GARY WILLIAMS, PETITIONER V. UNITED STATES OF AMERICA No. 90-5889 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 Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A) is reported at 905 F.2d 217. JURISDICTION The judgment of the court of appeals was entered on June 5, 1990. A petition for rehearing was denied on July 11, 1990 (Pet. App. B). The petition for a writ of certiorari was filed on October 5, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner is entitled to retroactive application of an amendment to the Sentencing Guidelines that took effect six months after he was sentenced. 2. Whether the district court erred in determining that petitioner's three prior convictions for robbery, all of which occurred on different occasions and were prosecuted in different courts, were "unrelated cases" for purposes of applying the enhanced penalty provisions of the "career offender" Guideline. STATEMENT Petitioner pleaded guilty in the United States District Court for the Eastern District of Missouri to a one-count indictment charging robbery of a federally insured bank, in violation of 18 U.S.C. 2113(a). He was sentenced to a term of 210 months' imprisonment, to be followed by a three-year term of supervised release. The court of appeals affirmed (Pet. App. A). 1. The facts are not in dispute. Petitioner pleaded guilty to a count charging that, on January 4, 1989, he robbed the Landmark Bank in St. Louis, Missouri, of $63,000. Petitioner was sentenced on April 21, 1989. Under the Sentencing Guidelines that were in effect at the time of the offense and the sentence, the offense level for petitioner's offense was level 21. See Sentencing Guideline Section 2B3.1(b)(1)(D) (June 15, 1988). The district court further determined that a two-level downward adjustment would ordinarily have been appropriate because of petitioner's acceptance of responsibility. Sentencing Guideline Section 3E1.1; Sentencing Tr. 63. Since petitioner was a category II offender, the Guidelines indicated that a sentence within the range of 33-41 months' imprisonment would ordinarily have been appropriate. The court concluded, however, that petitioner was subject to the enhanced penalty features of the Guidelines "career offender" provision. Sentencing Tr. 77. In pertinent part, that provision requires that the offense giving rise to the "career offender" sentence be a "crime of violence" and that the defendant have "at least two prior felony convictions of * * * a crime of violence." Sentencing Guideline Section 4B1.1. The evidence at the sentencing proceedings showed that petitioner had previously been convicted as follows: (1) on October 19, 1973, he was convicted in federal court for aiding and abetting a bank robbery that occurred on March 5, 1973; (2) on January 18, 1974, he was convicted in a Missouri state court (St. Louis) for a first degree robbery that occurred on September 2, 1973; and (3) on June 10, 1974, he was convicted in a Missouri state court (St. Charles County) for a first degree robbery that occurred on November 2, 1973. See Gov't C.A. Br. 3-4. As a "career offender," petitioner was automatically classified as a Category VI offender; because the statutory maximum for petitioner's offense was 20 years, his offense level was set at level 32. Sentencing Guideline Section 4B1.1. Moreover, under the "career offender" provisions in effect at the time, the district court ruled that the downward adjustment for acceptance of responsibility was unavailable. Sentencing Guideline Section 4B1.1 (Jan. 15, 1988); Sentencing Tr. 80-81. The resulting Guidelines range -- and the statutory maximum for the offense -- established that a sentence within the range of 210-240 months' imprisonment was therefore appropriate. Id. at 81; Sentencing Guidelines Table. The district court imposed a sentence of 210 months' imprisonment. Sentencing Tr. 84. 2. The court of appeals affirmed. Pet. App. A. The court first found that "(t)he government presented evidence that (petitioner) had been convicted of robbery on three separate occasions" and "established by a preponderance of the evidence that (petitioner's) robbery convictions should be counted separately and he should be sentenced as a career offender." Id. at A2. The court further held that the Sentencing Guidelines in effect at the time of petitioner's sentencing barred "career offenders" from receiving any adjustment for acceptance of responsibility. As a result, the court concluded that petitioner was properly denied the benefit of a subsequent amendment to the "career offender" provision permitting "career offenders" to receive an adjustment for acceptance of responsibility. Ibid. ARGUMENT 1. Petitioner contends (Pet. 3-8) that he should have been accorded a downward adjustment for acceptance of