FRANKLIN LEON BLIGE, PETITIONER V. UNITED STATES OF AMERICA No. 89-6189 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 Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-4a) is reported at 888 F.2d 76. JURISDICTION The judgment of the court of appeals was entered on September 29, 1989. The petition for a writ of certiorari was filed on November 28, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court's decision to sentence petitioner above the Sentencing Guidelines range violated due process. STATEMENT Following a plea of guilty in the United States District Court for the Southern District of Georgia, petitioner was convicted on one count of bank robbery, in violation of 18 U.S.C. 2113(a). He was sentenced to 12 years' imprisonment, three years' supervised release, and fined $5000. Pet. App. 6a-11a. The court of appeals affirmed. Pet. App. 1a-4a. 1. The evidence introduced at the plea and sentencing hearings showed that in December 1987, petitioner and co-defendant William Campbell robbed the Citizens and Southern National Bank in Augusta, Georgia. They entered the bank, vaulted the counter brandishing plastic revolvers, and looted teller stations. Petitioner and Campbell then left the bank, shed some of their outer clothing, and separated. Pet. App. 2a, 28a. Minutes after the robbery, Campbell was apprehended by law enforcement officers in a wooded area near the bank. Campbell cooperated immediately. He admitted his involvement in the robbery and provided details of the crime, including a diagram charting his and petitioner's flight from the bank into the wooded area where he was apprehended. Campbell also told the officers where they could find his plastic gun and clothing. Pet. App. 2a, 28a-29a. Petitioner's apprehension was more difficult. He was chased about two blocks through a residential area, where he was surrounded and ultimately apprehended by pursuing law enforcement officers. Petitioner denied any involvement in the crime. He said that he had just arrived in town to visit a friend at a local boys club. He said that he ran from the police because of his past criminal record. Petitioner denied ever seeing Campbell before his arrest. Pet. App. 2a, 29a. 2. a. Petitioner's offense occurred after November 1, 1987, and he was sentenced under the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq. and 28 U.S.C. 991-998 (Supp. IV 1986), and the Sentencing Guidelines adopted by the United States Sentencing Commission. Under 18 U.S.C. 3553(b), a district court must impose sentence in accordance with the Sentencing Guidelines unless the court finds an aggravating or mitigating circumstance of a kind or to a degree not adequately considered by the Commission in formulating the guidelines that should result in a sentence different from the one set by the Guidelines. Sentencing under the Guidelines proceeds in several steps. The first step is to identify the relevant guideline for the offense of conviction. The district court then calculates the offense level for that offense under Chapter 2 of the Guidelines. The court next makes appropriate adjustments under Chapter 3 based on factors such as injury caused to the victims of the crime and the defendant's role in the offense. The court then determines the relevant criminal history category under Chapter 4. Finally, the court determines the sentencing range from the Table in Chapter 5, by finding on the grid the point at which the adjusted offense level intersects with the criminal history category. b. The base offense level for bank robbery at the time of petitioner's offense was 18. United States Sentencing Comm'n, Guidelines Manual Section 2B3.1(a) (Oct. 1987) (Guidelines). /1/ The district court increased the base offense level by two to 20 in this case because the value of the property stolen was between $10,001 and $50,000. Guidelines Section 2B3.1(B). Petitioner had a long history of criminal activity. His presentence report revealed that petitioner had eight prior convictions. Pet. App. 4a, 12-15a. Among petitioner's prior convictions was a felony conviction for simple robbery, /2/ three felony convictions for burglary, /3/ one felony conviction for receiving stolen property, and one felony conviction for credit card fraud. Petitioner also had two misdemeanor convictions for the possession of narcotics, both of which had initially been charged as felonies. Ibid. That lengthy criminal history put petitioner in criminal history category VI. Guidelines Sections 4A1.1, 4A1.2. The combination of petitioner's adjusted offense level and criminal history category resulted in a sentencing range of 70-87 months. The probation officer, however, recommended to the district court that an upward departure might be warranted on the ground that petitioner's criminal history category did not adequately reflect the seriousness of petitioner's past criminal conduct or the likelihood that he would commit other crimes. Presentence Report 9. The probation officer noted that if either of petitioner's two narcotics condictions had been felonies (as they were originally charged), petitioner would have been categorized as a career offender under Guidelines Section 4B1.1, which would have resulted in an offense level of 34, not 20. That offense level, in turn, would have yielded a sentencing range of 262-327 months, not 70-87 months. /4/ Presentence Report 9. Petitioner's co-defendant, Campbell, who also had a long criminal history, was sentenced as a career offender, but he received a downward departure because he cooperated with the authorities and accepted responsibility for his crime. The district court agreed that an upward departure was appropriate in petitioner's case. The court found that petitioner was "very much a professional criminal," whose "criminal category does not adequately reflect the likelihood of his recidivism." Pet. App. 47a. "I think it is obvious from his record," the court continued, "that the likelihood of his recidivism is very high," and that, particularly with reference to petitioner's drug offenses, "the criminal history category significantly under represents (petitioner's) criminal history." Id. at 48a. The court accordingly determined that an upward departure from the Guideline range was warranted based on Guidelines Section 4A1.3 Policy Statement, which authorizes an upward departure where "the (defendant's) criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes * * * ." The court sentenced petitioner to 144 months' imprisonment. Although petitioner's co-defendant Campbell received the identical sentence, the district court denied that its