RONNIE D. WALKER, PETITIONER V. UNITED STATES OF AMERICA No. 90-6899 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 Tenth Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. 1a-3a) is not reported. JURISDICTION The judgment order of the court of appeals was entered on November 8, 1990. Pet. App. 1a-3a. The petition for a writ of certiorari was filed on January 25, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court was required to make findings concerning information contained in the presentence report after petitioner had withdrawn his objections to that information. 2. Whether the Sentencing Guidelines permit consideration of the amounts of drugs involved in transactions that were part of the same course of conduct as the offense on which petitioner was convicted. STATEMENT Petitioner pleaded guilty in the United States District Court for the District of New Mexico to one count of possessing cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). Petitioner was sentenced to 72 months' imprisonment, to be followed by five years' supervised release, and he was ordered to pay restitution in the amount of $19,200. The court of appeals affirmed. Pet. App. 1a-3a. 1. In October 1987, New Mexico police arrested a person with eight ounces of cocaine that he said he had obtained from petitioner. The police thereupon began an undercover investigation of petitioner. On November 12, 1987, petitioner sold four ounces (113.4 grams) of cocaine to undercover agents of the State police and the FBI. On February 17, 1988, petitioner sold one pound (454.06 grams) of cocaine to an undercover FBI agent. On March 31 and May 13, 1988, petitioner gave an FBI agent 1-gram and 2.1-gram samples of cocaine, respectively, during negotiations to sell the agent ten kilograms of cocaine. On August 11, 1988, petitioner's residence was searched pursuant to a warrant. The search yielded $12,800 in cash, four ounces (113.4 grams) of cocaine, an unregistered weapon made from a sawed-off .22 caliber rifle, and an unregistered silencer. Gov't C.A. Br. 4, 11 n.2; Presentence Report (PSR) 4-5. On October 14, 1988, petitioner was indicted on two counts of illegally possessing less than 500 grams of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1), 21 U.S.C. 841(b)(1)(C) and 18 U.S.C. 2; three counts of intentionally distributing less than 500 grams of cocaine, in violation of the same provisions; one count of possessing an unregistered sawed-off shotgun, in violation of 26 U.S.C. 5861(d) and 5871; and one count of possessing an unregistered silencer, also in violation of 26 U.S.C. 5861(d) and 5871. Petitioner and the government entered into a "Memorandum of Understanding Regarding Guilty Plea." In that memorandum, petitioner agreed to plead guilty to the count of the indictment that concerned the November 12, 1987, sale of cocaine. The memorandum also stated: "No further federal charges will be brought against the defendants Ronnie D. Walker and Jeanette Walker relating to the following transactions in which the defendant Ronnie D. Walker was involved:". Among the transactions listed thereafter were the other sales of cocaine charged in the indictment and the possession of the unregistered firearm and silencer. Petitioner signed the memorandum. The district court accepted his guilty plea on December 19, 1988. Gov't C.A. Br. 2; PSR 2-3. 2. The presentence report included a description of the drug and weapons offenses charged in the indictment based on the description of the offenses set forth in the Memorandum of Understanding Regarding Guilty Plea. See PSR 2-3. At hearings on February 17 and 22, 1989, petitioner objected to certain aspects of the presentence report. As relevant here, he denied that he had sold cocaine to an undercover agent on May 13, 1988, as charged in Count IV of the indictment. He also denied possessing either an unregistered sawed-off shotgun or an unregistered silencer, as charged in Counts VI and VII of the indictment. /1/ The district court reminded petitioner that he had admitted commission of these offenses in the Memorandum of Understanding. The court explained to petitioner that objecting to these matters was tantamount to challenging the plea agreement. IV Tr. 118-122; see also Pet. 7-9. The district court was receptive, however, to the possibility that petitioner misunderstood the significance of the admissions he had made in the plea agreement: If there has been a misunderstanding * * * if he now takes the position that he was in error on that and * * * that the consequences of sentencing