TONY VICTOR BUNION, PETITIONER V. UNITED STATES OF AMERICA No. 89-7626 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 Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1) is not reported. JURISDICTION The judgment of the court of appeals was entered on April 12, 1990. The petition for a writ of certiorari was filed on May 14, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether, under Sentencing Guidelines Section 3B1.1(b), a defendant who is found to be a mid-level manager or supervisor of a drug distribution ring may have his offense level adjusted upward on that basis, even though no other person was charged with participating in the discrete drug offense that constituted the offense of conviction. STATEMENT On April 6, 1989, a three-count superseding indictment was returned in the United States District Court for the Northern District of Florida charging petitioner with distribution of "crack" cocaine, in violation of 21 U.S.C. 841(a)(1). Petitioner subsequently pleaded guilty to a single distribution count in return for the dismissal of the remaining charges. He was sentenced to 138 months' imprisonment, to be followed by a five-year term of supervised release. The court of appeals affirmed without opinion. 1. The facts are set out in the government's brief in the court of appeals. Gov't. C.A. Br. 3-4. On September 11, 1988, a police officer was standing in a checkout line at a grocery store when he noticed petitioner standing in front of him. Petitioner's left front pants pocket was bulging out so that the officer could see what appeared to be a large quantity of "crack" cocaine in a plastic bag. The officer seized the bag, which was found to contain 50 grams of "crack" cocaine. After being advised of his Miranda rights, petitioner stated that the "crack" cocaine belonged to a "big dealer" from Miami named "Milo," who travelled back and forth between Miami and Tallahassee. According to petitioner, "Milo" had rented both the van that petitioner was using at the time of his arrest and the telephone beeper that he was carrying. A police check of the rental records for the van and the beeper revealed that both had been rented by Leonard Darby, who was known as "Milo." Darby was known to law enforcement officers to be a large distributor of "crack" cocaine in the Miami area. /1/ 2. Petitioner eventually agreed to plead guilty to Count I of the superseding indictment and to cooperate with the government in its investigation of the Darby organization. At petitioner's rearraignment proceeding, the court inquired about petitioner's position within the Darby organization. In response, the prosecutor informed the court that petitioner admitted immediately following his arrest that he was "in the business of selling ("crack" cocaine) for (Darby)," Pet. 8, and that since that time petitioner had revealed to the government "a great deal more" about the "overall organization" for which petitioner worked, Pet. 10. Based on this, the prosecutor stated that petitioner "was in between" in the organization: "(h)e was certainly not the top man, but he wasn't right on the very bottom." Pet. 9. The court then questioned petitioner whether it was accurate to say that he was "more than a street dealer," but "not upper management." Pet. 10-11. Petitioner replied, "Yes, sir." Ibid. See also 3 R. 12 (petitioner's admissions at plea hearing). /2/ 3. Because approximately 50 grams of cocaine base was involved, the base offense level for petitioner's offense was level 30. See Guidelines Section 2D1.1 Drug Quantity Table. The district court adjusted petitioner's offense level upward by three levels under Guidelines Section 3B1.1(b) because petitioner committed the offense while acting as "a manager or supervisor" in the Darby drug organization. /3/ As the court stated, Sent. Tr. 17: It's my view that the three level upward adjustment for (petitioner's) role in the offense is warranted in this case. * * * (A)t the Rule 11 plea and while this negotiated plea deals only with one incident, I think it's very clear that the facts here indicate that (petitioner) was part of a much larger operation and it was just a fortuitous circumstance that he was * * * arrested when he was. The resulting sentencing range under the Guidelines was 138-151 months' imprisonment, based on an adjusted offense level of 33 and criminal history category of I. The district court sentenced petitioner to a term of 138 months' imprisonment. ARGUMENT Petitioner contends that the district court erred in adjusting his offense level under Guidelines Section 3B1.1(b) on the ground that he was a manager or supervisor. Pet. 12-15. First, petitioner argues that he was the sole participant in the drug possession offense that was the offense of conviction. Second, he argues that there was "(n)o evidence exclusive of (his) Rule 11 proffer * * * to establish that he was a mid-level manager or supervisor." Pet. 15. The question whether a defendant was a manager or supervisor for purposes of Guidelines Section 3B1.1(b) is a question of fact subject to review under the clearly erroneous standard. E.g., United States v. Barrett, 890 F.2d 855, 867 (6th Cir. 1990); United States v. Wright, 873 F.2d 437, 443 (1st Cir. 1989); United States v. Barreto, 871 F.2d 511, 512 (5th Cir. 1989). The fact-bound question presented by petitioner, which was correctly resolved against him by the courts below, does not merit further review by this Court. The text of Guidelines Section 3B1.1(b) provides that, "(b)ased on the defendant's role in the offense," a defendant's offense level should be increased "(i)f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive." As both the Commentary accompanying Guidelines Section 3B1.1 and the case law construing it make clear, the Guidelines provisions for adjusting a defendant's offense level based on his role in the offense "require() that a defendant engage in criminal activity with at least one other criminally culpable person." United States v. Carroll, 893 F.2d 1502, 1509 (6th Cir. 1990). /4/ Thus, by providing a mechanism for weighing the relative culpability of those committing multi-participant crimes, Guidelines Section 3B1.1 comprehensively "provides a range of adjustments to increase the offense level based upon the size of a criminal organization (i.e., the number of participants in the offense) and the degree to which the defendant was responsible for committing the offense." Id. at p. 3.5 Commentary. The requirements for invoking the adjustment provided for in Guidelines Section 3B1.1 were surely satisfied here. As the district court held, petitioner's extensive admissions