ROY C. GREEN, PETITIONER V. UNITED STATES OF AMERICA No. 90-5293 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. 1-7) is reported at 902 F.2d 1311. JURISDICTION The judgment of the court of appeals was entered on April 30, 1990. A petition for rehearing was denied on June 13, 1990. Pet. App. 8. The petition for a writ of certiorari was filed on July 30, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether Section 4B1.1 of the Sentencing Guidelines improperly classifies a defendant who has been convicted of two prior felonies, one a crime of violence and one a drug offense, as a "career offender" subject to increased penalties. 2. Whether petitioner is entitled to retroactive application of an amendment to Section 4B1.1 that took effect six months after he was sentenced. 3. Whether Section 4B1.1 impermissibly limits the district court's discretion to impose an individualized sentence. STATEMENT Petitioner pleaded guilty in the United States District Court for the Eastern District of Missouri to one count of possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 262 months' imprisonment, followed by six years of supervised release. The court of appeals affirmed. Pet. App. 1-7. 1. On January 28, 1989, police officers executed a search warrant at a residence in St. Louis, Missouri. Petitioner, who was in a bedroom of the residence, told the officers they would find cocaine in a downstairs closet. The officers found 29 plastic baggies containing 404 grams of cocaine in the closet. Petitioner's presentence report noted that he had been convicted of attempted murder and assault with a deadly weapon in 1978, for which he received concurrent sentences. Petitioner also was convicted of possession of crack cocaine for sale and felony possession of cocaine in 1987. On the basis of petitioner's prior convictions, the presentence report concluded that he was subject to an enhanced penalty under the Sentencing Guidelines' "career offender" provision, Guidelines Section 4B1.1. /1/ The presentence report did not adjust petitioner's offense level to account for his acceptance of responsibility, and recommended a sentencing range of 262-327 months' imprisonment. The district court accepted the recommendations of the presentence report and sentenced petitioner to 262 months' imprisonment. 2. The court of appeals affirmed. Pet. App. 1-7. The court held that Sentencing Guidelines Section 4B1.1 is consistent with the language of 28 U.S.C. 994(h), which requires that certain repeat offenders receive sentences at or near the maximum authorized by law. Pet. App. 2-4. /2/ The court rejected petitioner's claim that Congress intended to impose increased penalties only on recidivist drug offenders or recidivist violent offenders. "Giving the words (of the statute) their ordinary and plain meaning," the court said, it is enough that a defendant has been convicted of two prior felonies, one in each of the two statutory categories. Id. at 3. The court of appeals further held that Guidelines Section 4B1.1 does not violate due process by impermissibly limiting the discretion of the sentencing judge. Id. at 4-5. Finally, the court held that the Sentencing Guidelines in effect at the time of petitioner's sentencing did not permit an adjustment for acceptance of responsibility in the case of career offenders. Id. at 5-6. ARGUMENT 1. Petitioner contends (Pet. 6-12) that 28 U.S.C. 944(h) authorizes an enhanced sentence only for those defendants who have been convicted of (1) at least two prior felony drug offenses or (2) at least two prior felony crimes of violence. In petitioner's view, the semicolon between Section 944(h)(2)(A) and Section 944(h)(2)(B) indicates that Congress did not intend to reach defendants with one prior felony conviction in each category. /3/ The court of appeals correctly rejected petitioner's reading of Section 944(h). As that court observed (Pet. App. 3-4), "(h)ad Congress intended (petitioner's) view to obtain, the obvious choice of words would have been plural and not singular." Congress's use of the word "each" implies that one violent crime and one felony drug offense -- one felony from each category -- is sufficient to confer career offender status. Thus, petitioner's suggestion that "career offenders" must be specialists in a single category of crime is not warranted by the language of Section 944(h). Petitioner suggests no reason why Congress might have intended to treat "specialists" more severely than other career offenders, and we are aware of none. Petitioner does not contend that the court of appeals' resolution of this issue conflicts with any decision of this Court or any other court of appeals. On the contrary, the Tenth Circuit has reached the same conclusion as the court of appeals in this case. See United States v. Newsome, 898 F.2d 119, 120-121 (1990); see also United States v. Cruz, 882 F.2d 922, 924 (5th Cir. 1989). 2. Petitioner next contends (Pet. 12-14) that he was entitled to a downward adjustment of his sentence for acceptance of responsibility. Petitioner does not dispute that this adjustment was not available to career offenders at the time of his sentencing on April 28, 1989. See United States v. Summers, 895 F.2d 615, 617-618 (9th Cir. 1990); United States v. Cruz, 882 F.2d at 925-926; 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 Guidelines Section 4B1.1 to permit career offenders to receive an adjustment for acceptance of responsibility, that amendment did not take effect until November 1, 1989, more than six months after petitioner's sentencing. See United States Sentencing Commission, Federal Sentencing Guidelines Manual, App. C, at C.137 (1990 ed.). Petitioner's argument that the amendment should be applied retroactively to his case is not persuasive. See United States v. Havener, 905 F.2d 3, 8 (1st Cir. 1990). The Ex Post Facto Clause of the Constitution forbids retroactive increases in punishment, and Congress has provided that statutes decreasing punishment generally are not retroactive. 