JOHN BERT FISHER, PETITIONER V. UNITED STATES OF AMERICA No. 90-6557 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 Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-5) is not reported, but the judgment is noted at 914 F.2d 1492 (Table). JURISDICTION The judgment of the court of appeals was entered on September 25, 1990. The petition for a writ of certiorari was filed on December 18, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court committed plain error when, in the course of imposing sentence, the court immediately modified its originally announced downward departure from the indicated Sentencing Guideline range and imposed a sentence of 160 months, instead of the originally announced sentence of 150 months. STATEMENT Following his plea of guilty in the United States District Court for the Southern District of West Virginia, petitioner was convicted of possessing morphine with the intent to distribute it, in violation of 21 U.S.C. 841(a)(1). The district court sentenced him to a term of 160 months' imprisonment, to run consecutively to a previously imposed state sentence and to be followed by a three-year period of supervised release, and imposed a $50 special assessment. The court of appeals affirmed. 1. On June 2, 1989, petitioner was arrested and later charged with distribution of morphine. At the time of the offense, petitioner was serving a ten-year West Virginia sentence at a work release center operated by the State's corrections department. From June 2, 1989, to the date of his sentencing by the district court, September 25, 1989, petitioner was continuously in federal custody. Pet. App. 2. Because petitioner qualified as a career criminal under Sentencing Guideline Section 4B1.1, his presentence report calculated his applicable Sentencing Guideline range as 210-262 months. Pet. App. 2. /1/ Petitioner contended, however, that the district court should depart downward from the guideline range because (a) his prior crimes had not been violent; (b) he was caring for several ill relatives; (c) given his age (60), the Guidelines sentence would be, in effect, a life sentence; and (d) he had committed the offense of conviction to assist a cancer-stricken friend. Pet. App. 8-11. Petitioner's counsel noted that approximately eight years remained on petitioner's unexpired state sentence; counsel said, however, that he did not know how much of that sentence petitioner would be required to serve. Id. at 8. Agreeing that a downward departure was warranted, the district court initially imposed a sentence of 150 months' imprisonment, to be served consecutively to the unexpired ten-year state sentence petitioner had been serving when he was arrested on the federal charge. Pet. App. 13-14. Immediately thereafter, however, while still pronouncing sentence on petitioner, the district court asked counsel about petitioner's custodial status. Petitioner's attorney said that petitioner had been in continuous federal custody since his arrest and that the state corrections department had done nothing to regain custody of petitioner. The prosecutor commented that the court was correct in its belief that no one knew what the State would do. The court said: "I suspect that (the corrections department) will do nothing (to regain custody of petitioner)." Id. at 14. The court then decreased the extent of its downward departure from the Guidelines and imposed a sentence of 160 months' imprisonment, to be served consecutively to the state sentence. Pet. App. 2-3, 14-15. 2. The court of appeals affirmed. Pet. App. 1-5. Petitioner argued that the district court could not properly reduce the extent of its downward departure from the Guidelines range without more reliable information about West Virginia's intentions as to the unfinished portion of his state sentence. Reviewing the sentencing court's determination under a "clearly erroneous" standard, United States v. Vinson, 886 F.2d 740, 742 (4th Cir. 1989), cert. denied, 110 S. Ct. 878 (1990), the court of appeals rejected petitioner's argument. It noted "the undisputed facts that a state inmate was arrested by federal authorities and that no effort was made by the state authorities over an almost four-month period to insure his return." Pet. App. 4-5, and that it was not unreasonable to conclude that West Virginia would "do nothing" about petitioner's unexpired sentence, because petitioner would be more than 70 years old by the time he completed his federal sentence, and because West Virginia had a severe prison overcrowding problem, id. at 5 n.4. The court also observed that petitioner had not objected to the district court's action during the sentencing hearing. Id. at 5. Finally, finding that the essence of petitioner's claim was his disagreement with the inference drawn by the district court from the information available to it, the court of appeals concluded that clear error had not been shown. Ibid. ARGUMENT Petitioner claims that the district court erred in changing his sentence from 150 months to 160 months. Petitioner's fact-bound claim was properly rejected by the court of appeals and does not warrant further review by this Court. 