JEFFREY LYNN HOWARD, PETITIONER V. UNITED STATES OF AMERICA No. 90-5824 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 OPINIONS BELOW The opinion of the court of appeals (Pet. App. 25-31) is reported at 902 F.2d 912. The opinion of the district court (Pet. App. 12-24) on the applicability of a mandatory minimum term of imprisonment to petitioner's offenses is reported at 703 F. Supp. 1493. The memorandum opinion of the district court (Pet. App. 32-35) staying petitioner's resentencing after remand from the court of appeals is not reported. JURISDICTION The judgment of the court of appeals was entered on June 5, 1990. A petition for rehearing filed by two other appellants in this case was denied on July 31, 1990. See Sup. Ct. R. 13.4. The petition for a writ of certiorari was filed on September 14, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the evidence was sufficient to sustain petitioner's conviction for conspiring to distribute cocaine. 2. Whether the district court abused its discretion in declining to grant petitioner a separate trial. 3. Whether, when the district court erroneously sentenced petitioner without regard to the Sentencing Guidelines and petitioner challenged his sentence on other grounds, the court of appeals erred in remanding for resentencing in accordance with the Sentencing Guidelines. STATEMENT After a jury trial in the United States District Court for the Northern District of Alabama, petitioner was convicted on one count of conspiring to distribute more than five kilograms of cocaine (21 U.S.C. 846), and two counts of distributing cocaine (21 U.S.C. 841(a)(1)). He was sentenced to 10 years' imprisonment, to be followed by a three-year special parole term. The court of appeals affirmed petitioner's convictions but remanded for resentencing under the Sentencing Guidelines. Pet. App. 25-31. 1. The evidence at trial showed that petitioner and co-defendants Ronald Hayes, Adam Butler, Haskell Watson, Herman Curry, Sam Hayes, and Harold Singleton conspired to distribute large quantities of cocaine in the Birmingham, Alabama, area between November 1986 and September 1988. /1/ Ronald Hayes headed the organization, while petitioner and Curry distributed cocaine for him, Singleton acted as a drug courier, and Butler functioned as Hayes' chief assistant and armed security guard with responsibility to deliver money for Hayes' cocaine purchases. Sam Hayes served as an intermediary between the organization and Watson, the organization's Los Angeles supplier of cocaine. Gov't C.A. Br. 6-22, 27-43. Petitioner was implicated in several cocaine transactions. On June 16, 1987, petitioner acted as a bodyguard for Ronald Hayes while Hayes sold one-half ounce of cocaine to an undercover police officer. Id. at 9-10, 35-36. On July 10, 1987, Hayes had petitioner deliver four ounces of cocaine to the same undercover officer while Hayes stood by and received payment for the cocaine. During the transaction, petitioner told the officer to stop trying to obtain cocaine through John Kirby (who, unbeknownst to the conspirators, was a police informant). Petitioner said that the officer should instead deal directly with Hayes or with petitioner. Id. at 13, 36. Thereafter, petitioner served as a messenger to Hayes between July 24 and August 14, 1987, when the undercover officer attempted to purchase one-half kilo of cocaine from Hayes. Id. at 13-14, 36. And several other times in late 1986 petitioner and Curry delivered one-ounce quantities of cocaine from Hayes to Singleton. Id. at 7, 30, 34, 35. Prior to trial, petitioner moved for a separate trial. Pet. App. 10. The district court denied the motion. 2.a. Before petitioner's sentencing, the full district court had held the Sentencing Reform Act of 1984, 28 U.S.C. 991 et seq., to be unconstitutional. See Pet. App. 14. Accordingly, the district court sentenced petitioner without regard to the Sentencing Guidelines. Concluding that the applicable statutes provided for a mandatory minimum 10-year term of imprisonment for a conspiracy involving more than five kilos of cocaine, the court sentenced petitioner and co-defendants Butler, Watson, Curry, and Sam Hayes to 10 years' imprisonment on the conspiracy count. See Pet. App. 15-23. /2/ b. On appeal, petitioner and co-defendants Watson, Curry, and Sam Hayes argued that the district court had wrongly applied the 10-year mandatory minimum term to the conspiracy count. Co-defendants Butler and Ronald Hayes contended that the district court had erred in failing to sentence them under the Sentencing Guidelines. The court of appeals agreed with both challenges and remanded for resentencing in accordance with the Sentencing Guidelines on all counts except for those charging Ronald Hayes with offenses completed prior to the effective date of the Sentencing Reform Act. Pet. App. 29-31 & n.6. Noting that the conspiracy of which petitioner was convicted did not end until after the effective date of the Guidelines, the court stated that petitioner (and the other defendants convicted on the conspiracy count) "are due to be resentenced under the guidelines." Id. at 30 n.6. The court of appeals held that petitioner's other claims were "without merit and warrant no discussion." Pet. App. 27 n.2. c. After the remand, the district court stayed resentencing pending the disposition of requests by petitioner and his co-defendants for rehearing in the court of appeals. Pet. App. 32-35. The