No. 96-7589 A IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 STUART COHEN, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General LISA SIMOTAS Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514 -2217 --------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the Violent Crime Control & Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796, 2095-2096, amended 18 U.S.C. 3553(a) so as to make the policy statements in Chapter Seven of the Sentencing Guidelines binding on sentencing courts. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-7589A STUART COHEN, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. A7-A10) is reported at 99 F.3d 69. JURISDICTION The judgment of the court of appeals was entered on October 24, 1996. The petition for a writ of certiorari was filed on January 22, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT Following a plea of guilty to a three-count superseding information in the United States District Court for the Eastern District of New York, petitioner was convicted of mail fraud, wire ---------------------------------------- Page Break ---------------------------------------- 2 fraud, and conspiracy to commit wire fraud. Petitioner was sentenced to 15 months' imprisonment, to be followed by three years' supervised release. While serving his supervised release term, petitioner repeatedly tested positive for cocaine and failed to participate in a required drug treatment program. The district court revoked petitioner's supervised release and sentenced him to 18 months' imprisonment. The court of appeals affirmed. Pet. App. A7-A10. 1. Petitioner began serving his supervised release term on August 12, 1994. On May 5, 1995, after petitioner had tested positive for the use of cocaine on 13 occasions, the district court issued a summons based on petitioner's drug use, his failure to participate in a drug treatment program, and his failure to comply with the regulations of a drug treatment facility. At a subsequent hearing, petitioner admitted using drugs, and the district court agreed not to impose a term of imprisonment if petitioner would remain drug-free, and enter an 18-month in-patient drug treatment program. Gov't C.A. Br. 3-4. On September 11, 1995, the district court issued another warrant for petitioner's arrest, based on his continued use of drugs and his failure to abide by the conditions of the drug treatment facility. At a hearing on September 14, 1995, petitioner again admitted using drugs, and the district court revoked his supervised release. Petitioner argued that the district court was bound by Guidelines 7B1.4 (a) (policy statement), which sets forth a range of imprisonment applicable upon revocation of a term of ---------------------------------------- Page Break ---------------------------------------- 3 supervised release, depending on the defendant's criminal history and the nature of the supervised release violations. Thus, petitioner contended that the court could impose a sentence of only 4-10 months' imprisonment, which was the sentencing range applicable to petitioner. The district court ruled that it was not bound by the policy statements in Chapter Seven of the Guidelines, and instead imposed a term of 18 months' imprisonment. Gov't C.A. Br. 4-5. 1 On October 5, 1995, the district court held a telephone conference with the attorneys in the case. The court stated that, in sentencing petitioner, it had not considered the 1994 amendment to 18 U.S.C. 3553, which might arguably be interpreted as requiring the court to apply a sentence within the range set forth in the policy statements in Chapter Seven of the Guidelines. A resentencing was held on January 24, 1996, at which time the district court concluded that the amendment to Section 3553 did not alter the advisory nature of the Chapter Seven policy statements. The court again imposed a sentence of 18 months' imprisonment. Gov't C.A. Br. 5-6. 2. The court of appeals affirmed. Pet. App. A7-a10. Beginning its analysis with the statutory language, the court found that the amended text of 18 U.S.C. 3553 (a) did not make the Chapter Seven policy statements binding because it only required a district ___________________(footnotes) 1 Based on petitioner's violations, the maximum term of imprisonment imposable upon revocation of petitioner's term of supervised release was two years. 18 U.S.C. 3583(e) (2); see 5/19/95 Tr. 21. ---------------------------------------- Page Break ---------------------------------------- 4 court to "consider `the applicable guidelines or policy statements issued by the Sentencing Commission' in sentencing a defendant for a violation of supervised release." Pet. App. A9-A10 (emphasis in original; quoting 18 U.S.C. 3553(a)). By contrast, although 18 U.S.C. 3553(b) requires district courts to impose a sentence within the ranges set by the guidelines, that Section makes no mention of policy statements. Thus, the court concluded, while Section 3553 (a) requires courts to consider both guidelines and policy statements, Section 3553(b) "makes mandatory only the ranges set out in the guidelines themselves." Pet. App. Al0. The court further found that the legislative history of the 1994 amendment to Section 3553 (a) contained no clearly expressed legislative intention contrary to the plain language of the statute. Id. at A10. Accordingly, the court concluded that it would "follow the Fifth, Sixth, and Eleventh Circuits and hold that the 1994 amendment to 18 U.S.C. 3353 did not make Chapter 7 policy statements mandatory." Ibid. ARGUMENT Petitioner contends (Pet. 7-20) that, when Congress amended the text of 18 U.S.C. 3553 in 1994, it made the policy statements applicable upon revocation of supervised release binding on district courts in the same manner that guidelines themselves are binding. The court of appeals, however, correctly held that the 1994 amendment to Section 3553 did not alter the advisory nature of the Chapter Seven policy statements, and, for reasons discussed below, the conflict in the circuits identified by petitioner (Pet. ---------------------------------------- Page Break ---------------------------------------- 5 7-8) does not warrant this Court's attention. 