No. 96-8730 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 EMILIO JED GREEN, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General NINA GOODMAN Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514 - 2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether petitioner was properly sentenced under the armed career criminal provisions of 18 U.S.C. 924(e) and Sentencing Guidelines 4B1.4. 2. Whether petitioner's sentence amounted to an impermissible double penalty for the same conduct because the district court applied the upward adjustment required by Guidelines 4B1.4 for use or possession of a firearm by a convicted felon in connection with a crime of violence, where that same conduct formed the basis for the district court's imposition of a mandatory ten-year sentence on petitioner's conviction for using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. 924(c). (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8730 EMILIO JED GREEN, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. 1-10) is not reported, but the judgment is noted at 102 F.3d 553. JURISDICTION The judgment of the court of appeals was entered on November 14, 1996. A petition for rehearing was denied on January 16, 1997. The petition for a writ of certiorari was filed on April 16, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT Following a jury trial in the United States District Court for the Middle District of Florida, petitioner was convicted of ---------------------------------------- Page Break ---------------------------------------- 2 conspiracy to commit bank robbery, in violation of 18 U.S.C. 371 (Count One); armed bank robbery, in violation of 18 U.S.C. 2113(a) and (d) (Count Two); use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. 924 (c) (Count Three); and possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. 922(g) (1) (Count Four). He was sentenced to concurrent terms of 60 months' imprisonment on Count One, 300 months' imprisonment on Count Two, and 294 months' imprisonment on Count Four, and to a consecutive term of 120 months' imprisonment on Count Three, and was ordered to pay 1,383 in restitution. The court of appeals affirmed petitioner's convictions and sentence of imprisonment. 1. Pet. App . 1-10. 1. On August 8, 1994, petitioner and two accomplices, Leon Brown and Kwane Wilson, robbed the Sun Bank in Tampa, Florida. Petitioner was armed with a short-barreled 12-gauge pump-action shotgun. Upon entering the bank, petitioner fired a round from the shotgun into the ceiling, announced that "this is a robbery," and ordered the bank employees to "get on the floor or I'll blow your * * * head off." Petitioner also ordered the bank manager out of his office and onto the floor while pointing the shotgun at him. Brown and Wilson jumped over the counter and removed money from the teller drawers. The three men then ran from the bank and fled in a Mercury Merkur, with Brown driving. Gov`t ___________________(footnotes) 1 The court of appeals vacated the restitution order. Pet. App. 2, 10. ---------------------------------------- Page Break ---------------------------------------- 3 C.A. Br. 3-4. A few minutes later, a security dye pack from the stolen money exploded inside the Merkur, obstructing Brown's vision. The Merkur collided with another car, driven by Christine Reynolds, and barely missed a pickup truck driven by Paul Roberts. Reynolds and Roberts got out of their vehicles and approached the Merkur. Wilson jumped out of the Merkur and attempted to run away, but Roberts grabbed him. Petitioner then pointed a .45 caliber pistol at Roberts, whereupon Roberts released Wilson, and Reynolds and Roberts backed away. As the Merkur drove off, petitioner leaned out of the window and fired a shot in Roberts' direction, striking the left rear tire and gas tank of Roberts' pickup truck. Gov't C.A. Br. 4-5. 2. In calculating petitioner's offense level under the Sentencing Guidelines, the presentence report grouped petitioner's convictions for conspiracy, armed bank robbery, and possession of a firearm as a convicted felon. 2. Gov't C.A. Br. 5; Presentence Report (PSR) 3-4; see Guidelines 3D1.2. The report found that petitioner's base offense level for the felon- in-possession count was 26 (Guidelines 2K2.l(a) (1)). Gov`t C.A. Br. 6; PSR 5. With a four-level upward adjustment because the firearm was used in connection with another felony offense (Guidelines 2K2.1(b) (5)), and two-level upward adjustments for petitioner's leadership role in the offense (Guidelines ___________________(footnotes) 2 With respect to petitioner's Section 924(c) conviction, the report noted that the statute required a consecutive ten-year sentence. PSR 12; see Guidelines 2K2.4 (a) . ---------------------------------------- Page Break ---------------------------------------- 4 3B1.l(c)), obstruction of justice (Guidelines 3C1.1), and reckless endangerment during flight (Guidelines 3C1.2), the adjusted offense level was 36. Gov't C.A. Br. 6; PSR 5. Because that level was higher than the offense level for the other grouped counts, the report concluded that the total offense level for the group of counts was 36. Gov't C.A. Br. 6; PSR 