RAMON RODRIQUEZ-GONZALEZ, PETITIONER V. UNITED STATES OF AMERICA No. 89-7869 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. 1-7) is reported at 899 F.2d 177. JURISDICTION The judgment of the court of appeals was entered on March 27, 1990. The petition for a writ of certiorari was filed on June 25, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the Double Jeopardy Clause or the Due Process Clause prohibits the district court from considering conduct for which a defendant has been acquitted in imposing sentence under the Sentencing Guidelines. STATEMENT After a jury trial in the United States District Court for the Southern District of New York, petitioner was convicted on one count of distribution of cocaine, in violation of 21 U.S.C. 841(a)(1), two counts of possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1), and one count of conspiracy to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846. /1/ He was sentenced to a total term of 110 months' imprisonment, to be followed by a term of four years' supervised release. The court of appeals affirmed. 1. The evidence at trial showed that petitioner operated a narcotics business out of an apartment on Manhattan's Upper West Side. Drug Enforcement Administration agents raided the apartment on November 2, 1988. The agents arrested petitioner as he threw a bag of cocaine out the window and tried to run away through the apartment. Inside the apartment, the agents found a quantity of cocaine, narcotics paraphernalia, and records of drug trafficking. In the living room, the agents also found a loaded .357 magnum revolver on top of the stereo. Pet. App. 2-3; Gov't C.A. Br. 3-8. 2. At sentencing, the probation officer recommended a sentence of 97-121 months' imprisonment under the Sentencing Guidelines. The probation officer determined that petitioner's offenses had a "total offense level" of 30: a base level of 26 under Sentencing Guidelines Section 2D1.1(c) (Drug Quantity Table) for the amount of cocaine involved (1580.6 grams), a two-level increase under Sentencing Guidelines Section 3C1.1 for trying to conceal or destroy material evidence, and a two-level increase under Sentencing Guidelines Section 2D1.1(b)(1) because a firearm "was possessed during commission of the offense." Pet. App. 3. /2/ Petitioner objected to the two-level increase for possession of the revolver, contending that the government had not shown that he had possessed the weapon and that such an increase was unwarranted where the jury had acquitted him of that charge. /3/ The district court rejected petitioner's objection, finding by a preponderance of the evidence that petitioner "was aware of the presence of the gun" and "had it in his apartment to protect his drug business." Pet. 8. And the court discounted the effect of the jury's contrary verdict, noting that "the standard of conduct with respect to the firearm to which (18 U.S.C. 924(c)) is directed differs from the standard of conduct under the two-point enhancement to the guidelines," and that "the standard of proof differs as well." Gov't C.A. Br. 19 n.*; Pet. 8. Accordingly, the district court sentenced petitioner to a total term of 110 months' imprisonment. Pet. App. 3. 3. The court of appeals affirmed. Pet. App. 1-7. In the court of appeals, petitioner contended that the Due Process Clause and the Double Jeopardy Clause prohibited the district court from considering his possession of the gun in imposing sentence since the jury had acquitted him of such conduct. Pet. C.A. Br. 12-24. /4/ Turning to petitioner's claim under the Double Jeopardy Clause, the court of appeals stated that, "(i)n considering the acquitted conduct as a basis for enhancing (petitioner's) sentence, the district court 'was not relying on facts disclosed at trial to punish (him) for the extraneous offense, but to justify the heavier penalties for the offenses for which he was convicted.'" Pet. App. 5 (quoting United States v. Juarez-Ortega, 866 F.2d 747, 749 (5th Cir. 1989)). The court also pointed out that the district court's "application of (the Sentencing Guidelines) did not, and could not, enhance the maximum penalty authorized by Congress for the offenses for which (petitioner) was convicted." Pet. App. 5 (citing Sentencing Guidelines Section 5G1.1(a)). The district court's "consideration of the acquitted conduct," the court of appeals concluded, "merely affected the point within the statutory range at which (petitioner's) sentence was imposed." Pet. App. 5. Accordingly, it held that the Double Jeopardy Clause did not preclude the district court's consideration of petitioner's possession of the gun. With respect to petitioner's challenge under the Due Process Clause, the court observed that "(t)raditionally, a sentencing judge exercised broad discretion in considering all relevant information in determining an appropriate sentence, including evidence of uncharged crimes, dropped counts of a criminal indictment and criminal activity resulting in acquittal." Pet. App. 6. Under circuit precedent, "consideration of this evidence (did not) offend