RONALD PATRICK WILLIAMS, PETITIONER V. UNITED STATES OF AMERICA No. 90-7682 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 Third Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-2) is unreported. /1/ JURISDICTION The judgment of the court of appeals was entered on December 3, 1990. Pet. App. 2. A petition for rehearing was denied on January 11, 1991. Pet. App. 3. The petition for a writ of certiorari was filed on March 10, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether a district court may analogize to the sentence a defendant would have received if sentenced as a career offender under Sentencing Guidelines Section 4B1.1 in determining the extent of an upward departure from the Guideline sentence because of the inadequacy of the highest criminal history category to take account the defendant's criminal history, as provided by Sentencing Guideline Section 4A1.3. 2. Whether the district court properly determined that prior convictions not taken into account in determining petitioner's Guideline sentence justified an upward departure under Sentencing Guidelines Section 4A1.3. STATEMENT Petitioner pleaded guilty in the United States District Court for the Western District of Pennsylvania to a charge of possession of stolen municipal bonds, in violation of 18 U.S.C. 2315, and nolo contendere to a charge of conspiring to possess and sell stolen municipal bonds, in violation of 18 U.S.C. 371. The district court sentenced petitioner to a total of 84 months' imprisonment to be followed by five years' supervised release. The court of appeals affirmed. 1. Petitioner met on February 5, 1988, with a confidential informant and an undercover agent of the Internal Revenue Service and offered to sell to the agent for $70,000 municipal bonds having a face value of $150,000. Petitioner and the agent arranged to meet later that evening to consummate the transaction. When the parties met at the appointed time, petitioner told the agent that an associate had the bonds out in the parking lot. When petitioner met his codefendant at a vehicle in the parking lot, the two were arrested and the bonds were recovered. Presentence Report 9-10. Petitioner was indicted and convicted. 2. The offenses of conviction yielded a combined offense level of 10. Presentence Report 10-11. Petitioner's extensive criminal history score placed him in criminal history category VI. Id. at 11-17. The resulting Guideline range was 24 to 30 months' imprisonment. Id. at 17; see Sentencing Guidelines Section 5A. At the sentencing hearing, the district court commented extensively on petitioner's prior criminal history: This particular defendant started on a career of criminal activity at age twenty-seven, 1966, when he was found guilty of burglarizing a store * * * and has continued, except for the time he's been incarcerated, unabated, constantly, continuously over a period of * * * pretty close to twenty-two years. * * * (H)e was found guilty of at least four armed robberies, a burglary, a larceny, a retail theft, and two other robberies, over a period of twenty years up to the time he committed the offense now before this Court. There is absolutely no doubt at all that, except for the time this man was in prison, he was out committing crimes over that period of time continuously. C.A. App. 221-222. Based on this history, the district court determined that the Sentencing Guidelines did not adequately take petitioner's record into account. As the court explained, category six does not, in any way, properly reflect the seriousness of (petitioner's) criminal history. If there ever was a case of a person being defined and recognized as a criminal -- a career criminal, (petitioner) is a criminal, and a career criminal, even though not technically as the same is defined by the Uniform Sentencing Guidelines. Id. at 223. The court then summarized the ways in which the Sentencing Guidelines failed to treat petitioner's particular crimes adequately. First, it noted that he received no criminal history points for a 1967 burglary conviction. /2/ Second, it noted that petitioner received only three criminal history points for two separate bank robbery convictions, one of which was an armed robbery. /3/ Third, the district court noted that petitioner received only two points for a $42,000 robbery in Mayfield Heights, Ohio, in December 1982, because he received a six-month sentence for that robbery, "despite an extensive prior record of armed robberies and other serious crimes." /4/ Finally, the district court determined that the Presentence Report mistakenly failed to take into consideration an armed robbery in Hubbard, Ohio, for which petitioner had received a ten to twenty-five year sentence. C.A. App. 225-227. Accordingly, the district court determined that it was appropriate to depart upward from the Guideline range and sentence petitioner to 84 months' imprisonment. See Sentencing Guidelines 4A1.3 (Policy Statement). /5/ In determining the extent of the departure, the court noted that petitioner would have received a sentence of 100-125 months if he had been sentenced as a career offender /6/ and noted repeatedly its conclusion that petitioner was as a practical matter a career criminal. C.A. App. 189-197, 221-224. Accordingly, because petitioner was not technically a career offender under the Sentencing Guidelines, the court sentenced petitioner to 84 months' imprisonment, considerably less than the lowest sentence he would have received under the career offender Guideline. 