were of moment to him when he entered this plea; then I suppose I can take some perspective on that. And, this perspective, perhaps he was mistaken; perhaps we ought to go ahead and set the whole thing aside * * *. IV Tr. 122. Rather than seeking to withdraw the plea agreement, however, petitioner withdrew his objections to the presentence report. Gov't C.A. Br. 7; Pet. 9, 16. The presentence report calculated a base offense level of 26, to which no adjustments were made. The offense level was based on the total amount of cocaine with which petitioner was found to have been involved during the undercover investigation. See PSR 5; see also Guidelines Section 2D1.1, Drug Quantity Table, at 2.44. Petitioner's criminal history put him in Category I. The resulting sentencing range was 63 to 78 months. /2/ The district court sentenced petitioner to 72 months' imprisonment. The court indicated that the sentence took into account petitioner's illegal possession of the sawed-off shotgun and the silencer. Pet. App. B at 2; Pet. 17. 3. The court of appeals affirmed. Pet. App. 1a-3a. The court rejected petitioner's claim that the district court improperly based his sentence on amounts of drugs in addition to the amount involved in the offense on which he was convicted. The court of appeals observed that the Sentencing Guidelines direct the sentencing court to "consider quantities of drugs beyond the amount specified in the conviction if they are part of the same course of conduct or part of a common scheme or plan." Pet. App. 2a (citing Guidelines Section 1B1.3, Commentary, at 1.19). The court upheld the district court's determination that the amounts of drugs on which petitioner's sentence was based were part of the same course of conduct as the offense on which he was convicted. Pet. App. 2a. The court of appeals also rejected petitioner's contention that the district court was required to make findings regarding petitioner's challenge to information in the presentence report about his unlawful possession of a shotgun and a silencer: The record is clear that the district court held an evidentiary hearing regarding the contents of the presentence report and (petitioner's) counsel waived or abandoned his objections relating to the shotgun and the silencer. Thus having withdrawn the objections * * * (petitioner) is precluded from raising the issue on appeal. Pet. App. 2a. The court noted that, before petitioner withdrew his objections, he was provided with "ample opportunity" to discuss them. Ibid. ARGUMENT 1. Petitioner renews his contention (Pet. 11-20) that the district court was required to make findings regarding his challenge to the information in the presentence report concerning his unlawful possession of a sawed-off rifle and a silencer. The court of appeals correctly rejected that contention. As the court of appeals recognized (Pet. App. 2a), petitioner withdrew his objections to this portion of the presentence report. He did so after he was given "ample opportunity" (ibid.) to discuss the objections. Moreover, in the plea agreement petitioner had stipulated to the very conduct that was described in the challenged portion of the presentence report. The district court was careful to remind petitioner of his prior stipulations and to explain that petitioner could withdraw the guilty plea to which he had agreed if he wished to maintain his objections. Under these circumstances, the district court was not compelled to make findings regarding petitioner's objections after he had abandoned them. Contrary to petitioner's contention (Pet. 18-19), the court of appeals' conclusion does not conflict with any other court of appeals decision. Petitioner asserts that this case "is not unlike" United States v. Petitto, 767 F.2d 607 (9th Cir. 1985), /3/ and "also bears similarities to" United States v. Rosa, 891 F.2d 1071 (3d Cir. 1989). Neither of those cases, however, involved a stipulation by the defendant to facts that he later sought to challenge when they were included in the presentence report. Moreover, in contrast to the present case, in both Petitto and Rosa, the district court failed to make findings despite the defendant's insistence on resolving the factual dispute. Rosa, 891 F.2d at 1072-1073; Petitto, 767 F.2d at 609. Petitioner here did not insist on maintaining his objections; as petitioner concedes (Pet. 16), he "abandoned" them. /4/ 2. Petitioner also renews his contention (Pet. 21-23) that the district court improperly calculated his sentence by aggregating the amounts of cocaine involved