SUSAN POZZY, PETITIONER V. UNITED STATES OF AMERICA No. 90-5292 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 First Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-18a) is reported at 902 F.2d 133. JURISDICTION The judgment of the court of appeals was entered on April 30, 1990. The petition for a writ of certiorari was filed on July 27, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court erred by departing downward from the applicable Sentencing Guidelines range. 2. Whether the court of appeals applied the proper standard of review in determining the correctness of the district court's downward departure. STATEMENT Following her plea of guilty in the United States District Court for the District of Maine, petitioner was convicted of possessing cocaine with the intent to distribute it, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. The district court sentenced her to three months' house arrest, to be followed by a two-year period of supervised release. The court also imposed a $50 special assessment. /1/ The government appealed. The court of appeals vacated petitioner's sentence and remanded for resentencing. 1. Petitioner and her husband had been trafficking in cocaine for at least three months prior to their arrest in November 1988. During that period, they caused eight packages containing cocaine to be sent from Hollywood, Florida, to Maine by the United Parcel Service (UPS). On November 10, a narcotics agent intercepted a package in Winterport, Maine. A narcotics dog alerted to the package; it was seized; a search warrant was obtained; and the package was found to contain two ziplock bags, each containing 30 grams of cocaine. Pet. App. 3a-4a. Agents obtained a search warrant for the Pozzys' house and replaced the plastic bags in the package. UPS then made a controlled delivery of the package. Immediately after Peter Pozzy signed for and accepted the package, the warrant was executed. The agents seized the two bags of cocaine, ammunition, cash, marijuana, an additional amount of cocaine, and drug distribution equipment. Pet. App. 4a. 2. In an interview with the probation office, petitioner expressed remorse for trafficking in drugs. She said that she had nothing to do with her husband's drug trafficking other than enjoying the financial benefits of it. /2/ Petitioner had no prior criminal history, although she had started to use cocaine while in high school. She said that she had ceased using cocaine in the summer of 1988. In December 1988, after her arrest, she suffered a miscarriage. At the time of her sentencing in August 1989, she was again pregnant, with an estimated delivery date of December 13, 1989. The probation office calculated her Sentencing Guidelines range as 21-27 months' imprisonment; that range was derived from a base offense level of 18, see United States Sentencing Comm'n, Sentencing Guidelines Section 2D1.1 (Jan. 1988) (Guidelines), /3/ which was reduced by two levels to 16 for acceptance of responsibility, see id. Section 3E1.1(a), and a criminal history category of I, see Pet. App. 5a-6a; C.A. App. 44-45. At the sentencing hearing for petitioner and her husband, the district court reduced her adjusted offense level by two levels to 14 pursuant to Guidelines Section 3B1.2(b) because she was a minor participant in the criminal activity. The resulting Guidelines range was 15-21 months' imprisonment. C.A. App. 136, 137. The district court then said that its sentencing philosophy was to "err on the side of leniency." Id. at 151. It stated that although no specific Guideline warranted a downward departure, "the totality of the circumstances in this case warrant a departure downward." Id. at 152. The court cited four circumstances -- petitioner's pregnancy, petitioner's dependency on her husband, the injury that petitioner would suffer from the fact that her husband would also be imprisoned, and the absence of a halfway house in Maine -- as the bases for a downward departure. In the court's view, the most important circumstances were "(petitioner's) relationship with her husband, and, to some extent, her present physical condition." Ibid. The district court acknowledged that Guidelines Section 5H1.4 /4/ likely precluded the court from basing a downward departure on petitioner's pregnancy. C.A. App. 152-153. The court said, however, that any departure downward would be awarded "because of the child" who would otherwise "bear for the rest of its life the stigma, accidentally imposed on it by birth, of being born in jail," id. at 154. /5/ The Sentencing Commission, the court said, had not considered a defendant's pregnancy, and that factor was a "mitigating circumstance that should be taken into consideration." Id. at 154-155. The district court next considered the relationship between petitioner and her husband. The court conceded the existence of a Guideline addressing the issue of duress, Section 5K2.12, /6/ but it denied that the Guideline "define(d) the type (of) duress that exists between a man and woman who are married, when the man wants to commit a crime, he has a drug habit, he has a history of alcoholism, he has a desire to buy and sell drugs." C.A. App. 155. Finding that "(petitioner) really had no alternative but to leave or stay there and participate," id. at 157, the court concluded that the Sentencing Commission had not considered the kind of circumstances that existed in the relationship between petitioner and her husband, and that the court thus could properly consider that factor in deciding to depart downward from the Guidelines. Ibid. The court then found that petitioner was being punished by her husband's sentence and that the Sentencing Commission had not considered that factor. /7/ Saying that it was "compelled to consider (this factor) in determining whether or not a departure downward should be made," C.A. App. 157, the court reduced petitioner's adjusted offense level of 14 by four levels due to her pregnancy, by four more levels because her participation in the offense had stemmed from "her relationship with her husband," and by an additional four levels because she was being punished by her husband's sentence. Id. at 158. Finally, since the court thought that confinement in a halfway house near petitioner's home would be in the best interests of petitioner and her child, and because the nearest halfway house was in Massachusetts, the court reduced her offense level by another six levels. Id. at 159. /8/ The court then sentenced petitioner to a three-month term of house arrest, to be followed by a two-year period of supervised release. Id. at 161-162. 3. The court of appeals vacated petitioner's sentence and remanded for resentencing. Pet. App. 1a-18a. Relying on its earlier decision in United States v. Diaz-Villafane, 874 F.2d 43, 49, cert. denied, 110 S. Ct. 177 (1989), the court observed that appellate review of Guidelines departures comprises three steps: (1) the legal determination, subject to plenary appellate review, whether the circumstances on which the district court relied were sufficiently unusual to warrant a departure; (2) the factual inquiry, subject to review under the "clearly erroneous" standard, whether such unusual circumstances actually were present in the case; and (3) the determination, under a deferential standard, whether "the direction and degree of departure" were reasonable. Pet. App. 11a-12a. Reaching only the threshold level in that analysis, the court held as a matter of law that none of the circumstances on which the district court relied justified the downward departure. Id. at 12a. The court also rejected the "totality of the circumstances" approach followed by the district court, explaining that the failure to apply the Guidelines on a "factor-by-factor basis" would allow a sentencing court to "nullify the guidelines approach to sentencing." Id. at 13a. /9/ Noting that under Guidelines Section 5H1.10 physical condition is ordinarily not a relevant consideration, the court found that in most cases, including petitioner's, pregnancy is not sufficiently atypical or unusual to warrant a departure. Pet. App. 13a-15a. /10/ The court also discerned no record evidence of the physical coercion or threats of physical violence covered by the relevant portion of the coercion Guideline, Section 5K1.12, or any suggestion that "(petitioner's) husband led her against her will into a life of crime," Pet. App. 15a-16a. The court therefore found no basis in petitioner's marital relationship for a downward departure. Id. at 16a. The court further found that the effect on petitioner of her husband's imprisonment did not provide a reasonable basis for departure. "Where both spouses have confessed guilt," the court said, "each spouse's sentence must stand alone and be based on the applicable guidelines." Id. at 16a. /11/ Finally, finding no indication that the Sentencing Commission thought that halfway houses would always be available, the court concluded that the absence of a halfway house was not "the kind of unusual circumstance that should warrant departure." Pet. App. 17a. Moreover, the court found that because the other grounds for departure were not appropriate, petitioner's applicable Guidelines range was 15-21 months and, thus, a halfway house sentence was not an available sentence in any event. Ibid. The court acknowledged the importance of compassion in sentencing, but nevertheless concluded that such compassion "cannot be condoned when it results, as in this case, in individual sentencing contrary to the intent and command of the guidelines." Ibid. ARGUMENT 1. Petitioner maintains that the court of appeals erred in holding that the district court improperly departed downward from the Guidelines range. She defends two of the four grounds on which the district court relied. She contends that the court of appeals erred in ruling that (a) pregnancy is not a factor that justifies a downward departure, and (b) coercion and duress should be limited to threats of physical injury. Pet. 6-13. /12/ Those claims do not warrant further review. a. As the court of appeals observed, Pet. App. 13a, physical condition is "not ordinarily relevant" as a sentencing consideration, Guidelines Section 5H1.4, and the specific physical condition at issue here, pregnancy, also is not the type of "extraordinary physical impairment," ibid., that might justify a downward departure. In