No. 98-1369
In the Supreme Court of the United States
OCTOBER TERM, 1998
JOSEPH JAMES BURKE, 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
SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
LISA SIMOTAS
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether a defendant may collaterally attack his sentence under 28 U.S.C.
2255 (1994 & Supp. III 1997) based on a subsequent clarifying amendment
to the applicable Sentencing Guideline.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-1369
JOSEPH JAMES BURKE, 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
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-10a) is reported at 152
F.3d 1329. The opinion of the district court (Pet. App. 13a-15a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on September 3, 1998 (Pet.
App. 11a-12a). The petition for a writ of certiorari was filed on December
2, 1998. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
In 1988, following the entry of a plea of guilty, petitioner was convicted
in the United States District Court for the Middle District of Florida on
six counts of armed bank robbery, in violation of 18 U.S.C. 2113(a) and
(d). As to four of the counts, the district court sentenced petitioner under
pre-Sentencing Guidelines law to 25 years' imprisonment. On the two remaining
counts, the court sentenced petitioner under the Guidelines to 63 months'
imprisonment, to be served consecutively to the pre-Guidelines sentence
and to be followed by five years' supervised release. Petitioner filed a
notice of appeal, but the appeal was ultimately dismissed on petitioner's
motion. Pet. App. 2a-3a; Gov't C.A. Br. 1.
In 1997, petitioner sought collateral relief under 28 U.S.C. 2255 (1994
& Supp. III 1997) based on a clarifying amendment to the Guidelines
that took effect on November 1, 1990. The district court denied collateral
relief, Pet. App. 13a-15a, and the court of appeals affirmed, id. at 1a-10a.
1. Petitioner pleaded guilty to committing six armed robberies between June
and December of 1987. Presentence Report (PSR) ¶ 1. Two of the robberies
took place after November 1, 1987, and petitioner accordingly was sentenced
under the Guidelines for those counts. Ibid. The PSR recommended that petitioner's
offense level be increased by two levels for obstruction of justice under
Guidelines § 3C1.1. That recommendation rested on evidence that petitioner
remained a fugitive for more than six months, knowing that the FBI was pursuing
him, and that petitioner possessed false identification at the time of his
arrest. Gov't C.A. Br. 2-3; PSR ¶¶ 19, 26. Petitioner did not
object to the enhancement at sentencing, and the district court adopted
the PSR's factual findings and guideline calculations. Gov't C.A. Br. 3
n.4. Petitioner's final offense level of 24, combined with criminal history
category I, yielded a sentencing range of 51-63 months' imprisonment. PSR
¶¶ 34, 36, 48. The court sentenced petitioner to 63 months' imprisonment.
Gov't C.A. Br. 1. Petitioner filed a notice of appeal, which he later moved
to dismiss. Ibid.
2. Two years after petitioner's convictions became final, the Sentencing
Commission amended Guidelines § 3C1.1 and its accompanying commentary
to "clarif[y] the operation of § 3C1.1." Guidelines, App.
C, Amend. 347. Among other things, Amendment 347 added a new application
note, which provided in relevant part:
4. The following is a non-exhaustive list of examples of the types of conduct
that, absent a separate count of conviction for such conduct, do not warrant
application of this enhancement, but ordinarily can appropriately be sanctioned
by the determination of the particular sentence within the otherwise applicable
guideline range:
(a) providing a false name or identification document at arrest, except
where such conduct actually resulted in a significant hindrance to the investigation
or prosecution of the instant offense;
* * * * *
(d) avoiding or fleeing from arrest (see, however, § 3C1.2 (Reckless
Endangerment During Flight)).
Ibid. The amendment took effect November 1, 1990. Ibid.
3. On April 18, 1997, petitioner filed a motion for correction of his sentence
under 28 U.S.C. 2255. Gov't C.A. Br. 1. Petitioner contended that he was
entitled to be resentenced in light of the Commission's clarifying amendment
to Guidelines § 3C1.1, which, he argued, demonstrated that his conduct
did not warrant the two-level enhancement. Id. at 1-2. In response, the
government argued that petitioner's claim was not cognizable on collateral
review. Gov't Resp. in Opp. 2-4. The government noted that all of the Eleventh
Circuit cases cited by petitioner in which the court remanded for consideration
of a guidelines amendment involved direct appeals rather than collateral
proceedings, and that the Eleventh Circuit had rejected the reasoning of
Isabel v. United States, 980 F.2d 60 (1st Cir. 1992), which afforded collateral
relief based on a guidelines amendment. Ibid. The district court denied
collateral relief "for the reasons stated in the government's response."
Pet. App. 14a.1 The court of appeals granted petitioner's motion for a certificate
of appealability.
4. The court of appeals affirmed the denial of collateral relief. Pet. App.
1a-10a. The court began by noting that nonconstitutional claims are cognizable
on collateral review only "when the alleged error constitutes a 'fundamental
defect which inherently results in a complete miscarriage of justice [or]
an omission inconsistent with the rudimentary demands of fair procedure.'"