in the transactions in which petitioner was found to be involved between October 1987 and August 1988. This contention is meritless. Sentencing Guidelines Section 1B1.3(a)(2) requires that, "with respect to offenses of a character for which Section 3D1.2(d) would require grouping of multiple counts," calculation of the base offense level "shall be determined" based on all "acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." /5/ This aggregation requirement applies even if the defendant is convicted on only one count: Application of this provision does not require the defendant * * * to have been convicted of multiple counts. For example, where the defendant engaged in three drug sales of 10, 15, and 20 grams of cocaine, as part of the same course of conduct or common scheme or plan, subsection (a)(2) provides that the total quantity of cocaine involved (45 grams) is to be used to determine the offense level even if the defendant is convicted of a single count charging only one of the sales. Guidelines Section 1B1.3, Application Note 2, at 1.17. As the example quoted above suggests, under the Guidelines drug offenses are among the types of offenses subject to the aggregation requirement of Section 1B1.3. Guidelines Section 3D1.2(d); see also Guidelines Section 3D1.2, Application Note 6, at 3.17 (subsection (d) applies to most "drug offenses" and other offenses as to which sentences "are based primarily on quantity"). These provisions make clear that, because the November 1987-August 1988 transactions were all part of the same course of conduct, the district court correctly aggregated the amounts of drugs involved in those transactions. /6/ Moreover, every court of appeals to consider the issue has upheld the approach taken by the district court in this case. See, e.g., United States v. Williams, 917 F.2d 112, 114 (3d Cir.), cert. denied, 111 S. Ct. 1001 (1991); United States v. Rutter, 897 F.2d 1558, 1561-1562 (10th Cir.), cert. denied, 111 S. Ct. 88 (1990); United States v. Woolford, 896 F.2d 99, 102-104 (5th Cir. 1990); United States v. Alston, 895 F.2d 1362, 1371-1372 (11th Cir. 1990); United States v. Blanco, 888 F.2d 907, 909-911 (1st Cir. 1989); United States v. White, 888 F.2d 490, 496-497 (7th Cir. 1989); United States v. Allen, 886 F.2d 143, 145-146 (8th Cir. 1989); United States v. Williams, 880 F.2d 804, 805-806 (4th Cir. 1989); United States v. Fernandez, 877 F.2d 1138, 1141-1142 (2d Cir. 1989); United States v. Sailes, 872 F.2d 735, 738-739 (6th Cir. 1989). In contrast, there is no support for petitioner's contention (Pet. 21-22) that only the offense on which he was convicted could be considered in calculating his sentence. Although petitioner cites United States v. Restrepo, 883 F.2d 781 (9th Cir. 1989), he recognizes (Pet. 22) that after rehearing the panel rejected the interpretation that petitioner advances here. See 896 F.2d 1228 (9th Cir. 1990) (withdrawing panel opinion reported at 883 F.2d 781), and 903 F.2d 648 (9th Cir. 1990) (panel opinion on rehearing). The Ninth Circuit has now taken the Restrepo case en banc (912 F.2d 1568 (9th 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 RICHARD A. FRIEDMAN Attorney MARCH 1991 /1/ Petitioner claimed that the rifle in his possession was not a sawed-off shotgun and that the silencer was a lawn mower muffler. See Pet. 8, 14. /2/ The statutory maximum penalty for the offense on which petitioner was convicted -- possession with intent to distribute less than 500 grams of cocaine -- is 20 years' imprisonment. 21 U.S.C. 841(b)(1)(C). /3/ Petitto was overruled in part on grounds not relevant here in United States v. Fernandez-Angulo, 897 F.2d 1514, 1517 n.5 (9th Cir. 1990). /4/ For this reason, petitioner's reliance (Pet. 11-12) on Fed. R. Crim. P. 32(c)(3)(D) and Guidelines Section 6A1.3 is misplaced. These provisions refer to resolution only of "controverted" or "disputed" sentencing matters. After petitioner withdrew his objections to information concerning possession of the firearm and the silencer, those matters were no longer in dispute. /5/ See also Sentencing Guidelines Section 1B1.3 Application Note 2 ("This subsection applies to offenses of types for which convictions on multiple counts would be grouped together pursuant to Section 3D1.2(d); multiple convictions are not required."). /6/ Petitioner does not here dispute that the transactions on which his Guidelines sentence was based constituted the "same course of conduct or common scheme or plan as the offense of conviction" (Sentencing Guidelines Section 1B1.3(a)(2)).