HARRY ALBERT GREEN, PETITIONER V UNITED STATES OF AMERICA No. 89-7694 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 Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A3) is unpublished. JURISDICTION The judgment of the court of appeals was entered on March 6, 1990. The petition for a writ of certiorari was filed on June 4, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court denied petitioner due process by failing to consider his military record, cooperation with the government and the court, and mental and emotional condition. STATEMENT After a plea of guilty in the United States District Court for the Southern District of Ohio, petitioner was convicted on two counts of unarmed robbery of a federally insured bank, in violation of 18 U.S.C. 2113(a). He was sentenced to concurrent terms of 180 months' imprisonment, to be followed by three years' supervised release. The court of appeals affirmed. Pet. App. A1-A3; C.A. App. 6. 1. On February 28 and March 10, 1989, petitioner robbed two federally insured banks in Columbus, Ohio. Pursuant to the United States Sentencing Guidelines, the United States Probation Office prepared a presentence report that assigned petitioner to offense level 19 and placed him in criminal history category V. In calculating the offense level, the report gave petitioner credit for acceptance of responsibility. The report's calculation resulted in a sentencing range of 57 to 71 months' imprisonment. The presentence report stated that petitioner's history of continued criminal activity, which was not reflected in his criminal history category assignment, and his proven propensity to commit new crimes while on parole might justify an upward departure from the sentence provided for by the Guidelines. In this respect, the report noted that petitioner's criminal activity began in 1969; that he was awaiting trial on state assault, aggravated robbery, and concealed weapons charges at the time he committed the offenses for which he was being sentenced; that other prior offenses were not being used in calculating petitioner's criminal history; and that he had been on parole from a prior bank robbery when he committed the instant offense. The presentence report also contained a summary of petitioner's military service, which included service in Vietnam, followed by an honorable discharge. Pet. App. A1-A2; Gov't C.A. Br. 2-3, 6-7; Presentence Report 6, 13. At sentencing, petitioner's counsel stated that the court was aware of counsel's expressed concern that petitioner was suffering from "post traumatic distress syndrome." Sentencing Proceedings (July 12, 1989) Tr. 3. Petitioner himself also addressed the court, and stated that he had "made a couple mistakes" and that "there is something wrong with (him) mentally in certain areas." Ibid. The district judge nevertheless stated that he would depart upward from the sentence required by the Guidelines on the ground that petitioner's past criminal activity was not adequately reflected in his criminal history category. Specifically, the court observed that petitioner's criminal behavior began in 1969, that it was "not just a couple of problems," and that this "early beginning" was not adequately reflected in the criminal history calculation. The court stated that incarceration for a longer period than required by the Guidelines was necessary to protect the public. Accordingly, the court sentenced petitioner to 180 months' incarceration. Id. at 3-4; Pet. App. A2. 2. On appeal, petitioner contended that the district court failed to consider four factors in deciding to depart upward: "(1) his cooperation subsequent to arrest, (2) his cooperation with the court by entering a guilty plea; (3) his service in the armed forces including an award of a purple heart decoration; and (4) the possibility that (his) criminal activity may have resulted from 'Post-Traumatic Distress Syndrome' from his military service." Pet. App. A2. The court of appeals rejected these contentions, stating that, after a review of the record, it found "that the assignments of error are without merit." Ibid. ARGUMENT Petitioner contends (Pet. 6-10) that the district court departed from the sentence set in the Sentencing Guidelines without considering his military service, his mental and emotional problems, and his cooperation with the authorities and the court. He claims that the court's asserted failure to consider these factors was arbitrary and denied him due process. This contention is without merit. At the outset, petitioner's claim must be put in perspective. He does not claim that the district court relied on an improper ground in deciding to depart upward from the Guidelines sentence. Nor does he contend that the ground relied upon by the district court does not support the extent of the district court's departure. Instead, he apparently claims only that if the district court had considered the factors that he claims the court ignored, the court would not have departed upward. Pet. 8-10. /1/ Nothing in the record supports petitioner's claim that the district court failed to consider these factors. Petitioner's military service was summarized in the presentence report. See Presentence Report 13 (noting that petitioner served in Vietnam and received an honorable discharge). In addition, the presentence report gave petitioner a downward adjustment in his offense level because of his acceptance of responsibility for the crimes. Id. at 6. Finally, counsel specifically brought petitioner's mental condition to the district court's attention, and the court took note of petitioner's mental problem when it recommended to the Bureau of Prisons that petitioner be incarcerated at a facility where he could receive a psychiatric evaluation. See C.A. App. 5 (Judgment and Commitment Order). Thus, the district court was aware of the factors that petitioner identifies and must be presumed to have considered them in arriving at his sentence. For this reason, petitioner's