5. The presentence report also determined that petitioner was subject to an enhanced sentence on the felon-in-possession count under 18 U.S.C. 924(e), 3. and that he therefore qualified for sentencing as an armed career criminal under Guidelines 4B1.4. Gov't C.A. Br. 8; PSR 6. Because petitioner's offense level as previously calculated was greater that his offense level under the armed career criminal Guideline, however, the report did not apply the armed career criminal provision. Gov't C.A. Br. 8-9; PSR 6; see Guidelines 4B1.4 (b). The presentence report found that petitioner had numerous Florida state court criminal convictions, including a 1990 conviction for possession and delivery of crack cocaine and a 1992 conviction for delivery of cocaine within 1000 feet of a school. Gov't C.A. Br. 7; PSR 7-10. The report also noted that petitioner had several juvenile adjudication's, including a 1988 conviction for armed robbery. PSR 6-7. The report concluded that petitioner fell within criminal history category VI. Gov`t ___________________(footnotes) 3 Section 924(e) requires a minimum sentence of 15 years' imprisonment for a defendant who violates 18 U.S.C. 922(g) and has three previous convictions "for a violent felony or a serious drug offense." ---------------------------------------- Page Break ---------------------------------------- 5 C.A. Br. 7; PSR 10. 3. At sentencing, petitioner objected to the presentence report's application of the four-level enhancement under Guidelines 2K2.l(b) (5) for use of a firearm in connection with another felony offense, arguing that the enhancement constituted double counting because he was also subject to a consecutive sentence on his Section 924 (c) conviction for using the firearm during the bank robbery. Sentencing Tr. 10-11. Petitioner relied on the commentary to Guidelines 2K2.4, the Guideline that applies to violations of Section 924(c), which provides that "[w]here a sentence under this section is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for the possession, use, or discharge of a[ ] * * * firearm * * * is not to be applied with respect to the guideline for the underlying offense." Guidelines 2K2.4, Application Note 2. The district court found that this provision was ambiguous and that therefore petitioner was "entitled to the benefit of a construction" in his favor. Sentencing Tr. 22. Accordingly, the court sustained petitioner's objection to the enhancement. Pet. App. 3; Sentencing Tr. 23. Because petitioner's offense level on the felon-in- possession count was reduced to 32, the district court applied the armed career criminal Guideline, which requires an offense level of 34 "if the defendant used or possessed the firearm * * * in connection with a crime of violence or controlled substance offense." Guidelines 4B1.4 (b)(3)(A); see Pet. App. 3. At the ---------------------------------------- Page Break ---------------------------------------- 6 sentencing hearing, petitioner's counsel argued that the government failed to present adequate proof of one of the three required predicate convictions -- his 1988 juvenile adjudication for armed robbery. 4. Sentencing Tr. 24-27. The prosecutor responded by stating that although the "records" of the juvenile adjudication had been "expunged," ATF Special Agent Magro had obtained a document from the Florida Department of Health Rehabilitative Services (HRS) showing that petitioner had been "adjudicated as a juvenile" on the armed robbery charge. Id. at 26. The prosecutor noted that the HRS document correctly stated petitioner's date of birth and social security number and the names of his family members. Id. at 27. The court then questioned Agent Magro, who confirmed that he had obtained the document from HRS and that it correctly identified petitioner and showed that petitioner had been "adjudicated delinquent" on the armed robbery charge. Id. at 30-31. Petitioner's counsel did not request that Agent Magro be placed under oath, and when the court, after questioning the agent, inquired whether there was "[a]nything further on that subject," counsel merely requested that the HRS document be "put into evidence." Id. at 31. The district court concluded that petitioner qualified as an armed career criminal. Pet . App. 3-4; Sentencing Tr. 31. At offense level 34 and criminal history category VI, the applicable ___________________(footnotes) 4 The prosecutor noted at the sentencing hearing that petitioner had previously stipulated that he had two prior state court drug trafficking convictions and that each conviction was for a crime punishable by a term of imprisonment exceeding ten years. Sentencing Tr. 25-26; see Gov't C.A. Br. 2, 23-24. ---------------------------------------- Page Break ---------------------------------------- 7 Guidelines sentencing range was 262 to 327 months' imprisonment. Pet. App. 3. The district court sentenced petitioner to 300 months' imprisonment on the armed bank robbery count and to concurrent sentences on the conspiracy and felon-in-possession counts. Sentencing Tr. 37. The court then imposed the required 120-month consecutive sentence for the Section 924(c) offense. Ibid. 4. Petitioner