fact, pregnancy is not an extraordinary characteristic among female defendants and federal prison inmates. In 1988 6% of the federal prison population, or 2,949 inmates, were female and 173 were pregnant. Of that number, 79 delivered their babies in prison that year, ten had abortions, and 84 carried their pregnancies to the following year. Gov't C.A. Br. 25 (quoting Bureau of Prisons BPMed 3, the official publication of medical statistics for the Bureau of Prisons). Accordingly, pregnancy is not a physical condition that automatically warrants a downward departure. The district court also could have accommodated petitioner's pregnancy and ensured that her child would not be born in prison by postponing the execution of her sentence until some time after her child was born. The probation office recommended that approach, C.A. App. 58, the government agreed with it, id. at 142, and the court of appeals approved it, Pet. App. 14a. Petitioner's sister was willing to care for the baby until petitioner was released. C.A. App. 142. Accordingly, there was an option for the district court to follow that did not involve relieving petitioner of any incarceration. Given that factual and legal background, the district court was mistaken when it ruled that petitioner's pregnancy warranted a downward departure from the Guidelines. The court of appeals thus correctly concluded that the district court could not, as a matter of law, base a downward departure on a defendant's pregnancy, except perhaps in unusual circumstances not presented by this record. Pet. App. 14a-15a. b. The court of appeals was also correct in holding that the fact that petitioner was married to her co-defendant was not a sufficiently unusual circumstance to warrant departure. It is unfortunately the case that husbands and wives sometimes commit crimes together. E.g., United States v. Orta, 760 F.2d 887, 892 (8th Cir. 1985) (en banc) (Gibson, J., dissenting); United States v. Hilton, 469 F. Supp. 94, 99 (D. Me. 1979); United States v. Balsamo, 468 F. Supp. 1363, 1370 (D. Me. 1979). Marriage is not a basis for a spouse to avoid criminal liability even under circumstances where the stresses of the marital relationship itself caused a spouse to commit a crime. Moreover, Guidelines Section 5H1.6 states that family ties are not ordinarily relevant in sentencing, and demonstrates that the Sentencing Commission considered familial relationships like petitioner's in formulating the Guidelines. Cf. 18 U.S.C. 3553(b). Finally, the record here did not present any evidence of coercion, actual or threatened, or any suggestion that "(petitioner's) husband led her against her will into a life of crime," Pet. App. 15a-16a, and thus negated any possibility that the coercion Guideline, Section 5K1.12, could validly have applied in petitioner's case. Petitioner was a willing participant in her husband's endeavors; on occasion she mailed funds to Florida and may have signed receipts for drugs as well. In light of those considerations, the court of appeals correctly held that the bare fact of petitioner's marital relationship could not, without more, be an adequate legal basis for a downward departure on grounds of coercion. Pet. App. 16a. Contrary to petitioner's claim, Pet. 6-7, 12-13, there is no conflict between the decision below and United States v. Cheape, 889 F.2d 477, 479 (3d Cir. 1989). In Cheape, the court of appeals held that a district court has authority under Guidelines Section 5K2.12 to depart downard from the Guidelines range on the ground that the defendant was coerced into committing the offense of did so because of duress even if the jury had rejected such a defense at the guilt phase of the case. 889 F.2d at 480. No such question is presented here. Moreover, the evidence introduced by the defendant in Cheape showed not merely that she was unduly influenced by a three-year relationship with a co-defendant, but also that during the events surrounding the offense of conviction another co-defendant put a gun to her head. Id. at 478. No such threat of physical violence appears in this record. Cheape is thus readily distinguishable. Petitioner attaches great importance to the Third Circuit's statement in Cheape that the type of feared injury justifying a downward departure on the ground of coercion is not limited to bodily injury. 889 F.2d at 480, referring to Guidelines Section 5K2.12. That statement, a discussion of the textual differences between the jury charge and the relevant Guideline, will not bear the weight that petitioner places on it. That statement merely recognizes that, under the text of the Guideline, a threat of "substantial damage to property or similar injury resulting from the unlawful action of a third party or from a natural emergency," Guidelines Section 5K2.12, might also warrant a downward departure. That recognition does not give rise to a conflict with the decision below. In any event, it would be unreasonable to deem the type of coercion on which petitioner relies sufficient to warrant a downward departure. Otherwise, every spouse could make such a claim. 