PAUL D. WALLACE, PETITIONER V. UNITED STATES OF AMERICA No. 90-7371 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 OPINION BELOW The opinion of the court of appeals, Pet. App. A1-A4, is unpublished, but the decision is noted at 923 F.2d 845 (Table). JURISDICTION The judgment of the court of appeals was filed on December 12, 1990. The petition for a writ of certiorari was filed on March 11, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner received adequate notice of the district court's intention to depart upward from the Guideline sentencing range when the presentence report stated that departure might be appropriate and the district court stated at the outset of the sentencing hearing that it was contemplating departure on three specific grounds. 2. Whether the extent of the district court's upward departure was reasonable. STATEMENT After a jury trial in the United States District Court for the Western District of New York, petitioner was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1). He was sentenced to 37 months' imprisonment. The court of appeals affirmed. 1. The evidence at trial established that on July 31, 1988, police officers signaled petitioner to stop as he was driving his car through Cheektowaga, New York. Petitioner ignored the officers' instruction and fled at high speed. When the officers stopped petitioner's car, he attempted to flee on foot. After his apprehension, petitioner falsely asserted that his name was Richard Lieber. He also produced a false driver's license bearing his picture but in the name of Richard Lieber and registration documents for the car he was driving showing the name Richard Lieber. Gov't C.A. Br. 1-2. 2. The presentence report recommended an offense level of 11. Based on petitioner's two prior misdemeanor convictions and one prior felony, the presentence report calculated petitioner's criminal history category as III. The report stated, however, that an upward departure might be warranted because petitioner's criminal history score did not adequately represent his prior criminal conduct. Gov't C.A. Br. 2. At the outset of the sentencing hearing, the district court told petitioner that it was contemplating a departure on three grounds: petitioner's obstruction of justice during and subsequent to his apprehension; his prior involvement in a truck hijacking in 1984, for which he was acquited; and his history of weapons offenses. Gov't C.A. Br. 9. After hearing argument from counsel, the court decided to depart from the sentence prescribed by the Guidelines. Following Second Circuit precedent, the district court used the Guidelines to calculate its departure. First, the court adjusted petitioner's criminal history category. It added three points to petitioner's criminal history score for the 1984 truck hijacking; /1/ one point for the extreme psychological injury suffered by the driver of the truck; and two points for a 1978 gun possession. The six points raised petitioner's criminal history score to category V. Second, the court adjusted petitioner's offense level. It found that petitioner obstructed justice when he tried o flee before his arrest and again when he falsely identified himself at the time of his arrest. The court added two points for each time petitioner obstructed justice, resulting in a four-point increase in petitioner's offense level. After those adjustments, petitioner had a "departure" Guideline sentencing range of 30 to 37 months. In sentencing petitioner to 37 months' imprisonment, the court also noted that he had a long-time association with the Hell's Angels motorcycle gang. Pet App. A2-A3. 3. The court of appeals affirmed. Pet. App. A1-A4. It first held, id. at A2-A3, that the district court had not erred by basing its decision to depart in part on the 1984 truck hijacking for which petitioner had been acquitted. It also held that in determining the extent of the departure, the district court properly had increased petitioner's criminal history score by an amount greater than would be allowed under the Guidelines if the court actually had been calculating petitioner's score. The court noted that the district court was "using the additional points here only as a guide to determine the extent of the upward departure. In doing so (it) was entitled to consider harm inflicted on a crime victim, a factor the Guidelines recognize as warranting a departure." Pet. App. A2. The court also held that there was "no merit" to petitioner's claim that he received insufficient notice of the likelihood that the district court would depart from the Guideline sentence. The court found that the district court "alerted (petitioner) to the distinct risk of departure and identified the grounds he was contemplating." Id. at A4. ARGUMENT 1. Petitioner contends that the district court did not give him sufficient notice of its intent to depart and of the possible grounds for departure as required by Federal Rule of Criminal Procedure 32 and the policy statement in Guidelines Section 6A1.3. He argues that the presentence report was also deficient in that respect because it did not contain all of the facts that formed the basis for the district court's decision to depart. Pet. 8-9. Petitioner notes that this Court granted certiorari on the same issue in Burns v. United States, No. 89-7260 (argued Dec. 3, 1990). /2/ Burns is distinguishable from this case in that petitioner was put on notice of the district court's intention to depart and of the potential gounds for departure by both the presentence report and the district court's statement at the outset of the sentencing hearing. The presentence report stated that an upward departure might be appropriate because petitioner's criminal history score did not adequately represent the seriousness of petitioner's past criminal conduct. Although the report did not mention the 1984 hijacking, it did notify petitioner that the district court might depart upward and that petitioner's past criminal conduct might form the basis for that departure. That notice gave petitioner's counsel sufficient information to prepare to address the district court's concerns