GARY WAYNE GOLDEN, PETITIONER V. UNITED STATES OF AMERICA No. 90-6148 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 Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 29-30) is not reported, but the judgment is noted at 911 F.2d 725 (Table). JURISDICTION The judgment of the court of appeals was entered on August 2, 1990. The petition for a writ of certiorari was filed on October 29, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED 1. Whether the court of appeals had jurisdiction to review the district court's refusal to waive a fine under the Sentencing Guidelines when the district court had found petitioner able to pay the fine. 2. Whether the district court committed clear error in finding that petitioner would be able to pay a $6,000 fine. STATEMENT Petitioner pleaded guilty in the United States District Court for the Northern District of West Virginia to one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. 846. He was sentenced to 33 months' imprisonment, a three-year term of supervised release, and a $6,000 fine. 1. The facts are not in dispute. Petitioner and two co-defendants acquired in excess of two ounces of cocaine in St. Louis for subsequent distribution in West Virginia. They were arrested on March 30, 1989, in a house in Weirton, West Virginia. Police found in the house a bottle of cocaine "cutting" agent, drug sale records, a briefcase containing $1,197 in cash, two handguns, and a triple-beam balance. One of petitioner's co-defendants had 29 packets of cocaine on his person. Pet. App. 32-34. 2. Petitioner pleaded guilty to a one-count information. The presentence report calculated an offense level of 18, determined that the sentencing range was 27 to 33 months, and stated that the range of fines was $6,000 to $1,000,000 under Sections 5E4.2(c)(3) and (c)(4)(A) of the Sentencing Guidelines. Pet. App. 35-36, 38. The report concluded that there were no grounds to justify a departure from the Guidelines sentencing range. Id. at 38, 39. The presentence report indicated that petitioner, then 43 years old, had worked as a truck driver since the age of 21, most recently earning $10 an hour. Pet. App. 31, 37-38. It also reported that petitioner had no current source of income (he was in custody), that his only asset was a 1978 automobile, and that his debts totalled $8,000. The report stated that petitioner had no monetary obligations to support his estranged family. Id. at 37-38. The probation officer who wrote the report drew no conclusion as to petitioner's ability to pay a fine. The district court sentenced petitioner to 33 months' imprisonment, a three-year term of supervised release, and a fine of $6,000. The court ordered petitioner to pay the fine during his supervised release, in accordance with a schedule to be established by the probation office at the time of petitioner's release. Pet. App. 19-20. Although the court took note of the fact that petitioner "has had no income and is now in custody and has been for several months," it found that "he worked as an over the road truck driver for a period of time -- several years, and he is single with no dependents to support and the Court believes that he probably has a sum of money somewhere that could stand for paying this fine." Id. at 20. The court also noted that "this is the minimum fine under the statutory guidelines, the $6,000." Id. at 21. 3. The court of appeals affirmed in an unpublished per curiam opinion. Pet. App. 29-30. The court first pointed out that the fine "was assessed after the district court conducted an inquiry into (petitioner's) current and prospective ability to pay." Id. at 30. It then held that the district court's failure to impose a fine below the minimum prescribed in the Guidelines' fine table was an unappealable decision "not to depart from the applicable sentencing guidelines range." Ibid. ARGUMENT 1. Petitioner principally contends (Pet. 6-14) that the court of appeals erred in holding that it lacked jurisdiction over his appeal. He argues that the district court did not simply decline to depart from the Guidelines, but improperly applied them. For that reason, he claims, the fine was appealable under 18 U.S.C. 3742(a)(2), which confers appellate jurisdiction over a challenge to a sentence on the ground that it was "imposed as a result of an incorrect application of the sentencing guidelines." This argument is without merit. Sections 5E1.2(a) and (b) of the Sentencing Guidelines require the court to impose a fine within the fine table established in Guidelines Section 5E1.2(c)(3) unless a defendant establishes that he is "not able and, even with the use of a reasonable installment schedule, is not likely to become able to pay all or part of the fine." Guidelines Section 5E1.1.