CALVIN R. ROGERS, PETITIONER V. UNITED STATES OF AMERICA No. 90-6402 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 Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A8) is reported at 917 F.2d 165. JURISDICTION The judgment of the court of appeals was entered on October 31, 1990. The petition for a writ of certiorari was filed on December 3, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court properly departed from the Sentencing Guidelines on the ground that petitioner's criminal history category did not adequately reflect the seriousness of his previous criminal conduct and, if so, whether the amount of the departure was reasonable. 2. Whether the district court's statement of reasons for the departure was sufficient. 3. Whether the district court properly increased petitioner's base offense level under Guidelines Section 3C1.1 on the ground that petitioner obstructed justice by falsely identifying himself to the arresting officers. STATEMENT Petitioner pleaded guilty in the United States District Court for the Western District of Texas to one count of possession of a firearm by a felon, in violation of 18 U.S.C. 922(g)(1). He was sentenced to a 48-month term of imprisonment, to be followed by a three-year term of supervised release, and he was ordered to pay a $3,000 fine. 1.a. Petitioner was arrested on March 1, 1988, in Hewitt, Texas, by police responding to a report of a suspicious vehicle parked outside a warehouse. Petitioner and his girlfriend were in the vehicle. Although petitioner had an extensive criminal record, a police record check did not immediately produce that information, because petitioner falsely identified himself as "Ken Southern." A police record check of petitioner's girlfriend, however, revealed that there was a warrant outstanding for her arrest. She was arrested, and a quantity of marijuana was found in her purse. After the police discovered a .357 magnum revolver protruding from a pocket in the door beside petitioner, he was arrested for carrying a concealed weapon. Pet. App. A1-A2; Presentence Report (PSR) 2-3. After the police learned petitioner's identity, he was indicted on the instant charge, to which he pleaded guilty on July 10, 1989. A warrant for petitioner's arrest was issued on August 3, 1989, because on July 25, 1989, petitioner was found at a friend's residence when the police arrested petitioner's friend on drug charges. Petitioner remained a fugitive on that warrant until September 28, 1989. PSR 4. b. The presentence report calculated that petitioner's Guidelines sentence was 33 to 41 months' imprisonment, based on an adjusted offense level of 13 and a criminal history category of VI. PSR 14; see Sentencing Guidelines, ch. 5, pt. A. The report indicated that the base offense level for the firearms offense was 9 under Guidelines Section 2K2.1 (1987). /1/ The report recommended that 2 levels be added under Guidelines Section 3C1.1 for obstruction of justice. The report further suggested that it would be appropriate to adjust the base offense level upward to 13 under Guidelines Section 4B1.3, because the firearms offense was part of a pattern of criminal conduct from which petitioner derived a substantial portion of his income. PSR 5-6. Petitioner's criminal history score of 21 was derived from a total of 4 points for drug offense convictions in 1978 and 1981; a total of 12 points for burglary convictions in 1982, 1985, /2/ and 1988; 2 points for the unauthorized carrying of a weapon; 2 points because petitioner committed the instant offense while on mandatory supervision for the 1985 burglary conviction; and 1 point because petitioner committed the instant offense less than two years after his release from prison for the 1985 burglary conviction. PSR 7-13; see Sentencing Guidelines Section 4A1.1. Petitioner's criminal history included numerous incidents in addition to those on which his criminal history score of 21 was based. For example, when petitioner was convicted for burglary in 1987, he was also convicted for failing to appear on the burglary charges. PSR 11. Several of petitioner's other offenses were committed while he was on supervised release following his conviction on other charges. Id. at 8-11. Petitioner was also convicted of several minor criminal offenses for which no points were added to his criminal history score. Id. at 6-7; see Sentencing Guidelines Section 4A1.2(c). And petitioner was involved in several incidents involving burglary, drug possession, and the unauthorized carrying of a weapon after which, for various reasons, charges were not filed or were dismissed. PSR 13-14. The presentence report accordingly stated (PSR 19): The Court may want to consider that (petitioner's) prior criminal history is beyond what the Sentencing Commission might have envisioned when establishing the