RAMON GONZALEZ-LOPEZ, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-6940

   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 opinion of the court of appeals (Pet. App. A1-A12) is reported
at 911 F.2d 542.

                             JURISDICTION

   The judgment of the court of appeals was entered on September 7,
1990.  A petition for rehearing was denied on November 30, 1990.  Pet.
App. B1.  The petition for a writ of certiorari was filed on January
28, 1991.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether petitioner's previous Florida convictions for robbery
and burglary of a dwelling qualify as "crimes of violence" under the
pre-1990 version of the career offender provisions of Sentencing
Guidelines Sections 4B1.1 and 4B1.2.

   2. Whether the court of appeals properly determined that the
district court erred in sentencing petitioner below the recommended
career offender Guidelines range.

                               STATEMENT

   After a jury trial in the United States District Court for the
Northern District of Georgia, petitioner was convicted on one count of
conspiracy to possess cocaine with intent to distribute it and to
distribute cocaine, in violation of 21 U.S.C. 846, one count of
possession of cocaine with intent to distribute it, in violation of 21
U.S.C. 841(a), and one count of attempted distribution of cocaine, in
violation of 21 U.S.C. 846.  He was sentenced to a total term of 57
months' imprisonment, to be followed by a three-year term of
supervised release.  On the government's appeal, the court of appeals
vacated the sentence and remanded for resentencing.  Pet. App. A1-A12.

   1. The Presentence Report prepared by the probation officer listed
petitioner's "four prior (Florida) felony convictions which putatively
involved either violence or the threat of violence" (Pet. App. A3):  a
1978 conviction for robbery by force and fear, a 1981 conviction for
burglary of an unoccupied apartment, a 1982 conviction for armed
robbery, and a 1983 conviction for attempted burglary of an occupied
residence.  Id. at A3-A4.  In view of the applicable career offender
provisions of Sentencing Guidelines Sections 4B1.1 and 4B1.2, /1/ and
petitioner's criminal record, the probation officer recommended that
petitioner should be classified as a career offender (offense level
34, criminal history as Category VI) and sentenced within the
Guidelines range of 262 to 327 months' imprisonment.  Pet. App. A3.
/2/

   At sentencing, the government agreed with the probation officer's
recommendation that petitioner be sentenced as a career offender.
Petitioner, on the other hand, "argued that the circumstances
underlying his robbery, armed robbery, residential burglary, and
attempted burglary convictions showed that they did not involve
violence or force and were therefore not crimes of violence as defined
by (Sentencing Guideline Section 4B1.2 (1988))." Pet. App. A4.
Moreover, petitioner contended that the armed robbery conviction "was
actually a simple robbery" and that his attempted burglary conviction
was a misdemeanor under Florida law.  Ibid.  In the alternative,
petitioner urged the court to grant a "downward departure * * *
because the career offender guideline failed to provide adequately for
a situation where, as in his case, the prior offenses did not involve
violence but were still sufficient to result in a guideline's range of
262-327 months incarceration." Id. at A4-A5.

   2. The district court agreed with petitioner's submission and
declined to sentence him as a career offender under Sentencing
Guidelines Sections 4B1.1 and 4B1.2.  Instead, the court sentenced
petitioner to a term of 57 months' imprisonment, based on a total
offense level of 16 and a category VI criminal history.  Pet. App. A5.
 The court found that petitioner's convictions for armed robbery,
robbery, and burglary "lack(ed) the requisite element of violence * *
* to qualify as predicate crimes of violence under section 4B1.2."
Pet. App. A5 (internal quotation marks and citation omitted;  brackets
in original).  The court also determined that petitioner's attempted
burglary conviction was a misdemeanor under Florida law.  In light of
these findings, the court concluded that petitioner was not a "career
offender" under Sentencing Guideline Section 4B1.1.

   In the alternative, the district court held that, even if
petitioner qualified as a career offender, "a downward departure was
warranted because the Sentencing Commission * * * did not adequately
consider() * * * a situation where a person with (petitioner's)
criminal history could be sentenced to over 27 years." Pet. App. A5
(internal quotation marks and citation omitted;  first brackets in
original).  The court further stated that, even if the Sentencing
Commission had adequately considered the situation at issue, "it would
seem to me it would be grossly unfair and grossly excessive * * * to
impose any sentence (on petitioner) pursuant to the career offender
status." 6 R. 68.

