No. 96-6978 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 REINALDO SANTOS, PETITIONER v. UNITED STATES OF AMERICA 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 WALTER DELLINGER Acting Solicitor General MARK M RICHARD Acting Assistant Attorney General VICKI S. MARANI Attorney Department of Justice Washington, D.C.- 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether an armed career criminal whose criminal history score exceeds scores typical of defendants in criminal history category VI is exempt from an upward departure on the ground that his criminal history category does "not adequately reflect the seriousness of his past crimes or his likelihood of recidivism unless his score also exceeds that of a "typical" armed career criminal. 2. Whether the Armed Career Criminal Act, 18 U.S.C. 924(e) , violates due process if construed to authorize a maximum sentence in excess of 15 years. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-6978 REINALDO SANTOS, PETITIONER v. UNITED STATES OF AMERICA 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 OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A3)1 is reported at 93 F.3d 761. JURISDICTION The judgment of the court of appeals was entered on September and amended on October 2, 1996. The petition for a writ of certiorari was filed on December 3, 1996. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) . ___________________(footnotes) 1 The appendix to the petition includes three documents, which are numbered A-1, A-2, and A-3. For convenience, we refer to the first document (the opinion of the court of appeals) as - Pet. A and to its three pages as Pet. A1, A2, and A3. ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT Following a jury trial in the United States District Court for the Southern District of Florida, petitioner was convicted on one count of possessing a firearm as a convicted felon, in violation of 18 U.S.C. 922(g) (l), and on one count of possessing ammunition as a convicted felon, also-in violation of 18 U.S.C. 922(g) (1). He was sentenced to 360 months' imprisonment, to be followed by five years' supervised release. In addition, he was ordered to pay $2,000 in restitution. The court of appeals affirmed the term of imprisonment, but reversed the order of restitution. Pet. App. A1- A3 . 1. On the evening of November 17, 1993, petitioner and Paul Blackshere-robbed about $2,000 from a grocery store in West Palm Beach, Florida- Petitioner, who was wearing a mask, pointed a sawed-off shotgun at the store clerks while Blackshere removed the contents of a cash register. Petitioner ordered one of the clerks to open another register. The clerk did so and gave the money to petitioner, who then fled the store with Blackshere. Gov't C.A Br. 3-4. About an hour later, petitioner was observed as a front-seat passenger in a stolen vehicle being driven at high speed. When police stopped- the vehicle, petitioner ran away, but the police eventually arrested him. The police found two 12-gauge shotgun shells and a substantial amount of cash on his person. In the front-seat area of the stolen vehicle, police also found a loaded 12-gauge shotgun, which was later identified as the same weapon ---------------------------------------- Page Break ---------------------------------------- 3 used in the grocery store robbery. A mask, a pair of gloves, and a roll of dimes were also recovered. Gov't C.A. Br. 3-4. 2. At sentencing, the District Court applied Guidelines 4B1.4, which applies to defendants subject to enhanced sentencing under the Armed Career Criminal Act (ACCA)J 18 U.S.C. 924(e) .2 Under Guidelines 4B1.4(b) (3) (A) , the court increased petitioner's offense level from 28 to 34. The court also "determined that petitioner's criminal history score was 21 points. Pet. App. A2. That score placed petitioner in criminal history category VI, which encompasses criminal history scores of 13 or more points. Ibid .; 11/22/94 Sent. Tr. 19. Based on petitioner's offense level and criminal history category, the resulting sentencing range was 262- 327 months. Pet- App. A2. The district court made an upward departure- under Guidelines 4A1.3, which permits an upward departure when "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. " Pet. App. 2 (quoting Guidelines 4A1.3). The district court explained: [T]his is a case where Criminal History Category 6 is not adequate to reflect the seriousness of [petitioner's] criminal history. His repeated criminal activity between the ages of 18 and 26 mitigate [sic] the likelihood that he will commit another crime, reflects the history of recidivism, and many of the crimes, they are violent in nature. ___________________(footnotes) 2 The ACCA establishes enhanced penalties for a person who has violated 18 U.S.C. 922(g) and who "has three previous convictions * * * for a violent felony or a serious drug offense. " 18 U.S.C. 924(e). ---------------------------------------- Page Break ---------------------------------------- 4 11/22/94 Sent. Tr. 25; see also id. at 15 (category VI "significantly under represented' petitioners criminal history) ; id. at 21 (petitioners record shows that the "[o]nly time he's not committing crimes * * * is when he's in the slammer"). In departing upward, the district court increased petitioner's offense level from 34 to 36. Pet. App. 2; see Guidelines 4A1.3 ("the court should structure the departure by moving incrementally down the sentencing table to the next higher offense level in Criminal History Category VI until it finds a guideline range appropriate to the case") . Based on the new sentencing range of 324-405 months, the court sentenced petitioner to a term of 360 months' imprisonment. Pet. App. A2. 