court later granted a further continuance pending disposition of their petitions for certiorari. In the opinion granting the stay, the court volunteered its view that the petitions for rehearing then pending before the appellate court had "considerable merit," and it characterized the court of appeals' mandate requiring resentencing in accordance with the Guidelines as "a gratuitous expression by the Court of Appeals" that was "totally outside the scope of the issues presented to that Court." Id. at 32-33. The district court added that the Guidelines would "in all probability" require sentences for some or all of the defendants that were more severe than the court had previously imposed; that neither the government nor petitioner had challenged the failure to apply the Guidelines; and that co-defendant Singleton, who had pleaded guilty and had not appealed his sentence, would retain the benefit of a sentence more lenient than the Guidelines would permit. Id. at 33-34. Finally, the court suggested that the court of appeals' mandate might "implicate the problem inherent in North Carolina v. Pearce, 395 U.S. 911 (1969)," since the court would not be able to identify conduct occurring after the original sentencing to support a sentence more severe than that initially imposed. Pet. App. 34-35. ARGUMENT 1. Petitioner renews his contention (Pet. 19-23) that the evidence was insufficient to sustain his conviction for conspiring to distribute cocaine; he does not challenge his convictions on the substantive counts. The court of appeals correctly rejected petitioner's fact-bound contention. As detailed above, the evidence at trial showed that Ronald Hayes, who was in charge of the cocaine distribution operation, entrusted cocaine to petitioner on a number of occasions for delivery to couriers and customers of the operation, including the July 10, 1987, sale of cocaine to the government undercover agent and numerous other deliveries in late 1986 to Singleton. In addition, petitioner served a number of other functions within the conspiracy. He was a bodyguard for Hayes during the June 16, 1987 transaction. He informed the undercover agent that in the future the agent should contact either Hayes or petitioner if he wanted cocaine. He served as messenger between the undercover agent and Hayes in arranging a large purchase of cocaine in the summer of 1987. Evidence of the numerous functions served by petitioner in the cocaine distribution operation, as well as evidence of petitioner's close ties to Ronald Hayes, the organizer of the operation, was sufficient "to support (a) rational determination of (petitioner's participation in the conspiracy) beyond a reasonable doubt." United States v. Powell, 469 U.S. 57, 67 (1984). 2. Petitioner also renews his related claim (Pet. 23-29) that, on the paticular facts of this case, the district court abused its discretion in not granting him a severance under Fed. R. Crim. P. 14. Petitioner concedes (Pet. 24-25) that a district court's denial of a motion to sever can be reversed only for abuse of discretion, and that severance will be granted only where the defendant can make a specific showing of prejudice. See United States v. Lane, 474 U.S. 438, 449 n.12 (1986). In addition, petitioner recognizes (Pet. 24) the rule that persons charged in a single conspiracy generally should be tried together. Yet petitioner fails to demonstrate that he suffered any prejudicial effects from the joint trial. Instead, he merely asserts (Pet. 27-28) that the jury must have had difficulty separating the evidence as to each defendant. Such a generalized assertion does not meet the high burden he must shoulder, particularly in light of the fact that, had he received a separate trial, the same evidence would have been admissible on the conspiracy count against him. United States v. Causey, 834 F.2d 1277, 1287-1288 (6th Cir. 1987), cert. denied, 486 U.S. 1034 (1988); United States v. Caporale, 806 F.2d 1487, 1511 (11th Cir. 1986), cert. denied, 482 U.S. 917 (1987). 3. Petitioner contends (Pet. 29-34) that, because the government did not challenge his sentence on appeal, the court of appeals erred in remanding for resentencing in accordance with the Sentencing Guidelines. In his view, the court's disposition exceeded the bounds of proper appellate review and violated his rights under the Double Jeopardy Clause. /3/ As we argued in response to the petition for certiorari filed by Curry and Watson (see note, 1, supra) in which a similar argument was made, /4/ when the district court sentenced petitioner to a 10-year term of imprisonment, it was acting under the misconception that the Sentencing Guidelines were unconstitutional. As a result of petitioner's appeal, the sentences remained subject to appellate review when this Court upheld the Sentencing Guidelines in Mistretta v. United States, 488 U.S. 361 (1989). In remanding for resentencing in accordance with the Sentencing Guidelines, the court of appeals simply required the district court to comply with the statute that should have governed petitioner's sentence in the first place. Petitioner has no right -- based upon the Constitution, a statute, or any other source of law -- to retain the benefit of an illegal sentence that had not become final, and the court of appeals had no authority to provide for resentencing other than in accordance with the Sentencing Reform Act. In United States v. DiFrancesco, 449 U.S. 