   3. On the government's appeal, the court of appeals vacated
petitioner's sentence and remanded the case for resentencing within
the recommended career offender Guidelines range.  Pet. App. A1-A12.
/3/

   As a threshold matter, the court held that Sentencing Guidelines
Sections 4B1.1 and 4B1.2, by incorporating the definition set forth in
18 U.S.C. 16, "prohibit the sentencing court from reviewing the
underlying facts of a conviction to determine whether it is a crime of
violence for career offender purposes." Pet. App. A8.  With respect to
crimes of violence defined in 18 U.S.C. 16(a), the court concluded
that the statutory requirement that the offense have the use,
attempted use, or threatened use of force "as an element" meant that
the sentencing court should examine only the statutory definition of
the offense and decide whether force or attempted or threatened use of
force was an element of the offense.  Pet. App. A6-A7.  With respect
to crimes of violence defined in 18 U.S.C. 16(b), the court
determined, the statutory requirement that the offense "by its nature"
involve a substantial risk that force might be used "contemplates a
generic category of offenses which typically present the risk of
injury to a person or property irrespective of whether the risk
develops or harm actually occurs." Pet. App. A7 (citing United States
v. Cruz, 805 F.2d 1464, 1470 (11th Cir. 1986), cert. denied, 481 U.S.
1006 (1987)).  /4/

   Turning to petitioner's criminal record, the court of appeals
concluded that petitioner's convictions for robbery and residential
burglary are "crimes of violence" for purposes of the career offender
provisions of Sentencing Guidelines Sections 4B1.1 and 4B1.2.  Pet.
App. A8-A9.  /5/ The court found that petitioner "was convicted under
Florida's robbery statute, which has an element 'the use of force,
violence, assault, or putting in fear.'" Id. at A8 (quoting Fla. Stat.
Ann. Section 812.13(1) (West 1976)).  That element, the court
concluded, is "consistent with 18 U.S.C. Section 16(a)'s requirement
that a crime of violence have as an element 'the use . . . of physical
force . . . .'" Pet. App. A8.  /6/ Following its recent decision in
United States v. Davis, 881 F.2d 973, 976 (11th Cir. 1989), cert.
denied, 110 S.Ct. 735 (1990), the court also concluded that
petitioner's conviction for burglary of a dwelling, in violation of
Fla. Stat. Ann. Section 810.02 (1987), constituted a "crime of
violence" for purposes of 18 U.S.C. 16(b).  As the court reiterated,
"any 'burglary of a dwelling, by its nature, creates a substantial
risk of physical force.'" Pet. App. A9 (quoting Davis, 881 F.2d at
976).  Accordingly, the court held that "(s)ince all the other
requirements for a finding of career offender status have been met,
the sentencing court was incorrect in determining that (petitioner)
was not a career offender." Pet. App. A9.

   Finally, the court of appeals held "that based upon the facts of
this case, the sentencing court was precluded from departing from the
career offender guideline." Pet. App. A12.  First, the court rejected
petitioner's contention

      that in adopting its definition of a crime of violence and
      incorporating it in the career offender guideline, the
      (Sentencing) Commission did not adequately consider the
      distinction between crimes that involve the actual use of force
      and result in injury, and those that involve nothing more than
      the threat of force and do not result in injury.

Id. at A10.  The court stated that "(i)t is clear from the language of
section 4B1.2 that the Commission considered the distinction between
the use of force and the lesser threat of force when it formulated the
career offender guideline." Pet. App. A10;  see note 1, supra.  As the
court noted, "(n)oticeably absent from the definition is any
indication that the infliction of injury should be taken into account.
 The definition means what it says -- the typical crime of violence
does not have to result in violence, the mere threat of physical force
or the risk of physical force is sufficient." Pet. App. A10.  /7/

   Second, the court of appeals held that the trial court erred in
departing from the Guidelines range on the "basis that to sentence
(petitioner) as a career offender would result in an excessive
sentence." Pet. App. A11.  The court explained that the district
court's dissatisfaction with either the range prescribed by the
Sentencing Guidelines or the government's efforts to have petitioner
classified as a career offender did not provide adequate grounds for
departure.  Id. at A11-A12.

                               ARGUMENT

   1. Petitioner contends (Pet. 7-12) that his previous Florida
convictions for robbery and burglary of a dwelling do not qualify as
"crimes of violence" under the pre-1990 version of the career offender
provisions of Sentencing Guidelines Sections 4B1.1 and 4B1.2, because
those offenses did not actually involve violent conduct.  In light of
the plain terms of Sentencing Guideline Section 4B1.2(1), which
incorporate the definition set forth in 18 U.S.C. 16(a), the courts of
appeals have consistently held that robbery is a "crime of violence"
because such an offense "has as an element the use, attempted use, or
threatened use of physical force against the person of another"
(emphasis added).  See, e.g., United States v. McDougherty, 920 F.2d
569, 576 (9th Cir. 1990);  United States v. Selfa, 918 F.2d 749, 751
(9th Cir. 1990);  United States v. Davis, 915 F.2d 132, 133 (4th Cir.
1990);  United States v. Carter, 910 F.2d 1524, 1531-1533 (7th Cir.
1990);  United States v. McVicar, 907 F.2d 1, 1-3 (1st Cir. 1990);
United States v. Maddalena, 893 F.2d 815, 819 (6th Cir. 1989);  see
also Sentencing Guideline Section 4B1.2, Application Note 1 (1988)
(listing "robbery" as "covered by (term crime of violence)").

