MICHAEL CHAMBLESS AND MIGUEL DIAZ, PETITIONERS V. UNITED STATES OF AMERICA No. 88-7595 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINIONS BELOW The amended opinion of the court of appeals (Pet. App. A) in United States v. Chambless is reported at 869 F.2d 822. The opinion of the court of appeals (Pet. App. B) in United States v. Diaz is unreported. JURISDICTION The judgment of the court of appeals in United States v. Chambless was entered on March 31, 1989. The judgment of the court of appeals in United States v. Diaz was entered on March 29, 1989. Justice White extended the time for the filing of a certiorari petition to June 27, 1989, in Diaz and to June 29, 1989, in Chambless (Pet. App. E & F). The petition for a writ of certiorari was filed on June 27, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the sentencing guidelines violate due process by depriving criminal defendants of the right to individualized sentencing. STATEMENT 1. On December 17, 1987, an indictment was returned in the United States District Court for the Eastern District of Louisiana charging petitioner Chambless with conspiracy to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846, and possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). On January 27, 1988, petitioner Chambless moved to have the sentencing guidelines set aside as unconstitutional. The district court denied his motion. Petitioner Chambless then entered a conditional guilty plea (see Fed. R. Crim. P. 11(a)(2)) to the conspiracy count, reserving his right to contest the constitutionality of the sentencing guidelines on appeal; in return, the government agreed to dismiss the substantive possession count. Petitioner Chambless was thereafter sentenced under the sentencing guidelines to 60 months' imprisonment, to be followed by a three-year term of supervised release (Pet. App. C). The court of appeals affirmed (Pet. App. A). 2. On June 30, 1988, a four-count indictment was returned in the United States District Court for the Eastern District of Louisiana charging petitioner Diaz with conspiracy to import and to possess with intent to distribute a controlled substance and with the underlying substantive offenses, in violation of 21 U.S.C. 841(a)(1), 846, 952(a), 960(a)(1), and 963. Petitioner Diaz adopted by reference the pleadings in United States v. Chambless attacking the constitutionality of the sentencing guidelines. As in Chambless, the district court denied petitioner Diaz's motion. Petitioner Diaz entered a conditional guilty plea on the conspiracy count; in return, the government dismissed the remaining counts of the indictment. Petitioner Diaz was sentenced under the sentencing guidelines to 97 months' imprisonment, to be followed by a three-year term of supervised release. Pet. App. D. The court of appeals affirmed. Pet. App. B. 3. On appeal, the court rejected petitioners' various constitutional challenges to the sentencing guidelines. /1/ In particular, the court of appeals held that the sentencing guidelines did not violate due process by unduly limiting the ability of sentencing courts to consider mitigating factors and to impose individualized sentences on defendants. Pet. App. A3. As the court of appeals stated, "The Constitution does not require individualized sentences." Ibid. Thus, because "Congress has the power to completely divest the courts of their sentencing discretion and to establish an exact, mandatory sentence for all offenses," Congress "certainly may guide (the courts' exercise of) discretion through the guidelines." Ibid. ARGUMENT In United States v. Mistretta, 109 S. Ct 647 (1989), this Court upheld the Sentencing Reform Act of 1984 against a variety of constitutional challenges. This case raises a due process challenge to the Sentencing Reform Act that was not disposed of in Mistretta, but which has been rejected by every court of appeals that has addressed it. See, e.g., United States v. Erves, 880 F.2d 376, 379 (11th Cir. 1989); United States v. Bolding, 876 F.2d 21, 22-23 (4th Cir. 1989); United States v. Pinto, 875 F.2d 143, 144-146 (7th Cir. 1989); United States v. Allen, 873 F.2d 963 (6th Cir. 1989); United States v. Seluk, 873 F.2d 15, 16 (1st Cir. 1989); United States v. Brittman, 872 F.2d 827, 828 (8th Cir. 