due process, provided a defendant was given an opportunity to contest the accuracy of that information." Ibid. (citing United States v. Romano, 825 F.2d 725, 728 (2d Cir. 1987)). Moreover, the court of appeals recognized that "adoption of the Sentencing Guidelines has not changed the principle that disputed sentencing factors need only be proved by a preponderance of the evidence to satisfy due process." Pet. App. 6 (citing United States v. Rivalta, 892 F.2d 223, 230 (2d Cir. 1989)). Here, the court of appeals found that the record contained sufficient evidence to show -- under the applicable standard -- that petitioner "possessed a firearm during the commission of a narcotics offense." Pet. App. 6. Accordingly, the court held that the Due Process Clause did not prohibit the district court from considering such conduct in imposing sentence. ARGUMENT 1. Petitioner contends (Pet. 11-21) that the Double Jeopardy Clause and the Due Process Clause prohibited the district court from considering his possession of the gun in imposing sentence since the jury had acquitted him of such conduct. To date, the courts of appeals have unanimously rejected similar constitutional challenges, holding that "relevant conduct" for which the defendant was acquitted may form the basis for a sentence under the Sentencing Guidelines. E.g., United States v. Dawn, 897 F.2d 1444, 1449-1450 (8th Cir. 1990); United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir. 1990); United States v. Isom, 886 F.2d 736, 738 & n. 3 (4th Cir. 1989); United States v. Juarez-Ortega, 866 F.2d 747, 749 (5th Cir. 1989); United States v. Ryan, 866 F.2d 604, 608-610 (3d Cir. 1989). /5/ For that reason alone, further review of petitioner's contentions is unwarranted. In any event, each of petitioner's constitutional challenges is meritless. 2. Here, since the district court neither punished petitioner for the firearms offense on which he was acquitted, nor effectively twice placed him in jeopardy for that offense, the court's imposition of sentence under the Sentencing Guidelines did not violate the Double Jeopardy Clause. As the court of appeals explained, "(i)n considering the acquitted conduct as a basis for enhancing (petitioner's) sentence, the district court was not relying on facts disclosed at trial to punish (petitioner) for the extraneous (firearms) offense, but to justify the heavier penalt(y) for the (drug) offenses for which he was convicted.'" Pet. App. 5 (quoting United States v. Juarez-Ortega, 866 F.2d at 749). The multiple drug offenses for which petitioner was convicted authorized the district court to impose a maximum sentence of 40 years' imprisonment. 21 U.S.C. 841(b)(1)(B). The district court's consideration of the conduct underlying the charged firearms offense did not increase the maximum penalty petitioner faced; that action merely informed the court's discretion as to the particular sentence -- within the maximum range provided by statute -- petitioner should receive. Cf. McMillan v. Pennsylvania, 477 U.S. 79, 87-88 (1986). In other words, petitioner was not again placed in jeopardy at sentencing for the offense on which he had already been acquitted. Rather, petitioner "was only 'in jeopardy' of receiving a harsher sentence for the (drug) offense(s) than he otherwise would have received." United States v. Koonce, 885 F.2d 720, 722 (10th Cir. 1989). The Double Jeopardy Clause offers no protection against such a risk. Moreover, that straightforward proposition "is consistent with (this Court's precedents holding) that an acquittal in a criminal case does not preclude the government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof." Dowling v. United States, 110 S. Ct. 668, 672 (1990); see, e.g., United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361-362 (1984). As this Court determined in McMillan v. Pennsylvania, 477 U.S. at 91-93, the Constitution only requires that factual determinations at sentencing proceedings be supported by a preponderance of proof. /6/ Here, the jury's acquittal of petitioner on the firearms charge meant only that the government had not proved all the elements of the offense beyond a reasonable doubt. That verdict did not preclude a finding under a less exacting burden of proof that petitioner possessed the weapon in connection with a drug offense. See, e.g., United States v. Isom, 886 F.2d at 738 & n. 3; United States v. Juarez-Ortega, 866 F.2d at 749. That is particularly so, where, as here, the offense under Section 924(c) and the enhancement under Sentencing Guidelines Section 2D1.1(b)(1) have different scienter requirements -- a point petitioner has conceded. Pet. C.A. Br. 14; see United States v. Burke, 888 F.2d 862, 865-868 (D.C. Cir. 1989). /7/ 3. Petitioner's challenge under the Due Process Clause fares no better. This Court has long made clear that trial courts exercise broad discretion in sentencing and may accordingly consider all relevant information in fashioning a proper sentence. E.g., Wasman v. United States, 468 U.S. 559, 563-564 (1984); Williams v. New York, 337 U.S. 