appealed his sentence, arguing that the district court erred in sentencing him as an armed career criminal because the government had failed to prove that he had the three predicate convictions required by Section 924(e). Petitioner claimed that the district court erred in relying on the 1988 juvenile adjudication for armed robbery because his conviction had been expunged, and that, in any event, the HRS document evidencing the conviction had not been properly authenticated. Because petitioner had not raised those claims in the district court, the court of appeals reviewed them for plain error. Pet. App. 4-5. The court of appeals noted that petitioner's argument that his armed robbery conviction had been expunged rested on "an off- hand comment" by the prosecutor during the sentencing hearing. Pet . App. 5. The court found that while the prosecutor "stated at sentencing that the records had been expunged to explain why [the government] had relied on the HRS [document]," the prosecutor "did not state that the conviction had been expunged." Ibid. Thus, the court concluded, the district court "did not ---------------------------------------- Page Break ---------------------------------------- 8 plainly err" in failing to find that the conviction had been expunged. Ibid. The court similarly rejected petitioner's challenge to the authenticity of the HRS document. Observing that the document "accurately identified [petitioner's] family members, date of birth, and social security number," the court held that "the district court did not commit plain error in relying upon it." Ibid. Petitioner also claimed for the first time on appeal that his Florida state court drug convictions were not properly considered as "serious drug offense[s]" under 18 U.S.C. 924(e) because those offenses did not carry maximum terms of imprisonment of ten years or more. Pet. App. 4, 6; see 18 U.S.C. 924(e) (2) (A) (ii) (defining "serious drug offense" to include a state offense "for which a maximum term of imprisonment of ten years or more is prescribed by law"). Petitioner argued that in assessing whether his prior offenses were subject to a maximum ten-year term of imprisonment, the district court should have considered the application of the Florida sentencing guidelines for his particular convictions, rather than the statutory maximum for the offenses. Pet. App. 4, 6. The court of appeals again found no plain error. Noting that it had not previously addressed the issue petitioner raised, the court concluded that in the absence of any "clear precedent on this point, any error by the district court could not have been obvious." Pet. App. 6. Petitioner also argued that the district court improperly considered a single factor, his use of a firearm during the bank ---------------------------------------- Page Break ---------------------------------------- 9 robbery, both in imposing a consecutive sentence under 18 U.S.C. 924(c) and in determining that petitioner qualified for an enhanced sentence under the armed career criminal provision, Guidelines 4B1.4. Again, because petitioner raised his double counting claim for the first time on appeal, the court of appeals applied a plain error standard of review. Pet. App. 6-7. The court stated that because petitioner did not "challenge the application of two Guideline provisions, but the application of two statutory provisions and one implementing Guideline section" -- 18 U.S.C. 924(c) and (e) and Guidelines 4B1.4 -- his claim raised a "question of double jeopardy -- not double counting." Pet. App. 7. The court noted that other courts of appeals had upheld the application of both statutory provisions, and it concluded that "any error in applying both enhancements could not have been obvious." Id. at 7-8. ARGUMENT 1. Petitioner contends (Pet. 10-20) that the district court erred in sentencing him as an armed career criminal because he lacked the three predicate convictions required by 18 U.S.C. 924(e). Specifically, petitioner asserts (Pet. 10-16) that his 1988 juvenile conviction for armed robbery had been expunged and that the evidence offered by the government to prove the conviction was insufficient; he also argues (pet. 17-20) that his Florida state court drug convictions did not qualify as "serious drug offense[s]" under 18 U.S.C. 924(e) (2) (A) (ii). The court of appeals correctly found, however, that the district court did not ---------------------------------------- Page Break ---------------------------------------- 10 commit plain error in sentencing petitioner as an armed career criminal. 