DAVID SHEFFER, PETITIONER V. UNITED STATES OF AMERICA No. 90-5112 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 Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 5-18) is reported at 896 F.2d 842. JURISDICITION The judgment of the court of appeals was entered on February 20, 1990. A petition for rehearing was denied on April 17, 1990. The petition for a writ of certiorari was filed on July 12, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the Sentencing Reform Act of 1984 applies to a conspiracy that began before the Act's November 1, 1987, effective date and continued afterwards. 2. Whether the inclusion of drug quantities involved in transactions occuring before November 1, 1987, in the calculation of petitioner's base offense level under the Sentencing Guidelines violates the Ex Post Facto Clause. 3. Whether the government violated its plea agreement with petitioner. STATEMENT After a guilty plea in the United States District Court for the District of Maryland, petitioner was convicted of conspiracy to possess with intent to distribute 1000 kilograms or more of marijuana, in violation of 21 U.S.C. 846. He was sentenced under the Sentencing Guidelines to 96 months' imprisonment. The court of appeals affirmed. Pet. App. 5-18, 28. 1. Petitioner was the ringleader of a large-scale marijuana conspiracy involving his wife, his mother and stepfather, his brother and sister-in-law, his aunt, and others. He began selling small amounts of marijuana in 1983. Over the next several years, petitioner's marijuana business expanded, and he began supplying his relatives and others with marijuana for distribution. As petitioner's business continued to expand, he supplied increasingly large amounts of marijuana to the members of his distribution network. In March 1988, petitioner decided to get out of the marijuana business, and he arranged for other members of his family to take over his distribution network. Pet. App. 14-15, 39-62; Gov't C.A. Br. 4-13. 2. Petitioner pleaded guilty pursuant to a written plea agreement dated December 13, 1988. Pet. App. 28-32. As part of the plea agreement, the government agreed that (id. at 30): At his sentencing, (the government) will recommend that (petitioner) be given a two level reduction in the applicable offense level for acceptance of responsibility pursuant to Section 3E1.1 of the Sentencing Guidelines and a two level reduction based on (petitioner's) good faith effort to provide substantial assistance in the investigation and prosecution of others pursuant to Section 5K1.1 of the Sentencing Guidelines and the low end of the resultant guideline range. At petitioner's sentencing, the district court calculated a base offense level of 30 based on the distribution of between 700 and 999 kilograms of marijuana during the course of the conspiracy. The court found that petitioner was an organizer and leader of the conspiracy, and increased his offense level by four levels to 34. Following the government's recommendation, the court gave petitioner a two level reduction in the offense level under Section 3E1.1 for acceptance of responsibility. The government also recommended that petitioner be given a two level reduction in the offense level under Section 5K1.1 for his good faith effort to provide substantial assistance in the investigation and prosecution of others; the court, however, decided to reduce petitioner's offense level by three levels to 29. With a criminal history category I, petitioner's Guideline range was 87-108 months' imprisonment. Pet. App. 15; Gov't C.A. Br. 32. At the time that the government presented its recommendations, the government also recommended that petitioner receive a sentence at the low end of the Guideline range. Pet. App. 75. However, after the district court gave petitioner a three level reduction in his offense level under Section 5K1.1 for his substantial assistance, the government recommended a sentence of 97 months' imprisonment. Id. at 85. Both the district court and the government interpreted the plea agreement to require the government to recommend a sentence at the low end of the Guideline range only if the court followed the government's other two recommendations. Since the court gave petitioner a three (rather than two) level reduction in his offense level for his substantial assistance, the court concluded that the government was not bound to recommend that petitioner be sentenced at the low end of the Guideline range. Id. at 78-80. /1/ When petitioner disagreed with the court's interpretation of the plea agreement, the court offered to allow petitioner to withdraw his guilty plea. The court also advised petitioner that he would waive his right to raise his misunderstanding of the plea agreement in any post-conviction proceedings if he did not withdraw his plea. Acknowledging that he understood, petitioner maintained his plea of guilty. Id. at 80-84. The court sentenced petitioner to 96 months' imprisonment. Id. at 85. 