   In a similar vein, the courts of appeals have consistently held
that burglary of a dwelling is a "crime of violence" under the career
offender Guideline provisions, because such an offense, "by its
nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing
the offense" (18 U.S.C. 16(b)).  See, e.g., United States v. Becker,
919 F.2d 568, 572 (9th Cir. 1990);  United States v. Brunson, 915 F.2d
392, 393 (8th Cir. 1990);  United States v. Cruz, 882 F.2d 922, 923
(5th Cir. 1989);  United States v. Davis, 881 F.2d at 975-976;  United
States v. Flores, 875 F.2d 1110, 1113 (5th Cir. 1989);  United States
v. Pinto, 875 F.2d 143, 143-144 (7th Cir. 1989);  see also Sentencing
Guideline Section 4B1.2, Application Note 1 (1988) (listing "burglary
of a dwelling" as "covered by (the term crime of violence)";  cf.
Taylor v. United States, 110 S. Ct. 2143 (1990) (generic burglary is a
crime of violence within the meaning of 18 U.S.C. 924(e)).
Accordingly, the court of appeals in this case properly declined
petitioner's invitation to look beyond the offenses of conviction --
robbery and burglary of a dwelling -- in holding that petitioner must
be sentenced under the applicable career offender provisions.  /8/

   Petitioner also asserts (Pet. 8-9) that the court of appeals'
decision may not be squared with United States v. Terry, 900 F.2d 1039
(7th Cir. 1990), and United States v. McNeal, 900 F.2d 119 (7th Cir.
1990), since the Seventh Circuit, in those decisions, permitted the
sentencing court to examine the defendant's underlying criminal
conduct (aggravated assault and unlawful possession of a firearm) in
assessing the application of the career offender provisions.
Petitioner is mistaken.  Neither Terry nor McNeal involved the
predicate offenses of robbery and burglary of a dwelling -- offenses
that fall comfortably within the terms of the career offender
provisions.  Indeed, the Commission explicitly identified those
offenses as constituting "crimes of violence." See Sentencing
Guideline Section 4B1.2, Application Note 1 (1988).  Moreover, the
Seventh Circuit has held that the offenses of robbery and burglary of
a dwelling are, by definition, "crimes of violence" under the career
offender provisions.  See United States v. Carter, 910 F.2d at
1531-1533;  United States v. Pinto, 875 F.2d at 143-144.  The decision
below is therefore consistent with the Seventh Circuit's approach to
the sentencing issue presented in this case.

   2. Petitioner next contends (Pet. 13-20) that the court of appeals
should have upheld the district court's determination to sentence him
below the recommended career offender Guidelines range.  That claim is
without merit.  Here, the record showed that petitioner is precisely
the sort of recidivist that both Congress and the Sentencing
Commission intended to be subjected to substantial sentences under the
career offender provisions of the Guidelines.  During a five-year
span, petitioner committed four "crimes of violence" -- robbery,
burglary, armed robbery, and attempted burglary -- and one predicate
controlled substances offense -- narcotics possession.  See pp. 2-4,
supra.  Indeed, the Presentence Report (at 3-6) listed at least 18
separate entries involving petitioner's brushes with the Florida state
criminal justice system.  Accordingly, the court of appeals correctly
held that the trial court erred in departing from the Guidelines range
on the "basis that to sentence (petitioner) as a career offender would
result in an excessive sentence." Pet. App. A11.

   As petitioner points out (Pet. 18-19), other courts of appeals have
concluded that the sentencing court may, in appropriate circumstances,
depart downward from the career offender Guidelines range.  See United
States v. Lawrence, 916 F.2d 553, 554-555 (9th Cir. 1990);  United
States v. Smith, 909 F.2d 1164, 1168-1170 (8th Cir. 1990);  United
States v. Brown, 903 F.2d 540, 544-545 (8th Cir. 1990);  United States
v. Baskin, 886 F.2d 383, 388-390 (D.C. Cir. 1989), cert. denied, 110
S. Ct. 1831 (1990).  To the extent the court of appeals' decision may
be in tension with those circuits' decisions, this case is not an
appropriate vehicle for addressing the issue.  On this record,
departure would not have been warranted under the approach adopted in
those cases, since petitioner's extensive criminal history places him
squarely within the bounds of the career offender provisons of the
Guidelines.