3. On appeal, petitioner challenged the district court's authority to depart from the Guidelines and the extent of the departure. The court of appeals affirmed without opinion (Pet. App. 1-2). ARGUMENT 1. The Sentencing Guidelines generally determine an appropriate sentencing range by considering two factors: the nature of the offense, which establishes the offense level under Chapter Two of the Sentencing Guidelines, /7/ and the defendant's criminal history, which establishes the number of criminal history points under Part A of Chapter Four of the Sentencing Guidelines. Pursuant to the Sentencing Table set forth in Chapter Five of the Sentencing Guidelines, the criminal history points are placed into six separate categories, with the highest category applying to defendants with 13 or more criminal history points. For certain defendants with a serious history of violent or drug-related crimes, the career offender provisions of Sentencing Guidelines Section 4B1.1 provide for determination of the sentence on the basis of an enhanced offense level, determined by reference to the maximum permitted sentence, with automatic treatment of the defendant as falling into criminal history category VI, without regard to the defendant's criminal history points. Section 4A1.3 of the Sentencing Guidelines recognizes that in many cases, like this one, the criminal history points may not accurately reflect a defendant's criminal history, and that in such cases "a court may consider imposing a sentence departing from the otherwise applicable guideline range." Ibid. In general, the extent of these departures should be determined by "us(ing), as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable." Ibid. This approach cannot work, though, for departures above criminal history category VI, because there is no higher Guideline range to compare. In this case, the district court chose to determine the extent of the departure by analogizing to the career offender Guideline sentencing ranges. Petitioner does not contest the district court's determination that a departure was appropriate. Instead, his challenge focuses on the way in which the district court determined the extent of the departure. He contests the district court's approach in two ways. First, petitioner contends (Pet. 4-8) that this Court should adopt a bright-line rule that requires determination of the extent of upward departures from category VI by extrapolation from the sentencing ranges in the existing categories. Second, he contends (Pet. 9-10) that it always is incorrect for a district court to determine the extent of the departure by analogy to the sentences given career offenders. Neither contention merits plenary review. a. The only authority in support of petitioner's argument for a bright-line rule is the decision of the Seventh Circuit in United States v. Schmude, 901 F.2d 555, 559-560 (7th Cir. 1990). In that case, the Seventh Circuit considered an upward departure from category VI that resulted in a 60-month sentence where the Guideline range was 21 to 27 months. The sole basis for the departure was that the defendant had a previous criminal conviction for conduct that strongly resembled the conduct in question. Because the grounds for the departure seemed to justify an increase of about one criminal history category, the court held that the trial court should consider whether an upward departure of ten to fifteen percent would be appropriate, noting that the Guideline sentencing ranges increase by about ten to fifteen percent for each criminal history category. Id. at 559-560. Whatever the merits of the approach articulated in Schmude, /8/ for several reasons we do not believe that it justifies review of the petition in this case. First, the justification for the departure in this case is dramatically more extensive than the justification in Schmude. It is one thing to say that the single factor identified in Schmude generally should justify a departure of an extent approximating a single criminal history category. It is quite another to apply that approach to a case, like this one, where the district court believed that the defendant's criminal history was, as a practical matter, "off the scale." It makes perfect sense for district courts in cases like this one to refer to the career offender Guideline rather than to hypothetical additional criminal history categories. Application of the Schmude approach here, as petitioner articulates it, would require extrapolation of at least four new categories beyond