3. The court of appeals affirmed the departure. Pet. App. A1-A2.3 On appeal, petitioner argued that armed career criminals should be exempt from upward departures based on the inadequacy of category VI to represent the severity of their prior records, because Guidelines 4B1.4 already enhances sentences because of a defendant's criminal history. In rejecting that contention, the court held that "the upward departure was not based on a factor that the Commission ha[d] already fully considered in establishing the guideline range." Pet. App . A2 (quoting Williams v. United States, 503 Us. 193, 200 (199-2)). The court explained that petitioner's "21 criminal history points far exceeded the 13 points ___________________(footnotes) 3 The court of appeals reversed the district court's restitution order on the government's concession that petitioner's convictions for firearms offenses did not support the restitution order. Pet. App. A2-A3. ---------------------------------------- Page Break ---------------------------------------- 5 needed for a Criminal History Category VI. " Pet. App. A2 . The court also observed that petitioner's "criminal history score did not reflect several other prior convictions or conduct, including a burglary and conduct in connection with an aggravated battery, " and "those other crimes [were not] needed to sentence [petitioner] as an armed career criminal under 18 U.S.C. 924(e) ." Pet. App. A2. Because "reliable information indicated] that the criminal history category [did] not adequately reflect the seriousness of the" [petitioners] past criminal conduct or the likelihood that the [petitioner] will commit other crimes," the court concluded that "the departure was within the District Court's discretional' Ibid. (quoting Guidelines 4A1.3). ARGUMENT 1. Petitioner contends that although Guidelines 4A1.3 may apply to armed career criminals, its applicability is limited to situations where the defendant's criminal history "is substantially" more serious than the heartland armed career criminal case." Pet. 7. Thus, petitioner contends that the district court should have compared petitioner's criminal history not to typical Category VI defendants, but to "the relevant guideline heartland group, armed career criminals. " Pet. 5-6. Petitioner did not raise that claim below. Rather, he argued below that Guidelines 4A1.3 does not apply at all to armed career criminals. E.g., 11/22/94 Sent. Tr. 29-31; Pet. C.A. Br. 11-12. Because petitioner did not present his current claim below, it is not properly before this Court. ---------------------------------------- Page Break ---------------------------------------- 6 In any event, petitioner offers no -authority for the proposition that an armed career criminal whose criminal history score exceeds that of typical criminal history category VI defendants is exempt from an upward departure under Section 4A1.3 unless his score exceeds that of a "typical" armed career criminal. Neither the ACCA nor Guidelines 4B1.4 compels that result. Section 924(e) (1) requires a minimum prison term of 15 years for a defendant who has violated 18 U.S.C. 922(g), and has three- previous convictions for violent felonies or serious drug offenses committed on occasions different from one another. 18 U.S.C. 924(e) . The commentary to Guideline 4B1.4 states that " [i]n some cases, the criminal history category may not adequately reflect [the armed career criminal's] criminal history, " and the commentary expressly references Guidelines 4A1.3. See Guidelines 4B1.4 (commentary). Guidelines 4A1.3 permits an upward departure if a "defendant's criminal history [i]s significantly more Serious than that of most defendants in the same criminal history category." Thus , an upward departure for an armed career criminal in criminal history category VI, such as petitioner, is determined with reference to other defendants in criminal history category VI, not with reference to other armed career criminals, who may or may not be in category VI. See, e.g., United States v. Little, 61 F.3d 450, 452-454 (6th Cir. 1995) (upholding departure for armed career criminal in category VI) , cert. denied, 116 S. Ct. 954 (1996) ; United States v. George, 56 F.3d 1078, 105-1086 (9th Cir.) (finding departure unwarranted for