3. The court of appeals affirmed. Pet. App. 5-18. Since petitioner pleaded guilty to a conspiracy that continued after the November 1, 1987, effective date of the Sentencing Guidelines, the court of appeals rejected his contention that the Sentencing Guidelines should not be applied to determine his sentence. It held that, because conspiracy is a continuing offense, the Ex Post Facto Clause does not bar the application of the Sentencing Guidelines to a conspiracy that began before November 1, 1987, and continued afterwards. Pet. App. 9-11. It also held that the inclusion of the quantity of drugs distributed prior to November 1, 1987, in the calculation of petitioner's sentence under the Sentencing Guidelines did not violate the Ex Post Facto Clause. Id. at 11-12. The court of appeals also rejected petitioner's claim that the government breached the plea agreement by not recommending that he be sentenced at the low end of the Guideline range. Pet. App. 15-17. It held that petitioner waived that issue "because (he) could have withdrawn his plea and did not" (id. at 16). The court added that, "even if this issue had not been waived, the district court adequately resolved the misunderstanding over the language of the plea agreement and did not err in sentencing (petitioner) to 96 months." Id. at 17. It explained that petitioner's "sentence is in the lower half of the applicable guideline range at level 29" while "(i)f the (district) court had followed the government's recommendation as stated in the plea agreement letter and as interpreted by (petitioner), it would have sentenced him at level 30." Ibid. The court therefore found that "the district court's sentencing of (petitioner) was appropriate and within the parameters of the Guidelines." Ibid. ARGUMENT 1. Petitioner first contends that, as a matter of statutory construction, the Sentencing Reform Act of 1984, as amended, does not apply to an offense, such as the conspiracy in this case, that began before the effective date of the Act and continued afterwards. Pet. 17-23. The Sentencing Reform Act of 1984, as amended in 1985, provided that the Sentencing Guidelines took effect on November 1, 1987. Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, ch. II, Section 235(a)(1), 98 Stat. 2031, as amended by Sentencing Reform Amendments of 1985, Pub. L. No. 99-217, Section 4, 99 Stat. 1728. In 1987, Congress further amended the effective date provision to specify that the Act and the Sentencing Guidelines "shall apply only to offenses committed after" the November 1, 1987, effective date. Sentencing Act of 1987, Pub. L. No. 100-182, Section 2(a), 101 Stat. 1266. Contrary to petitioner's contention, the legislative history of the 1987 amendment does not suggest that the Sentencing Reform Act of 1984 should not apply to offenses that began before November 1, 1987, and continued afterwards. While the courts of appeals have noted that there is some conflict in the legislative history, they have uniformly concluded that Congress intended that the Act and the Sentencing Guidelines fully apply to continuing offenses that straddle the effective date. See United States v. Pippin, 903 F.2d 1478, 1480-1481 & n.2 (11th Cir. 1990); United States v. Tharp, 892 F.2d 691, 693-695 (8th Cir. 1989); United States v. Story, 891 F.2d 988, 991-995 (2d Cir. 1989). Contrary to petitioner's contention, moreover, it is clear that the statute applies to such offenses because the continuing offense is committed, at least in part, after the effective date of the Act. /2/ Additionally, since this issue relates only to crimes which began before November 1, 1987, and continued beyond that date, it is obviously of diminishing importance. In the absence of a conflict among the courts of appeals, further review by this Court is not warranted. /3/ 2. Petitioner next contends that the inclusion of drug quantities involved in transactions occurring before November 1, 1987, in the determination of his base offense level under the Sentencing Guidelines violates the Ex Post Facto Clause. Pet. 23-26. Because conspiracy is a continuing offense, the courts of appeals have uniformly held that the application of the Sentencing Guidelines to a conspiracy that straddles the November 1, 1987, effective date does not violate the Ex Post Facto Clause. See United States v. Story, 891 F.2d at 995; United States v. Rosa, 891 F.2d 1063, 1068-1069 (3d Cir. 1989); United States v. Boyd, 