FRANCIS PHILLIP CONWAY, PETITIONER V. UNITED STATES OF AMERICA No. 90-5134 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 Second Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A2) is not reported. JURISDICTION The judgment of the court of appeals was entered on June 13, 1990. The petition for a writ of certiorari was filed on July 13, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether a criminal defendant who has been sentenced within the applicable Guidelines range under the Sentencing Reform Act of 1984 may appeal from the district court's refusal to depart downward from the Guidelines in imposing sentence. STATEMENT Petitioner pleaded guilty in the United States District Court for the Southern District of New York to five counts of bank robbery, in violation of 18 U.S.C. 2113(a). He was sentenced under the provisions of the Sentencing Reform Act of 1984 to 37 months' imprisonment on each count, to be served concurrently, and to a three-year term of supervised release. The Sentencing Guidelines specified an adjusted offense level of 21 and a sentencing range of 37-46 months' imprisonment for each count. Petitioner asked the district court to depart downward from the indicated Guidelines range to account for his age (46 years old), his alcoholism, his homeless status, his troubled childhood, and the absence of any violence during the commission of the five bank robberies. See Pet. App. B4-B8. The district court refused. The district court stated that, prior to the adoption of the Sentencing Guidelines, it would have imposed a more lenient sentence. The court explained, however, that the Guidelines restricted the sentencing discretion of courts (id. at B4, B6-B9), that "(t)here is nothing here which takes (petitioner's case) outside of the guidelines" (id. at B7), and that the court therefore lacked authority to sentence petitioner below the recommended Guidelines range (ibid.). The court of appeals dismissed petitioner's appeal. Pet. App. A1-A2. The court of appeals stated: (Petitioner) claims that the district court erred in failing to depart downward on the basis of a combination of factors, including his homelessness, alcoholism, troubled childhood and lack of a prior record. The district court determined that these factors did not warrant a downward departure * * *. (Petitioner's) claim that the court erroneously concluded that it lacked the power to depart downward is not supported by the record when read as a whole. A decision not to depart is not appealable. Ibid. ARGUMENT Petitioner contends that the court of appeals erred in holding that it lacked authority to review the decision of the district court to impose a sentence within the indicated Guidelines range rather than to depart from the Guidelines. The court of appeals' decision is consistent with the plain language of the Sentencing Reform Act of 1984, the intent of Congress in drafting it, and the decisions of every other court of appeals that has considered the issue. Review of petitioner's claim by this Court is therefore unwarranted. /1/ 1. There is no right of appeal in criminal cases absent explicit statutory authorization. See, e.g., United States v. DiFrancesco, 449 U.S. 117, 131 (1981); Abney v. United States, 431 U.S. 651, 656 (1977). Prior to the enactment of the Sentencing Reform Act of 1984, appellate courts were generally without authority to review sentences that were imposed within the penalty range provided by statute. See Dorszynski v. United States, 418 U.S. 424, 431 (1974); United States v. Tucker, 404 U.S. 443, 447 (1972). "The Sentencing Reform Act expanded appellate review (of sentences) but limited it to certain categories of claims." United States v. Colon, 884 F.2d 1550, 1552 (2d Cir.), cert. denied, 110 S. Ct. 553 (1989). Under 18 U.S.C. 3742(a), criminal defendants may appeal if a sentence "(1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; (3) is greater than the sentence specified in the applicable guideline range * * * ; or (4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable." /2/ Petitioner's claim that the district court erred in failing to depart below the applicable guideline range does not fall within any of these delineated categories. Petitioner's challenge does not fit within Section 3742(a)(3) or (a)(4) because the Sentencing Commission has provided a specific Guideline for the offense of robbery (see Sentencing Guideline Section 2B3.1), and the sentence actually imposed is within the specified Guideline's range. Nor does petitioner's challenge fit within Section 3742(a)(2), which authorizes challenges based on the incorrect application of a Guideline provision. If Section 3742(a)(2) were interpreted "to allow appeals for departure-related decisions as incorrect application of the guidelines, (it) would render section 3742(a)(3) redundant. Because Congress could not have intended such a specific provision to be mere surplusage, we conclude that Congress did not intend for departure-related decisions, including refusals to depart, to be appealable under section 3742(a)(2)." United States v. Franz, 886 F.2d 973, 978 (7th Cir. 1989). Finally, a sentence imposed within the applicable Guidelines range is not "imposed in violation of law" under Section 