the six created by the Sentencing Commission. Because the facts here differ so much from the facts in Schmude, it is not at all clear that the Schmude panel would have applied its analysis in this case. Accordingly, we disagree with petitioner's argument that this case conflicts with Schmude. Also, because the Third Circuit's decision in this case is unpublished, it has no precedential value, so it does not affect the published state of the law in the Third Circuit. Moreover, the brevity of the order makes it difficult to ascertain the court's reasons for affirming the decision of the district court. Considering the factual distinctions between this case and Schmude, the absence of a full-dress published opinion explaining the reasoning of the court below makes this a particularly poor vehicle for examining the validity of the approach articulated in Schmude. Finally, as this Court has recognized, the task of developing firm standards for the application of Section 4A1.3 is better left to the United States Sentencing Commission, which has the duty to review and revise the Guidelines where appropriate. The Commission's regular revision of the Guidelines and the consequent resolution of conflicting approaches in the circuits significantly diminish the need for this Court to use its certiorari jurisdiction to resolve most Guidelines issues. See Braxton v. United States, No. 90-5358 (May 28, 1991), slip op. 4. If decisions on this point lead to serious uncertainty, the Commission can resolve the matter through the amendment process. b. Petitioner also asserts (Pet. 9-10) that it is inappropriate for a district court calculating the extent of a departure under Sentencing Guidelines Section 4A1.3 to rely on the sentencing ranges set forth under the career offender Guideline, Section 4B1.1, contending that this practice conflicts with decisions in other circuits. Contrary to petitioner's suggestion, it is entirely appropriate for a district court considering a person with an extensive criminal history like that of petitioner to rely on the sentences set forth under the career offender Guideline. The sentencing ranges set in that Guideline offer the best analogy for the court in determining what type of sentence is appropriate for someone with conduct that justifies so extensive a departure from the highest existing criminal history category. The decisions on which petitioner relies do not in any way suggest that the district court erred in this case. In all of those cases, district courts erroneously looked to the career offender Guideline to justify departing in the first place, not to determine the extent of the departure. Those cases suggest only that a court should apply the standard set forth in Sentencing Guidelines Section 4A1.3 to determine whether a departure is appropriate, and shed no light on the proper way to determine how large the departure should be. See United States v. Delvecchio, 920 F.2d 810, 813-815 (11th Cir. 1991); United States v. Colon, 905 F.2d 580, 586 (2d Cir. 1990); United States v. Hawkins, 901 F.2d 863, 866 (10th Cir. 1990). Thus, none of the cases is inconsistent with the decision here, which properly applied Sentencing Guidelines Section 4A1.3 to the threshold question of whether a departure was appropriate. 2. Petitioner also asserts (Pet. 11-15) that the district court impermissibly relied upon "ancient prior convictions" in deciding to depart under Sentencing Guidelines Section 4A1.3. Specifically, petitioner contends that the Guidelines permit a departure only when the prior convictions "are similar to the instant offense" (Pet. 12). The commentary to the Guidelines expressly recognizes, however, that the point system for weighing the seriousness of a defendant's criminal history is imprecise at best, and "(i)n recognition of the imperfection of this measure, * * * Section 4A1.3 permits information about the significance or similarity of past conduct underlying prior convictions to be used as a basis for imposing a sentence outside the applicable guideline range." Sentencing Guidelines Section 4A1.1, Background (emphasis added). The significance of the two crimes that fell outside the 15-year time limit was that -- without regard to whether they were similar to this crime -- they provided additional evidence of petitioner's recidivist tendencies, not taken into account in calculating petitioner's criminal history points. In any event, petitioner's conviction for possession of stolen securities was "related" to the two older crimes to which the district court referred at sentencing. The two crimes that fell outside the 15-year limit were a burglary and a robbery. The stolen securities involved in this case were obtained through a burglary of a home. Within days after the burglary, petitioner agreed to act as a "fence" and dispose of the stolen securities. See C.A. App. 22-23. In this case, petitioner was an accessory after-the-fact to a crime much like crimes he had committed several times before. See United States v. Carey, 