No. 96-8125 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 HENRY LOMBARD, JR., PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DANIEL S. GOODMAN Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514 - 2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the district court properly took into account, under the Sentencing Guidelines, offense-related conduct that the court found by a preponderance of the evidence to have occurred, notwithstanding petitioner's earlier acquittal of state criminal charges based on the same conduct. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8125 HENRY LOMBARD, JR., PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. A) is reported at 102 F.3d 1. A previous opinion of the court of appeals in this case (Pet. App. B) is reported at 72 F.3d 170. JURISDICTION The judgment of the court of appeals was entered on Decem- ber 4, 1996. The petition for a writ of certiorari was filed on March 4, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). See Pet. 2. STATEMENT Following a jury trial in the United States District Court for the District of Maine, petitioner was convicted on one count of ----------------------------------------- Page Break ---------------------------------------- 2 conspiracy to commit offenses against the United States, in violation of 18 U.S.C. 371, and one count of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g) . The district court found that petitioner was subject to the enhanced sentencing provisions of 18 U.S.C. 924 (e), and it sentenced him to life imprisonment. The court of appeals affirmed. 1. In November 1990, petitioner; then a 28-year-old with several prior felony convictions, arrived unexpectedly at the home of his half-brother, Hubert Hartley, in the "backwoods" of Fairfield, Maine. Pet. App. B, at 173; Presentence Report (PSR) 2, "par" 7-8, 66-73. Petitioner intended to stay for some time while he waited for his wife to be released from the county jail. PSR "Par" 8. Petitioner's arrival displaced Hartley's boyhood friend, "Buddy" Martin, from the cabin's second bedroom onto a couch in the living room. PSR "par" 8. Within a few days, petitioner and Martin developed a "personality conflict." Ibid. About November 15, petitioner and Hartley bought a .22-caliber rifle from the brother of Hartley's girlfriend, Tammy Therriault, who was living with Hartley along with her 18-month old daughter. PSR "par" 9. A few days later, Martin's friend Paul Lindsey arrived to stay for a few days before traveling on to his parents' home. PSR "par" 10. On the morning of November 22 -- Thanksgiving Day -- petitioner and Hartley returned from hunting to find Martin and Lindsey still asleep on the two couches in the living room. PSR "par" 13-15; Pet. App. B, at 173. Hartley then told Therriault to go upstairs, because he and petitioner "had something to do." Pet. ---------------------------------------- Page Break ---------------------------------------- 3 App. B, at 173. Through a hole in the upstairs bedroom floor, Therriault overheard petitioner say to Hartley, "If you don't shoot him, I'm going to shoot `em both." Ibid. Several shots were then fired, killing Martin and Lindsey as they slept. Therriault then overheard petitioner say, "I didn't think you had the guts to do it," to which Hartley responded, "I showed you, didn't I?", adding, "I don't think he's dead yet. Shoot him again." Ibid. The bullets recovered from the victims' bodies were consistent with having been fired from a .22-caliber rifle. Id. at 174; see also PSR "par" 15. Petitioner and Hartley then engaged in a concerted effort to conceal evidence and avoid apprehension. Pet. App. B, at 173-174; PSR "par" 16-32. After splitting the victims' cash and moving their bodies and the bloody sofa cushions to the basement, petitioner, Hartley, and Therriault had lunch and visited Therriault's family. PSR "par" 17. They then returned to the cabin and moved the bodies and other evidence to Hartleys car, interrupted only briefly when members of Therriault's family stopped by to drop off some Thanksgiving leftovers. PSR "par" 18-19. After dumping the bodies and other evidence at different locations in the woods, petitioner sold the .22-caliber rifle, along with Martin's and Lindsey's guns and Martin's television and VCR, to acquaintances for cash and marijuana. PSR "par" 19-20, 24. Petitioner and Hartley also arranged to trade Hartley's car for another, retrieved belongings from the cabin, and traveled with Therriault to a motel in Augusta, Maine. PSR "par" 27-28. Discussions ensued about how best to leave the --------------------------------------- Page Break ---------------------------------------- 4 State, including whether or not to wait for petitioner's wife to be released from jail, and whether or not to leave 18-month-old Megan Therriault behind. PSR "par" 31. Before those issues could be resolved, petitioner and Hartley were arrested by the local police. PSR "par" 32. 