MICHAEL WAYNE BUTLER V. UNITED STATES OF AMERICA No. 89-7284 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. A1-A5) is unreported. JURISDICTION The judgment of the court of appeals was entered on November 21, 1989. A petition for rehearing was denied on February 23, 1990. The petition for a writ of certiorari was filed on April 23, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's sentence, which included the imposition of a term of supervised release in addition to the statutory maximum term of imprisonment, was illegal. 2. Whether the district court correctly included the entire amount of a mixture containing methamphetamine in determining petitioner's base offense level under the Sentencing Guidelines. STATEMENT Petitioner was indicted in the United States District Court for the Western District of Louisiana on five counts related to the manufacture and possession of methamphetamine. Pursuant to a plea agreement, he pleaded guilty to one count of interstate travel to facilitate an unlawful activity, in violation of 18 U.S.C. 1952; the four remaining counts were dismissed. The district court sentenced him to a term of 60 months' imprisonment, to be followed by a two-year period of supervised release. The court of appeals affirmed. Pet. App. A1-A2; Gov't C.A. Br. 1-2. 1. In December 1988, petitioner and a co-defendant traveled from Shreveport, Louisiana, to Fort Worth, Texas, to purchase precursor chemicals used in the manufacture of methamphetamine. After the two men returned to Louisiana, they rented a cabin in Lake Bistineau State Park where petitioner began processing the chemicals into methamphetamine. Investigators later discovered in petitioner's possession a canister containing approximately 38.5 pounds of a mixture containing methamphetamine. Pet. App. A2; Gov't C.A. Br. 2. On April 13, 1989, the district court accepted petitioner's plea to one count of a five-count indictment. Before accepting the plea, the district court conducted an extensive colloquy with petitioner to establish petitioner's understanding of the consequences of his plea. Pet. App. D1-D26. As part of that colloquy, the district court explained that the maximum sentence for the offense to which petitioner was pleading guilty was five years' imprisonment, or a $250,000 fine, or both. Pet. App. D13-D14, D17. The court further explained that, under the Sentencing Guidelines, there is no parole. Id. at D24. In a June 14, 1989, letter to the district court, petitioner objected to the presentence investigation report (PSI). Pet. App. E1-E3. In pertinent part, he contended that the PSI overstated the quantity of methamphetamine product involved in his case. Id. at E1-E2. The following day, the district court conducted petitioner's sentencing proceeding. Pet. App. F1-F12. It noted that petitioner had objected to the PSI, and referred specifically to the June 14 letter from petitioner's counsel. Id. at F3-F5. With regard to the amount of the controlled substance, the court concluded: As to the objection number two wherein the probation officer states that any detectable amount of controlled substance being present, the entire amount of the mixture or compound shall be considered in measuring the quantity in determining the base offense level. The Court adopts that as being a (reading) consistent with the content in the entirety of the guidelines * * *. Id. at F6-F7. The court then proceeded to pronounce sentence. It calculated the applicable Sentencing Guideline range at 168-210 months. Because the statutory maximum punishment for the offense was five years' imprisonment, however, and because the applicable Guideline range exceeded the statutory maximum, the district court sentenced petitioner to a term of 60 months' imprisonment. /1/ The court also imposed a two-year term of supervised release after the term of imprisonment. Id. at F8-F9. 2. The court of appeals affirmed. Pet. App. A1-A5. It first rejected petitioner's claim that the imposition of a period of supervised release, in addition to a sentence imposing the statutory maximum period of imprisonment, constitutes a sentence greater than that authorized by Congress, and a violation of Fifth and Eighth Amendment rights. After reviewing the legislative history of the supervised release program, which revealed the program's goals, the court concluded that because "(t)he addition of a period of supervised release to a maximum jail sentence does not extend a party's imprisonment, * * * it cannot create a violation of the maximum prison sentence allowed by statute." Pet. App. A3. The court of appeals also rejected petitioner's claim that the district court's determination of the appropriate drug quantity under the Guidelines was erroneous. Relying on a note to the applicable version of the Drug Quantity Table (Section 2D1.1(c)), /2/ on United States v. Baker, 883 F.2d 13 (5th Cir.), cert. denied, 110 S. Ct. 517 (1989), and on United States v. Taylor, 868 F.2d 125, 127-128 (5th Cir. 1989), the court held that the district court had properly counted the entire 38.5 pounds of the mixture containing the methamphetamine in determining petitioner's base of offense level under the Guidelines. Pet. App. A4-A5. ARGUMENT 1. Petitioner contends (Pet. 3-7) that the provision for two years of supervised release, in addition to the maximum term of imprisonment, violates the Eighth Amendment. He further argues that this constitutional violation was exacerbated by the district court's failure at his plea proceeding to inform him, pursuant to Fed. R. Crim. P. 11(c)(1), of "the maximum possible penalty provided by law, including the effect of any special parole or supervised release term." These claims do not warrant review. Petitioner misconceives the relationship between a statutory term of imprisonment and the independently authorized term of supervised release (which is imposed for a period after release from imprisonment). The interstate travel statute provides that a person, like petitioner, convicted under the statute faces a possible prison term of up to five years. 