responsibility, even though he was sentenced prior to the effective date of an amendment to the Sentencing Guidelines that permitted "career offenders" to benefit from that adjustment. This Court recently denied review of this same issue in Green v. United States, No. 90-5293, cert. denied (Oct. 29, 1990). There is no reason for a different result here. The court of appeals correctly concluded that petitioner was not entitled to a reduction for acceptance of responsibility. Five courts of appeals have held that, under the Guidelines in effect at the time petitioner was sentenced, "career offenders" were not eligible to receive a two-level downward adjustment for acceptance of responsibility. See United States v. Summers, 895 F.2d 615, 617-618 (9th Cir. 1990); United States v. Thomas, 894 F.2d 996, 997 (8th Cir.), cert. denied, 110 S. Ct. 1935 (1990); United States v. Cruz, 882 F.2d 922, 925-926 (5th Cir. 1989); United States v. Huff, 873 F.2d 709, 713-714 (3d Cir. 1989); United States v. Alves, 873 F.2d 495, 497-498 (1st Cir. 1989). Although the Sentencing Commission subsequently amended the career offender Guideline to allow career offenders to receive an adjustment for acceptance of responsibility, that amendment did not become effective until November 1, 1989 -- more than six months after petitioner's sentencing. /1/ Thus, petitioner was properly denied a downward adjustment for acceptance of responsibility, and was not entitled to retroactive application of the subsequent amendment. See United States v. Havener, 905 F.2d 3, 4-8 (1st Cir. 1990); United States v. Green, 902 F.2d 1311, 1313-1314 (8th Cir.), cert. denied, No. 90-5293 (Oct. 29, 1990). /2/ Petitioner's argument that the amendment should be applied retroactively to his case, moreover, is not persuasive. As an initial matter, petitioner's Ex Post Facto claim (Pet. 5) is unfounded. The Ex Post Facto Clause forbids retroactive increases in punishment; in contrast, Congress has provided that statutes decreasing punishment generally are not retroactive. 1 U.S.C. 109; see Warden v. Marrerro, 417 U.S. 653, 660 (1974). /3/ Petitioner's statutory argument -- that the Sentencing Guidelines statute is "in need of a * * * flexible interpretation" (Pet. 4) -- is similarly misconceived. As a general rule, under the Guidelines statute, Congress has barred courts form "modify(ing) a term of imprisonment once it has been imposed." 18 U.S.C. 3582(c). As a limited exception to its otherwise expansive scope, Section 3582(c)(2) provides that in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission * * *, upon motion of the defendant or the Director of the Bureau of Prisons or on its own motion, the court may reduce the term of imprisonment * * * if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. Sentencing Guideline Section 1B1.10(a) (1991 ed.), in turn, provides that "a reduction in the defendant's term of imprisonment may be considered," in those cases in which "a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the guidelines listed in subsection (d) below." Subsection (d) then lists five amendments to the Guidelines -- none of which is the amendment to the career offender Guideline -- that are intended to have retroactive effect. The Guidelines explicitly provide that "(i)f none of the amendments listed in subsection (d) is applicable, a reduction in the defendant's term of imprisonment under 18 U.S.C. Section 3582(c)(2) is not consistent with this policy statement." Sentencing Guideline Section 1B1.10(a) (1991 ed.). Particularly in light of "the statute's language, considerations of administrative policy, and the quite different background (of) retroactivity assumptions in the area of substantive criminal law," it is clear that petitioner "does not have a legal right to benefit from Amendment 266 (to the career offender Guideline), which amendment took effect after the district court had 'imposed' his otherwise lawful sentence." United States v. Havener, 905 F.2d at 8. Further review of petitioner's claim is not warranted. /4/ 2. Petitioner also contends (Pet. 9-17) that he was improperly sentenced as a career offender because he did not have "at least two prior felony convictions," as required by Sentencing Guideline Section 4B1.1. In making this claim, petitioner does not dispute that the three prior robbery convictions used as predicate offenses were entered in separate proceedings in different jurisdictions as a result of robberies that occurred at separate times and places during a nine-month period. /5/ Nonetheless, petitioner argues that the robberies were committed as part of a "common scheme or plan" and, hence, should only be counted as a single prior conviction for purposes of Sentencing Guideline Section 4B1.1. His claim is not well founded. To be a "career