HARRY VAN DYKE AND KEVIN PLUMMER, PETITIONERS V. UNITED STATES OF AMERICA No. 89-7757 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 OPINIONS BELOW The opinion of the court of appeals in petitioner Van Dyke's case (Pet. App. I1-I4) is reported at 895 F.2d 984. The opinion of the court of appeals in petitioner Plummer's case (Pet. App. III1-III2) is unreported. JURISDICTION The judgment of the court of appeals in petitioner Van Dyke's case was filed on February 12, 1990, and in petitioner Plummer's case on March 15, 1990. A petition for rehearing filed by petitioner Van Dyke was denied on March 15, 1990. Pet. App. II1-II2. The petition for a writ of certiorari was filed on behalf of both petitioners on June 12, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether a district court at sentencing may depart downward from the sentence mandated by the Sentencing Guidelines on the ground that the defendant has attempted to rehabilitate himself since committing the offense for which he is being sentenced. STATEMENT 1. Petitioner Van Dyke pleaded guilty to one count of possessing one kilogram of heroin with the intent to distribute it, in violation of 21 U.S.C. 841(a)(1), and one count of possessing a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1). He was sentenced to 180 months' imprisonment, to be followed by five years' supervised release. The government appealed. The court of appeals vacated petitioner Van Dyke's sentence and remanded the case for resentencing. Pet. App. I1-I4. a. On February 10, 1988, petitioner Van Dyke was arrested. He was in possession of more than one kilogram of heroin and two loaded handguns. Calculating his sentence under the Sentencing Guidelines, the presentence report assigned Van Dyke an offense level of 34 and placed him in criminal history category II. That calculation resulted in a range of 168-210 months' imprisonment. Pet. App. I2. At sentencing, the government asked the court to impose a sentence of 16 years on petitioner Van Dyke's heroin conviction. The prosecutor also noted that the firearms conviction carried a mandatory consecutive sentence of five years' imprisonment. The government therefore recommended that the court impose a total sentence of 21 years' imprisonment. C.A. App. 24. The district court sentenced petitioner Van Dyke to 10 years' imprisonment on his heroin conviction and to a consecutive five-year sentence on his firearms conviction. C.A. App. 36. The government pointed out that the court's sentence represented a downward departure from the Guidelines and asked the court to place on the record its reasons for the departure. Id. at 37-40. The court then said, id. at 40: You may be right. I don't know if you are right. I intend to keep the sentence as I have it; and I would say for the record, if what I have done constitutes a downward departure in the Guideline sentence, I feel that the court is satisfied that the defendant is trying to rehabilitate himself, and therefore I don't think a longer sentence is required. b. The court of appeals vacated the judgment and remanded the case for resentencing. The court noted that in stating that "the defendant (was) trying to rehabilitate himself," the district court was referring to petitioner Van Dyke's post-arrest involvement in drug abuse treatment and counseling. Post-arrest rehabilitative efforts, the court of appeals held, are "equivalent" to the kinds of behavior that the Commentary to Guidelines 3E1.1 allows a district court to consider in determining whether a defendant has accepted responsibility for the offense. Pet. App. I4. Thus, the court concluded, petitioner Van Dyke's "post offense conduct was not 'an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration' by the Sentencing Commission * * * and hence cannot serve as an independent basis for departure." Ibid. 2. Petitioner Plummer pleaded guilty to bank robbery, in violation of 18 U.S.C. 2113(a). He was sentenced to 24 months' imprisonment, to be followed by three years' supervised release. The government appealed petitioner Plummer's sentence, and the court of appeals vacated the sentence and remanded for resentencing. Pet. App. III1-III2. a. On March 21, 1989, petitioner Plummer robbed a federally insured bank in Baltimore. His presentence report assigned him an offense level under the Sentencing Guidelines of 17 and placed him in criminal history category V. That combination resulted in a sentencing range of 46-57 months' imprisonment. C.A. App. 12-15. The district court departed downward from the calculated sentencing range because it found that "the success the defendant had had in (a) drug treatment program, which has helped his rehabilitation, deserves recognition and is something that was not fully contemplated by the Sentencing Commission in the formulation of its guidelines." C.A. App. 107. The court imposed a sentence of 24 months' imprisonment. Id. at 65. b. Relying on its decision