1. Before September 13, 1994, Section 3553 read in pertinent part as follows: 3553 Imposition of a sentence (a) Factors to be considered in imposing a sentence. -- The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in para- graph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider * * * (4) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines that are issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a) (1) and that are in effect on the date the defendant is sentenced; (5) any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a) (2) that is in effect on the date the defendant is sentenced * * *. (b) Application of guidelines in imposing a sentence. -- The court shall impose a sentence of the kind, and within the range, referred to in subsection (a) (4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into considera- tion by the Sentencing Commission in formulating the guide- lines that should result in a sentence different from that described. 18 U.S.C. 3553 (1988). Because "Chapter 7 contains neither guidelines nor policy statements that interpret guidelines," the courts of appeals had uniformly held that the Chapter Seven policy statements were purely advisory. See United States v. West, 59 F.3d 32, 33-34 & n.2 (6th Cir.), cert. denied, 116 S. Ct. 486 (1995). Congress amended subsection 3553(a) in the Violent Crime Control & Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (Sept. 13, 1994). That subsection now reads, in ---------------------------------------- Page Break ---------------------------------------- 6 pertinent part: (a) Factors to be considered in imposing a sentence. -- The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in para- graph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider * * * (4) the kinds of sentence and the sentencing range established for -- (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines issued by the Sentencing Commission pursuant to section 994(a) (1) of title 28, United States Code, and that are in effect on the date the defendant is sentenced; or (B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a) (3) of title 28, United States Code; * * *. 18 U.S.C. 3553(a) . Nothing in the plain language of Section 3553 requires courts to be bound by the Chapter Seven policy statements. As amended, subsection 3553 (a) merely requires district courts to "consider * * * the applicable guidelines or policy statements" when sentencing a defendant upon revocation of supervised release. 18 U.S.C. 3553(a) (emphasis added). Only subsection 3553(b), which was not amended in 1994, contains mandatory language: That section provides that the district court "shall impose" a sentence "within the range" referred to in subsection 3553(a) (4). 18 U.S.C. 3553(b). Both the heading and the text of subsection 3553(b), however, refer only to the application of guidelines; policy statements are not even mentioned. Because Chapter Seven of the Guidelines contains only policy statements, not guidelines, the court of appeals correctly concluded that subsection 3553(b) does ---------------------------------------- Page Break ---------------------------------------- 7 not require a court to apply the sentencing range contained in Guidelines 7B1.4 upon revocation of supervised release. 2. Pet. App. A10; see also United States v. Hofierka, 83 F.3d 357, 361 (11th Cir.) (per curiam) ("The heading and text of subsection (b) make clear that its mandatory language refers only to those situations in which sentences are imposed pursuant to guidelines.") (emphasis in original), modified on other grounds, 92 F.3d 1108 (1996), cert. denied, 117 S. Ct. 717 (1997). That plain reading of Section 3553 is not contradicted by any "clearly expressed legislative intent to the contrary." United States v. Turkette, 452 U.S. 576, 580 (1981) (quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). In support of his interpretation (Pet. 19), petitioner cites only a floor statement by Senator Thurmond -- the sponsor of an early bill containing the language subsequently enacted in subsection 3553 (a) (4) -- which explained that the amendment was meant to make more explicit the intent of Congress in the Sentencing Reform Act that , when revoking a probationary sentence, the guideline range operative at the time the defendant was sentenced to probation is no longer applicable; rather the court is constrained only by the maximum statutory penalties for the offense and any Sentencing Commission guidelines or ___________________(footnotes) 2 Petitioner responds to this analysis (Pet. 16) by positing that the term "guidelines" in the heading and text of subsection 3553 (b) refers to "the whole body of guidelines, including