2. Petitioner's second claim is quite narrow. She does not argue that the three-part standard adopted by the First Circuit in Diaz-Villafane, page 6, supra, that the panel in this case applied, Pet. App. 11a-12a, is inconsistent with the Sentencing Reform Act of 1984, 18 U.S.C. 3551-3742 and 28 U.S.C. 991-998. Other circuits have also endorsed that standard. United States v. Williams, 901 F.2d 1394, 1396-1397 (7th Cir. 1990); United States v. Lang, 898 F.2d 1378, 1379-1380 (8th Cir. 1990); United States v. White, 893 F.2d 276, 277-278 (10th Cir. 1990); United States v. Burns, 893 F.2d 1343, 1345-1346 (D.C. Cir.), cert. granted (on other grounds), 110 S. Ct. 3270 (1990); United States v. Summers, 893 F.2d 63, 66-67 (4th Cir. 1990); United States v. Joan, 883 F.2d 491, 494 (6th Cir. 1989). See United States v. Lira-Barrazza, 897 F.2d 981, 983 (9th Cir. 1990) (applying a five-part standard that is not materially different from the Diaz-Villafane standard). Instead, petitioner claims that the court of appeals misapplied that standard because the panel did not give proper deference to the factual findings made by the district court in support of its downward departure. Pet. 16-19. That contention is without merit. As the court of appeals' opinion shows, Pet. App. 12a-17a, its decision rests on four separate determinations that the grounds on which the district court relied for reducing petitioner's sentence were inadequate as a matter of law to support the departure. The court of appeals therefore had no occasion to review the district court's factual findings and, contrary to petitioner's claim, did not fail to accord appropriate deference to the district court's factfinding role. Under these circumstances, there is no possible conflict between the decision below and the cases cited by petitioner, United States v. Yellow Earrings, 891 F.2d 650, 652 (8th Cir. 1989); United States v. Jordan, 890 F.2d 968, 972-973 (7th Cir. 1989); United States v. Rodriguez, 882 F.2d 1059, 1069 (6th Cir. 1089), in which a reviewing court was required to consider, and gave due deference to, a district court's findings of fact. In fact, the Sixth, Seventh, and Eighth Circuits have all endorsed the Diaz-Villafane analysis for departures. See page 12, supra. The First Circuit's decision here therefore does not conflict with the decisions that petitioner cites. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General THOMAS M. GANNON Attorney SEPTEMBER 1990 /1/ Petitioner's husband, Peter Pozzy, pleaded guilty to the same offense, as charged in a separate information. The district court sentenced him to 45 months' imprisonment, followed by a three-year period of supervised release. The court also imposed a $50 special assessment. Pet. App. 2a-3a. /2/ Although petitioner's husband corroborated this statement, see Pet. App. 5a, evidence presented at sentencing showed that petitioner's involvement in the offense was more extensive. She made transfers of money, accepted out-of-state phone calls, and took delivery of UPS packages containing drugs. Gov't C.A. Br. 13. /3/ This base offense level was calculated on an amount of 116 grams of cocaine, which included the 60 grams of cocaine seized on November 10, 1988, and an additional 56 grams of cocaine observed at the Pozzys' house by a government informant earlier in the investigation. Gov't C.A. Br. 5. /4/ In part, this Guideline provides that "(p)hysical condition is not ordinarily relevant in determining whether a sentence should be outside the guidelines or where within the guidelines a sentence should fall. However, an extraordinary physical impairment may be a reason to impose a sentence other than imprisonment." /5/ The district court did not consider whether petitioner's sentence should be stayed until after the child was born, even though the government had said that a stay of the execution of sentence was a permissible option. /6/ In part this Guideline, titled "Coercion and Duress (Policy Statement)" provides that "(o)rdinarily coercion will be sufficiently serious to warrant departure only when it involves a threat of physical injury * * *." /7/ Earlier, however, the court, citing Guidelines Section 5H1.6, had noted that the Guidelines precluded petitioner's husband from receiving lenient treatment because of his family ties. In part, the cited Guideline provides that "(f)amily ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the guidelines." /8/ As a result of the reductions, petitioner's adjusted offense level, which the probation office had found to be 16, became -4. /9/ The court of appeals also noted that it would have held that the district court's departure was unreasonable as a matter of law even if it had not used the three-step Diaz-Villafane analysis. Pet. App. 13a. /10/ The court, however, declined to hold that pregnancy could never be a factor justifying downward departure. Pet. App. 15a. /11/ The court noted that the district court's departure on this basis was in direct conflict with the Guideline dealing with family ties and responsibilities, Guidelines Section 5H1.6. Pet. App. 16a. /12/ Petitioner does not argue in this Court that the effect on her of her husband's incarceration and the absence of a Maine halfway house are proper grounds for a downward departure.