guidelines. The numerous convictions and repetitive nature of his past criminal behavior indicates that (petitioner) is a professional criminal. The violation of his conditions of bond is a further indication of his recidivism and intention to continue his criminal behavior. An upward departure may be appropriate in this case, based on the above factors. Petitioner filed written objections to the presentence report, arguing, inter alia, that a departure based on his criminal history was unwarranted and that the criminal-livelihood and obstruction-of-justice Guidelines sections were inapplicable. Petitioner's Statement of Sentencing Factors and Objections to the Presentence Report 2-6. The presentence report was not amended on any of these grounds. See Addendum to PSR 22-25. c. At the sentencing hearing, the district court determined that the applicable Guidelines range was 27 to 33 months' imprisonment, based on an offense level of 11 and a criminal history category of VI. Nov. 17, 1989, Tr. 11. The court rejected petitioner's argument that he had not obstructed justice when he falsely identified himself to the police officers who arrested him. Id. at 8-10. /3/ The court advised petitioner that it intended to depart upward from the applicable Guidelines range because of petitioner's serious criminal history; the court observed, with regard to petitioner's criminal history score of 21, that the maximum envisioned by the Sentencing Commission was 13, so I take the position that is a factor that they did not consider. They just didn't consider that there would be (a) sufficient number of opportunities when courts would encounter defendants with a criminal history score as high as this particular one, and therefore, the table was not expanded on beyond Roman numeral VI, as it should have been. The Court does intend to depart in an upward mode in this case. Nov. 17, 1989, Tr. 7. The government requested a "significant departure," noting that in the past petitioner had often served less than the prison terms to which he had been sentenced and had used that opportunity to commit additional crimes, and that in the present case petitioner could have been charged with failing to appear but was not. Id. at 13; see 18 U.S.C. 3146(b)(2). After giving counsel for petitioner an opportunity to respond, the court sentenced petitioner to a 48-month term of imprisonment. Nov. 17, 1989, Tr. 13-14. 2. The court of appeals affirmed. Pet. App. A1-A8. It held that the district court was correct in adjusting petitioner's base offense level under Guidelines Section 3C1.1, because petitioner obstructed justice by using an alias at the time of his arrest. Id. at A4-A6. The court also upheld the upward departure based on petitioner's serious criminal history. The court agreed with the district court that, in providing that criminal history Category VI applied to criminal history scores of "13 or more," the Sentencing Commission did not take into account "excessive criminal history point totals" like petitioner's. Id. at A6-A7. /4/ Finally, the court of appeals held that the district court's statement of reasons for the departure was sufficient. Pet. App. A7-A8. ARGUMENT 1. Petitioner renews his contentions (Pet. 4-8) that the district court erred in departing from the applicable Guidelines range, and that, even if a departure was warranted, the amount of the departure was unreasonable. The court of appeals properly rejected those contentions. a. Petitioner argues (Pet. 7) that the district court was barred from basing a departure on his serious criminal history. He relies on the fact that the criminal history category applicable to him, Category VI, applies to defendants with criminal history scores of "13 or more." That fact, in petitioner's view, shows that the Sentencing Commission took into account defendants with criminal histories as serious as his. The court of appeals correctly rejected that argument. As the court recognized (Pet. App. A6), petitioner's argument is expressly refuted in the policy statement set forth in Guidelines Section 4A1.3. In Section 4A1.3, the Commission made clear that the Guidelines range for Category VI would not always be "adequate to reflect the seriousness of the defendant's criminal history." The Commission recognized that "a decision above the guideline range for a defendant with a Category VI criminal history may be warranted" where the defendant has "an egregious, serious criminal record." Sentencing Guidelines Section 4A1.3. For this reason, the courts of appeals, like the court below, have recognized that an upward departure is justified if the defendant's criminal history category does not adequately reflect his criminal history or the likelihood of his future criminal conduct. See, e.g., United States v. Ocasio, 914 F.2d 330, 334 (1st Cir. 1990); United