1. At the outset, we note that petitioner's challenge to the extent of a downward departure does not present an appealable issue. A court of appeals lacks jurisdiction over the claim that the district court should have departed downward from the Sentencing Guidelines range to a greater extent than it did. United States v. Left Hand Bull, 901 F.2d 647, 650 (8th Cir. 1990); United States v. Pighetti, 898 F.2d 3, 4-5 (1st Cir. 1990); United States v. Wright, 895 F.2d 718 (11th Cir. 1990). That principle follows from the general rule that a district court's discretionary refusal to depart downward from the Sentencing Guidelines range is not subject to review on appeal. United States v. Tucker, 892 F.2d 8, 9-11 (1st Cir. 1989); United States v. Colon, 884 F.2d 1550, 1552 (2d Cir.), cert. denied, 110 S. Ct. 553 (1989); United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989); United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.), cert. denied, 111 S. Ct. 65 (1990); United States v. Draper, 888 F.2d 1100, 1105 (6th Cir. 1989); United States v. Franz, 886 F.2d 973, 976 (7th Cir. 1989); United States v. Ybabez, 919 .2d 508, 510 (8th Cir. 1990); United States v. Morales, 898 F.2d 99, 102-103 (9th Cir. 1990); United States v. Maldonado-Campos, 920 F.2d 714, 718 (10th Cir. 1990); United States v. Ortez, 902 F.2d 61, 63-64 (D.C. Cir. 1990); United States v. Fossett, 881 F.2d 976, 979-980 (11th Cir. 1989). See also United States v. Rojas, 868 F.2d 1409, 1410 (5th Cir. 1989). The Sentencing Reform Act specifically defines when a defendant can seek appellate review of the sentence he receives. 18 U.S.C. 3742(a). A defendant may appeal when a sentence: (1) was imposed in violation of law; or (2) was imposed as a result of an incorrect application of the sentencing guidelines; or (3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation or supervised release than the maximum established in the guideline range; or (4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable. Ibid. Because the sentence in this case represents a 50-month downward departure from the lower end of the indicated Guidelines range of 210-262 months, petitioner has no appealable issue. Section 3742(a)(1) does not apply, because the decision to depart downward to one sentence rather than another cannot be a "violation of law." See, e.g., United States v. Tucker, 892 F.2d at 10 (total refusal to depart downward is not a "violation of law"). Because the decision to depart from the Guidelines is itself discretionary, e.g., United States v. Paulino, 873 F.2d 23, 25 (2d Cir. 1989), the extent of a downward departure is likewise discretionary. Section 3742(a)(2) does not apply because there is no dispute about the proper calculation of the Guidelines range; the dispute is simply over the extent of the departure from that range. See, e.g., United States v. Tucker, 892 F.2d at 10-11 (total refusal to depart downward is not an "incorrect application" of the Guidelines). Section 3742(a)(3) does not apply because the sentence is less than the Guidelines range. And Section 3742(a)(4) does not apply because petitioner's offense was one for which there is a Sentencing Guideline. Accordingly, the petition does not present an appealable issue. See generally Left Hand Bull, 901 F.2d at 650; Pighetti, 898 F.2d at 4-5; Wright, 895 F.2d at 719-722. 2. Even if petitioner's claim were subject to review, he could not prevail, for several reasons. a. Petitioner received a windfall when the district court departed downward from the Sentencing Guidelines range and imposed a 160-month sentence on the basis of petitioner's age. As the court of appeals noted, age is generally not a valid basis for a downward departure. Pet. App. 3 n.2. Age may be considered only if the defendant is elderly and infirm, and also if some other form of confinement (such as home detention) can be used in place of incarceration. Sentencing Guidelines Section 5H1.1. Thus, petitioner is in no position to complain that the district court erred by not giving him an even greater windfall than he already received. b. Moreover, the district court did not commit reversible error in imposing a 160-month sentence, instead of a 150-month sentence, because of the court's assessment of the likelihood that West Virginia would reincarcerate petitioner for his morphine offense. A decision to depart from the Sentencing Guidelines lies within the sound discretion of the sentencing court. Sentencing Guidelines Section 5K2.0; United States v. Paulino, 873 F.2d at 25. The propriety and degree of a departure from the Guidelines, when subject to review is measured by a standard of reasonableness. 