5 a. The court of appeals correctly found no plain error in the district court's failure to conclude that petitioner's juvenile conviction had been expunged. As the court explained, petitioner's claim rested entirely on the prosecutor's "off-hand comment" at the sentencing hearing that the records of the conviction -- not the conviction itself -- had been expunged. Pet. App. 5. Thus, the district court did not commit error, much less plain error, in failing to find that the conviction had been expunged. Petitioner's challenge to the sufficiency of the government's evidence of the juvenile conviction is equally unavailing. Petitioner claims (Pet. 13) that the government failed to establish the "veracity and authenticity" of the document it introduced as proof of the conviction. As the court ___________________(footnotes) 5 Relying on United States v. Maybeck, 23 F.3d 888 (4th Cir. 1994), petitioner argues (Pet. 15) that his "actual innocence" of being an armed career criminal constitutes an "exception[ ] to procedural barriers to relief." That is incorrect. The defendant in Maybeck brought a motion under 28 U.S.C. 2255 challenging his sentence as a career offender under Guidelines 4B1.1 on the grounds that his previous burglary conviction did not involve violence. The Fourth Circuit held that a defendant's "actual innocence" of a career offender status excused his failure to satisfy the cause and prejudice requirement under Section 2255. Id. at 892-893. That cause and prejudice requirement, however, has no application to petitioner's direct appeal from his conviction. As this Court recently held, the plain error standard of Federal Rule of Criminal Procedure 52(b) "governs direct appeals from judgments of conviction in the federal system," regardless of the "seriousness of the error claimed." Johnson v. United States, 117 S. Ct. 1544, 1548 (1997). ---------------------------------------- Page Break ---------------------------------------- 11 of appeals found, however, in light of the document's "indicia of reliability," including its accurate identification of petitioner's family members, date of birth, and social security number, the district court "did not commit plain error in relying on it." Pet. App. 5; see Guidelines 6A1.3 (sentencing court "may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy"). b. Petitioner claims (Pet. 17-20) that the district court should have considered the applicable sentencing range under the Florida sentencing guidelines in determining whether his prior drug trafficking convictions involved offenses "for which a maximum term of imprisonment of ten years or more is prescribed by law," as required by 18 U.S.C. 924(e) (2) (A) (ii). The court of appeals correctly concluded, however, that the district court did not commit plain error in relying on petitioner's prior convictions as predicate offenses under Section 924(e). Section 924(e) (2) (A) (ii) defines a "serious drug offense" as "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance * * * , for which a maximum term of imprisonment of ten years is prescribed by law." This Court in United States v. R.L.C., 503 U.S. 292, 306-307 (1992), held that 18 U.S.C. 5037(c), which provides that the sentence ordered by a court for a juvenile delinquent may not exceed "the maximum ---------------------------------------- Page Break ---------------------------------------- 12 term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult," refers not to the statutory maximum sentence, but to the upper limit of the Guidelines range that would apply to a similarly situated adult offender. Examining the legislative history of Section 5037(c), a plurality of the Court explained that "[i]t hardly seems likely that Congress adopted the current [Section] 5037(c) with a purpose to conform juvenile and adult maximum sentences without intending the recently authorized Guideline scheme to be considered for that purpose." Id. at 305. It is by no means clear, however, that Section 924(e) (2) (A) (ii) should be similarly interpreted. Cf. United States v. LaBonte, 117 S. Ct. 1673, 1677-1678 nn. 4-5 (1997) ("maximum term authorized" under 28 U.S.C. 994(h) is the statutory maximum, not the applicable Guidelines maximum). 6. As the court of appeals explained, "[s]ince there is no clear precedent" on whether the phrase "maximum term of imprisonment of ten years * * * prescribed by law" under Section 924(e) (2) (A) (ii) refers to the state statute or state sentencing guidelines, "any ___________________(footnotes) 6 It is also not clear whether petitioner would prevail even if the district court considered the applicable Florida sentencing guidelines in determining whether his prior Florida drug trafficking convictions qualified as serious drug offenses, because Florida courts have discretion to depart from the sentencing range prescribed by the guidelines under certain circumstances. See Fla. Stat. Ann. 921.0016; cf. R.L.C., 503 U.S. at 307 (upper limit of Guideline range applies under 18 U.S.C. 5037(C) "absent circumstances what would warrant departure under [18 U.S.C.] 3553(b)"). ---------------------------------------- Page Break ---------------------------------------- 13 error by the district court could not have been obvious." 7. In any event, any error did not "seriously affect the fairness, integrity or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 736 (1993). As petitioner acknowledges (Pet. 17), petitioner stipulated in the district court that his prior drug trafficking convictions were punishable by a term of imprisonment that exceeded ten years. Accordingly, the district court did not commit plain error in failing to determine petitioner's maximum sentence under the Florida guidelines. 