Pet. App. 5a-6a (quoting Reed v. Farley, 512 U.S. 339, 348 (1994)). The
court then observed that Amendment 347 is a clarifying amendment that did
not substantively change Guidelines § 3C1.1, but rather reflected the
Sentencing Commission's original intent on the interpretation of the Guideline.
Pet. App. 8a. Petitioner therefore could have objected to the enhancement
under Section 3C1.1 at his original sentencing or on direct appeal. Id.
at 8a-9a. "Considering all of the circumstances," the court of
appeals held, "we cannot say that the alleged mis-application of the
sentencing guidelines in this case was fundamentally unfair or that it constituted
a miscarriage of justice sufficient to form the basis for collateral relief."
Id. at 9a. Having decided that petitioner's claim was not cognizable under
Section 2255, the court expressly declined to decide whether petitioner
had made the requisite showing of cause and prejudice to excuse his procedural
default in failing to raise the issue at sentencing and on direct appeal.
Id. at 9a-10a & n.1.
ARGUMENT
Petitioner contends (Pet. 10-14) that this Court should grant review to
decide whether a claim of sentencing error in light of a subsequent clarifying
amendment to the Sentencing Guidelines is cognizable under 28 U.S.C. 2255
(1994 & Supp. III 1997). That contention lacks merit. The court of appeals
in this case correctly held that petitioner's claim does not support a collateral
attack on his sentence, and the conflict of authority identified by petitioner
does not warrant this Court's attention.
1. "It has, of course, long been settled law that an error that may
justify reversal on direct appeal will not necessarily support a collateral
attack on a final judgment." United States v. Addonizio, 442 U.S. 178,
184 (1979). A non-constitutional "error of law does not provide a basis
for collateral attack [under Section 2255] unless the claimed error constitute[s]
'a fundamental defect which inherently results in a complete miscarriage
of justice.'" Id. at 185 (quoting Hill v. United States, 368 U.S. 424,
428 (1962)); see also Reed v. Farley, 512 U.S. 339, 354 (1994); Brecht v.
Abrahamson, 507 U.S. 619, 634 & n.8 (1993); United States v. Timmreck,
441 U.S. 780, 784 (1979).
There is general agreement among the courts of appeals that claims of error
in the application of the Guidelines "ordinarily are not cognizable"
on collateral review. Grant v. United States, 72 F.3d 503, 505-506 (6th
Cir.) (denying Section 2255 motion seeking relief based upon post-sentencing
clarifying amendment to Guidelines), cert. denied, 517 U.S. 1200 (1996);
see also, e.g., United States v. Payne, 99 F.3d 1273, 1281-1282 (5th Cir.
1996) (absent miscarriage of justice, newly raised claim of misapplication
of Guidelines not cognizable on collateral attack under Section 2255); Graziano
v. United States, 83 F.3d 587, 589-590 (2d Cir. 1996); Auman v. United States,
67 F.3d 157, 160-161 (8th Cir. 1995) (citing cases); Knight v. United States,
37 F.3d 769, 773 (1st Cir. 1994); Scott v. United States, 997 F.2d 340,
341-342 (7th Cir. 1993).
In accordance with that broad consensus, the court of appeals in this case
correctly held that petitioner's claim of sentencing error is not cognizable
on collateral attack under Section 2255. The sentencing court's imposition
of a two-level enhancement under Guidelines § 3C1.1 for petitioner's
conduct represented a routine application of the Guidelines and, even if
there was error, petitioner's claim "falls short of indicating a 'complete
miscarriage of justice.'" Pet. App. 8a. An error that affects only
a fact-specific adjustment to a guideline range simply does not present
an "exceptional circumstance[] where the need for the remedy afforded
by the writ of habeas corpus is apparent." Hill, 368 U.S. at 428 (quoting
Bowen v. Johnston, 306 U.S. 19, 27 (1939)).
2. Petitioner contends (Pet. 10) that the Court should grant certiorari
to resolve a conflict between this case and the First Circuit's decision
in Isabel v. United States, 980 F.2d 60 (1992). Like petitioner here, the
defendant in Isabel sought relief under Section 2255 on the ground that
Amendment 347 to the Guidelines made clear that his sentence had improperly
been enhanced for obstruction of justice under Guidelines § 3C1.1.2
The court of appeals in Isabel, without citing a single case concerning
the standards for availability of collateral relief, held that Isabel was
entitled to have his sentence reconsidered. In so concluding, the court
stated that it would "follow th[e] uniform approach" of the circuits
that had held that "it is appropriate to consider post-sentencing amendments
that clarify but do not substantively change [a] guideline." Isabel,
980 F.2d at 62. Each of the cases the First Circuit cited to exemplify that
"uniform approach," however, involved direct rather than collateral
review. See id. at 62, 63. Isabel is therefore not a sound precedent.
