ELIAS CASTILLO TIJERINA, PETITIONER V. UNITED STATES OF AMERICA No. 89-7779 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 Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-6) is unreported. JURISDICTION The judgment of the court of appeals was entered on April 6, 1990. The petition for a writ of certiorari was filed on June 6, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's sentence constituted cruel and unusual punishment in violation of the Eighth Amendment. STATEMENT Following a jury trial in the United States District Court for the Southern District of Texas, petitioner was convicted of attempting to possess with intent to distribute approximately 300 kilograms of marijuana. He was sentenced to 18 years' imprisonment and was fined $10,000. The court of appeals affirmed. 1. In July 1987, Sergeant Joe Luna of the Nueces County, Texas, Sheriff's Office was working in an undercover capacity, posing as a supplier of marijuana. An informant introduced Sergeant Luna to petitioner, who was to act as a middleman in transactions between the officer and marijuana purchasers. At a meeting on July 31, petitioner and Sergeant Luna engaged in negotiations for the sale of 12,000 pounds of marijuana. Sergeant Luna gave petitioner a sample of the marijuana he proposed to sell, and petitioner showed the sample to prospective purchasers who had accompanied him to the meeting. On two subsequent occasions, Sergeant Luna met with petitioner and potential buyers to negotiate a sale price and to display samples of marijuana. After the third meeting, Sergeant Luna learned that petitioner was an escapee from a Texas prison. Petitioner was arrested and charged with escape. Thereafter, he was indicted for attempted possession of marijuana with intent to distribute it, and was tried and convicted. Pet. App. 2-3; Gov't C.A. Br. 3-5. 2. The applicable penalty range for the offense of which petitioner was convicted was 5 to 40 years' imprisonment. See 21 U.S.C. 841(b)(1)(B) and 846. The district court sentenced petitioner to 18 years' imprisonment and fined him $10,000. /1/ 3. In the court of appeals, petitioner argued that his sentence violated the Eighth Amendment prohibition against cruel and unusual punishments because it was disproportionate to the treatment accorded other persons involved in the offense -- the prospective marijuana purchasers -- who had not been arrested or prosecuted. The court of appeals summarily rejected this claim. Noting that the district court "had before it evidence of (petitioner's) role in the offense as well as his criminal history," /2/ the court concluded that petitioner's 18-year sentence was not unconstitutionally disproportionate. Pet. App. 5-6. ARGUMENT Petitioner renews his contention (Pet. 6-8) that his sentence violated the Eighth Amendment because it was disproportionate to the punishment -- or lack of punishment -- received by other persons who were involved in the scheme to purchase marijuana. Relying on this Court's decision in Solem v. Helm, 463 U.S. 277 (1983), he claims that proper application of the proportionality analysis set forth in that case required that he receive a sentence "closest to the punishment meted out to his fellow participants." /3/ This contention is meritless. In Solem v. Helm, this Court held that the Eighth Amendment's proscription of cruel and unusual punishments "prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed." 463 U.S. at 284. The Court cautioned, however, that reviewing courts "should grant substantial deference to the * * * discretion that trial courts possess in sentencing convicted criminals," id. at 290, and reiterated that "'(o)utside the context of capital punishment, successful challenges to the proportionality of particular sentences (will be) exceedingly rare.'" Id. at 289-290 (emphasis in original) (quoting Rummel v. Estelle, 445 U.S. 263, 272 (1980)). The Solem Court identified three factors that should guide courts in reviewing disproportionality claims: (1) "the gravity of the offense and the harshness of the penalty;" (2) "the sentences imposed on other criminals in the same jurisdiction;" and (3) "the sentences imposed for commission of the same crime in other jurisdictions." 463 U.S. at 292. Petitioner relies on the second of these factors, asserting that meaningful consideration of sentences imposed on other criminals must take into account the fact that other participants in his offense were not indicted and therefore received no punishment at all. Petitioner's reliance on Solem is misplaced. First, the factors identified in that case are intended to guide courts in evaluating claims that particular sentences are disproportionate to the offenses for which they were imposed, an argument petitioner does not raise here. /4/ Nowhere in Solem did the Court suggest that a defendant may challenge a sentence that is concededly not disproportionate to his offense on the ground that it is harsher than sentences imposed on other offenders who have committed similar crimes. Indeed, courts have routinely rejected claims that disparity in the sentencing of co-defendants violates the Eighth Amendment. See United States v. Alvarez, 868 F.2d 547, 548 (2d Cir. 1989); Castaldi v. United States, 783 F.2d 119, 125 n.4 (8th Cir.), cert. denied, 476 U.S. 1172 (1986); United States v. Collins, 690 F.2d 670, 674 (8th Cir. 1982); Gregory v. United States, 585 F.2d 548, 550 (1st Cir. 1978); cf. Williams v. Illinois, 399 U.S. 235, 243 (1970) ("The Constitution permits qualitative differences in meting out punishment and there is no requirement that two persons convicted of the same offense receive identical sentences."). Second, nothing in Solem remotely suggests that the government's decision not to prosecute other persons who may have been involved in a defendant's offense is a relevant factor in the proportionality analysis. Moreover, inclusion of such a consideration in the Solem analysis would require a court to second-guess the prosecutor by evaluating the relative culpability of the uncharged participants. Cf. Wayte v. United States, 470 U.S. 598, 607 (1985) (judicial review of decision to prosecute "threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry"). /5/ 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 NINA GOODMAN Attorney SEPTEMBER 1990 /1/ Because petitioner's offense was committed before the effective date of the Sentencing Reform Act, 18 U.S.C. 3551 et seq., the Sentencing Guidelines did not apply. See Pub. L. No. 100-182, Section 2(a), 101 Stat. 1266. /2/ The presentence report indicated that petitioner had three prior convictions: a 1976 conviction for possession of four pounds of heroin, a 1984 conviction for possession with intent to distribute 7,000 pounds of marijuana, and a 1988 conviction for escape from a federal institution. Pet. App. 5-6; Gov't C.A. Br. 21-22. /3/ Petitioner does not challenge the constitutionality of the five-year mandatory minimum sentence imposed by 21 U.S.C. 841(b)(1)(B). See Pet. 8 ("the only proportional sentence which should be imposed upon (petitioner) is the minimum sentence possible under the statute"). /4/ Such a claim would be futile in any case. This Court and the courts of appeals have rejected Eighth Amendment challenges in cases involving far more severe penalties for offenses similar to petitioner's. See Hutto v. Davis, 454 U.S. 370 (1982) (per curiam) (upholding a 40-year prison term and $20,000 fine for possession and distribution of nine ounces of marijuana); Terrebonne v. Butler, 848 F.2d 500 (5th Cir. 1988) (en banc) (sentence of life imprisonment without parole for crime of distributing 22 individual doses of heroin), cert. denied, 109 S. Ct. 1140 (1989); Young v. Miller, 883 F.2d 1276 (6th Cir. 1989) (sentence of life imprisonment without parole imposed on first offender for possession with intent to deliver heroin did not violate Eighth Amendment), petition for cert. pending, No. 89-6960. /5/ There is no need to hold this case pending the disposition of Harmelin v. Michigan, No. 89-7272. That case involves the constitutionality of a sentence of life imprisonment without parole for a first offense of possession of cocaine. Petitioner's sentence was not nearly that harsh, his offense involved a larger quantity of drugs, and he had a record of several prior drug convictions. Accordingly, regardless of the disposition of Harmelin, the decision in that case is unlikely to affect this case.