any policy statements or commentary issued by the Sentencing Commission." That argument is unpersuasive, however, given that in another subsection of the same provision -- subsection 3553 (a) (4) (B) -- Congress expressly used the phrase "guidelines or policy statements," thus making clear that it was not using the term "guidelines" in 18 U.S.C. 3553 in the broad, "common parlance" (Pet. 15) sense suggested by petitioner. ---------------------------------------- Page Break ---------------------------------------- 8 policy statements specifically applicable to probation revocation. Pet. 19 (quoting 137 Cong. Rec. S7769-01, S7770 (1991)). Nothing in that statement, however, suggests that Congress intended to make policy statements mandatory. To say that the district courts are "constrained" by the policy statements adds no gloss to the text of subsection 3553(a), which by its terms constrains district court to "consider" the applicable policy statements when revoking supervised release. 18 U.S.C. 3553(a). See Pet. App. A10 (rejecting argument that legislative history required interpretation contrary to plain meaning of amended statute); West, 59 F.3d at 36 (same). Moreover, the plain meaning of the statute is consistent with the expressed purposes of the Sentencing Commission. Although the Commission had the opportunity to draft binding guidelines governing the revocation of probation and supervised release, it chose not to do so. The Commission explained: Under 28 U.S.C. 994(a) (3), the Sentencing Commission is required to issue guidelines or policy statements applicable to the revocation of probation and supervised release. At this time, the Commission has chosen to promulgate policy statements only. * * * The Commission views these policy statements as evolutionary * * * . Revocation guidelines will be issued after federal judges, probation officers, practitioners, and others have the opportunity to evaluate and comment on these policy statements. U.S.S.G., Ch. 7, pt. A (introduction). As the Eleventh Circuit has noted, "[i]t is against this backdrop that Congress amended 3553." Hofierka, 83 F.3d at 361. "Congress understood that courts have consistently distinguished guidelines from mere policy statements and nothing in the [amended text of Section 3553] ---------------------------------------- Page Break ---------------------------------------- 9 persuades us that [Congress] intended to change the meaning of these words." Ibid. Accordingly, the court below correctly joined the majority of circuits to consider the issue in holding that the 1994 amendment to Section 3553 did not render the Chapter Seven policy statements binding on district courts in the same manner that guidelines are binding. See Hofierka, 83 F.3d at 361-362; United States v. Escamilla, 70 F.3d 835, 835 (5th Cir. 1995) (per curiam), cert. denied, 116 S. Ct. 1368 (1996); West, 59 F.3d at 35-36; see also United States v. Brady, 88 F.3d 225, 229 n.2 (3d Cir 1996) (reaffirming advisory nature of Chapter 7 policy statements, but without specifically considering effect of 1994 amendment to Section 3553), cert. denied, 117 S. Ct. 773 (1997); United States v. Hurst 78 F.3d 482, 484 (10th Cir. 1996) (same). 2. Only one court of appeals has held that the 1994 amendment to 18 U.S.C. 3553 renders the Chapter Seven policy statements mandatory. In United States v. Plunkett, 94 F.3d 517 (1996), the Ninth Circuit noted that, before the 1994 amendment, it had held that the Chapter Seven policy statements were not binding on district courts because they did not interpret any actual guidelines. Id. at 518 (citing United States v. Forrester, 19 F.3d 482, 484 (9th Cir. 1994)). Without any further analysis, the court then stated that "[n]ow, because section 3553 [as amended] incorporates policy statements by name, policy statements are independently mandatory." Id. at 519. The court went on to hold, however, that because the new language in Section 3553 instructed ---------------------------------------- Page Break ---------------------------------------- 10 district courts to "consider the guidelines or the policy statements" (ibid. (emphasis in original)), a court sentencing a probation violator could rely upon either the Chapter Seven policy statements or the guideline range originally applicable to the defendant's offense. Thus, the court reasoned, "the result of Forrester remains intact." Ibid. Any conflict between Plunkett and the decisions of the other courts of appeal does not warrant this Court's attention. First, the Ninth Circuit's statement that the Chapter Seven policy statements are now mandatory was dictum because the district court in that case had sentenced the defendant within the guideline range applicable to his original offense. See Plunkett, 94 F.3d at 518. Second, given the Ninth Circuit's conclusion that Section 3553 now permits sentencing courts to sentence a probation violator under either the Chapter Seven policy statements or the guideline range applicable to the violator's original offense, it is unclear that the difference between the Ninth Circuit's approach and that of other circuits will actually yield any disparity in the sentencing of similarly-situated defendants whose probation or supervised release is revoked. ---------------------------------------- Page Break ---------------------------------------- 11 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General LISA SIMOTAS Attorney APRIL 1997