JERRY LEWIS PEARSON, PETITIONER V. UNITED STATES OF AMERICA No. 90-6096 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. 1-7, is reported at 910 F.2d 221. JURISDICTION The judgment of the court of appeals was filed on August 21, 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). QUESTIONS PRESENTED 1. Whether Federal Rule of Criminal Procedure 11(c) requires the district court to inform a defendant, before it accepts his guilty plea, that the Sentencing Guideline for career offenders might apply. 2. Whether the Due Process Clause requires that a defendant receive such notice. STATEMENT Following his plea of guilty in the United States District Court for the Western District of Texas, petitioner was convicted of distribution of cocaine, in violation of 21 U.S.C. 841(a) (1). He was sentenced to 240 months' imprisonment, to be followed by five years' supervised release. The court of appeals affirmed. Pet. App. 1-7. 1. On June 26 and 30, 1989, petitioner sold small amounts of cocaine to an undercover police officer. Those sales led to his indictment on one count of distributing cocaine within 1000 feet of a school and one count of distributing cocaine simpliciter. Petitioner agreed to plead guilty to the simple distribution count in exchange for dismissal of the count charging distribution near a school. Before petitioner entered into the plea agreement, his attorney and the Assistant United States Attorney discussed whether petitioner would be classified as a career offender within the meaning of Sentencing Guideline 4B1.1. Based on information in a Texas Department of Public Safety Report, they concluded that petitioner did not qualify as a career offender. Pet. App. 2. Subsequent research showed that report to be incomplete. Although the report correctly listed petitioner's 1987 arrest for delivery of a controlled substance, it failed to note that petitioner had been convicted to that offense and sentenced to 15 years in prison. Ibid. /1/ At the plea hearing, the district court informed petitioner that he faced a maximum prison term of 20 years and that the actual sentence would be determined under the Sentencing Guidelines. Pet. App. 4. The court described in general terms the operation of the Guidelines and explained that the Guidelines might limit the court's discretion to impose a sentence below the presumptively applicable range. Ibid. The court confirmed that petitioner understood its explanation and had discussed the workings of the Guidelines with his attorney. 10/23/89 Tr. 33-34. After petitioner's conviction, the district court ordered preparation of a presentence investigation report. The probation officer assigned to prepare the report found that petitioner had been convicted on his 1987 arrest for delivery of a controlled substance and had received a 15-year sentence. Pet. App. 2. That conviction qualified petitioner as a career offender under the Sentencing Guidelines. Under the career offender Guideline, petitioner received an offense level of 32 and a criminal history category of VI, which resulted in a range of 210 to 260 months' imprisonment. The district court agreed with the presentence report that petitioner was a career offender and sentenced him to 240 months' imprisonment (the maximum permitted by the statute). 2. The court of appeals affirmed. Pet. App. 1-7. First, it held that petitioner's guilty plea was voluntary. The court reasoned that a guilty plea is voluntary as long as a defendant is informed of the maximum penalty for the offense to which he pleads guilty. Petitioner was correctly informed that he faced a maximum prison term of 20 years. Id. at 4. Second, the court held that petitioner received adequate notice (from the presentence investigation report) that he might receive a higher sentence because he was a career offender. Pet. App. 5. Petitioner objected to the report's recommendation in writing and orally at the sentencing hearing. Ibid. Although the district court did not find those objections persuasive, petitioner "was accorded a full measure of due process with respect to the sentence enhancement issue." Ibid. Petitioner's "constitutional arguments confuse recidivism statutes that increase the statutory maximum penalty, and sentence enhancement for recidivism pursuant to the Guidelines, which merely adjusts the applicable guideline sentence within the same statutory maximum." Ibid. According to the court, due process requires notice of the maximum punishment permitted by statute, but not "where, within the statutory range, the guideline sentence will fall." Ibid. Third, the court held that Federal Rule of Criminal Procedure 11(c)(1), which requires the district court to notify the defendant of any applicable mandatory minimum penalty, does not apply to a Sentencing Guideline that increases the applicable sentencing range. Pet. App. 6. ARGUMENT The decision of the court of appeals is correct and does not conflict with any decision of this Court or any court of appeals. Further review is not warranted. 