18 U.S.C. 1952. In addition, 18 U.S.C. 3551 provides that, unless specifically excepted, "a defendant who has been found guilty of an offense described in any Federal statute * * * shall be sentenced in accordance with the provisions of this chapter * * *." The referenced chapter, chapter 227 of Title 18, includes authorization for the imposition of a term of supervised release. In pertinent part, 18 U.S.C. 3583 provides that (a) In general. -- The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment * * *. As this statutory language makes clear, the maximum possible sentence provided by law for a felony or misdemeanor conviction thus includes not only the maximum penalty stated in the statute of conviction, but also, inter alia, the maximum term of supervised release the sentencing court may impose. See 18 U.S.C. 3553(a) (maximum terms of supervised release for various classes of offenses). Accordingly, petitioner's claim that his sentence exceeded the maximum provided by law is, as the court of appeals correctly concluded, without merit. /3/ Petitioner also contends (Pet. 5-7) that the alleged illegality of his sentence was exacerbated by the district court's failure to inform him that he was subject to imposition of a term of supervised release. While such a failure may arguably provide grounds for withdrawal of a guilty plea, /4/ it is plainly irrelevant to the legality of petitioner's sentence. Petitioner does not seek to withdraw his guilty plea; rather he seeks only to challenge his sentence. /5/ The asserted violation of Rule 11, which concerns the validity of a guilty plea, does not provide a basis for that challenge. /6/ 2. Petitioner also contends that the district court failed to address his objection concerning the amount to be used in the calculation of his base offense level, and that the court thereby violated Fed. R. Crim. P. 32(c)(3)(D). Pet. 7-10. /7/ Contrary to petitioner's assertion, however, the district court explicitly addressed his objection. See Pet. App. F6 ("(T)he entire amount of the mixture or compound shall be considered in measuring the quantity in determining the base offense level."). Petitioner's objection, moreover, raised a legal issue, rather than a factual claim -- namely, whether the total amount of the substance containing the methamphetamine should be counted in determining petitioner's base offense level. As the court of appeals correctly concluded (Pet. App. A4-A5), the district court properly resolved this issue against petitioner. See former Note to Sentencing Guideline Section 2D1.1(c) (U.S.S.G., App. C, at 63 (Nov. 1989)); United States v. Baker, supra; United States v. Taylor, supra. This raising of a legal issue, rather than a "factual inaccuracy," thus does not even implicate the requirements of Rule 32(c)(3)(D). /8/ 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 THOMAS M. GANNON Attorney JULY 1990 /1/ Section 5G1.1(a) of the Sentencing Guidelines requires a sentencing court to impose the statutory maximum sentence when the otherwise applicable Sentencing Guideline range exceeds that statutory maximum. /2/ In pertinent part, a note to the then applicable version of this Guideline section stated as follows: The scale amounts for all controlled substances refer to the total weight of the controlled substance. Consistent with the provisions of the Anti-Drug Abuse Act, if any mixture of a compound contains any detectable amount of a controlled substance, the entire amount of the mixture or compound shall be considered in measuring the quantity. While both Section 2D1.1(c) and the note were amended effective November 1, 1989, the meaning of the amended note remained substantially the same. Compare U.S.S.G. App. C, at 63 with id. at 73. /3/ Contrary to petitioner's suggestion (Pet. 4), the fact that Congress included the possibility of incarceration for violation of the terms of supervised release (18 U.S.C. 3583(e)(3)) does not alter the conclusion that a statutory term of imprisonment for a particular offense and a supervised release term are two separate and distinct aspects of a sentence. Indeed, the supervised release provision specifically provides that the length of incarceration for violation of the conditions of supervision should be calculated with reference to the supervised release term (rather than the term of imprisonment imposed pursuant to the statute of conviction), subject to specified limits according to the particular kind of underlying offense. 18 U.S.C. 3583(e)(3). /4/ See United States v. Molina-Uribe, 853 F.2d 853 F.2d 1193, 1199-1200 (5th Cir. 1988) (permitting defendant, because of Rule 11 violation, to withdraw guilty plea and enter new plea), cert. denied, 109 S.Ct. 1145 (1989). But cf. United States v. Barry, 895 F.2d 702, 704-705 (10th Cir.) (Rule 11 violation did not affect substantial rights and did not justify setting aside conviction), cert. denied, No. 89-7134 (June 19, 1990). /5/ See Pet. 7 (Petitioner's "sentence should be vacated and remanded for a sentencing hearing and resentencing.") (emphasis added). /6/ The cases upon which petitioner relies are not apposite. Like Molina-Uribe, supra, both United States v. Blair, 470 F.2d 331 (5th Cir. 1972), cert. denied, 411 U.S. 908 (1973), and Richardson v. United States, 577 F.2d 447 (8th Cir. 1978), cert. denied, 442 U.S. 910 (1979) involved challenges to guilty pleas, not limited challenges to sentences. As petitioner points out (Pet. 6), in Richardson, the court of appeals suggested that adjusting the sentence would be an appropriate remedy and would obviate the need to vacate the guilty plea, but the court rested its determination of remedy on the fact that it was reviewing a collateral challenge (pursuant to 28 U.S.C. 2555). 577 F.2d at 452. /7/ Fed. R. Crim. P. 32(c)(3)(D) requires the court to make a written finding regarding any alleged "factual inaccuracy" in the PSI, or a written determination that the controverted matter does not influence the sentence. /8/ Petitioner's reliance on United States v. Garcia, 821 F.2d 1051 (5th Cir. 1987), and United States v. Velasquez, 748 F.2d 972 (5th Cir. 1984), is unavailing. Both cases concerned disputes over factual inaccuracies, rather than legal conclusions, and, in both cases, the district court did not explicitly address the defendant's claim. Petitioner's invocation of United States v. Hurtado, 846 F.2d 995 (5th Cir.), cert. denied, 109 S. Ct. 163 (1988) and United States v. Aleman, 832 F.2d 142, 145 (11th Cir. 1987) is still less persuasive; those cases concerned the failure of the respective defendants to make factual allegations that were sufficiently specific to implicate Rule 32(c)(3)(D). Furthermore, to the extent that petitioner seeks to raise a conflict between the court of appeals decision in this case and other Fifth Circuit decisions, a claim of an intra-circuit conflict does not provide a basis for this Court's review. See Wisniewski v. United States, 353 U.S. 901, 902 (1957).