2. Petitioner contends (Pet. 21-28) that because the district court applied the enhancement required by Guidelines 4B1.4 (b) (3) (A) for use of a firearm in connection with a crime of violence, while also imposing the mandatory ten-year sentence on his conviction under 18 U.S.C. 924 (c) (as required by Guidelines 2K2.4), his sentence improperly penalized him twice for the same conduct. That claim lacks merit. District courts may not decline to apply provisions of the Sentencing Guidelines based on the view that application of a provision as written would amount to double counting. On the contrary, the "Guidelines are explicit when double counting is ___________________(footnotes) 7 Petitioner's reliance on United States v. Morton, 17 F.3d 911 (6th Cir. 1994), is misplaced. In that case, the court of appeals considered whether the defendant's prior state convictions involved "serious" offenses for purposes of Section 924(e) (2) (A) (ii) based on the statutory maximum term of imprisonment for the defendant's crimes, not on sentencing guidelines from which the sentencing court had discretion to depart. See 17 F.3d at 914. ---------------------------------------- Page Break ---------------------------------------- 14 forbidden," and thus "[a]n adjustment that clearly applies to the conduct of an offense must be imposed unless the Guidelines expressly exclude its applicability." United States v. Williams, 954 F.2d 204, 207 (4th Cir. 1992). 8 Contrary to petitioner's suggestion (Pet. 23), Application Note 2 to Guidelines 2K2.4 did not bar the district court from applying the enhancement for use of a firearm required by Section 4B1.4 (b) (3) (A). Application Note 2 provides that "[w]here a sentence under this section is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for the possession, use, or discharge of a[ ] * * * firearm * * * is not to be applied in respect to the guideline for the underlying offense." By its terms, Application Note 2 applies only when the defendant is also being sentenced for the drug trafficking crime or crime of violence underlying the Section 924(c) conviction. See United States Sentencing Commission, Guidelines Manual, Appendix C, amendment 405 (application note governs "determination of the offense level in cases in which the defendant is convicted under 18 U.S.C. 924(c) * * * in addition to a count for the offense in respect to which the firearm was used or possessed"). Guidelines 4B1.4 ___________________(footnotes) 8 See also United States v. Valdez-Torres, 108 F.3d 385, 389 (D.C. Cir. 1997); United States v. Johnstone, 107 F.3d 200, 212 (3d Cir. 1997); United States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir. 1995); United States v. Rocha, 916 F.2d 219, 243- 244 (5th Cir. 1990), cert. denied, 500 U.S. 934 (1991); cf. Guidelines lB1.1, Application Note 4 ("Absent an instruction to the contrary, the adjustments from different guideline sections are applied cumulatively (added together)."). ---------------------------------------- Page Break ---------------------------------------- 15 implements the armed career criminal provision of 18 U.S.C. 924(e), which imposes an enhanced sentence for a defendant's conviction for possessing a firearm as a convicted felon, in violation of 18 U.S.C. 922(g), if the defendant has three qualifying prior convictions. Petitioner's conviction for possession of a firearm as a convicted felon was not an "underlying offense" of the Section 924(c) offense as that term is used in Application Note 2 to Section 2K2.4; instead, as petitioner acknowledges (Pet. 22), the underlying offense was the armed bank robbery. Thus, the district court did not err in applying the enhancement required by Guidelines 4B1.4 (b) (3). See United States v. Sanders, 982 F.2d 4, 7 (1st Cir. 1992) (Application Note 2 did not prohibit district court from increasing defendant's offense level under Guidelines 4B1.4 (b) (3) (A) and also sentencing him under Section 924(c)), cert. denied, 508 U.S. 963 (1993); see also United States v. Goldbaum, 879 F.2d 811, 813 (10th Cir. 1989) (because the commentary to Section 2K2.4 specifies certain exceptions to the application of enhancement provisions based on possession or use of firearms, "other exceptions not explicitly mentioned are excluded"). 9 ___________________(footnotes) 9 Contrary to petitioner's suggestion (Pet. 25-27), the decision below is not inconsistent with United States v. Vincent, 20 F.3d 229 (6th Cir. 1994) or United States v. Howard, 998 F.2d 42 (2d Cir. 1993). In Vincent, the defendant was convicted of violating Section 924 (c) and of possessing a firearm as an unlawful user of a controlled substance, in violation of 18 U.S.C. 922(g)(3). 20 F.3d at 232. The court held that the commentary to Guidelines 2K2.4 prohibited the district court from increasing the defendant's offense level on the Section ---------------------------------------- Page Break ---------------------------------------- 16 As petitioner points out (Pet. 23-25), some courts have ruled in other circumstances that application of separate provisions of the Sentencing Guidelines that increase a defendant's sentence based on the same conduct results in impermissible double counting. See, e.g., United States v. Hudson, 972 F.2d 504, 506-507 (2d Cir. 1992) (enhancement to defendant's offense level for assault with dangerous weapon was impermissible double counting because use of dangerous weapon also resulted in increase in offense level by causing crime to be defined as aggravated assault). 