intent was just to equalize the co-defendant's sentences. Pet. App. 48a. 3. The court of appeals affirmed. Pet. App. 1a-4a. The court observed that petitioner had prior convictions for eight separate crimes in just 11 years. The absence of a second qualifying conviction that would have triggered the career offender provision of Guidelines Section 4B1.1, the court noted, put petitioner 14 offense levels lower than the level that he would have occupied as a career criminal. As the court explained, Pet. App. 4a: Although (petitioner's) prior offenses did not meet the definitional requirements of Guidelines Section 4B1.1, his crimes were substantial in number and serious in character. In fact, the number and nature of his criminal convictions were not significantly less than the convictions which qualified Campbell as a career offender. The court therefore held that the upward departure for petitioner was warranted and that the amount of the departure was not unreasonable, given petitioner's "ongoing criminal involvement." Ibid. /5/ ARGUMENT 1. Petitioner claims that the district court violated due process by departing upwards from the Guidelines range in order to impose the same sentence on petitioner that the court imposed on his co-defendant Campbell. Petitioner maintains that in so doing, the district court did not consider his case on its own merits, as required by the Guidelines, and, instead, punished him because of Campbell's criminal record. That claim lacks merit. The district court expressly "agree(d) with counsel for (petitioner) that (petitioner) cannot be sentenced on the basis of Mr. Campbell's background, nothing could be more obvious (or) more offensive to our system of jurisprudence. (Petitioner) should be considered on his background and sentenced on the basis of his acts and omissions." Pet. App. 48a. Moreover, the record demonstrates that at sentencing the district court focused on petitioner's conduct, not Campbell's, in deciding to depart upwards from the Guideline range that applied to petitioner. Id. at 47a-49a. As the court of appeals found (and petitioner does not dispute), the district court's decision to depart was eminently reasonable in light of petitioner's lengthy criminal record. See 18 U.S.C. 3742(e)(2) (reversal of departure from Guideline range warranted only if departure is "unreasonable"); see also United States v. Gayou, No. 89-30096 (9th Cir. Jan. 30, 1990), slip op. 983 (decision to depart from Guideline range is "uniquely within the ken of the district court"); United States v. Ryan, 866 F.2d 604, 610 (3d Cir. 1989) ("district courts are entitled to exercise a substantial amount of discretion in determining whether to depart from the guidelines"). In addition, the district court's concern that petitioner's and Campbell's sentences not be totally dissimilar, Pet. App. 43a-44a, was consistent with the congressionally recognized "need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. 3553(a)(6). As long as a district court gives individualized consideration to the defendant's own case, as required by the Guidelines, the court has the authority under Section 3553(a)(6) to consider the sentences imposed on other persons for the same offense. 2. Petitioner's remaining complaints are entirely factual. Petitioner disagrees with the district court's belief that he reluctantly admitted to committing the bank robbery, and argues that this was not an appropriate basis for an upward departure. Pet. 10. In fact, the district court did not depart upwards on that ground; the court cited petitioner's reluctance as a reason for denying him credit for accepting responsibility for his crime under Guidelines Section 3E1.1. Compare Pet. App. 34a-35a with id. at 48a-49a. Moreover, contrary to petitioner's assertion, Pet. 10-11, the district court did not increased petitioner's sentence on the ground that petitioner had more convictions than Campbell. See id. at 48a-49a. The court merely recognized the obvious in noting that both Campbell and petitioner were career felons whose backgrounds, "while different in details, are in a range of comparable activity * * * ." Id. at 43a; see also id. at 38a. /6/ The basis for the departure was the district court's belief that petitioner was "very much a professional criminal," id. at 47A (in the court's words, "that's his job, that's his business, that's what he has done and he has dedicated himself to it in a reasonably responsible fashion," ibid.), who was likely to "commit further and more serious crimes." Id. at 48. 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 ANDREW LEVCHUK Attorney FEBRUARY 1990 /1/ Unless otherwise noted, all references in this brief to the Guidelines are to the October 1987 edition. /2/ Petitioner's robbery conviction was for a 1975 armed robbery of a restaurant, from which petitioner obtained $1300.68. /3/ Petitioner stole two rifles during one of his burglaries. /4/ The October 1987 version of Guideline Section 4B1.1 (since amended) is a special provision for offenders with particularly serious criminal histories. At the time of petitioner's offense, it provided that: 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 is a crime of violence or trafficking in a controlled substance, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. If the offense level for a career criminal from the table below is greater than the offense level otherwise applicable, the offense level from the table below shall apply. A career offender's criminal history category in every case shall be Category VI. That provision did not apply to petitioner since he had only one prior felony conviction (for robbery) that satisfied the then-applicable definition of "crime of violence." Had either of petitioner's two narcotics convictions not been pled down to misdemeanors, petitioner would have qualified as a career offender. Were that the case, the Table in Guidelines Section 4B1.1 would have assigned petitioner an offense level of 34, because the statutory maximum for a violation of 18 U.S.C. 2113(a) is 20 years' imprivonment. Guidelines Section 4B1.1. /5/ The court of appeals also rejected petitioner's claim that he was entitled to credit under Guidelines Section 3E1.1 for accepting responsibility for his crime. Pet. App. 3a-4a. Petitioner has not sought review in this Court of that ruling. /6/ Petitioner alleges, with no citation to the record, that Campbell had more prior convictions than he. Pet. 10-11. The presentence reports supported the district court's belief that Campbell had fewer prior convictions than petitioner. C.A. Record Excerpts Items 3-4.