in Van Dyke's case, the court of appeals summarily reversed. It vacated Plummer's sentence and remanded the case with instructions to the district court to impose a sentence within the appropriate Guidelines range. Pet. App. III2. ARGUMENT Petitioners claim that the court of appeals erred in holding that post-arrest drug rehabilitation does not constitute a ground for departing downward from the sentencing range set by the Sentencing Guidelines. They contend that the Sentencing Commission did not consider this factor in promulgating the Guidelines, and that a district court therefore may properly rely on it as a ground for a downward departure. The court of appeals correctly rejected that contention, and its decision does not warrant review by this Court. The Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq. and 28 U.S.C. 991-998, requires a district court to impose a sentence within the range defined by the Sentencing Guidelines unless the court "finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines." 18 U.S.C. 3553(b). Guidelines Section 5K2 implements that provision. It lists several grounds on which a district court may base a departure. It also explains that when the Commission has considered a factor, the court may depart from the Guidelines based on that factor only "if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate." Guidelines Section 5K2.0; see also Guidelines Section 1A4(b) (a departure is appropriate only in "atypical" and "unusual" cases in which conduct "significantly differs from the norm"). In this case, the court of appeals correctly found that the Sentencing Commission had taken a defendant's post-offense rehabilitative efforts into consideration. The Commission considered that factor in connection with Guidelines Section 3E1.1, which allows a district court to reduce a defendant's Guidelines offense level, and therefore his sentence, if the defendant accepts responsibility for his or her offense. The Application Notes to Guidelines Section 3E1.1 list several actions the defendant may take to demonstrate that he has accepted responsibility. Those actions include post-offense acts such as voluntary payment of restitution prior to the adjudication of guilt, voluntary assistance to the authorities in the recovery of the fruits and instrumentalities of the offense, and voluntary surrender to authorities promptly after commission of the offense. In a "Background" note, the Commission explained that "a defendant who clearly demonstrates a recognition and affirmative acceptance of personal responsibility for the offense by taking, in a timely fashion, one or more of the actions listed above (or some equivalent action) is appropriately given a lesser sentence than a defendant who has not demonstrated sincere remorse." As the court of appeals concluded, a post-offense effort at rehabilitation is an action "equivalent" to the examples of post-offense conduct listed in the Application Notes to Guidelines Section 3E1.1. Like the actions listed in the Application Notes, post-offense rehabilitation is relevant to the sentencing decision because it shows that the defendant has accepted responsibility for his offense. Thus, petitioners' efforts at rehabilitation have been adequately taken into consideration in the Guidelines and may not serve as a basis for a downward departure from the Guidelines sentence. See, e.g., United States v. Uca, 867 F.2d 783, 786 (3d Cir. 1989) (no departure permitted on grounds adequately considered by Sentencing Commission). That conclusion accords with Congress's intent in enacting the Sentencing Reform Act of 1984. Congress focused the Sentencing Commission's attention on the character of the offense, see 28 U.S.C. 994(c), and declared that most personal factors are inappropriate grounds for determining the proper sentence, see 28 U.S.C. 994(d) and (e). Thus, post-offense behavior, such as an effort at rehabilitation, ordinarily is not relevant to sentencing under the Guidelines. In the 1984 Act, "Congress abandoned the rehabilitation model that shaped penology in the Twentieth Century." United States v. Mejia-Orosco, 867 F.2d 216, 218, modified, 868 F.2d 807 (5th Cir.), cert. denied, 109 S. Ct. 3257 (1989). See United States v. Mistretta, 109 S. Ct. 647, 652 (1989); United States v. Scroggins, 880 F.2d 1204, 1206-1208 (11th Cir. 1989), cert. denied, 110 S. Ct. 1816 (1990); United States v. Pinto, 875 F.2d 143, 145 (7th Cir. 1989). The Act specifically requires the Sentencing Commission to "insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant." 28 U.S.C. 994(k). Congress likewise directed that in determining whether to impose a sentence of imprisonment, sentencing courts should "recogniz(e) that imprisonment is not an appropriate means of promoting correction and rehabilitation." 