1. Petitioner contends, Pet. 4-6, that Federal Rule of Criminal Procedure 11(c)(1) requires the district court to give a defendant notice that he could be sentenced as a career offender before accepting his guilty plea. At the time that petitioner entered his guilty plea, Rule 11(c)(1) provided that "(b)efore accepting a plea of guilty or nolo contendere, the court must * * * inform the defendant of, and determine that he understands * * * the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law." Before accepting petitioner's plea, the district court informed petitioner that he faced a maximum term of 20 years' imprisonment, and that the statute under which he was sentenced, 21 U.S.C. 841(b), did not provide for a mandatory minimum sentence in his case. The plea colloquy satisfied the literal requirement of Rule 11(c)(1). Petitioner nonetheless contends that the career offender Guideline is in substance a mandatory minimum sentence to which Rule 11(c)(1) should be construed to apply. Unlike a mandatory minimum sentence, however, the career offender Guideline is simply not mandatory. It does not prevent the sentencing court from imposing a sentence below the range required for career offenders if the court finds that a downward departure is warranted. See United States v. Lawrence, 916 F.2d 553, 554-555 (9th Cir. 1990); United States v. Brown, 903 F.2d 540, 544-545 (8th Cir. 1990); United States v. Reyes, 881 F.2d 155, 157 (5th Cir. 1989). Moreover, because the career offender Guideline operates in the same manner as every other Guideline -- to restrict the district court's sentencing discretion by positing a presumptively applicable sentencing range -- one cannot conclude that the career offender Guideline is a mandatory minimum penalty without also concluding that every Guideline is such a penalty. In that event, Rule 11(c)(1) would require in every case that defendants receive notice of the applicable Guidelines range at the time they plead guilty. Such a ruling would constitute a radical deviation from traditional sentencing practice for which there is no basis in Rule 11 or the Sentencing Guidelines. As petitioner concedes, Pet. 5, the courts of appeals that have addressed the issue have concluded that the federal Sentencing Guidelines do not prescribe mandatory minimum penalties within the meaning of Rule 11(c)(1). United States v. Salva, 902 F.2d 483, 487 (7th Cir. 1990); United States v. Rivera, 898 F.2d 442, 447 (5th Cir. 1990); United States v. Henry, 893 F.2d 46, 48 (3d Cir. 1990); United States v. Turner, 881 F.2d 684, 686-687 (9th Cir.), cert. denied, 110 S. Ct. 199 (1989); United States v. Fernandez, 877 F.2d 1138, 1143 (2d Cir. 1989). In any event, Rule 11 was amended effective December 1, 1989, in a manner that renders the question presented in this case of no continuing importance. Rule 11(c)(1) now provides that "(b)efore accepting a plea of guilty or nolo contendere, the court must * * * inform the defendant of * * * the mandatory minimum penalty provide by law, if any, and the maximum possible penalty provided by law, including * * * the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines in some circumstances." The advisory committee notes to the amendment state that it "does not require the court to specify which guidelines will be important" and indicates that the burden is on the defendant and his counsel to determine which guidelines will be important to the defendant's sentence. In short, the Rule makes clear that the court is not required to explain the significance of any specific guideline, including the career offender provision. 2. Petitioner contends, Pet. 1-4, that the Due Process Clause required that he receive notice that he might be sentenced as a career offender before entry of his guilty plea. Notions of fundamental fairness protected by the Due Process Clause require only that a defendant understand the possible consequences of his guilty plea, not the precise penalty he is likely to receive. In Brady v. United States, 397 U.S. 742 (1970), this Court held that the Due Process Clause does not entitle a defendant to withdraw his guilty plea merely because he discovers after the plea has been accepted that he misapprehended the penalty he could have received if he had not pleaded guilty. Id. at 757. For the same reason, the Due Process Clause does not nullify the voluntariness of a guilty plea premised on a miscalculation of the sentence that will be imposed under the Sentencing Guidelines. See United States v. Salva, 902 F.2d at 487. Indeed, petitioner occupies a far less sympathetic position than Brady. Brady entered a plea of guilty to avoid a possible death penalty under a statute subsequently declared unconstitutional. In contrast, petitioner knew at the time he entered his guilty plea that he was not simply arrested for delivery of a controlled substance, but that he was convicted of that crime and sentenced to 15 years' imprisonment. While Brady could not have known that the death penalty statute was unconstitutional, petitioner was surely aware of his earlier conviction and sentence, since he committed the crime that is the subject of the current petition while he was on parole. Nothing in the Due Process Clause requires that petitioner receive the benefit of the incomplete record that his counsel and the Assistant United States Attorney initially consulted. Petitioner suggests, Pet. 3, that the decision below conflicts with United States v. Wallace, 895 F.2d 487 (8th Cir. 1990). The court of appeals in Wallace found no due process violation because "Wallace had actual notice that his sentence could be increased under the sentencing guidelines." Id. at 490. It does not follow from the conclusion that actual notice satisfies the Due Process Clause that the Clause requires such notice. The court of appeals in Wallace did not reach the question presented in this case, and the decisions simply do not conflict. /2/ 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 JANUARY 1991 /1/ Petitioner had been released on parole six months before committing the offense which is the subject of his current petition. Pet. App. 2 n.1. /2/ This petition need not be held for this Court's decision in Burns v. United States, No. 89-7260 (argued Dec. 3, 1990). Burns claims a due process right to notice -- before the sentencing hearing -- of the possibility of departure from the Sentencing Guidelines. Petitioner here claims a due process right to notice about application of the Guidelines not only in advance of the sentencing hearing but before he tenders his guilty plea. The Court's disposition of Burns, even if it is favorable to the defendant and is premised on the Due Process Clause, is highly unlikely to undermine the basis of the decision in this case.