885 F.2d 246, 248 (5th Cir. 1989); United States v. White, 869 F.2d 822, 826 (5th Cir.), cert. denied, 109 S. Ct. 3172 (1989); United States v. Walton, 908 F.2d 1289, 1299-1300 (6th Cir.), cert. denied sub nom. Mitchell v. United States, No. 96-5626 (Oct. 9, 1990); United States v. Walker, 885 F.2d 1353, 1354 (8th Cir. 1989); United States v. Pippin, 903 F.2d at 1480-1482. See also United States v. Thomas, 895 F.2d 51, 57 (1st Cir. 1990); United States v. Watford, 894 F.2d 665, 670-671 (4th Cir. 1990); United States v. Williams, 897 F.2d 1034, 1040 (10th Cir. 1990). Moreover, the courts of appeals also uniformly agree that the consideration of drug quantities involved in transactions occurring before November 1, 1987, in the calculation of a defendant's base offense level for a drug offense under the Sentencing Guidelines does not violate the Ex Post Facto Clause. See United States v. Cusack, 901 F.2d 29, 32 (4th Cir. 1990); United States v. Terzado-Madruga, 897 F.2d 1099, 1124 (11th Cir. 1990); United States v. Ykema, 887 F.2d 697, 700 (6th Cir. 1989), cert. denied, 110 S. Ct. 878 (1990); /4/ United States v. Allen, 886 F.2d 143, 145-146 (8th Cir. 1989). In the absence of a conflict among the courts of appeals, further review of this issue also is not warranted. /5/ 3. Finally, petitioner renews his claim that the government breached his plea agreement by failing to recommend that he be sentenced at the low end of the Guideline range. Pet. 26-31. Even assuming that the government violated the plea agreement in this case, it is not clear what relief petitioner seeks. In Santobello v. New York, 404 U.S. 257, 262-263 (1971), this Court recognized that permitting a defendant to withdraw a guilty plea may be appropriate relief for a breach of the plea agreement. Here, when petitioner disagreed with the district court's interpretation of the plea agreement, the court offered him the opportunity to withdraw his guilty plea; he declined to do so. Pet. App. 80-83. In addition, petitioner agreed to waive his right to challenge the district court's interpretation of the plea agreement on appeal when he decided not to withdraw his guilty plea. Id. at 83-84. In these circumstances, the court of appeals correctly concluded that petitioner had waived his claim that the government breached the plea agreement. Id. at 16-17. In any event, as the court of appeals noted, petitioner did not receive a greater sentence than that contemplated by the terms of the plea agreement. Pet. App. 17. Had the district court followed the government's recommendation of a two level reduction in petitioner's offense level under Section 5K1.1 for his substantial assistance, his offense level would have been 30 (rather than 29), resulting in a Guideline range with a minimum of 97 months' imprisonment. Pet. App. 85. Since his sentence of 96 months' imprisonment is less than the minimum term of imprisonment of that Guideline range, petitioner actually received a more lenient sentence than he would have received if the district court had simply adopted all of the government's recommendations set out in the plea agreement. Accordingly, petitioner's fact-bound claim does not warrant further review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General JOSEPH C. WYDERKO Attorney OCTOBER 1990 /1/ The government's recommendation of a sentence of 97 months' imprisonment was the minimum term which would have applied if the district court had reduced the offense level by two levels, rather than three levels. Pet. App. 85. /2/ Cf. Pet. App. 11 ("The defendants either pled, or were found to be, guilty of a conspiracy that existed on November 2, 1987, and every day thereafter until the conspiracy was affirmatively terminated. This offense therefore occurred after November 1, 1987 * * *."). /3/ As petitioner points out (at 13), one district court decision declined to apply the Guidelines to a continuing offense. United States v. Davis, 718 F.Supp. 8 (S.D.N.Y. 1989). However, that decision involved singular circumstances, in which "all the actual narcotics distribution was committed before November 1, 1987" (id. at 10), and, in any event, no court of appeals decision has declined to apply the Guidelines to a continuing offense. /4/ The issue raised by petitioner was also raised in the petition for a writ of certiorari in United States v. Ykema. /5/ Petitioner relies extensively on decisions concerning restitution. Pet. 23. Whatever the validity of those decisions, the principles underlying restitution are entirely different from the principles underlying the Sentencing Guidelines. See Pet. App. 11-12; United States v. Ykema, 887 F.2d at 700; United States v. Allen, 886 F.2d at 145-146.