18 U.S.C. 3582(a). See also 18 U.S.C. 3553(a) (rehabilitation is not a goal of sentencing). Accordingly, the court of appeals correctly held that post-offence efforts at rehabilitation should carry little weight in the sentencing decision. /1/ Petitioners claim, Pet. 6-7, that the decision below conflicts with the Sixth Circuit's decision in United States v. Maddalena, 893 F.2d 815 (1989), but that case is distinguishable. /2/ In Maddalena, the defendant satisfied the definition of a career offender under Guidelines Section 4B1.1, which requires that a defendant convicted of a violent or controlled substance felony be placed in the highest criminal history category if he has two prior violent or controlled substance felony convictions. Maddalena therefore received a sentence substantially longer than the one he would have received absent the career offender finding. He presented evidence that between the commission of the prior felonies and the offense for which he was being sentenced, he made extensive efforts to overcome a drug dependency. The district court held that it could not consider that evidence in deciding whether to depart downward from the Guidelines range. The court of appeals reversed, holding without extensive discussion that the district court could consider the defendant's pre-offense attempts to stay away from drugs. 893 F.2d at 817-818. Maddalena allows a district court to depart downward from the sentence mandated by the Guidelines career offender provision if the court finds that the defendant's conduct between the prior offenses and the offense of conviction proves that he does not deserve an enhanced sentence as a career offender. Maddalena thus allows a district court to consider pre-offense behavior to moderate the effect of the career offender provision; it does not, however, authorize a district court to consider post-offense efforts at rehabilitation as a justification for departing downward from the appropriate Guidelines range. Maddalena therefore does not conflict with the decision in this case. /3/ Petitioners suggest that because courts have allowed upward departures based on a defendant's post-offense drug use, symmetry requires that defendants be given the benefit of a downward departure based on their post-offense rehabilitation. Pet. 7. But that analogy is specious. Post-offense drug use is a crime and would violate the conditions of a defendant's release on bail. A district court is therefore clearly justified in increasing a defendant's sentence to take such additional criminal behavior into account. 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 J. DOUGLAS WILSON Attorney JULY 1990 /1/ Moreover, in petitioner Van Dyke's case the district court's remark that Van Dyke had attempted to rehabilitate himself was plainly just an afterthought. The court made that comment after stating its belief that Van Dyke's sentence was not below what the Guidelines required. /2/ Petitioners also err in claiming that the Fourth Circuit's decision in this case conflicts with its later decision in United States v. Braxton, 903 F.2d 292 (1990). Pet. 6 n.1. In Braxton, a mentally ill defendant accepted responsibility for his offense, but the district court denied him credit on the ground that the defendant's mental illness prevented him from becoming rehabilitated. The Fourth Circuit held that the district court had misconstrued Guidelines Section 3E1.1 by requiring that a defendant be on the road toward rehabilitation before he is eligible to received credit for accepting responsibility. That ruling does not conflict with the Fourth Circuit's ruling in this case. In any event, an alleged intra-circuit conflict is a matter for the court of appeals, not this Court, to resolve. Wisniewski v. United States, 353 U.S. 901 (1957). /3/ Petitioners also contend, Pet. 7, that the court of appeals' decision conflicts with the district court decisions in United States v. Sergio, 734 F. Supp. 842 (N.D. Ind. 1990), and United States v. Rodriguez, 724 F. Supp. 1118 (S.D.N.Y. 1989). In Sergio, however, the district court followed the Fourth Circuit's decision in this case in deciding not to depart on the basis of the defendant's post-offense attempts to overcome a drug dependency. 734 F. Supp. at 848. Petitioner is correct that the district court in Rodriguez held that it could depart downward from a Guidelines sentence because, after committing the offense at issue, the defendant had overcome drug addiction, had obtained employment, and had been reunited with his family. 724 F. Supp. at 1119, 1122. The court in Rodriguez, however, was careful to find that the defendant's rehabilitation in that case was the sort of atypical conduct that warrants a departure from the Guidelines, while the district courts here made no such finding. In any event, the Rodriguez analysis has not been accepted by any court of appeals. Review by this Court based on the asserted conflict between the decision of the court of appeals in this case and the district court in Rodriguez therefore would be premature.