2. Petitioner and Hartley were tried separately in state court for the murders of Martin and Lindsey. "Despite something close to eyewitness testimony" from Therriault, both were acquitted. Pet. App. A, at 2. At his state trial, petitioner maintained that Hartley alone was responsible for the murders. Pet. 3. Although petitioner admitted that he owned the .22-caliber rifle (Pet. App. B, at 188), he claimed that "he was sitting in a bathroom when he heard shots. He did not [kn]ow that the shots would be fired before they were fired and did not participate or have foreknowledge that the deaths would occur." Present. Conf. Tr. 38 (petitioner's federal trial counsel, characterizing evidence from the state trial). 3. A federal grand jury then charged both petitioner and Hartley with conspiring to possess a firearm while a convicted felon, in violation of 18 U.S.C. 922 (g), to move or travel in interstate commerce with the intent to avoid prosecution or the giving of testimony, in violation of 18 U.S.C. 1073, and to remove evidence in order to prevent its seizure, in violation of 18 U.S.C. 2232 (a). Pet. App. A, at 2-3; PSR "par" 37. Petitioner was also charged with being a felon in possession of a firearm, in violation --------------------------------------------- Page Break ---------------------------------------- 5 of 18 U.S.C. 922(g), and Hartley was charged with aiding and abetting that crime. Pet. App. A, at 3. Petitioner and Hartley were tried together on the federal charges. Evidence concerning the murders of Martin and Lindsey was admitted at trial because it was relevant to, among other things, the flight and removal-of-evidence aspects of the charged conspir- acy. Pet. App. A at 3; Pet. App. B at 190. At the close of the government's case, Hartley pleaded guilty to one count of conspir- acy. PSR "par" 5. The jury convicted petitioner of both conspiracy and unlawful possession of a firearm. Pet. App. A, at 3. In calculating petitioner's sentence, the district court applied the November 1, 1990, version of the Sentencing Guidelines, in order to avoid any question of an Ex Post Facto Clause violation arising from later amendments. See Pet. App. A, at 3 n.l; Present. Conf. Tr. 32-34. For purposes of sentencing, the court "adopt[ed] the factual findings and guideline application in the presentence report." Pet. App. D, at 6; see also Sent. Tr. 32-36; but see id. at 6, 32 (court did not resolve disputed factual issues not relevant to sentencing); see also, e.g., Present. Conf. Tr. 5, 30. As set out in the PSR (at "par" 37-63), the Guideline applicable to petitioners firearms offense, Section 2K2.1, specified that "[i]f the defendant used or possessed the firearm in connection with commission or attempted commission of another offense," the court should instead "apply 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater." Guidelines 2K2.l(c) (2) (1990). See ---------------------------------------- Page Break ---------------------------------------- 6 Pet. App. A, at 4; Pet. App. B, at 174-175. Because it found, by a preponderance of the evidence, that petitioner "used or possessed" the .22-caliber rifle "in connection with" the murders of Martin and Lindsey (Sent. Tr. 30-32, 34), the district court treated those murders as the "object offense" for purposes of Guidelines 2X1.1, resulting in a base offense level of 43, and a Guidelines sentence of life imprisonment. See Pet. App. A, at 4; Pet. App. B, at 175. The court found (Sent. Tr. 35) that petitioner had not accepted responsibility for his actions, and was therefore not entitled to any reduction in his offense level on that ground. In addition, the court found (Sent. Tr. 35-36) that petitioner's five prior burglary convictions made him an "armed career criminal" under Guidelines 4B1.4 (1990). Petitioner was therefore subject to the enhanced sentencing provisions of 18 U.S.C. 924(e), which sets a statutory sentencing range of 15 years to life in prison. See Pet. App. B, at 175. The court therefore imposed a life sentence. 4. The court of appeals affirmed petitioner's convictions, but it initially vacated his sentence. Pet. App. B. The court agreed that the district court had correctly applied the Sentencing Guidelines, and that in doing so it was proper to consider uncharged or acquitted conduct on the part of petitioner, so long as that conduct could be proved by a preponderance of the evidence. Id. at 175-177 & n.8. In an extended discussion (id. at 174-187) , however, the court expressed concern that because the life sentence in this case resulted from consideration, under the Guidelines, of ---------------------------------------- Page Break ---------------------------------------- 7 conduct that underlay state charges of which the defendant had been acquitted, it might raise "serious constitutional concerns" (id. at 181), at least if there were "no safety valve * * * to adjust the Guidelines sentence" (id. at 177). Because it thought that "the district court erroneously believed it had no power to deviate from the sentence indicated by a straightforward application of the Guidelines" (id. at 184), the court of appeals made clear that the district court had the authority to consider a downward departure (id. at 183-187), and vacated petitioners sentence to allow the district court to exercise its "fact-based, discretionary judgment" (id. at 185). On remand, the district court reimposed the same sentence. Pet. App. C. The district court first noted that it had considered petitioner's participation in the Martin and Lindsey murders "because I was satisfied then and I am still satisfied now that the underlying acquitted conduct