3742(a)(1). That subsection "was largely intended to ensure that the appellate review previously available for claims that a sentence was in excess of the statutory maximum, was based on impermissible considerations, or was the result of some other demonstrable error of law * * * would be retained." United States v. Colon, 884 F.2d at 1553. Petitioner's sentence of 37 months' imprisonment was well within the maximum 20-years' punishment provided for violations of 18 U.S.C. 2113(a), and there is no indication in the record that petitioner's sentence was based in any way on material misinformation or constitutionally impermissible considerations. Thus, petitioner's sentence was not "imposed in violation of law" within the meaning of that phrase under the Sentencing Reform Act. In enacting Section 3742, Congress deliberately "establishe(d) a limited practice of appellate review of sentences" (S. Rep. No. 225, 98th Cong., 2d Sess. 149 (1983)) and imposed "restrictions on the use of appellate review" designed to avoid "unnecessary appeals" (id. at 154). /3/ United States v. Franz, 886 F.2d at 979 n.7. Thus, "it is evident that Congress did not intend section 3742 to be a vehicle for the appeal of every sentence and that Congress considered appellate review of most sentences within the guidelines to be unnecessary." Id. at 979. Indeed, every court of appeals that has considered the question has held that the discretionary refusal of a sentencing judge to depart from the applicable Guidelines range is not reviewable under Section 3742(a). See United States v. Meitinger, 901 F.2d 27, 29 (4th Cir. 1990); United States v. Davis, 900 F.2d 1525, 1528-1529 (10th Cir. 1990); United States v. Evidente, 894 F.2d 1000, 1003-1005 (8th Cir. 1990); United States v. Denardi, 892 F.2d 269, 271-272 (3d Cir. 1990); United States v. Tucker, 892 F.2d 8 (1st Cir. 1989); United States v. Draper, 888 F.2d 1100, 1105 (6th Cir. 1989); United States v. Franz, supra; United States v. Colon, 884 F.2d at 1552-1556; United States v. Fossett, 881 F.2d 976, 989 (11th Cir. 1989); United States v. Buenrostro, 868 F.2d 135, 139 (5th Cir. 1989). 2. As petitioner observes (Pet. 8-9), several courts of appeals have stated that a district court's failure to depart from the applicable Guidelines range may be appealable if it is based on the legally erroneous view that the court lacked authority to depart. See, e.g., United States v. Bayerle, 898 F.2d 28 (4th Cir. 1990); United States v. Evidente, 894 F.2d at 1005; United States v. Fossett, 881 F.2d at 979. There was no such error in this case. As the court of appeals recognized (Pet. App. A1), the district court did not refuse to depart below the recommended Guidelines range on the ground that it lacked all authority to do so; rather, it refused to depart because none of the mitigating factors proffered by petitioner warranted a downward departure. See id. at B4, B7. The district court's determination on this score is correct. The Sentencing Commission considered the mitigating factors at issue here when it formulated the Guidelines. Petitioner's lack of a prior record was taken into account in computing his criminal history score (see Sentencing Guideline Section 5H1.8), and the presence or absence of violence during the commission of a robbery was taken into account by the specific offense adjustments set forth in the robbery Guideline itself (Sentencing Guideline Section 2B3.1(b)(2) & (3)). Petitioner's age (Sentencing Guideline Section 5H1.1), alcoholism (Sentencing Guideline Section 5H1.4), socio-economic status (Sentencing Guideline Section 5H1.10), and emotionally-scarred childhood (Sentencing Guideline Section 5H1.3) are all factors that the Sentencing Commission considered and rejected as grounds for departing from the indicated Guidelines range. See, e.g., United States v. Carey, 895 F.2d 318, 324-325 (7th Cir. 1990); United States v. Williams, 891 F.2d 962, 965-966 (1st Cir. 1989); United States v. Bolden, 889 F.2d 1336, 1339-1341 (4th Cir. 1989). Thus, the district court correctly concluded that "(t)here is nothing here which takes (petitioner's case) outside of the guidelines." Pet. App. B7. 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/ The issue in this case is also presented in Tibesar v. United States, petition for certiorari pending, No. 89-7036 (Mar. 26, 1990). /2/ Section 3742(b) authorizes the government to appeal from sentencing rulings in circumstances comparable to those enumerated in Section 3742(a). Consequently, the appellate rights of the government and the defendant are symmetrical: the government has no general right to challenge a district court's refusal to depart upward from the Guidelines, and the defendant has no right to challenge a district court's refusal to depart downward. /3/ As the Senate Report explains: The limitations on both defendant and government appeal of sentences outside the guidelines based upon the size of the sentence imposed are further restrictions on the use of appellate review of sentences in order to avoid unnecessary appeals. * * * The guidelines, therefore, provide a practical basis for distinguishing the cases where review is most needed from those where appeal would most likely be frivolous. S. Rep. No. 225, supra, at 154.