The conflict petitioner identifies does not warrant this Court's attention
for several reasons. First, Isabel appears to be an anomaly in the First
Circuit's collateral-review jurisprudence. In Knight, 37 F.3d at 773, for
example - a case decided after Isabel - the First Circuit held that a defendant's
claims of sentencing error were not cognizable under Section 2255 because
they "f[e]ll far short of the 'miscarriage of justice' standard."
37 F.3d at 773. Unlike Isabel, Knight properly cited and applied the standards
governing the availability of collateral relief as established in this Court's
cases. Id. at 772-773. The First Circuit has subsequently cited Knight for
the proposition that "errors in the application of the sentencing guidelines,
by themselves, are not normally cognizable on collateral attack." Smullen
v. United States, 94 F.3d 20, 23 n.3 (1st Cir. 1996). See also United States
v. Dupont, 15 F.3d 5, 6-7 (1st Cir. 1994) (government's failure to produce
prior statements of witnesses testifying at sentencing would not warrant
collateral relief absent showing of miscarriage of justice); Padilla Palacios
v. United States, 932 F.2d 31, 35 (1st Cir. 1991) (sentencing court's imposition
of term of post-confinement monitoring did not warrant collateral relief
where any error did not result "in a 'complete miscarriage of justice'
or in a proceeding 'inconsistent with the rudimentary demands of fair procedure'").
By contrast, we have found no case in which the First Circuit has relied
on Isabel to support a grant of collateral relief.3
Second, even if this Court were to hold that his claim is cognizable on
a Section 2255 motion, petitioner would not be entitled to relief because
his claim is procedurally defaulted. See Sunal v. Large, 332 U.S. 174, 178
(1947) ("the writ of habeas corpus will not be allowed to do service
for an appeal"). Petitioner failed to object at sentencing to the imposition
of an enhancement under Guidelines § 3C1.1, and he failed to raise
the issue on direct appeal. Under well-settled principles, therefore, petitioner
could obtain collateral relief only if he demonstrated "cause"
for his waivers, and actual prejudice from the error he alleges. See Bousley
v. United States, 118 S. Ct. 1604, 1611 (1998); Reed v. Farley, 512 U.S.
at 354; United States v. Frady, 456 U.S. 152, 167-168 (1982). Petitioner
himself argues (e.g., Pet. 10), however, that Amendment 347 is merely "clarifying,"
meaning that the Sentencing Commission did not effect a substantive change
in Guidelines § 3C1.1. Even without the amendment, therefore, petitioner
could have argued to the sentencing court and on direct appeal that his
conduct did not constitute an obstruction of justice within the meaning
of the Guideline. See Pet. App. 8a-9a; Grant, 72 F.3d at 506 ("Insofar
as [Guidelines] amendment 439 is a clarifying amendment, as it purports
to be, [the claim of error] was available to petitioner at the time of her
sentencing."). That argument would not have been "so novel that
its legal basis [wa]s not reasonably available to counsel." Bousley,
118 S. Ct. at 1611 (quoting Reed v. Ross, 468 U.S. 1, 16 (1984)). Accordingly,
petitioner would be unable to show cause for his default.4
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
LISA SIMOTAS
Attorney
APRIL 1999
1 The court also denied petitioner's separate motion for modification of
his sentence under 18 U.S.C. 3582(c)(2). Pet. App. 13a-14a. Petitioner did
not appeal the denial of that motion.
2 Unlike petitioner in this case, Isabel objected to the enhancement at
sentencing, although he did not raise the claim on direct appeal. See 980
F.2d at 61 & n.2.
3 Although petitioner does not cite the decision, we note that the Sixth
Circuit also recently held that a post-sentencing clarifying amendment could
form the basis for a collateral attack on a guidelines sentence. See Jones
v. United States, 161 F.3d 397 (6th Cir. 1998). The result in Jones, however,
rests on a misunderstanding of this Court's decision in Davis v. United
States, 417 U.S. 333, 346 (1974), which held that collateral relief was
available where a post-conviction change in law established that a defendant's
"conviction and punishment [were] for an act that the law does not
make criminal." The result in Jones, moreover, conflicts directly with
the Sixth Circuit's prior decision in Grant, 72 F.3d at 505-506. The United
States has therefore petitioned for rehearing en banc in Jones, and the
Sixth Circuit has directed the defendant to file a response. Because there
is a possibility that the Sixth Circuit will vacate Jones, that decision
does not support a grant of certiorari in this case.
4 There is no merit to petitioner's contention (Pet. 12-13) that the decision
in this case further conflicts with Isabel on the "cause" issue.
Isabel did not squarely address Frady's "cause and prejudice"
standard, but merely noted in passing that Isabel could not have waived
reliance on Amendment 347 on direct review because the amendment did not
take effect until after his appeal was filed. See Isabel, 980 F.2d at 61
n.2. And the court of appeals in this case did not address the issue at
all, simply noting that petitioner failed even to "allege or assert
cause and prejudice before the district court and raised it for the first
time in his reply brief" in the court of appeals. Pet. App. 10a n.1.