117 (1980), this Court held that the Double Jeopardy Clause does not prohibit an increase in a sentence resulting from a statutorily authorized appeal by the government. The Court explained that "the Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents its later icrease" and that when Congress has provided that a sentence is subject to appeal "there can be no expectation of finality in the original sentence." Id. at 137, 139. See also Pennsylvania v. Goldhammer, 474 U.S. 28, 30 (1985). Consistent with the reasoning of DiFrancesco, the courts of appeals have held that, when either the defendant or the government has appealed a sentence erroneously imposed without regard to the Sentencing Guidelines, the proper disposition is a remand for resentencing in accordance with the Sentencing Reform Act. United States v. Jackson, 903 F.2d 1313, 1315 (10th Cir. 1990); United States v. Kane, 876 F.2d 734, 736-37 (9th Cir.), cert. denied, 110 S.Ct. 173 (1989). Accord United States v. Rose, 881 F.2d 386, 389 (7th Cir. 1989) (dicta). There are two sufficient grounds for these decisions. First, when either party has challenged a sentence on appeal, the defendant cannot reasonably expect the sentence to be final. See United States v. Andersson, 813 F.2d 1450, 1461 (9th Cir. 1987); Gauntlett v. Kelly, 849 F.2d 213, 218-219 (6th Cir. 1988). Second, a defendant can acquire no legitimate expectation of finality in an illegal sentence imposed without regard to the Guidelines. United States v. Jackson, 903 F.2d at 1315-1316; United States v. Kane, 876 F.2d at 737. See also United States v. Rico, 902 F.2d 1065, 1069 (2d Cir. 1990); Fed. R. Crim. P. 35(a). When either party appeals a sentence imposed under the misconception that the Sentencing Reform Act was invalid, the Double Jeopardy Clause does not foreclose a remand for resentencing in accordance the Guidelines. United States v. Rose, 881 F.2d at 389. /5/ In its remand, the court of appeals has directed only that petitioner be resentenced in accordance with the statute that should have governed his sentence in the first instance. That disposition does not violate principles of appropriate appellate review; to the contrary, an appellate court has no authority to remand for resentencing other than in accordance with the standards prescribed by the legislature. 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 LOUIS M. FISCHER Attorney JANUARY 1991 /1/ Co-defendants Watson and Curry were also parties to the appeal in this case and have filed separate petitions for certiorari raising only the third question presented in this petition. Wason v. United States, No. 90-5590; Curry v. United States, No. 90-5771. The United States has filed a single brief in opposition to both petitions, and a copy of that brief has been served on petitioner. /2/ At the time of petitioners' offenses, 21 U.S.C. 841(a)(1) and (b)(1)(A)(ii)(II) prescribed a 10-year mandatory minimum term of imprisonment for possession of more than five kilos of cocaine with intent to distribute it and for distribution of that quantity of cocaine. In turn, 21 U.S.C. 846 (1982) provided that a conspiracy to commit either of those offenses was "punishable by imprisonment or fine or both which may not exceed the maximum punishment prscribed" for the substantive offenses. Petitioners contended that this version of Section 846 incorporated the maximum -- but not the minimum -- terms prescribed by Section 841. The court of appeals ultimately upheld that contention. See Pet. App. 5-6. /3/ Because the district court has stayed resentencing of petitioner and his co-defendants (see Pet. App. 32-35), it is uncertain whether petitioner's ultimate sentence will require him to spend more time in prison than the 10-year pre-Guidelines sentence from which he originally appealed. See Pet. App. 33 (on resentencing, "the defendants, or some of them, will, in all probability, receive more actual custodial time than they would have received" under their previous sentences) (emphasis added). As explained below, we believe that petitioner's contention that the court of appeals' disposition of the case violated the Double Jeopardy Clause is mistaken. We note, however, that petitioner at most could claim that he was entitled to a sentence that is no more severe than was his original sentence. Insofar as the interlocutory posture of this case results in uncertainty as to whether petitioner's Guidelines sentence will in fact be more severe than his original sentence, further review would be unwarranted at this time in any event. /4/ While Curry and Watson attempted to ground their argument in the Due Process Clause, petitioner instead appears to allege (Pet. 34) that resentencing under the Guidelines would violate the Double Jeopardy Clause. Insofar as petitioner is taken to be arguing that the resentencing would be unconstitutional under the Due Process Clause or would be vindictive within the meaning of North Carolina v. Pearce, 395 U.S. 911 (1969), we respond to those arguments in our Brief in Opposition to the petitions filed by Curry and Watson, Nos. 90-5990 and 90-5771, at 7-9. /5/ This case does not present -- and we do not address -- the question whether a court of appeals would be justified in remanding for resentencing in accordance with the Sentencing Guidelines when a district court has imposed sentence without regard to the Guidelines but neither party has challenged the sentence on appeal.