitioner refused to cooperate with the probation officer in the preparation of the presentence report. In preparing the presentence report, the probation officer recommended that petitioner not be given a reduction in sentence for acceptance of responsibility. Petitioner filed a written objection to the probation officer's determination that he had not accepted responsibility. Gov't C.A. Br. 9. Petitioner argued that his demeanor during trial and at the plea hearing demonstrated his genuine remorse for his criminal conduct. Gov't C.A. Br. 18. In an addendum to the presentence report, the probation officer reiterated her recommendation that petitioner be denied an adjustment for acceptance of resposibility, noting that petitioner had refused to be interviewed by the probation officer and had offered "no insight as to (his) reason for involving himself in this offense." Ibid. At the sentencing hearing, petitioner renewed the argument that he was entitled to a downward adjustment for acceptance of responsibility. Although acknowledging that it was an issue he would have "difficulty in proving" and that the court was "in the best position to determine whether or not (petitioner) had expressed sincere contrition for what he did wrong," petitioner's counsel stated that petitioner would address during allocution "how he feels after having been in jail" since his conviction. Gov't C.A. Br. 13. The court responded that the right of allocution was typically exercised after the appropriate Sentencing Guidelines determinations were made and immediately before actual sentence was imposed. Hence, whatever petitioner might say at the sentencing hearing would not be considered in determining whether he was entitled to an adjustment for acceptance of responsibility. R.E. 10. /1/ The court explained that if petitioner "wished to offer any evidence on that subject, it's supposed to have been offered a long time before now." Ibid. The court refused to allow petitioner to "sandbag the Government by coming in here at the last minute with your evidence." R.E. 10-11. The court pointed out that petitioner "had a chance to put in (his) version (of the evidence)" when the presentence report was being prepared, but that petitioner "chose not to cooperate with the probation officer." R.E. 10-11, 13. The following colloquy then occurred (R.E. 11-12): THE COURT: I'm just telling you that the evidence I've got is: I know he pled guilty, and I saw him when he told you he wanted to plead, and I heard what he said when he entered his plea. All that's before me. And that's all I know. (PET. COUNSEL): I'm not sure how much more I could have amplified on that, other than raising the objection (to the probation officer's finding), which I did, unless we had some kind of a separate hearing which pretty much would have been the same thing the court had considered earlier, and since the court's in * * * a unique position to determine whether or not a person has accepted responsibility, I felt at the time, and I still do, that the court has enough to base its decision on what has appeared -- what it has observed during the trial and at the plea hearing. Petitioner's counsel then "move(d) on to another topic." R.E. 14. The court found that petitioner was not entitled to an adjustment for acceptance of responsibility. The court noted that the only evidence supporting such an adjustment was "a guilty plea with a statement that * * * for the purposes of talking to the judge, (petitioner) feels bad about (his offense)." R.E. 13. In the court's view, such a showing was "not enough" to demonstrate acceptance of responsibility. Ibid. The court determined that, without adjustment for acceptance of responsibility, the appropriate Guidelines range was 151 to 188 months' imprisonment, and sentenced petitioner to a term of 174 months' imprisonment. The court of appeals affirmed in an unpublished order. Pet. App. ARGUMENT Petitioner claims (Pet. 11-16) that he had an insufficient opportunity to demonstrate his entitlement to a downward adjustment in his sentence for acceptance of responsibility. The court of appeals' denial of this fact-bound claim does not conflict with the decision of any other court of appeals. Further review is therefore unwarranted. The district court must afford the defendant and his counsel "an opportunity to comment on the probation officer's determination and on other matters relating to the appropriate sentence." Fed. R. Crim. P. 32(a)(1). The court must also allow counsel an "opportunity to speak on behalf of the defendant," and allow the defendant to "present any information in mitigation of punishment." Fed. R. Crim. P. 32(a)(1)(B) & (C). The court, in its discretion, may also allow the defendant "to introduce testimony or other information relating to any alleged factual inaccuracy contained" in the presentence