241, 247 (1949). By providing that courts should consider all "relevant conduct" in imposing sentence, including all "acts and omissions that were part of the same course of conduct * * * as the offense of conviction," Sentencing Guidelines Section 1B1.3, the Sentencing Guidelines require courts to take account of conduct that "corresponds to those actions and circumstances that courts typically took into account when sentencing prior to the Guidelines' enactment," United States v. Wright, 873 F.2d 437, 441 (1st Cir. 1989); see 18 U.S.C. 3661. Under this regime, as the court of appeals correctly observed, the Due Process Clause offers a defendant limited protection with regard to the sentencing court's consideration of disputed facts: the defendant must be "given an opportunity to contest the accuracy of that information" and such "disputed sentencing factors need only be proved by a preponderance of the evidence." Pet. App. 6; see also Sentencing Guidelines Section 6A1.3(a). Here, the record shows both that petitioner vigorously contested his alleged possession of the gun and that there was sufficient evidence under the applicable standard to show that he "possessed (the gun) during the commission of a narcotics offense." Pet. App. 6. Accordingly, the Due Process Clause did not preclude the district court from taking that fact into account in imposing sentence. CONCLUSION The petition for a writ of certiorari should be denied Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General ROBERT J. ERICKSON Attorney AUGUST 1990 /1/ The jury found petitioner not guilty on one count of use of a firearm during the commission of a drug offense, in violation of 18 U.S.C. 924(c). /2/ Petitioner's criminal history placed him as a Category I offender. Gov't C.A. Br. 10. /3/ Petitioner also objected to the increase for trying to destroy evidence. The district court rejected that argument and petitioner abandoned that claim on appeal. Gov't C.A. Br. 10. /4/ As a threshold matter, the court of appeals rejected the government's contention that petitioner had not properly preserved these claims for review. Pet. App. 3-4. /5/ That view fully accords with the practice followed before Congress adopted the Sentencing Guidelines. E.g., United States v. Bernard, 757 F.2d 1439, 1444 (4th Cir. 1985) (collecting cases). Petitioner suggests (Pet. 15) that the Seventh Circuit holds a contrary view. That suggestion is mistaken. In dicta, panel opinions have questioned -- but have not ruled on -- the proposition that the trial court may enhance a sentence based on conduct for which the defendant was acquitted. See United States v. Perez, 858 F.2d 1272, 1277-1278 (7th Cir. 1988); United States v. Plisek, 657 F.2d 920, 928 (7th Cir. 1981). Nonetheless, the Seventh Circuit recently recognized that "(s)everal courts of appeals, including ours, have allowed district judges to augment sentences after concluding that the defendants really did things of which they had been acquitted." United States v. White, 888 F.2d 490, 499 (7th Cir. 1989). Of the several state court decisions petitioner cites (Pet. 16), only State v. Cote, 129 N.H. 358, 530 A.2d 775 (1987), is arguably pertinent. There, the court held that under the specific circumstances of this case, where the defendant has been acquitted of five of eight charges, and convicted of three others occurring at one date and time, the sentencing judge abused his discretion in stating that these were not "isolated incidents" and in thereby giving the impression that, in fashioning the sentence, he may have considered evidence of charges of which the defendant had been acquitted. 129 N.H. at 376, 530 A.2d at 785. To the extent that decision rests on due process principles, it is in tension with the unanimous view among the federal courts. Nonetheless, that apparent inconsistency -- by itself -- does not call for this Court's review. /6/ Accord United States v. Gooden, 892 F.2d 725, 727-728 (8th Cir. 1989); United States v. Casto, 889 F.2d 562, 569-570 (5th Cir. 1989), cert. denied, 110 S. Ct. 1164 (1990); United States v. Wright, 873 F.2d 437, 441-442 (1st Cir. 1989). /7/ Petitioner errs in relying on Arizona v. Rumsey, 467 U.S. 203 (1984), and Bullington v. Missouri, 451 U.S. 430 (1981). Those decisions involved capital sentencing proceedings that replicated the trial; indeed, those proceedings applied a reasonable doubt standard of proof concerning the appropriate sentence. In that particular context, the Court held that the Double Jeopardy Clause barred the State, at a resentencing proceeding, from seeking to impose the death penalty where the trier of fact had previously determined that the defendant should be sentenced to life imprisonment. Arizona v. Rumsey, 467 U.S. at 211-212; Bullington v. Missouri, 451 U.S. at 446. Here, by contrast, the sentencing proceeding does not replicate the trial and involves a less exacting standard of proof. Accordingly, as the court of appeals recognized, "(t)he special considerations implicated in those death penalty cases are not applicable here." Pet. App. 5.