category VI armed career ---------------------------------------- Page Break ---------------------------------------- 7 criminal on facts of case, based on. comparison of his criminal record with "that of other of tenders in Category VI") , cert. denied, 116 S. Ct. 351 (1995) . As the court of appeals correctly observed, petitioner's "21 criminal history points far exceeded the 13 points needed for a Criminal History Category VI" Pet. App. A2. Although petitioner dismisses as "little more than fisticuffs" (Pet. 4) the three offenses that triggered his armed career criminal status, he does not dispute that they qualified as violent felonies under the ACCA. See 18 U.S.C. 924(e) (2) (B). As both courts below found, petitioner's criminal record was more significant than his armed career criminal status or his criminal history category indicated. 4 Under those circumstances, the district court permissibly exercised its discretion in making an upward departure under Guideline 4A1.3. 5 ___________________(footnotes) 4 Petitioner was convicted at age 16 of fleeing and eluding police (Presentence Report (PSR) 34); convicted at age 18 of aggravated battery on a prison guard, false imprisonment of the guard, and escape (PSR 35); convicted at age 18 of resisting arrest (PSR 36) ; convicted at age 18 of battery on another prison guard (PSR 37); convicted at age 19 of escape from jail (PSR 38); convicted at age 21 of aggravated assault on a police officer (PSR 39); and convicted at age 21 of burglarizing cars (PSR 40-42). Moreover, petitioner committed the instant offenses at the age of 25 when he was on probation (PSR 44) , and within two years of his release from imprisonment (PSR 45) . Petitioner received no criminal history points for two of his three burglary convictions. PSR 41-42. Guidelines 4A1.3 expressly recognize that a district court may make an upward departure based on prior sentences not used in computing criminal history category, as well as a defendant's extensive assault record. Guidelines 4A1.3 (policy statement) . 5 Petitioner argues that the case "should be remanded for reconsideration in light of Koon so that the district court may determine whether [petitioner's] criminal history is ---------------------------------------- Page Break ---------------------------------------- 8 2. Petitioner also argues (Pet. 7-10), for the first time, that the ACCA violates due process if construed to authorize a maximum sentence in excess of 15 years. Petitioner forfeited that claim by failing to raise is below. See Citizens Bank of Maryland v. Strumpf, 116 S. Ct. 286, 290 n. ** .(1995); Alvarez-Sanchez, 114 S. Ct. 1599, 1605 n. 5 (1994) . In any event, petitioner's contention does not merit review. As petitioner concedes (Pet. 8), the courts of appeals uniformly have construed Section 924(e), which requires -a sentence of "not less than" 15 years, as authorizing a greater sentence, including life imprisonment. See, e.g., United States v. Little, 61 F.3d at 454; United States v. Doucette, 979 F.2d 1042, 1047 (5th Cir. 1992) ; United States V- Carey, 898 F.2d 642, 646 (8th Cir. 1990); United States v. Blannon, 836 F.2d 843, 845 (4th Cir.), cert. denied, 486 U.S. 1010 (1988) . Petitioner nonetheless contends that Section 924(e) is "vague" (Pet. 7, 8) and "ambiguous" (Pet. 9) as to the permissibility of any sentence longer than 15 years (Pet. 10). Section 924(e) is neither vague nor ambiguous, however, with respect to an authorized maximum sentence of life imprisonment or the 360-month sentence that petitioner received. Section 924(e) requires a sentence of ___________________(footnotes) substantially more serious than the heartland armed career criminal case." Pet. 7. In Koon v. United States, 116 S. Ct. 2035, 2045-2048 (1996), this Court held that departures are reviewable under an abuse of discretion standard. That decision did not address the application of Guidelines 4A1.3 to armed career criminals. In the present case, the court of appeals cited Koon and expressly applied its abuse of `discretion standard. Pet. App. A2. A remand is therefore not warranted." ---------------------------------------- Page Break ---------------------------------------- 9 "not less than" 15 years. 18 U.S.C. 924 (e). Sensibly construed, the statute authorizes any prison term above that term, including a term of life imprisonment. Accordingly, contrary to petitioner's contention (Pet. 9-10) , there is no occasion to invoke the rule of lenity, a maxim of construction that applies "only if, after seizing everything from which aid can be derived, * * * we can make no more than a guess as to what Congress intended." * v. Koray, 115 s. ct. 2021, 2029- (1995) (citations and quotation marks omitted) . See also United States v Shabani, 115 S. Ct- 382, 386 (1994) ; Staples v. United States, 114 S. Ct. 1793, 1804 n.17 (1994) . CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General MARK M RICHARD Acting Assistant Attorney General VICKI S. MARANI . Attorney MARCH 1997