(f)(1). /1/ In other words, once the court determines that a defendant is able to pay a fine, the court must impose a fine within the Guidelines range. That is precisely what happened in this case. The district court determined that petitioner would be able to pay the fine and assessed the minimum amount under the Guidelines fine table. /2/ Although the court of appeals' opinion is quite cryptic, it appears that the court treated separately the district court's factual finding that petitioner would be able to pay the fine and the district court's determination not to depart from the Guidelines sentencing range by waiving the fine. See Pet. App. 30. With respect to the latter issue, the court of appeals correctly determined that it had no jurisdiction to address petitioner's claim that the district court should have waived the fine despite petitioner's ability to pay. /3/ This case therefore does not involve an appealable misapplication of the Guidelines but an unappealable non-departure. Petitioner's argument (Pet. 7-11) that the court of appeals' decision conflicts with decisions from other circuits is incorrect. All of the cases relied upon by petitioner involved appellate review of a district court's factual determination that (or failure to consider whether) a defendant was able to pay a fine. None of the cases involved appellate review of a decision not to waive or reduce a fine once the defendant's ability to pay had been established. Because the district court did consider petitioner's ability to pay and the court of appeals upheld the district court's finding on that point, there is no circuit conflict. 2. Petitioner contends (Pet. 13-14) that the district court incorrectly found that he was able to pay the fine. The district court's assessment of petitioner's financial ability was reviewable only for clear error, United States v. Rowland, 906 F.2d 621 (11th Cir. 1990); United States v. Walker, 900 F.2d 1201, 1205 (8th Cir. 1990); see 18 U.S.C. 3742(e), and the finding in this case was not clearly erroneous. Until his arrest, petitioner had earned $10 an hour as a truck driver (Pet. App. 38) and he conceded below (Pet. C.A. Br. 3) that his conviction does not automatically bar him from driving a truck in the future. To increase petitioner's employability upon his release, the district court ordered prison vocational training. Pet. App. 17. Because petitioner has no dependents and the fine is relatively small, the district court reasonably found that paying a $6,000 fine was within petitioner's means, particularly since the payment of the fine would not be due until after petitioner's release from prison, and the payment could be spread out over the three-year period of supervised release. /4/ Compare United States v. Doyan, 909 F.2d 412 (10th Cir. 1990) (fine in excess of $32,000 assessed against defendant with no assets and $400 per month disposable income not an abuse of discretion) with United States v. Walker, 900 F.2d 1201 (8th Cir. 1989) ($2 million fine where defendant had no history of employment and $20,000 in assets an abuse of discretion). In light of the Guidelines' requirement that "(t)he amount of the fine should always be sufficient to ensure that the fine * * * is punitive," Guidelines Section 5E1.2.(e), the district court properly exercised its discretion in imposing a $6,000 fine. 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 JANUARY 1991 /1/ Guidelines Sections 5E1.2 and 5E1.1.(f)(1) were called Sections 5E4.2 and 5E4.1.(f)(1) before 1990. There is no difference between the two and we will refer to the guidelines by their current enumeration. /2/ The district court's comment that $6,000 was the minimum allowed was a proper statement of the law: the court could not depart below that amount once it found, as it did, that petitioner would be able to pay. Thus, petitioner's contention (Pet. 14) that the district court mistakenly believed it could not depart from the fine table is incorrect. /3/ The court of appeals relied on its prior holding in United States v. Bayerle, 898 F.2d 28 (4th Cir.), cert. denied, 111 S. Ct. 65 (1990), which, in turn, relied on cases from seven other circuits holding that decisions not to depart from the Guidelines sentencing range are not appealable. See United States v. Tucker, 892 F.2d 8 (1st Cir. 1989); United States v. Colon, 884 F.2d 1550 (2d Cir.), cert. denied sub nom. Papathanasian v. United States, 110 S. Ct. 553 (1989); United States v. Denardi, 892 F.2d 269 (3d Cir. 1989); United States v. Buenrostro, 868 F.2d 135 (5th Cir. 1989), cert. denied, 110 S. Ct. 1957 (1990); United States v. Draper, 888 F.2d 1100 (6th Cir. 1989); United States v. Franz, 886 F.2d 973 (7th Cir. 1989); United States v. Fossett, 881 F.2d 976 (11th Cir. 1989). See also United States v. Cloughley, 901 F.2d 91 (8th Cir. 1990); United States v. Morales, 898 F.2d 99 (9th Cir. 1990); United States v. Lowden, 905 F.2d 1448 (10th Cir. 1990); United States v. Ortez, 902 F.2d 61 (D.C. Cir. 1990). /4/ The money will be paid according to a schedule to be established upon petitioner's release from prison, which will presumably take into account his then-existing financial situation. If he then finds himself unable to pay the fine, it may be remitted or the payment schedule adjusted. 18 U.S.C. 3573. See also 18 U.S.C. 3614(b). Cf. United States v. Mazzaferro, 907 F.2d 251, 254 (1st Cir. 1990) (contention that defendant will be unable to pay $25,000 fine "premature" and speculative).