to law enforcement officers concerning his role in the Darby drug distribution organization, which petitioner acknowledged as true at the rearraignment and plea proceedings, provided an ample basis for enhancing his base offense level. See United States v. Fuentes-Moreno, 895 F.2d 24, 27 (1st Cir. 1990) (approving upward adjustment based on the defendant's admissions concerning his role in the offense); United States v. Williams, 894 F.2d 208, 213-214 (6th Cir. 1990) (same); United States v. Diaz-Villafane, 874 F.2d 43, 48 (1st Cir.) (same), cert. denied, 110 S. Ct. 177 (1989). Although petitioner was charged individually with possession of "crack" cocaine with intent to distribute it, there was a substantial evidentiary basis for concluding that he possessed the contraband in his capacity as a mid-level manager in the Darby organization. As petitioner admitted, the "crack" cocaine that he had in his possession belonged to Darby. Moreover, at the time of the offense, petitioner was using a van and a beeper that had been rented for him by Darby. Finally, petitioner admitted that his role in the Darby organization -- which was far-flung enough to operate in both the Miami and the Tallahassee areas -- was below the upper leadership level, but above the level of the street distributors. See United States v. Barrett, 890 F.2d at 867-868 (upward adjustment where the defendant possessed relatively small amount of cocaine as part of his role in a large-scale distribution chain); United States v. Holland, 884 F.2d 354, 359 (8th Cir.) (upward adjustment where the defendant acted as an intermediary between a major distributor and lower level dealers), cert. denied, 110 S. Ct. 552 (1989). /5/ Under these circumstances, the adjustment provided in Guidelines Section 3B1.1(b) was appropriate. The cases on which petitioner relies are not to the contrary. For example, in United States v. Carroll, 893 F.2d at 1507-1509, a federal prisoner seeking to escape from confinement enlisted the aid of a prison informant, who in turn placed the defendant in contact with a team of undercover FBI agents for the ostensible purpose of orchestrating his escape. In holding that an upward adjustment was improperly imposed on Carroll because of his role as an organizer in the failed escape, the court of appeals stated: "Because Carroll only 'organized' law enforcement authorities -- persons who could not have been 'criminally responsible' -- it is undisputed that Carroll's crime involved only one offender and, therefore, no criminal organization or enterprise." 893 F.2d at 1507. Similarly, in United States v. Tetzlaff, 896 F.2d 1071, 1073-1075 (7th Cir. 1990), a free-lance drug dealer, who had once involved his children in a prior drug transaction, sold drugs to an undercover agent in a later transaction that did not involve his children. Because Tetzlaff "acted alone in the offense for which he was convicted," 896 F.2d at 1075, the court of appeals held that an upward adjustment for his role in the offense was impermissible. Finally, in United States v. Fuller, 897 F.2d 1217 (1st Cir. 1990), the court refused to sustain an upward adjustment for the defendant's role in the distribution of drugs since "the district court did not make any finding that Fuller exercised control or was otherwise responsible for organizing others" and the evidence showed that Fuller merely "engaged in a number of private drug distributions, in which he essentially did all the work himself." 897 F.2d at 1221. To the same effect is United States v. Weidner, 703 F. Supp. 1530, 1352 (N.D. Ind. 1988) (record did not allow court to find that defendant "organized or led anyone"). By contrast, the evidence upon which the district court below based its findings showed that petitioner did not act alone, but instead acted as part of an organization. Unlike in Carroll, Tetzlaff, or Fuller, where the defendants either acted entirely alone or in conjunction with others over whom they exercised no control, the instant facts support the conclusion that petitioner possessed a substantial quantity of "crack" cocaine as an intermediary between the upper echelons of the Darby organization (which owned the cocaine) and its street level distributors with whom petitioner was responsible for dealing. Because the decision below is entirely consistent with the rule that an adjustment for a defendant's role in the offense is appropriate only where there are multiple "participants" in an offense, the fact-bound result in this case does not warrant review by this Court. 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 ROBERT J. ERICKSON Attorney JULY 1990 /1/ Petitioner's possession of "crack" cocaine on September 11, 1988, formed the basis for the offense charged in Count I of the superseding indictment to which petitioner pleaded guilty. /2/ "R." refers to the record on appeal. /3/ Sentencing Guideline Section 3B1.1 provides in pertinent part: Based on the defendant's role in the offense, increase the offense level as follows: (b) If the defendant was a manager or supervisor (but not an organizaer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels. /4/ The Introductory Commentary to the part of the Guidelines pertaining to adjustments based on a defendant's role in the offense states that its provisions apply "(w)hen an offense is committed by more than one participant." In turn, the Commentary accompanying Sentencing Guideline Section 3B1.1 defines a "participant" as "a person who is criminally responsible for the commission of the offense." /5/ Nor is the availability of the adjustment undercut because petitioner was charged alone in Count I and was not additionally charged with conspiracy. As the Commentary accompanying Sentencing Guideline Section 3B1.1 indicates, a person may be regarded as a "participant" in a criminal offense even though he is not convicted of it. Likewise, there is no requirement that a "participant" be charged with the offense. The critical point is that more than one person be responsible for the offense. Here, petitioner's possession of "crack" cocaine was unquestionably part of the conspiratorial efforts of the Darby organization to distribute drugs. Although it was agreed as part of the plea agreement, see Pet. 6, that petitioner's base offense level would be calculated solely on the amount of "crack" cocaine that he possessed on September 11, 1988, rather than any amounts for which he might be responsible as a member of that conspiracy, the plea agreement did not prohibit the court from determining whether there were participants in the drug trafficking in which petitioner was involved.