offender" under Sentencing Guideline Section 4B1.1, a criminal defendant must "ha(ve) at least two prior felony convictions of either a crime of violence or a controlled substance offense." The term "two prior felony convictions" is defined to mean, in pertinent part, that "the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of Part A of this Chapter." Section 4B1.2(3). Part A, in turn, states that "(p)rior sentences imposed in unrelated cases are to be counted separately," but that "(p)rior sentences imposed in related cases are to be treated as one sentence for purposes of criminal history." Sentencing Guideline Section 4A1.2(a)(2) (emphasis added). The accompanying Application Notes further explain that "(c)ases are considered related if they (1) occurred on a single occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing." Application Note 3, Section 4A1.2. As the court of appeals concluded, petitioner's prior convictions did not arise in "related cases." Pet. App. A2. The three prior felony convictions did not occur on a single occasion, they were not part of a single common scheme or plan, and they were not consolidated for trial or sentencing. Accordingly, the court of appeals' decision is correct and does not warrant review. Contrary to petitioner's contention, the court of appeals and the district court did not err in their assessment of his prior convictions. Petitioner's prior convictions involved completely different victims and were committed at completely different times over a period of nearly nine months. After hearing petitioner's testimony concerning the robberies, the district court determined that, "This, to me, is not a common scheme or plan, this is a group of men who were together from time to time as they decided to rob banks and break laws." Sentencing Tr. 69. See also Pet. App. A2 (noting that district court did not find petitioner to be a "credible witness"). Moreover, the convictions resulted from prosecutions brought in different jurisdictions -- a factor stressed by courts of appeals in concluding that various aspects of the "relatedness" criteria were not satisfied in a determination of career offender status. See, e.g., United States v. Wildes, 910 F.2d 1484, 1487 (7th Cir. 1990); United States v. Flores, 875 F.2d 1110, 1113-1114 (5th Cir. 1989). /6/ This treatment fully reflects Congress's explicit direction to the Sentencing Commission that it assure that the Guidelines specify "substantial term(s) of imprisonment" for defendants having "a history of two or more prior * * * felony convictions for offenses committed on different occasions." 28 U.S.C. 994(i)(1). /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 ROBERT J. ERICKSON Attorney DECEMBER 1990 /1/ On May 17, 1989 -- nearly four weeks after petitioner's sentencing -- the Sentencing Commission promulgated Amendment 266 (see 54 Fed. Reg. 21,379), which added the following language to the "career offender" Guideline: "If an adjustment from Section 3E1.1 (Acceptance of Responsibility) applies, decrease the offense level by 2 levels." Sentencing Guideline Section 4B1.1 (1991 ed.). As the accompanying commentary stated: The purpose of this amendment is to authorize the application of Section 3E1.1 (Acceptance of Responsibility) to the determination of the offense level under this section to provide an incentive for the acceptance of responsibility by defendants subject to the career offender provision. The effective date of this amendment is November 1, 1989. Sentencing Guidelines, App. C, at C.122 (1991 ed.) (emphasis in original). /2/ The decision in United States v. Maddalena, 893 F.2d 815 (6th Cir. 1989), is not necessarily to the contrary, as petitioner contends (Pet. 4). In that case, the court of appeals remanded the case of a defendant sentenced as a "career offender" so that the district court could consider certain mitigating circumstances offered by the defendant and thereafter exercise its discretion as to whether to depart below the indicated Guidelines range. In addition, the court of appeals also directed the district court to "consider" on remand whether to accord the defendant the benefit of "a recent amendment clarifying section 4B1.1" by allowing career offenders to receive the adjustment for acceptance of responsibility. Id. at 817. In reaching this result, the court of appeals did not consider the various statutory and Guidelines provisions (see pages 6-8, infra) concerning the retroactive application to be given to amendments, like the change in the "career offender" provision, that effect substantive changes in the Guidelines. Presumably, the court of appeals' direction that the amendment to Guideline Section 4B1.1 be "considered" meant that the district court could consider both whether the amendment was