10. It is not clear, however, ___________________(footnotes) 922(g) count by applying specific offense characteristics for use or possession of firearms. Id. at 241; see Guidelines 2K2.1(b) (l), 2K2.1(b) (5). As petitioner acknowledges, however (Pet. 25 n.14), the Vincent court also stated that its decision was "not inconsistent with" United States v. Sanders, supra, because Sanders involved the application of the armed career criminal provision, rather than a "specific offense characteristic." 20 F.3d at 241. In Howard, the defendant was convicted of drug trafficking offenses and of violating Section 924(c). In rejecting the defendant's claim that the district court improperly sentenced him under the career offender provision of Guidelines 4B1.1 and under Section 924(c), the court observed that "the use of the gun was not a factor in the district court's classification of Howard as a career offender" and "[t]he district court considered Howard's use of the gun only in connection with his * * * sentence under 924(c) (1)". 998 F.2d at 48. In this case, however, petitioner was sentenced as an armed career criminal, not as a career offender, and the district court did not classify him as an armed career criminal based on his use of a gun during the armed bank robbery; instead, petitioner qualified as an armed career criminal based on his criminal history. ___________________(footnotes) 10 Petitioner also cites (Pet. 24-25) United States v. Romano, 970 F.2d 164, 166-167 (1992), in which the Sixth Circuit held that the district court erred in applying upward adjustments for being an organizer of criminal activity and for engaging in more than minimal planning because more than minimal planning is required for role as organizer. The Sixth Circuit has ---------------------------------------- Page Break ---------------------------------------- 17 that any other court would reach a different result than the court of appeals did with respect to the provisions of the Sentencing Guidelines at issue in this case. In any event, any tension between the decisions of other courts and the unpublished decision in this case would not merit review by this Court, because the Sentencing Commission is responsible in the first instance for resolving conflicts among the courts of appeals concerning the proper application of the Guidelines. See Braxton v. United States, 500 U.S. 344, 348 (1991). 11 ___________________(footnotes) acknowledged, however, that Romano "has been abrogated" by an amendment to the commentary to Guidelines lB1.1. United States v. Perkins, 89 F.3d 303, 309 (6th Cir. 1996). Petitioner also cites (Pet. 23-24) the district court's decision in United States v. Bell, 716 F. Supp. 1207 (D. Minn. 1989). That decision, however, has been rejected by the Eighth Circuit and by the other courts of appeals. See United States v. Thomas, 930 F.2d 12, 13- 14 (8th Cir. 1991); United States v. Goolsby, 908 F.2d 861, 863 n.2 (11th Cir. 1990) (citing cases from the Third, Fifth, Sixth, Seventh, Ninth, and Tenth Circuits). 11 The court of appeals treated petitioner's contention as raising a double jeopardy challenge to his sentencing under both Section 924(c) and Section 924(e). See Pet. App. 7. The sole limitation that the Double Jeopardy Clause places on multiple punishments at a single trial is that a sentencing court cannot impose greater punishment than the legislature intended. See Missouri v. Hunter, 459 U.S. 359, 366 (l983). As this Court recently explained, Section 924(c)`s mandatory consecutive sentencing enhancement "appl[ies] regardless of whether the underlying felony statute provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device." United States v. Gonzales, 117 S. Ct. 1032, 1037 (1997) (internal quotation marks omitted). Accordingly, the district court did not violate petitioner's rights under the Double Jeopardy Clause by sentencing him as an armed career criminal under Section 924(e) and imposing a consecutive sentence under Section 924(c). See United States v. Lipscomb, 14 F.3d 1236, 1243 (7th Cir. 1994). Petitioner also suggests (Pet. 22) that the district court erred in sentencing him under both Section 924(c) and 18 U.S.C. 2113(d) , which provides for an enhanced sentence if a defendant, ---------------------------------------- Page Break ---------------------------------------- 18 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General NINA GOODMAN Attorney JUNE 1997 ___________________(footnotes) in committing a bank robbery, "assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon." That claim lacks merit. As this Court observed in Gonzales, Section 924(c) was amended in 1984 in part to repudiate the Court's decision in Simpson v. United States, 435 U.S. 6, 16 (1978), in which it had held that a defendant could not be sentenced under both Section 924(c) and Section 2113(d) based on a single criminal transaction. 117 S. Ct. at 1037.