1 U.S.C. 109; see Warden v. Marrero, 417 U.S. 653, 660 (1974). To be sure, 1 U.S.C. 109 applies in terms only to "statutes." But the sentencing statute provides that courts generally may not "modify a term of imprisonment once it has been imposed." 18 U.S.C. 3582. 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 * * * the court may reduce the term of imprisonment * * * if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. Here, the Commission has issued a policy statement that forbids retroactive application of the amendment to Section 4B1.1. Sentencing Guidelines Section 1B1.10(a) states 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." Section 1B1.10(a) expressly states 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. 3582(c)(2) is not consistent with this policy statement." The amendment to Section 4B1.1 is not among the amendments listed in Section 1B1.10(d). In light of "the statute's language, considerations of administrative policy, and the quite different background retroactivity assumptions in the area of substantive criminal law," the amendment to Section 4B1.1 is not retroactive. United States v. Havener, 905 F.2d at 8. /4/ 3. Petitioner's final contention (Pet. 14-16) is that Section 4B1.1 violates the Due Process Clause of the Fifth Amendment by limiting the district court's discretion to impose an individualized sentence. Every court of appeals to have considered the question has held that the Sentencing Guidelines do not violate due process. See, e.g., United States v. Jones, 907 F.2d 929, 930 (9th Cir. 1990) (Section 4B1.1); United States v. Thomas, 884 F.2d 540, 542-544 (10th Cir. 1989); United States v. Erves, 880 F.2d 376, 379 (11th Cir.), cert. denied 110 S. Ct. 416 (1989); United States v. Pinto, 875 F.2d 143, 144-146 (7th Cir. 1989) (Section 4B1.1); United States v. Allen, 873 F.2d 963 (6th Cir. 1989); United States v. Seluk, 873 F.2d 15, 16 (1st Cir. 1989); United States v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, 110 S. Ct. 184 (1989); United States v. Vizcaino, 870 F.2d 52, 54-56 (2d Cir. 1989); United States v. White, 869 F.2d 822 (5th Cir.), cert. denied, 110 S.Ct. 560 (1989); United States v. Frank, 864 F.2d 992, 1008-1010 (3d Cir. 1988), cert. denied, 109 S.Ct. 2442 (1989). The decisions of the courts of appeals are plainly correct. "(I)n non-capital cases, the * * * practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes." Lockett v. Ohio, 438 U.S. 586, 604-605 (1978). See also Sumner v. Shuman, 483 U.S. 66, 75 (1987). Because "the authority to define and fix the punishment for crime is legislative," Ex parte United States, 242 U.S. 27, 42 (1916), legislatures are free to divest courts of their sentencing discretion in non-capital cases. See United States v. Mistretta, 109 S.Ct. 647, 650 (1989); Lockett v. Ohio, 438 U.S. at 603. Consequently, Congress's determination that career offenders should receive a sentence "at or near the maximum term authorized" by law is well within its authority to fix the punishment for crime. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General ROBERT J. ERICKSON Attorney SEPTEMBER 1990 /1/ Sentencing Guidelines Section 4B1.1 provides in part: A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. Section 4B1.2(3) provides in part: The term "two prior felony convictions" means * * * the defendant committed the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense (i.e., two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense). /2/ Section 994(h), Title 28 U.S.C., provides in part: The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and -- (1) has been convicted of a felony that is -- (A) a crime of violence; or (B) a() (controlled substance) offense * * *; and (2) has previously been convicted of two or more prior felonies, each of which is -- (A) a crime of violence; or (B) a() (controlled substance) offense * * *. /3/ Petitioner had two prior felony convictions for drug offenses (possession of crack cocaine for sale and felony possession of cocaine) and two prior felony convictions for crimes of violence (attempted murder and assault with a deadly weapon). In computing petitioner's criminal history, the two crimes of violence were counted as a single prior sentence because petitioner received concurrent sentences for these "related" crimes. See Guidelines Section 4A1.2(2). But the two drug convictions apparently were separate. See Gov't C.A. Br. 2. And although petitioner had not been sentenced on one of the drug offenses when the presentence report was prepared in this case, the Guidelines provide that the date of a prior conviction "shall be the date the judgment of conviction was entered." Guidelines Section 4B1.2(3). /4/ Petitioner incorrectly suggests (Pet. 13) that this case falls under the rule of Griffith v. Kentucky, 479 U.S. 314 (1979), that new constitutional rules of criminal procedure apply retroactively to cases on direct appeal. As explained above, this case is governed by statutory provisions concerning modifications to the substantive criminal law of sentencing.