TIMOTHY JOHN O'MEARA, PETITIONER V. UNITED STATES OF AMERICA No. 90-5215 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 Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A8) is reported at 895 F.2d 1216. JURISDICTION The judgment of the court of appeals was entered on February 12, 1990. A petition for rehearing was denied on May 11, 1990. Pet. App. A9. The petition for a writ of certiorari was filed on July 20, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner was properly sentenced for conspiracy to possess eight ounces of cocaine with the intent to distribute it, even though petitioner may have thought he and his co-conspirator were buying only six ounces of cocaine. STATEMENT Following a jury trial in the United States District Court for the District of Minnesota, petitioner and a codefendant were convicted of conspiring to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846. Petitioner was sentenced to 33 months' imprisonment, followed by three years' supervised release. The court of appeals affirmed (Pet. App. A1-A8). The evidence at trial showed that an undercover law enforcement agent contacted petitioner's codefendant, David Kost, in March 1988 and attempted to buy five kilograms of cocaine. The negotiations were unsuccessful. At the end of the month, however, Kost asked the agent to sell him two ounces of cocaine. Several days later, Kost asked the agent to sell him six ounces of cocaine at $1,000 per ounce. Kost and the agent agreed to meet later to complete the sale. Pet. App. A2. On April 5, Kost and petitioner drove to a parking lot in Minneapolis. There, the agent and Kost negotiated the sale in the agent's car while petitioner waited in another car. As petitioner admits (Pet. 13), he planned to buy four ounces, and Kost was to keep two ounces. The agent told Kost that he had eight ounces of cocaine, and that he preferred to sell the entire eight ounces in a single transaction. The agent agreed to "front" Kost the remaining two ounces (that is, to permit Kost to take delivery of the drugs immediately and make payment later). Kost paid the agent $1,000 and told him that petitioner would pay him $5,000. Kost planned to tell petitioner that the price of the cocaine was $1,250 an ounce, so that petitioner would pay $5,000 for four ounces, and Kost get two ounces for $1,000. Pet. App. A2. Kost summoned petitioner to the agent's car to deliver the money. Petitioner tasted the cocaine, pronounced it to be of good quality and passed the bag of cocaine to Kost. The agent asked petitioner what cocaine sold for where petitioner lived. Petitioner replied that cocaine sold for about $2,000 an ounce when diluted by 25%. At that point, other law enforcement agents arrested petitioner and Kost. Pet. App. A2-A3. In computing petitioner's total offense level under the Sentencing Guidelines, the district court concluded that petitioner was accountable for the eight grams of cocaine involved in the transaction. Pet. App. A6. The court of appeals affirmed. The court held that the district court's decision to sentence petitioner on the basis of an eight-ounce cocaine transaction was not clearly erroneous. The court concluded that petitioner was responsible for the full amount because it was reasonably foreseeable that his co-conspirator would purchase eight ounces of cocaine. The court noted that petitioner willingly accepted the eight ounces of cocaine and did not question its weight or verify that he and Kost were purchasing only six ounces. The court stated that petitioner "has not persuaded us that it was unforeseeable that Kost, as his co-conspirator, would accept an additional two ounces if offered to him." Pet. App. A6. /1/ Judge Bright dissented. Pet. App. A6-A8. Although his dissent principally concerned petitioner's codefendant Kost, Judge Bright stated in a footnote to his opinion that he could not agree that petitioner was properly sentenced based on an eight-ounce transaction. Pet. App. A6-A7 n.1. Judge Bright concluded that the government had produced no reliable evidence that petitioner reasonably could have foreseen Kost's negotiations for an additional two ounces of cocaine. Ibid. ARGUMENT Petitioner "does not contest his conviction" and "admits to conspiracy to obtain six ounces of cocaine, four of which were to be his, with the intent to distribute." Pet. 13. Petitioner contends, however (Pet. 9-13), that he did not know Kost had agreed to purchase an additional two ounces of cocaine, and that therefore the district court should have computed his sentence based on the six ounces of cocaine that petitioner and his codefendant planned to obtain rather than the eight ounces that they actually obtained. This narrow contention merits no further review. 