report. Fed. R. Crim. P. 32(c)(3)(A). Sentencing Guidelines Section 6A1.3(a) provides that "(w)hen any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor." As the commentary accompanying Sentencing Guidelines Section 6A1.3 makes clear, sentencing courts are accorded substantial discretion to select "appropriate procedures" for assuring "an adequate opportunity to present relevant information." Consistent with Rule 32 and Sentencing Guidelines Section 6A1.3, courts of appeals have uniformly held that district courts may dispense with evidentiary presentations during sentencing hearings if the defendant and his counsel have otherwise had a reasonable opportunity to object to any adverse information or recommendations in the presentence report and to present their position to the court. See United States v. Pologruto, 914 F.2d 67, 69 (5th Cir. 1990) (opportunity to file written objections to presentence report sufficient); United States v. Mueller, 902 F.2d 336, 346 (5th Cir. 1990); United States v. Rigby, 896 F.2d 392, 394-395 (9th Cir. 1990); United States v. Baker, 894 F.2d 1083, 1084-1085 (9th Cir. 1990); United States v. Gerante, 891 F.2d 364, 367-368 (1st Cir. 1989); cf. United States v. Laughy, 886 F.2d 28, 30 (2d Cir. 1989). In the presence of the court, petitioner elected to terminate his on-going trial and plead guilty. At that time, petitioner expressed remorse for his criminal conduct. R.E. 10-11, 13. Petitioner was afforded the opportunity to present evidence of his acceptance of responsibility to the probation officer who prepared the presentence report, but chose not to cooperate with the probation officer. After the probation officer had filed the presentence report with the district court, petitioner filed a written objection to the report's recommendation that he not be awarded a downward adjustment for acceptance of responsibility, specifically referring to his guilty plea and to his expressions of remorse at the time. At the sentencing hearing, counsel for petitioner again argued that petitioner was entitled to a reduction in sentence for acceptance of responsibility, relying on petitioner's decision to plead guilty and his statements at the time he entered his guilty plea. /2/ Petitioner was thus afforded ample opportunities to comment on, and present information relevant to, his acceptance of responsibility, and availed himself of those opportunities. Indeed, at the sentencing hearing, when the district court refused to consider the defendant's statements in his allocution under Rule 32(a) as evidence relating to his entitlement to an adjustment for acceptance of responsibility, counsel for petitioner conceded that those statements "pretty much would have been the same thing the court had considered earlier," and that defense counsel "felt * * * that the court ha(d) enough to base its decision on what * * * it ha(d) observed during the trial and at the plea hearing." R.E. 11-12. Because the court had already heard all the evidence petitioner had to present, the court was well within its discretion in refusing to consider petitioner's last-minute reiteration of evidence in support of an adjustment for acceptance of responsibility. /3/ After receiving all the relevant information petitioner had to offer, the court correctly determined that petitioner's decision to plead guilty -- after listening to two days of evidence that overwhelmingly demonstrated his guilt -- did not entitle him to a reduction in sentence for accepting responsibility for his criminal conduct. See, e.g., United States v. Lueddeke, 908 F.2d 230, 235 (7th Cir. 1990) (no reduction for acceptance of responsibility when defendant pleaded guilty "only after being confronted with evidence of his (crime)"); United States v. Figueroa, 900 F.2d 1211, 1219 (8th Cir.) (court need not accept a defendant's "untimely and insincere" apology), cert. denied, 110 S. Ct. 3228 (1990); see also United States v. Trujillo, 906 F.2d 1456, 1461-1462 (10th Cir.), cert. denied, 111 S. Ct. 396 (1990); United States v. Carroll, 893 F.2d 1502, 1511-1512 (6th Cir. 1990). 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 ROBERT J. ERICKSON Attorney APRIL 1991 /1/ "R.E." refers to the record excerpts filed in the court of appeals. /2/ Petitioner is thus incorrect in stating (Pet. 9) that the court "would not permit counsel to * * * present argument on the question of whether Petitioner had accepted responsibility." See also Pet. 11, 16. Petitioner's counsel in fact did argue at the sentencing hearing that petitioner's guilty plea and expression of remorse at the plea hearing established his entitlement to a downward adjustment. R.E. 10-13. The court simply found that argument unpersuasive. R.E. 13. /3/ Petitioner does not contend that he was denied his right of allocution under Rule 32(a) at the sentencing hearing. Pet. 9; R.E. 10.