of the kind that was entitled to retroactive effect and, if so, whether the defendant was factually entitled to benefit from the change. As a result, at this time, no square split on this issue is presented; the only courts of appeals that have definitively resolved the issue have held that retroactive application of the amendment is not appropriate. See Pet. App. A2; United States v. Havener, supra; United States v. Green, supra. /3/ Petitioner's reliance on Miller v. Florida, 482 U.S. 423 (1987) is misplaced. As the Court made clear in Miller, for a law "to fall within the ex post facto prohibition, two critical elements must be present: first, the law 'must be retrospective, that is, it must apply to events occurring before its enactment'; and 'it must disadvantage the offender affected by it.'" Id. at 430. In Miller, the Court found that both prongs of this test were satisfied with regard to a revised state sentencing guideline that became effective after the defendant's offense and that disadvantaged the defendant by subjecting him to a higher sentencing range than the guideline that had been in effect at the time of the offense. Here, by contrast, petitioner was not disadvantaged by any change in the law -- the courts below, in considering petitioner's sentence, applied the "career offender" Guideline in effect at the time of the offense. /4/ Petitioner also incorrectly suggests (Pet. 7) that his case falls under the rule that new constitutional rules of criminal procedure apply retroactively to cases on direct appeal (see Griffith v. Kentucky, 479 U.S. 314 (1987); Allen v. Hardy, 478 U.S. 255 (1986)). As explained above, this case is governed by statutory provisions concerning modifications to the substantive criminal law of sentencing. /5/ There is some discrepancy as to precisely when and where the robberies occurred. As we pointed out in our brief in the court of appeals (Gov't C.A. Br. 3-4), the evidence adduced at the sentencing proceedings showed that petitioner's prior robberies occurred on March 5, 1973, within the jurisdiction of the United States District Court for the Eastern District of Missouri; on September 2, 1973, within the jurisdiction of the Circuit Court for St. Louis, Missouri; and on November 2, 1973, within the jurisdiction of the Circuit Court for St. Charles County, Missouri. By contrast, petitioner asserts that the prior robberies occurred on November 16, 1972, in St. Charles County, Missouri; on May 3, 1973, in Dayton, Ohio; and on August 3, 19(7)3, in St. Louis, Missouri. See Pet. 11. /6/ As petitioner notes (Pet. 11-12), in United States v. Rivers, 733 F. Supp. 1003 (D. Md. 1990), appeal pending, the district court held that convictions were part of a "common scheme" and "related" even though they occurred on different dates and in different jurisdictions. We believe that the decisions in Rivers was incorrect and are challenging it on appeal, but, in any event, the facts of Rivers, in which the district court stressed the close proximity of two prior crimes, are distinguishable from the facts of this case. Petitioner also maintains that the petition in United States v. Jones, No. 90-5654, presented "a similar issue" (Pet. 12 n.5); the petition in Jones was denied on October 9, 1990. 111 S. Ct. 275. /7/ Petitioner also erroneously suggests (Pet. 12-16) that his prior robbery convictions should be treated as a single offense for purposes of the career offender provision because those prior robberies would have been grouped together in determining relevant offense conduct under Sentencing Guideline Section 1B1.3(a)(2); would have been subject to joinder under Fed. R. Crim. P. 8(a); and would have been admissible to show a common scheme under Fed. R. Evid. 404(b). First, Sentencing Guideline Section 1B1.3(a)(2) allows consideration of "relevant conduct" that was "part of the same course of conduct or common scheme or plan as the offense of conviction" only "with respect to offenses of a character for which Section 3D1.2(d) would require grouping of multiple counts"; here, of course, the prior convictions were not part of the same common scheme as the offense of conviction, and the prior convictions, as robberies covered by Sentencing Guideline Section 2B3.1, would not have been subject to grouping under Sentencing Guideline Section 3D1.2(d). Second, the prior offenses, all of which occurred in different jurisdictions (both state and federal) could hardly have been subject to joinder under Rule 8(a). Finally, the fact that prior similar conduct might be admissible for some purpose under Rule of Evidence 404(b) in no way undercuts the propriety of considering multiple, separate convictions entered for discrete criminal episodes for purposes of later sentencing under the career offender provision.