VANGIE JONES, PETITIONER V. UNITED STATES OF AMERICA No. 89-7241 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-3a) is unpublished, but the decision is noted at 893 F.2d 1335. JURISDICTION The judgment of the court of appeals was entered on January 10, 1990. /1/ The petition for a writ of certiorari was mailed on April 13, 1990, and was received by the Clerk of the Court on April 16, 1990; it is therefore out of time under this Court's Rule 13.1. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court committed reversible error by failing to state reasons on the record for imposing a sentence that was within the range prescribed by the Sentencing Guidelines and thus declining to follow a recommendation by the government for a lesser sentence. STATEMENT 1. Petitioner pleaded guilty in the United States District Court for the Eastern District of Michigan to one count of conspiring to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846. The plea was offered pursuant to a plea agreement in which the government and petitioner agreed that the applicable sentencing range -- under the Sentencing Reform Act of 1984 and the Sentencing Guidelines -- was 63 to 78 months; the basis for this determination was reflected in worksheets attached to the agreement. The plea agreement also provided that petitioner would disclose all of her knowledge regarding illegal drug activities to the government and that, upon its determination that petitioner had fulfilled this obligation, the government would recommend a sentence of 48 months' imprisonment. Pet. App. 13a, 15a; C.A. App. 13-19. At the time of sentencing, the prosecutor reported that petitioner had met her obligations under the plea agreement and recommended that petitioner be sentenced to 48 months' imprisonment. The district court sentenced petitioner to a term of imprisonment of 63 months, to be followed by three years of supervised release. The court did not state its reasons for declining to follow the government's recommendation. Petitioner and her attorney made no inquiry of the court regarding the reasons for the sentence, nor did they advance any objection to the court's asserted failure to explain its sentence or to the sentence itself. Pet. App. 9a-10a. 2. On appeal, petitioner argued that the district court had committed reversible error, requiring resentencing, when it failed to state its reasons for imposing a 63-month prison term. The court of appeals affirmed. Pet. App. 1a-3a. Relying on its decision in United States v. Duque, 883 F.2d 43 (6th Cir. 1989), the court of appeals held that a district court need not state with particularity its reasons for setting a sentence within an applicable guideline range when that range is less than 24 months. Pet. App. 2a. /2/ The court of appeals also concluded that the district court was not obligated to explain its decision not to follow the government's recommendation for a sentence below the applicable range. Although the Guidelines require a district court to set forth reasons for imposing a sentence below the otherwise applicable range based upon a defendant's cooperation, the court of appeals explained, "there is no converse requirement that a court explain its decision to refuse a departure and impose a sentence within the guidelines." Id. at 2a. Finally, the court of appeals noted that the Sentencing Reform Act, 18 U.S.C. 3742, does not authorize an appeal from a district court's refusal to impose a sentence below the applicable range. Pet. App. 2a-3a. ARGUMENT As a matter of good practice, district courts should state their reasons for any sentence that they impose under the Sentencing Reform Act -- and, in particular, should explain a refusal to follow a recommendation by the government for a reduced sentence based upon a defendant's cooperation. However, on the facts of this case, the district court's failure to provide a statement of the reasons for its sentence does not entitle petitioner to any relief from her conviction or her sentence. There is no conflict among the circuits on the question presented by the petition. Further review is therefore not warranted. Under 18 U.S.C. 3553(c), a district court is required at the time of sentencing a criminal defendant to "state in open court the reasons for its imposition of the particular sentence." Within the structure of the Sentencing Reform Act and the Guidelines, adherence to this statutory obligation generally assures that the findings on which the court has relied in selecting a particular sentencing range are made clear on the record. /3/ Indeed, unless that range is greater than 24 months or the sentence imposed is outside the range justified by the facts of a case, an explanation of the basis for the court's choice of a range will generally satisfy the minimum statutory statutory. The statute mandates more specific