                              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

   KAREN SKRIVSETH

      Attorney

   APRIL 1991

   /1/ The pre-1990 version of the career offender provisions of
Sentencing Guidelines Sections 4B1.1 and 4B1.2 (1988), provided in
pertinent part:

   Section 4B1.1.  Career Offender

      A defendant is a career offender if (1) the defendant was at
      least eighteen years old at the time of the instant offense, (2)
      the instant offense of conviction is a felony that is either a
      crime of violence or a controlled substance offense, and (3) the
      defendant has at least two prior felony convictions of either a
      crime of violence or a controlled substance offense.  * * *

   Section 4B1.2.  Definitions

      (1) The term "crime of violence" as used in this provision is
      defined under 18 U.S.C. Section 16.

                      * * * * *

   Title 18, United States Code, Section 16, defined the term "crime
of violence" to include

         (a) an offense that has as an element the use, attempted use,
      or threatened use of physical force against the person or
      property of another, or

         (b) any other offense that is a felony and that, by its
      nature, involves a substantial risk that physical force against
      the person or property of another may be used in the course of
      committing the offense.

   The current definition of career offender in Sentencing Guideline
Section 4B1.1 (1990) tracks its predecessor's definition.  The
Sentencing Commission, however, has since amended the definitional
provision of Sentencing Guideline Section 4B1.2(1).  Effective
November 1, 1989, this Guideline provides that

      (1) The term "crime of violence" means any offense under federal
      or state law punishable by imprisonment for a term exceeding one
      year that -- (i) has as an element the use, attempted use, or
      threatened use of physical force against the person of another,
      or (ii) is burglary of a dwelling, arson, or extortion, involves
      use of explosives, or otherwise involves conduct that presents a
      serious potential risk of physical injury to another.

Sentencing Guideline Section 4B1.2(1) (1990).

   /2/ Petitioner's record also included previous convictions for
possession of methaqualude, theft, and disorderly conduct.  Pet. App.
A4.  At sentencing, the government urged the district court to treat
petitioner's methaqualude possession conviction as a predicate
"controlled substance offense" under Sentencing Guideline Sections
4B1.1 and 4B1.2(2).  The district court rejected that contention, and
the court of appeals did not reach the issue.  See Pet. App. A4 n.1.

   /3/ As the court of appeals recognized, Pet. App. A12 n.7, the
district court may have mistakenly assumed that, under the career
offender provisions, petitioner was subject to a range of 262 to 327
months' imprisonment.  It appears that the applicable range should be
210 to 262 months' imprisonment, since the district court found (6 R.
67) -- and the government did not challenge on appeal -- that
petitioner's offense of conviction involved only two and one-half
ounces of cocaine.  (Since that offense is punishable by a maximum
term of 20 years' imprisonment, see 21 U.S.C. 841(b)(1)(C),
petitioner's offense level under Sentencing Guideline Section 4B1.1 is
32, not 36.)

   /4/ The court observed that its "interpretation of the guidelines'
definition of a crime of violence is consistent with the overall
objectives of the guidelines themselves," i.e., "reduc(ing)
disparities in the sentences of defendants convicted of similar
crimes," and that its construction will avoid the practical
difficulties that would result if sentencing courts were "to conduct
factual inquiries into the specific conduct underlying an earlier
conviction." Pet. App. A7.

   /5/ For that reason, the court of appeals did not consider whether
petitioner's armed robbery and attempted burglary convictions
qualified as predicate offenses for purposes of the career offender
provisions.  Pet. App. A8.

   /6/ The court also pointed out (Pet. App. A8) that the Sentencing
Commission had listed robbery as an offense that falls under the
category of "crime of violence." Sentencing Guideline Section 4B1.2,
Application Note 1 (1988).

   /7/ For that reason, the court of appeals declined to follow United
States v. Baskin, 886 F.2d 383 (D.C. Cir. 1989), cert. denied, 110 S.
Ct. 1831 (1990), to the extent the D.C. Circuit there suggested "that
a sentencing court may not consider the facts of a prior conviction
when determining status as a career offender but that it can review
the facts of a prior conviction when determining the appropriateness
of departure." Pet. App. A11.

   /8/ In any event, the issue regarding the sentencing court's
ability to look beyond the offense of conviction for purposes of
applying the Sentencing Guidelines' career offender provisions has no
recurring significance.  As amended in 1989, the Guidelines direct the
sentencing court to consider only the following sources in applying
the career offender provisions:  the list of offenses identified by
the Sentencing Commission, the statutory definition of the offense at
issue, or the "conduct set forth in the count of which the defendant
was convicted." Sentencing Guideline Section 4B1.2, Application Note 2
(1990);  see Sentencing Guideline Section 4B1.2(1) (1990) (note 1,
supra);  see generlly Sentencing Guidelines, Appendix C, Amendment 268
(1990).