1989); United States v. Vizcaino, 870 F.2d 52, 54-56 (2d Cir. 1989); United States v. Frank, 864 F.2d 992, 1008-1010 (3d Cir. 1988). Because petitioners' claim is without merit and has been uniformly rejected by the courts of appeals, review by this Court is unwarranted. Relying primarily on district court opinions decided prior to this Court's decision in Mistretta, petitioners contend (Pet. 5-8) that the guidelines violate due process because they circumscribe the authority of district courts to impose individualized sentences. Petitioners' claim is contrary to the general rule that "the authority to define and fix the punishment for crime is legislative." Ex parte United States, 242 U.S. 27, 42 (1916). As this Court has stated, "in noncapital cases, the (formerly) established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes." Lockett v. Ohio, 438 U.S. 586, 604-605 (1978). See also Sumner v. Shuman, 483 U.S. 66, 75 (1987); Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion). Cf. McMillan v. Pennsylvania, 477 U.S. 79, 92 (1986) (in upholding a state minimum sentencing statute, the Court noted "some difficulty fathoming why the due process calculus would change" when the legislature removed discretion from the sentencing court). Thus, in cases not involving capital punishment or life imprisonment (e.g., Solem v. Helm, 463 U.S. 277 (1983)), this Court has never doubted the legislative authority to divest courts of their sentencing discretion by establishing mandatory minimum punishments. See United States v. Mistretta, 109 S.Ct. at 650; Lockett v. Ohio, 438 U.S. at 603 ("legislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases"); Ex parte United States, 242 U.S. at 42 (holding that district courts have no power to sentence below statutorily imposed mandatory minimum sentence levels). /2/ Because Congress could properly eliminate sentencing discretion entirely, it could, as the court below correctly stated, take the less drastic measure of limiting the scope of that discretion by considering beforehand the weight that should be accorded to various sentencing factors and by providing appropriate ranges within which courts may select a sentence. As was explained in United States v. Pinto, 875 F.2d at 145: Criminals aren't entitled to sentences devised by judges rather than legislatures. * * * Judicial discretion in sentencing comes late to our history. From the beginning of the Nation, Congress specified precise sentences. * * * Blackstone extolled uniformity (in sentencing) as "one of the glories of English law" because punishment "is not left in the breast of any judge" but is meted out "without respect of persons." Although "(f)ederal judges have long been used to individualized sentencing, and many judges prefer it," the constitutional determination "whether, and to what extent to continue or modify this system is a matter of legislative prerogative." United States v. Brittman, 872 F.2d at 828. Petitioners to the contrary, with respect to the noncapital drug offenses at issue here, "there is no constitutional right to judicial discretion in individualized sentencing" under the guidelines. United States v. Vizcaino, 870 F.2d at 56. 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 ROBERT J. ERICKSON Attorney NOVEMBER 1989 /1/ Although he maintained a separate appeal, petitioner Diaz merely adopted the arguments presented by petitioner Chambless (see Pet. 3). The court of appeals summarily rejected petitioner Diaz's claims in light of its disposition of the same issues in petitioner Chambless's case. Pet. App. B. /2/ Courts have consistently upheld the constitutionality of various statutory provisions that impose mandatory minimum penalties for certain offenses. See, e.g., United States v. Dombrowski, 877 F.2d 520, 530-531 (7th Cir. 1989); United States v. Kidder, 869 F.2d 1328, 1330-1334 (9th Cir. 1989); United States v. Rodriquez-Suarez, 856 F.2d 135, 137-138 (11th Cir. 1988), cert. denied, 109 S. Ct. 875 (1989); United States v. Holmes, 838 F.2d 1175, 1178-1179 (11th Cir.), cert. denied, 108 S. Ct. 2829 (1988). "If, despite their inflexibility, mandatory sentencing provisions withstand due process scrutiny, so too must the sentencing guidelines." United States v. Erves, 880 F.2d at 379.