at the sentencing hearing. Moreover, at the outset of the sentencing hearing, the district court informed petitioner that it was contemplating a departure and specified the three grounds on which it ultimately departed. The court then gave petitioner ample opportunity to argue that a departure was not appropriate on these grounds. Although Burns is plainly distingushable from this case, acceptance of petitioner's submission in Burns might undermine the basis for the sentence in this case. The petitioner in Burns claims that a defendant is entitled to know the precise grounds for an upward departure, as well as the possiblity of a departure, in advance of the sentencing hearing. In his view, notice is required when a ground is "not identified in the presentence investigative report * * * or by the parties." Pet. Reply Br. 1, Burns v. United States, No. 89-7260. Petitioner here received advance notice in the presentence report that the district court might depart on the ground that petitioner's criminal history score did not adeqately represent his prior criminal conduct, but the presentence report did not specifically advert to petitioner's involvement in the 1984 truck hijacking. In addition, although the district court allowed petitioner's counsel to object to all of the potential gounds for departure at the sentencing hearing, the petitioner in Burns claims that "a postponement may be necessary" if notice is not given "prior to the sentencing hearing." Pet. Br. 26, n.16, Burns v. United States, No. 89-7260. The petitioner in this case did not receive pre-hearing notice of all of the grounds on which the district court relied in imposing sentence. Because petitioner here might have a valid claim to notice if this Court accepts the submission of the petitioner in Burns, this petition for a writ of certiorari should be held pending the disposition of Burns. 2. Petitioner also contends that the extent of the district court's upward departure based on his past criminal conduct was unreasonable. He claims that his criminal history score would only have been increased by three points if he had been convicted in the 1984 truck hijacking case, whereas the district court in fact icreased his criminal history score by four points because of that offense. Pet. 9-10. The district court was determining the extent of an upward departure, not petitioner's criminal history score. Although the court properly made "reference" to the pertinent Guidelines (as required by Guidelines Section 4A1.3 and applicable circuit precedent, see United States v. Cervantes, 878 F.2d 50 (2d Cir. 1989)), the district court "was using the additional points here only as a guide to determine the extent of an upward departure." Pet. App. A2. In making that determination, based on petitioner's past criminal conduct, the district court properly referred to the sentence the Guidelines would have imposed for petitioner's 1984 truck hijacking (i.e., the offense perpetrated by him), rather than the points the Guidelines provide for a typical highjacking offense. Petitioner concedes that the district court properly increased petitioner's criminal history score by three points based on his prior truck hijacking. Petitioner questions only the additional point the court added because of the injury suffered by the driver of the truck during the hijacking. Guidelines Section 5K2.3, however, authorizes the sentencing court to depart upward if a victim suffers "extreme psychological injury." Although that Guideline refers to the offense of conviction, not prior offenses, the district court properly analogized to that Guideline to increase petitioner's Guideline criminal history score an additional point. Because petitioner's 1984 truck hijacking warranted four points (including one point for the victim's "extreme psychological injury"), rather than three points (for the base offense), the decision of the court below does not conflict with decisions of the Seventh and Eleventh Circuits as petitioner contends. See Pet. 9-10. In United States v. Fonner, 920 F.2d 1330 (7th Cir. 1990), the district court departed from the Guideline range of 30 to 37 months and imposed a sentence of 120 months, based in part on a 1972 homicide for which the defendant was acquitted. Although the court of appeals held that "a defendant's past cannot justify an increase in criminal history category exceeding the level that would have been appropriate had the facts been counted expressly," id. at 1332, it did not preclude a district court from increasing the amount of a departure if a defendant's prior conduct implicated some other factor that the Guidelines considered an appropriate gound for departure. In United States v. Fayette, 895 F.2d 1375 (11th Cir. 1990), the district court imposed a sentence that was twice as long as the sentence prescribed by the Guidelines because the defendant committed other criminal conduct after pleading guilty to the offense of conviction. The court of appeals held that district courts that seek to depart based on post-plea criminal conduct should structure their departures according to Guidelines Section 4A1.3. In so holding, the court observed that if the defendant had been convicted of the post-plea conduct, it would have been factored into his criminal history score, resulting in a significantly lower sentence than the one imposed. The court did not hold that Guidelines Section 4A1.3 provides an inflexible guide from which sentencing courts may never deviate. Accordingly, there is no conflict between the decision in this case and the decisions in Fonner and Fayette. CONCLUSION The petition for a writ of certiorari should be held pending the disposition of Burns v. United States, No. 89-7260. In all other respects the petition should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General J. DOUGLAS WILSON Attorney MAY 1991 /1/ The same district court judge who sentenced petitioner presided over petitioner's trial on the truck hijacking charge. /2/ Unlike Burns, petitioner does not argue that the deficiency in notice deprived him of liberty without due process of law. U.S. Const. Amend. V.