explanations with respect to three issues: (1) when the applicable range exceeds 24 months, the court must explain the reason for imposing a sentence at a point within the range; (2) if the sentence is outside the applicable range; the court must explain the reason for departing from that range, and (3) the court must explain the reasons for a decision to award less than full restitution. The necessary implication of requiring a statement of specific reasons for any departure from an applicable range and for imposition of a particular sentence within a guideline range of greater than 24 months is that a sentence within a range of less than 24 months requires no specific explanation beyond the reasons for the choice of the range. Although the district court failed in this case to explain the basis for its imposition of a 63-month term of imprisonment, this omission does not entitle petitioner to any relief. The plea agreement reflected the parties' conclusion that the applicable sentencing range was 63-78 months, and worksheets showing the basis for that calculation were attached. Pet. App. 13a; C.A. App. 13-19. The district court imposed a sentence at the bottom of this range. On this record, there is no room for doubt as to how the court chose the applicable range, and it is clear that petitioner was not prejudiced by the absence of a statement of the reasons underlying the choice of that range. Under the plain language of Section 3553(c), petitioner was not entitled to an explanation of why the court chose not to depart from the 63-78 month range. Although (as the court of appeals noted) the court would have been obligated to state its reasons "for a downward departure based upon a defendant's cooperation, there is no converse requirement that a court explain its decision to refuse a departure and impose a sentence within the guidelines." Pet. App. 2a. /4/ Significantly, neither petitioner nor her attorney called the district court's attention to any asserted insufficiency in the statement accompanying imposition of sentence, asked for a statement of reasons, or otherwise objected to the procedure followed at sentencing. Petitioner does not contend that she could be prejudiced in any way by the nature of the record resulting from her sentencing. Under these circumstances, the court of appeals correctly refused to require resentencing. There is no conflict among the courts of appeals on the question presented by the petition, /5/ and this case presents no issue of general importance calling for this Court's review. 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 RICHARD A. FRIEDMAN Attorney JUNE 1990 /1/ Petitioner incorrectly cites the date of the mandate, February 14, 1990 (see Pet. App. 3a), as the date of the judgment. Pet. 1. /2/ Here, the applicable range -- 63 to 78 months -- was 15 months. /3/ The Guidelines contemplate that a district court may impose sentence, within the overlap of more than one potentially applicable range, without specifically settling upon one range. See United States v. Bermingham, 855 F.2d 925 (2d Cir. 1988). In such a case, of course, the court is not required to narrow its choice to -- or to provide reasons for -- the selection of one particular range. /4/ Every court to consider the issue has held that the refusal of a district court to depart from an applicable sentencing range is not an appealable issue; the court of appeals has no jurisdiction to grant relief. See United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990); United States v. Tucker, 892 F.2d 8, 9-11 (1st Cir. 1989); United States v. Denardi, 892 F.2d 269, 271-272 (3d Cir. 1989); United States v. Franz, 886 F.2d 973, 976-981 (7th Cir. 1989); United States v. Colon, 884 F.2d 1550, 1552-1556 (2d Cir.), cert. denied, 110 S. Ct. 553 (1989); United States v. Fossett, 881 F.2d 976, 979-980 (11th Cir. 1989); United States v. Buenrostro, 868 F.2d 135, 139 (5th Cir. 1989), cert. denied, No. 89-7106 (April 30, 1990). /5/ Neither of the cases on which petitioner relies supports her claim to relief from her sentence. See Pet. 7. In United States v. Perez, 871 F.2d 45, 47, cert. denied, 109 S. Ct. 3227 (1989), the Sixth Circuit's passing reference to the district courts' obligation to provide reasons for sentences imposed under the Guidelines was merely a portion of a description of the Act. Because the issue before the court was whether the Sentencing Reform Act was constitutional, it had no occasion to address the question presented by this case. The cited passage from United States v. Bermingham, 855 F.2d 925, 935 (2d Cir. 1988), addressed the procedures to be followed where there was a potential dispute as to the applicable guideline range. In this case, by contrast, there was no dispute over the applicable range, and the district court imposed a sentence at the bottom of that range.