898 F.2d 642, 646 (8th Cir. 1990) (prior convictions for similar conduct supported upward departure). Thus, the result below does not conflict with the result in the Ninth Circuit cases cited by petitioner (Pet. 13), which have held that remote convictions may be considered only where they relate to the offense for which the defendant is being sentenced. E.g., United States v. Leake, 908 F.2d 550, 554 (9th Cir. 1990). /9/ 3. Finally, petitioner contends (Pet. 16-19) that this Court should grant certiorari because his codefendant received a lesser sentence for the same crime even though he and petitioner had comparable criminal histories. That claim, which was not presented to the court of appeals, surely does not warrant review by this Court. /10/ 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 ANDREW LEVCHUK Attorney JUNE 1991 /1/ The appendix to the petition served upon the government is not separately paginated. Citations in this brief to specific pages of the appendix are based upon consecutive pagination of the appendix. /2/ Pursuant to Sentencing Guidelines Section 4A1.2(e)(1), offenses more than fifteen years old do not count toward calculation of criminal history points under Sentencing Guidelines Section 4A1.1. /3/ Pursuant to Sentencing Guidelines Section 4A1.2(a)(2), sentences imposed in related cases are treated as one sentence. Because the sentences petitioner received in this one case exceeded thirteen months, he received only three points under Sentencing Guidelines Section 4A1.1(a), although he would have received six points if the two cases had been treated separately. /4/ Pursuant to Sentencing Guidelines Section 4A1.1, the criminal history points attributable to a prior conviction depend upon the length of the sentence imposed in that case. Section 4A1.1(b) provides that two points are given for sentences of at least sixty days but not exceeding one year and one month. /5/ Sentencing Guidelines Section 4A1.3 (Policy Statement) provides that "(i)f reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range." /6/ Sentencing Guidelines Section 4B1.1 provides for elevated sentences for career offenders. This guideline applies if the defendant was at least eighteen years old at the time of this offense, this offense involved violence or drugs, and the defendant has at least two prior felony convictions involving violence or drugs. If that rule applies, the defendant is treated in all cases as having a criminal history category of VI, and is sentenced under an elevated offense level determined by reference to the statutory maximum punishment. Petitioner had two prior felony convictions for armed robbery, but was not covered by the career offender rule because this offense did not involve violence or drugs. /7/ The offense level is subject to a number of adjustments for matters such as acceptance of responsibility or extent of the defendant's participation, as described in Chapter Three of the Sentencing Guidelines. /8/ We note that Schmude's preference for a firm rule-based approach to this type of departure creates a substantial tension with the views of several other courts, which have concluded that these cases involved a "judgment call," which does not lend itself to the promulgation of firm rules. See, e.g., United States v. Perez-Magana, 929 F.2d 518, 522 (9th Cir. 1991) (declining to adopt Schmude approach); United States v. Ocasio, 914 F.2d 330, 336 (1st Cir. 1990) (rejecting "any bright-line rule that requires a sentencing judge, in essaying an upward departure from Category VI, to subrogate his or her residual discretion to some explicit or external criteria," but remanding where district court had failed to explain reasons for selecting degree of departure); United States v. Russell, 905 F.2d 1450, 1456 (10th Cir.) (court of appeals unwilling to "improvise some mechanical extension" that effectively would create new criminal history categories to assess reasonableness of departures above category VI), cert. denied, 111 S. Ct. 267 (1990). /9/ We note, however, that the Second Circuit has implicitly rejected the Ninth Circuit's approach in United States v. Uccio, 917 F.2d 80, 86 (2d Cir. 1990). In that case the Second Circuit drew a distinction between departures under Section 5K2.0 (where acts of misconduct that relate in some way to the offense of conviction can be used as the basis of a departure) and departures under Section 4A1.3 (where the prior misconduct need not be related to the offense of conviction). /10/ This case need not be held pending the Court's disposition of United States v. Williams, 910 F.2d 1574 (7th Cir. 1990), cert. granted, No. 90-6297 (March 18, 1991). The issue in that case is whether an appellate court may uphold a departure from the Guidelines where some but not all of the reasons given by the district court are impermissible. That issue is not presented here, because the court of appeals did not determine that any of the reasons for departure articulated by the district court were incorrect.