JOSE ALFREDO VILLEGAS, PETITIONER V. UNITED STATES OF AMERICA No. 90-6471 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. A4999-A5011) is reported at 911 F.2d 623. JURISDICTION The judgment of the court of appeals was filed on September 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 the district court violated petitioner's rights under the Due Process Clause when, in sentencing petitioner, it referred to the trial of petitioner's codefendants as support for the conclusion that petitioner was one of the most culpable members of a drug trafficking conspiracy. STATEMENT Petitioner pleaded guilty, in the United States District Court for the Southern District of Florida, to conspiracy to possess cocaine with the intet to distribute it, in violation of 21 U.S.C. 846. He was sentenced to 18 years' imprisonment. The court of appeals affirmed. Pet. App. A4999-A5011. 1. In August 1987, petitioner participated in a sale of 17 kilograms of cocaine to undercover police officers. /1/ Along with other participants in the sale, he was indicted for conspiracy to possess cocaine with intent to distribute it (Count I); possession of cocaine with intent to distribute it (Count II); and distribution of cocaine (Count III). Prior to trial, petitioner agreed to plead guilty to Count I in exchange for dismissal of Counts II and III. Pet. App. A5001-A5002, A5008-A5009. In the course of petitioner's rearraignment, the prosecutor described the facts that the government was prepared to prove if the case went to trial. Petitioner agreed that the prosecutor's proffer was essentially correct. At the trial of petitioner's codefendants, the government proved the facts it had proffered to support petitioner's guilty plea. Pet. App. A5009. The presentence report described petitioner as "the money man and co-leader of the organization" and as the source of the cocaine. At sentencing, petitioner did not object to these characterizations of his role in the transaction. After hearing allocution from the government and petitioner's counsel, the court stated that in determining petitioner's sentence, it had considered, among other things, that petitioner had been involved in a large-scale cocaine transaction. The court continued, "You are determined by the Assistant United States Attorney and by this judge's review of the facts, and I presided over the trial as to some of the defendants, as one of the most culpable." Based on these and other factors, the court sentenced petitioner to 18 years' imprisonment. Pet. App. A5009-A5010. After sentencing, petitioner noticed an appeal and wrote a letter to the district court requesting a reduction of sentence. The district court treated the letter as a motion for modification of sentence under Fed. R. Crim. P. 35(b) and denied the motion. An appeal from that order was consolidated with the appeal from the sentence. Pet. App. A5001. 2. The court of appeals affirmed. Pet. App. A4999-A5011. It rejected petitioner's claim that statements in the presentence report inaccurately described his prominent role in the conspiracy. Noting that petitioner had not objected to these statements in the district court, the court of appeals held that "(f)ailure to assert these objections to the sentencing court is fatal to asserting these issues to a reviewing court." Id. at A5010. The court added that the disputed statements in the presentence report "were supported by a strong factual basis" and that petitioner did "not challenge the accuracy of the actual facts underlying" those statements, which were essentially conclusions or opinions regarding the level of his culpability. Ibid. The court of appeals also rejected petitioner's claim that the district court erred in referring to evidence it heard during the trial of his codefendants. The court of appeals noted that, in United States v. Castellanos, 904 F.2d 1490 (11th Cir. 1990), it had held that evidence presented at the trial of another may be considered in sentencing if the defendant has the opportunity to rebut or cast doubt on the reliability of the evidence. Pet. App. A5010. In the instant case, the court found, "not only was (petitioner) afforded an opportunity to rebut or cast doubt upon" the reliability of evidence introduced during the trial of his codefendants, "but * * * at the sentencing hearing, (petitioner) agreed that these facts were essentially correct." Ibid. Inasmuch as petitioner agreed to the facts postulated by the government, the court concluded, the fact "(t)hat identical and unchallenged facts also appeared in the separate trial of (the codefendants) did not infect (petitioner's) sentencing proceeding." Ibid. ARGUMENT Petitioner contends (Pet. 2-3) that the district court's reference, during sentencing, to evidence adduced at his codefendants' trial violated the Due Process Clause. The district court placed limited weight on evidence adduced at the trial of petitioner's codefendants. The court simply stated, "You are determined by the Assistant United States Attorney and by this judge's review of the facts, and I presided over the trial as to some of the defendants, as one of the most culpable." Pet. App. A5009-A5010. The court did not suggest that its "review of the facts" was limited to the record of the codefendants' trial, nor was the conclusion that petitioner was "one of the most culpable" members of the conspiracy based solely on that record. In fact, there were two other sources of information fully supporting that characterization. First, the prosecutor's description during the plea proceeding of the transaction leading to petitioner's arrest -- which petitioner agreed was essentially correct -- identified petitioner as a major player in the drug conspiracy. Second, based on substantially the same facts, the presentence report characterized petitioner as the money man and co-leader of the drug-trafficking organization and as the source of the 17 kilograms of cocaine sold to the police. Petitioner did not object to these characterizations at sentencing; rather, his counsel advised the court that all differences regarding the presentence report had been resolved. Against this background, the district court's reference to his role in the co-defendants' trial was entirely innocuous. In essence, the court simply indicated that the evidence he had heard in a contested proceeding was consistent with the uncontested factual representations he had heard in petitioner's case. There was nothing fundamentally unfair in that reference, and petitioner did not object to it during sentencing. For related reasons, petitioner could not have been prejudiced by the district court's reference to his role as the presiding judge at the codefendants' trial. Even if the court erred in referring to evidence adduced at the codefendants' trial, there would be no basis for a revised assessment of petitioner's culpability. The record in this case justifies the conclusion that petitioner was "one of the most culpable" members of the conspiracy. Even if the remainder of the record left room for doubt as to the nature of petitioner's role, it would not have been error for the court to rely on evidence introduced during the codefendants' trial. It is well settled that in sentencing a defendant, the district court "may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." United States v. Tucker, 404 U.S. 443, 446 (1972). See Roberts v. United States, 445 U.S. 552, 556 (1980); United States v. Grayson, 438 U.S. 41, 45-50 (1978); Williams v. New York, 337 U.S. 241, 247 (1949); see also 18 U.S.C. 3661 ("(n)o limitation shall be placed on the information concerning the * * * conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence"). In keeping with this principle, the courts of appeals are now in agreement that a sentencing court may rely on evidence adduced at a trial in which the defendant did not participate as long as the defendant is given an opportunity to challenge the evidence's reliability. See United States v. Notrangelo, 909 F.2d 363, 364-366 (9th Cir. 1990); United States v. Castellanos, 904 F.2d at 1496; United States v. Rios, 893 F.2d 479, 481 (2d Cir. 1990); United States v. Beaulieu, 893 F.2d 1177, 1179-1181 (10th Cir.), cert. denied, 110 S. Ct. 3302 (1990). /2/ In this case, the court referred, in passing, to evidence introduced under oath at a criminal trial, corroborated by petitioner's own admissions, to which petitioner did not object. In so doing, the court acted in accordance with sound sentencing practice. 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 J. DOUGLAS WILSON Attorney MARCH 1991 /1/ Because the offense occurred before November 1, 1987, this case is not governed by the Sentencing Guidelines. /2/ Justice White dissented from the denial of certiorari in Beaulieu, maintaining that there was a conflict between that decision and United States v. Castellanos, 882 F.2d 474 (11th Cir. 1989). 110 S. Ct. at 3302. However, as the court of appeals noted in the instant case, the Eleventh Circuit subsequently modified its opinion in Castellanos on rehearing; the modification eliminated any conflict. See 904 F.2d at 1496.