States v. Gardner, 905 F.2d 1432, 1434-1435 (10th Cir.), cert. denied, 111 S. Ct. 202 (1990); United States v. Christoph, 904 F.2d 1036, 1042 (6th Cir. 1990), cert. denied, 111 S. Ct. 713 (1991). The courts have consistently approved upward departures for defendants whose criminal history score substantially exceeded the minimum Category VI score of 13 points. See, e.g., United States v. Whitehead, 912 F.2d 448, 452 (10th Cir. 1990); see also United States v. Williams, 901 F.2d 1394, 1397 (7th Cir. 1990); United States v. Roberson, 872 F.2d 597, 606-607 (5th Cir.), cert. denied, 110 S. Ct. 175 (1989). Petitioner's criminal history amply justified a departure in this case. Petitioner's criminal history score was 21, far above the 13 points needed to place him in Category VI. That fact alone justified a departure. Furthermore, the score did not reflect numerous incidents of misconduct detailed in the presentence report. Finally, petitioner could have been but was not charged with failure to appear in this case, which would have resulted in a consecutive sentence to that for the instant offense. See 18 U.S.C. 3146(b)(2). b. In light of petitioner's history of serious criminal conduct, the degree of the departure was reasonable. The Guidelines do not prescribe a formula for determining the amount of a departure above the range for a Category VI criminal history. See United States v. Jackson, 921 F.2d 985 (10th Cir. 1990); United States v. Ocasio, 914 F.2d at 337 ("no scientifically precise litmus test by which the reasonableness of departure decisions can be resolved"); United States v. Dean, 908 F.2d 1491, 1497 (10th Cir. 1990) ("(n)o particular formula or mathematical exactitude is required"); United States v. Diaz-Villafane, 874 F.2d 43, 52 (1st Cir.) (courts should not turn "idiosyncratic departure decisions into mechanistic bean-counting"), cert. denied, 110 S. Ct. 177 (1989). Section 4A1.3 of the Guidelines suggests that, for defendants in categories below Category VI, courts may consider basing any upward departure on the range prescribed for the next higher category. /5/ That approach obviously cannot be applied to defendants in Category VI, since they are already in the highest category. United States v. Whitehead, 912 F.2d at 452-453; United States v. Russell, 905 F.2d 1450, 1456 (10th Cir.), cert. denied, 111 S. Ct. 267 (1990); United States v. Williams, 901 F.2d at 1397; United States v. Schmude, 901 F.2d 555, 559-560 (7th Cir. 1990). The courts of appeals have accordingly reviewed upward departures for defendants in Category VI under a general reasonableness standard. See, e.g., United States v. Ocasio, 914 F.2d at 336-338; United States v. Bernhardt, 905 F.2d 343, 345 (10th Cir. 1990); United States v. Williams, 901 F.2d at 1397; United States v. Schmude, 901 F.2d at 559-560. Under that standard, the degree of departure should be reasonable in light of sentences for defendants who have less serious criminal histories or who are less likely to engage in future criminal conduct. See, e.g., United States v. Jackson, supra; United States v. Ocasio, 914 F.2d at 336-338; United States v. Whitehead, 912 F.2d at 453; United States v. Roberson, 872 F.2d at 607-608. In this context, as in other cases involving departure decisions, the courts of appeals accord substantial deference to the district courts' determinations. See, e.g., United States v. Ocasio, 914 F.2d at 337; United States v. Franklin, 902 F.2d 501, 506 (7th Cir. 1989), cert. denied, 111 S. Ct. 274 (1990); United States v. Schmude, 901 F.2d at 560; United States v. Diaz-Villafane, 874 F.2d at 50. The court of appeals properly took that approach in sustaining the sentence imposed by the district court in this case. Petitioner's criminal history demonstrated an unusually serious pattern of conduct involving guns, drugs, burglaries, and violations of release conditions. Moreover, petitioner committed all the offenses contributing to his 21-point criminal history score in a 10-year period, even though he was repeatedly incarcerated during that period. During that 10-year period, petitioner committed four burglaries, and he may have been about to commit a fifth when he was arrested on the instant firearms offense. Petitioner also had two prior drug convictions, and he had been convicted on a firearms charge only three years before his arrest for the instant offense. Cf. United States v. Ocasio, supra; United States v. Franklin, supra; United States v. Schmude, 901 F.2d at 559; United States v. Roberson, 872 F.2d at 606-607; United States v. De Luna-Trujillo, 868 F.2d 122, 125 (5th Cir. 1989). In light of this record, the court of appeals correctly determined that the 48-month sentence imposed by the district court was reasonable. Contrary to petitioner's contention (Pet. 7-8), the approach taken by the court