1. Section 1B1.3(a)(1) of the Sentencing Guidelines provides that the defendant's Sentencing Guideline range is to be determined on the basis of "all acts or omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable." At the time of petitioner's offense, Application Note 1 to Guideline Section 1B1.3 (Jan. 15, 1988) stated that if the defendant was convicted of conspiracy, conduct "for which the defendant is otherwise accountable" included "conduct in furtherance of the conspiracy that was known to or was reasonably foreseeable by the defendant." The current version of Application Note 1 contains a similar instruction. /2/ Thus, if a defendant is convicted of a drug conspiracy offense, his sentencing range is determined on the basis of the offenses that were reasonably foreseeable as a result of the conspiracy. See, e.g., United States v. Ross, 905 F.2d at 1054; United States v. Drew, 894 F.2d 965, 973 (8th Cir.), cert. denied, 110 S. Ct. 1830 (1990); United States v. Candito, 892 F.2d 182, 185-186 (2d Cir. 1989). Here, the district court properly sentenced petitioner on the basis of the eight ounces of cocaine actually purchased. As the court of appeals noted (Pet. App. A6), petitioner accepted the eight-ounce bag of cocaine, did not question its weight, and did not verify that it only contained six ounces. Even if petitioner thought he and his co-conspirator were buying only six ounces of cocaine, it was reasonably foreseeable that Kost might agree to purchase a larger amount. Petitioner, who was an experienced drug dealer (see Pet App. A7 & n.2), knew that Kost might agree to purchase additional cocaine in order to reap additional profits. Kost and the undercover agent had negotiated possible cocaine transactions ranging from five kilograms to two ounces. Thus, it was hardly surprising that Kost was willing to purchase an additional two ounces of cocaine. And petitioner, as an experienced drug dealer, was aware of the practice of "fronting" drugs to dealers. In short, Kost's purchase of an additional two ounces was reasonably foreseeable as part of the charged conspiracy. Accordingly, petitioner properly was held accountable for the eight-ounce cocaine transaction. 2. Petitioner incorrectly contends (Pet. 9-16) that the court of appeals held that the burden of proof is on the defendant to show that purchase of an additional quantity of drugs is not reasonably foreseeable. Petitioner contends that this burden-shifting violates his due process rights and conflicts with decisions of other courts of appeals. Pet. 10-12 (citing United States v. Wright, 873 F.2d 437, 441-442 (1st Cir. 1989)). Petitioner's argument rests on a misreading of the court of appeals' opinion. To be sure, the court said that petitioner "has not persuaded us that it was unforeseeable that Kost * * * would accept an additional two ounces if offered to him." Pet. App. A6. But it continued: "On these facts, we find that the district court's decision to sentence (petitioner) on the basis of eight ounces of cocaine is not clearly erroneous." Ibid. Contrary to petitioner's suggestion, the court of appeals was referring to the standard of review on appeal, not the standard of proof at the sentencing hearing before the district court. The court of appeals merely stated the established rule that, where a sentencing court has found that an offense was a reasonably foreseeable consequence of a conspiracy for which the defendant was convicted, that finding will not be disturbed on appeal unless the defendant can show that it was clearly erroneous. See, e.g., United States v. Ross, 905 F.2d 1050, 1054 (7th Cir. 1990); United States v. Willis, 899 F.2d 873, 874 (9th Cir. 1990). See generally Maine v. Taylor, 477 U.S. 131, 145-146 (1986). Thus, the court of appeals' statement that petitioner had not persuaded "us" that his conduct was unforeseeable indicated only that petitioner had not met the standard of review on appeal; it was not a comment on the burden of proof at sentencing. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General THOMAS E. BOOTH Attorney SEPTEMBER 1990 /1/ The court of appeals also rejected a number of other challenges to the convictions and sentences. Pet. App. A2-A6. Petitioner does not seek further review of any of these issues. /2/ Application Note 1 to Guideline Section 1.B1.3 (Nov. 1, 1989) provides that in the case of concerted criminal activity, whether or not charged as a conspiracy, the defendant is accountable for conduct "in furtherance of the execution of the jointly-undertaken criminal activity that was reasonably foreseeable by the defendant."