was properly established under the law by a preponderance of the evidence as premeditated murder for enhancement purposes despite the acquittal of the state court. " Resent. Tr. 22 (reproduced in Pet. C.A. Br. App.). The court then made clear that it "was aware then, at the time of sentencing, and I am aware now of the court's departure authority." Id. at 23. The court explained that, despite the concerns it had expressed while originally considering the matter, it had "found no basis for departure after expressing and analyzing th[ose] concerns." Id. at 24. Rather, "[i]n light of the defendants record and the nature of the case in the context of the guideline provisions, [the court] ---------------------------------------- Page Break ---------------------------------------- 8 came to the conclusion that a life sentence was appropriate under the circumstances." Id. at 25. On remand, "[r]eviewing the special circumstances that were highlighted by the circuit court [gave the district court] an opportunity to test [its] analysis once again," and the court "remain[ed] firmly persuaded that the appropriate sentence in this case is the sentence that was imposed initially." Id. at 27. 5. The court of appeals affirmed. Pet. App. A. The court rejected (id. at 6-11) petitioner's argument that, in light of the effect on his sentence of the finding that he had participated in the Martin and Lindsey murders, the district court should have been required to apply the "beyond a reasonable doubt" standard in making that finding. Recognizing "the long-standing view that the judge should employ all relevant information" in sentencing (id. at 7), and that "ordinarily the facts at sentencing need be proved only by a preponderance of the evidence" (id. at 6-7), the court nonetheless considered that the adoption of the Sentencing Guidelines "provide[d] some basis for reconsidering the issue" (id. at 7-8). Noting, however, that "[t]he pertinent change * * * is that the guidelines are compulsory, " the court pointed out that, for petitioner, that "element has been largely removed by our decision in [petitioner's first appeal], which restored to the district court its pre-guideline discretion to decide whether and how far to give weight to the murders." Id. at 9. Although "the district court may (and here did) still choose to give weight to the uncharged offenses in fixing the sentence within the statutory ---------------------------------------- Page Break ---------------------------------------- 9 range if it finds by a preponderance of the evidence that they occurred," that result " was always permitted by long-standing practice and explicit Supreme Court authority." Ibid. The court acknowledged that the Third Circuit had interpreted federal sentencing law to require that an extraordinarily large upward departure from the otherwise applicable Guidelines range would be permitted only if the court found that the uncharged conduct cited to justify it had been proved by "clear and convincing" evidence. Pet. App. A, at 10. The court noted that petitioner did not urge the "clear and convincing" standard, which "the district court would probably find * * * had been amply met" in this case. Id. at 10-11. The court also considered (id. at 11- 13) the fact that petitioner not only had not been charged with the Martin and Lindsey murders in federal court, but had been acquitted of those murders in state court. Although it questioned the wisdom of treating uncharged conduct in the same way as acquitted conduct, the court made clear (id. at 12-13) that it gave the distinction between the two no constitutional weight. Under binding authority, the court concluded that "the Constitution does not require a heightened proof standard in a case such as [petitioner's]." Id. at 11. ARGUMENT Petitioner contends (Pet. 7-13) that his life sentence for unlawful possession of a firearm was imposed in violation of due process because the sentencing court took into account the fact, which it found by a preponderance of the evidence, that petitioner ---------------------------------------- Page Break ---------------------------------------- 10 used or possessed the firearm in connection with two murders, even though petitioner had previously been acquitted of those murders after a criminal prosecution in state court. That contention is not well founded. 1. Petitioner concedes (Pet. 7), as he must, that there is no general constitutional impediment to a court's consideration, in sentencing a defendant for one offense, of conduct that would constitute another offense with which the defendant has not been charged, or of which he has been acquitted, so long as that conduct has been proved to the sentencing court by a preponderance of the evidence. United States v. Watts, 117 S. Ct. 633, 637-638 (1997) (per curiam); Nichols v. United States, 511 U.S. 738, 748 (1994); McMillan v. Pennsylvania, 477 U.S. 79, 91-92 (1986); Williams v. New York, 337 U.S. 241 (1949); see also Witte v. United States, 115 S. Ct. 2199 (1995) (consideration of other conduct at sentencing is not "punishment" for uncharged offense). Moreover, petitioner does not dispute that the Sentencing Guidelines were properly applied to his case, and that the resulting sentence is within the statutory range authorized by Congress for