of appeals in this case does not conflict with the approach taken in United States v. Schmude, supra. The court in Schmude did not, as petitioner would have it, establish a formula for calculating upward departures for defendants in Category VI. Instead, the court suggested that on remand the district court should consider a departure of 10 to 15 percent above the range in that case. 901 F.2d at 558-560. That suggestion was based on the court's estimation that Guidelines sentences vary approximately 10 to 15 percent from one criminal history category to the next higher category. Id. at 560. The court did not intend its suggestion to bind the lower court on remand, much less to prescribe a mathematical formula to govern future cases. That is clear from the subsequent decision in United States v. Williams, 901 F.2d 1394 (7th Cir. 1990), an opinion written by the author of Schmude. In Williams, the court cited Schmude to emphasize that if an inadequate Criminal History Category is a factor warranting departure but the defendant is already in the highest Criminal History Category (VI), * * * the question of proper degree of departure is solely one of reasonableness. Schmude, (901 F.2d) at 560. Here, we will afford a district court considerable leeway in determining whether the degree of departure corresponds to the number and nature of the grounds which warrant departure. Id. 901 F.2d at 1397. Petitioner's reliance on Schmude is therefore misplaced. 2. Under 18 U.S.C. 3553(b), when a court imposes a sentence outside the applicable Guidelines range, it must state the reason for the departure in open court. In this case, the district court stated that it was departing upward because the Guidelines range was inadequate to reflect petitioner's serious criminal history. Contrary to petitioner's contention (Pet. 8-11), the court of appeals properly held (Pet. App. A7-A8) that the district court's statement satisfied the statutory requirement. As the court of appeals recognized (Pet. App. A8), the statement of reasons for a departure is sufficient if it is "comprehensible when the sentencing hearing is viewed in the context of the entire record -- including the presentence investigation -- as a whole." Accord United States v. Lopez-Escobar, 884 F.2d 170, 173 (5th Cir. 1989). The record here detailed a history of egregious criminal conduct -- egregious in terms of the sheer number of crimes that petitioner committed, the serious nature of many of those crimes, and the short period of time within which petitioner committed them. The court of appeals correctly observed that, in light of petitioner's record, nothing would be gained by requiring the district court to "link() its departure * * * to reasoning in past cases, or sp(eak) at greater length of (petitioner's) background, recidivism and criminal propensity." Pet. App. A8. On the contrary, to "subject the district court's form of words to such legalistic analysis (would) either make a judge reluctant to sentence outside the guidelines when appropriate, or encourage a judge to state his reasons in a standardized manner." Ibid. (citing United States v. Mourning, 914 F.2d 699, 707-708 (5th Cir. 1990)). The court of appeals properly refused to take such an approach and upheld the adequacy of the district court's statement of reasons. Contrary to petitioner's contention (Pet. 10-11), the court's reasoning does not conflict with the reasoning in other cases. United States v. Lopez, 871 F.2d 513, 514-515 (5th Cir. 1989), addressed the procedures for determining the appropriate departure under Guideline 4A1.3 for a defendant whose criminal history category is too low. The court in Lopez did not address the situation where the defendant is in category VI and the question is whether an upward departure is warranted. The other decisions on which petitioner relies are likewise inapposite. They merely approve or disapprove various reasons for departing from the applicable Guidelines range. See United States v. Cantu-Dominguez, 898 F.2d 968, 970-971 (5th Cir. 1990) (reversing upward departure for arrests not resulting in convictions where charges were dismissed for insufficient evidence or because of an improper search); United States v. Harvey, 897 F.2d 1300, 1305-1306 (5th Cir.) (affirming upward departure to statutory maximum for inadequate criminal history score where defendant in category V, even though court did not explain why departure to category VI was not sufficient), cert. denied, 111 S. Ct. 568 (1990); United States v. Burch, 873 F.2d 765, 768-769 (5th Cir. 1989) (defendant's socioeconomic status not a valid ground for departure); United States v. Roberson, 872 F.2d at 606-607 (affirming departure based on prior consolidated sentences not reflected in Guidelines range and defendant's failure ever to complete any period of parole