claim lacks factual support. In any event, to the extent that petitioner claims that the Sentencing Guidelines deny him due process by precluding district courts from considering individualized factors during sentencing, his contention has been rejected by every court of appeals which has considered it. See, e.g., United States v. Brady, 895 F.2d 538, 543-544 (9th Cir. 1990); United States v. Thomas, 884 F.2d 540, 542-544 (10th Cir. 1989); United States v. Erves, 880 F.2d 376, 379 (11th Cir.), cert. denied, 110 S. Ct. 416 (1989); United States v. Bolding, 876 F.2d 21, 22-23 (4th Cir. 1989); United States v. Pinto, 875 F.2d 143, 144-146 (7th Cir. 1989); United States v. Allen, 873 F.2d 963, 964-966 (6th Cir. 1989); United States v. Seluk, 873 F.2d 15, 16 (1st Cir. 1989); United States v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, 110 S. Ct. 184 (1989); United States v. Vizcaino, 870 F.2d 52, 54-56 (2d Cir. 1989); United States v. White, 869 F.2d 822, 825 (5th Cir.), cert. denied, 110 S. Ct. 560 (1989); United States v. Frank, 864 F.2d 992, 1008-1010 (3d Cir. 1988), cert. denied, 109 S. Ct. 2442 (1989). Because the courts of appeals are unanimous in rejecting this contention and because this Court has denied several petitions for certiorari raising this issue, there is no need to review petitioner's claim. /2/ Petitioner particularly emphasizes (Pet. 8-9) that the district court should have considered his military service in sentencing him. A defendant's military service, however, is no different from other factors that are not required to be considered by the Guidelines. Thus, there is no merit in the contention that the Guidelines deny petitioner due process by not requiring the district court to consider this factor. See United States v. Chiarelli, 898 F.2d 373, 382-383 (3d Cir. 1990) (no due process right to sentencing court's consideration of military service). Contrary to petitioner's suggestion that the district court's action was "arbitrary" (Pet. 7), moreover, it is clear that, under the Guidelines, a personal characteristic such as military service should be relevant only in exceptional cases. In enacting the Guidelines' enabling legislation, Congress made clear that various personal characteristics of the defendant ordinarily are not relevant to the sentencing decision. In that legislation, Congress required the Sentencing Commission to "assure that the guidelines * * * reflect the general inappropriateness of considering the education, vocational skills, employment record, family ties and responsibilities, and community ties of the defendant." 28 U.S.C. 994(e). Congress also focused the Commission's attention on the nature of the offense and disclaimed rehabilitation as a goal of sentencing, two other provisions that show that the defendant's personal noncriminal past ordinarily is irrelevant to the Guidelines calculation. See 28 U.S.C. 994(c) and 994(k). The Guidelines implement this mandate. Sentencing under the Guidelines is based almost wholly on the circumstances of the defendant's offense (offense level) and on the defendant's past criminal conduct (criminal history category). In addition, the Guidelines make clear not only that departures from the Guideline sentence should be rare, but also that they should occur only in "atypical" cases in which the defendant's "conduct significantly differs from the norm." Guideline 1A4(b). Moreover, the Guidelines specifically state that various personal characteristics of the defendant, including his "previous employment record," are "not ordinarily relevant in determining whether a sentence should be outside the guidelines." Guidelines Sections 5H1.1-5H1.5. Accordingly, although the Guidelines do not specifically address military service, it is clear that, like other personal characteristics, military service does not ordinarily justify a departure from the Guidelines. Contrary to petitioner's claim, moreover, it is equally clear that, as with other personal characteristics, the failure of a district court to mitigate a particular sentence on the basis of military service is not a violation of due process. /3/ 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 J. DOUGLAS WILSON Attorney AUGUST 1990 /1/ To the extent that petitioner argues (Pet. 8) that his military service would have affirmatively supported a downward departure from the Guidelines (rather than arguing that the district court should have stayed within the Guidelines), it is settled that a district court's failure to depart downward is not subject to appeal. See, e.g., United States v. Evidente, 894 F.2d 1000, 1003-1004 (8th Cir.), cert. denied, 110 S. Ct. 1956 (1990); United States v. Tucker, 892 F.2d 8, 10-11 (1st Cir. 1989); United States v. Franz, 886 F.2d 973, 976-981 (7th Cir. 1989); United States v. Colon, 884 F.2d 1550, 1554 (2d Cir.), cert. denied, 110 S. Ct. 553 (1989). /2/ As we have argued in Briefs in Opposition to several petitions for certiorari, the Due Process Clause provides no right to individualized sentences. See, e.g., Duncan v. United States, No. 89-6792, cert. denied, 110 S. Ct. 2566 (1990); Chambless v. United States, No. 88-7595, cert. denied, 110 S. Ct. 560 (1989). /3/ Petitioner's reliance on United States v. Pipich, 688 F. Supp. 191 (D. Md. 1988), for a contrary proposition is misplaced. In Pipich, the court departed downward based on the defendant's "exceptional military record" (id. at 193); Pipich should be read as holding simply that the defendant's military service was sufficiently exceptional to warrant departure in that particular case. See also United States v. McCaleb, No. 89-2229 (7th Cir. July 23, 1990), slip op. 7 ("(A) person's military record might, under some circumstances, warrant a downward departure."); United States v. Neil, 903 F.2d 564, 566 (8th Cir. 1990) (although military service could "'constitute grounds for departure in an unusual case,'" defendant's military service did not warrant a departure).