18 U.S.C. 3742(e)(3) and (f)(2); e.g., United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, 110 S. Ct. 177 (1989). Because it was reasonable for the district court to conclude that West Virginia would "do nothing," Pet. App. 14, it was likewise reasonable for the court to depart downward to a sentence of 160 months' imprisonment, rather than the 150-month sentence the court had briefly and provisionally announced. See Diaz-Villafane, 874 F.2d at 49 (propriety of degree of departure measured by standard of reasonableness). The extent of the district court's departure thus was not an abuse of the discretion that the court enjoys under the Guidelines. c. The district court also did not commit reversible error by predicting that West Virginia would not seek to reincarcerate petitioner. At sentencing, a district court has wide discretion to determine what information to consider and what weight to give it. As this Court has explained, a sentencing judge may "conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." United States v. Tucker, 404 U.S. 443, 446 (1972). Under the Sentencing Reform Act of 1984, 18 U.S.C. 3551-3742 and 28 U.S.C. 991-998, all reliable evidence is admissible at sentencing. The Act specifically provides that "(n)o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." 18 U.S.C. 3661. The Sentencing Guidelines embrace those principles. Section 6A1.3 of the Guidelines provides that a district court may consider any reliable evidence, including hearsay, at sentencing. Sentencing Guidelines Section 6A1.3 (Policy Statement). /2/ Once the reliability of that information has been established, the court may use the information to determine the appropriate punishment. United States v. Silverman, 889 F.2d 1531, 1535 (6th Cir. 1989); United States v. Sciarrino, 884 F.2d 95 (3d Cir.), cert. denied, 110 S. Ct. 553 (1989); see also United States v. Roberts, 881 F.2d 95, 105-106 (4th Cir. 1989). In this case, petitioner cannot credibly claim that the information on which the district court relied in determining the extent of its downward departure was inaccurate or unreliable. That information -- namely, that petitioner had been in continuous federal custody since his arrest several months before and state authorities had done nothing to return him to state custody -- was supplied by petitioner's own attorney and was not disputed by the government. Pet. App. 14. Nor did petitioner object to the sentencing court's consideration of that information. /3/ Petitioner's real quarrel, as the court of appeals pointed out, Pet. App. 5, is not with that undisputed information, but with the inference that the district court drew from it. That inference -- that West Virginia would do nothing -- was surely justified in light of the State's previous inaction, petitioner's age, and the overcrowded conditions in the West Virginia prison system. Pet. App. 5 n.4. Finally, petitioner's assertion, Pet. 16, that West Virginia has in fact required him to serve his state sentence is beside the point. The district court was not required to defer sentencing until the State decided whether it would enforce its sentence. As noted above, the undisputed evidence available to the district court at sentencing strongly suggested that West Virginia was not likely to require petitioner to serve the remaining portion of his sentence. The fact that the court's prediction did not prove accurate does not retroactively render that prediction an improper basis for imposing sentence. United States v. Pighetti, 898 F.2d at 5. 3. There is no need to hold this case pending the Court's decision in Burns v. United States, No. 89-7260 (argued Dec. 3, 1990). The question in Burns is whether the Due Process Clause or the Sentencing Reform Act requires a district court to give the defendant notice before the sentencing hearing of the court's intent to depart upward from the Sentencing Guidelines range. In this case, by contrast, the district court departed downward. Because the only party in this case that could have been prejudiced by the lack of notice was the government, not petitioner, the Court's decision in Burns will not affect the outcome of this case. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS M. GANNON Attorney MARCH 1991 /1/ Petitioner did not dispute this calculation in the courts below. Pet. App. 2. /2/ This policy statement provides that: (a) . . . In resolving any reasonable dispute concerning a factor important to the sentencing determination, the 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. /3/ That it was proper for the district court to consider West Virginia's intention at the time of petitioner's sentencing hearing was confirmed by the 1989 amendment of Sentencing Guideline Section 5G1.3. As the court of appeals noted, that amendment "provides additional support for the proposition that the length of an unexpired state sentence is a relevant factor in the determination of the federal sentence." Pet. App. 4 n.3.