or probation successfully); United States v. Fisher, 868 F.2d 128, 129-130 (5th Cir.), cert. denied, 110 S. Ct. 111 (1989) (affirming departure for repeated criminal conduct similar to offense of conviction); United States v. De Luna-Trujillo, 868 F.2d at 124-125 (affirming departure based on similarity of past conduct and large amounts of drugs involved in past offenses); United States v. Mejia-Orosco, 867 F.2d 216, 220-222 (5th Cir.), cert. denied, 109 S. Ct. 3257 (1989) (affirming increase in offense level for defendant's role as organizer or leader). /6/ 3. By falsely identifying himself to the police, petitioner prevented the police from promptly discovering that petitioner was a convicted felon. That information was essential to the subsequent charge -- possession of a firearm by a convicted felon -- on which petitioner was convicted. For this reason, the courts below correctly determined that petitioner's base offense level should be increased by two levels under Guidelines Section 3C1.1. That determination accords with other court of appeals decisions holding that the use of an alias constitutes obstruction of justice for purposes of Guidelines Section 3C1.1. See, e.g., United States v. Gaddy, 909 F.2d 196, 199 (7th Cir. 1990); United States v. Irabor, 894 F.2d 554, 556 (2d Cir. 1990); cf. United States v. Blackman, 897 F.2d 309, 318-319 (8th Cir. 1990). Petitioner's challenge (Pet. 11-14) to the holding here is therefore without merit. /7/ 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 FEBRUARY 1991 /1/ At the time of the offense, the statute under which petitioner was convicted (18 U.S.C. 922(g)) carried a statutory maximum sentence of five years' imprisonment and a $5,000 fine (18 U.S.C. 924(a)(1) (Supp. IV 1986)), and the applicable Sentencing Guideline provided that a violation of the statute was a level 9 offense (Guidelines Section 2K2.1(a) (1987)). Section 6462 of the Anti-Drug Abuse Act of 1988 (Pub. L. 100-690, Title VI, Section 6462, Nov. 18, 1988, 102 Stat. 4374) increased the statutory maximum term of imprisonment to 10 years. 18 U.S.C. 924(a)(2) (1988). Effective November 1, 1989, the applicable Sentencing Guideline was amended to prescribe a base offense level of 12 for the offense. See Guidelines Section 2K2.1(a)(2) (1990); Sentencing Guidelines, App. C, amend. 189, at C.91-C.92 (1990). /2/ The 1985 burglary conviction also included conviction for possession of methamphetamine. PSR 10-11. /3/ The court held that the criminal-livelihood Guidelines provision (Section 4B1.3) did not apply because the firearms offense was not part of a pattern of criminal conduct. That holding is not at issue here. /4/ The court of appeals also held that the district court was not required to explain how it arrived at the precise amount of the departure. Pet. App. A7. Petitioner does not challenge that holding here. /5/ Guideline 4A1.3 provides in relevant part: In considering a departure under this provision, the Commission intends that the court use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable. For example, if the court concludes that the defendant's criminal history category of III significantly underrepresents the seriousness of the defendant's criminal history, and that the seriousness of the defendant's criminal history most closely resembles that of most defendants with a Category IV criminal history, the court should look to the guideline range specified for a defendant with a Category IV criminal history to guide its departure. /6/ The cases on which petitioner relies are all Fifth Circuit cases. Even if they were inconsistent with the court of appeals' decision here (and they are not), they would present only an intracircuit conflict. This Court does not ordinarily hear such conflicts. See Taylor v. United States, 110 S. Ct. 265 (1989) (opinion of Stevens, J.); Wisniewski v. United States, 353 U.S. 901, 902 (1957). /7/ In any event, petitioner's challenge concerns an issue of no continuing significance. Under clarifying amendments to the Application Notes to Guidelines Section 3C1.1, effective November 1, 1990, Section 3C1.1 now explicitly provides that the two-point increase for obstruction of justice may be applied for "providing a false name or identification document at arrest" in cases "where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense." Guidelines Section 3C1.1, Application Note 4(a); Sentencing Guidelines, App. C, amend. 347, at C.191-C.193. The amendments make clear that Section 3C1.1 is applicable here and in similar cases. Petitioner's use of an alias was a significant hindrance to the investigation of the charge of possession of a firearm by a convicted felon, since it prevented the police from learning that petitioner was a convicted felon whose possession of the firearm found in his car was therefore illegal.