his offense. See 18 U.S.C. 924(e). Petitioner argues (Pet. 11), however, that in his case "the [statutory sentencing] range fixed by Congress is so broad, and the enhancing role played by the [uncharged] relevant conduct so significant, that consideration of that conduct in sentencing has become 'a tail which wags the dog of the substantive offense.' " Witte, 115 S. Ct. at 2208 (quoting McMillan, 477 U.S. at 88). In those circumstances, petitioner contends that due process requires ---------------------------------------- Page Break ---------------------------------------- 11 the sentencing court to find the facts relevant to enhancement beyond a reasonable doubt. The "dog" of petitioner's offense is more substantial than his argument allows. Because of his five prior burglary convictions, petitioner was an "armed career criminal" subject to 18 U.S.C. 924 (e) and Guidelines 4B1.4. Congress has indicated the seriousness with which it views even simple possession of a firearm by such repeat offenders by providing, in Section 924(e), for a minimum sentence of fifteen years in prison and a maximum sentence of life imprisonment. As with any other serious federal criminal offense, the district court's discretion in fixing a sentence within that statutory range is now guided by the Sentencing Guidelines; and, as the court of appeals observed (Pet. App. A, at 3; Pet. App. B, at 175 n.6), even apart from consideration of the Martin and Lindsey murders, petitioner would have faced a minimum Guidelines sentence of 262-327 months, or roughly 22 to 27 years in prison. See Guidelines 4B1.4 (1990); id. at Ch. 5, Pt. A (Table). In fact, however, the Sentencing Guidelines were designed to permit or require sentencing courts to take into account "those actions and circumstances that courts typically took into account when sentencing prior to the Guidelines' enactment." Watts 117 S. Ct. 635. Not surprisingly, therefore, they directed the district court in this case to take special notice if it found that petitioner not only had possessed a gun, but had "used or possessed [it] in connection with [the] commission of ---------------------------------------- Page Break ---------------------------------------- 12 another offense." Guidelines 2K2.1(c) (2) (1990). Where such use or possession is found, the Guidelines require adjustment of a defendant's sentence, within the statutory range, in accordance with the seriousness of the other offense involved. In this case, because the offense involved was murder, and because petitioner never accepted responsibility for any of his criminal conduct (see, e.g., Pet. App. B, at 187), that adjustment increased petitioner's Guidelines sentence from a maximum of 27 years to life imprisonment. 1 An increase in the sentence of a 31-year-old defendant from 27 years to life in prison is not so long a sentencing "tail" that it may properly be said to wag the "dog" of the underlying offense. Even if the increase were more dramatic, however, it would still reflect a proper application of basic sentencing principles. The district court's sentence falls within the range defined by statute for petitioner's possession offense; the court's discretion in selecting a point within that range was properly channeled by the Sentencing Guidelines, using entirely traditional sentencing criteria. See Witte, 115 S. Ct. at 2207. Moreover, as the court of appeals emphasized (Pet. App. A, at 9), the district court had ample authority and opportunity to apply its individualized discretion, despite the Guidelines' channeling, by departing downward from the Guidelines sentence. After considering the ___________________(footnotes) 1 Acceptance of responsibility would have produced a two- level reduction in petitioner's offense level. See Guidelines 3E1.1 (1990). That reduction would have lowered the bottom of the Guidelines sentencing range to 30 years. See id. at Ch. 5, Pt. A. ---------------------------------------- Page Break ---------------------------------------- 13 matter with great care, and fully aware of both his power and his responsibility, the experienced district court judge in this case twice declined to make any such departure. See Resent. Tr. 23-24, 27. Nothing in petitioner's sentence, or in the procedure by which it was imposed, offends due process. 2. Petitioner misplaces his reliance on this Court's decisions in In re Winship, 397 U.S. 358 (1970), Mullaney v. Wilbur, 421 U.S. 684 (1975), and Patterson v. New York, 432 U.S. 197 (1977). So far as is relevant here, Winship held only that the government must prove beyond a reasonable doubt "every fact necessary to constitute the crime with which [a defendant] is charged" (397 U.S. at 364), while Mullaney and Patterson considered what facts were necessary to "constitute" the crime of murder under two particular state statutory schemes. In this case, there is no question that petitioner was properly convicted, by proof beyond a reasonable doubt, of unlawfully possessing a firearm after having been convicted of numerous prior felonies. The sentence imposed on petitioner constitutes -- and was authorized by Congress as -- punishment for that crime. See Witte, 115 S. Ct. 2206-2208; Watts, 117 S. Ct. at 636-637. The fact that in setting that sentence the district court took into account, in a manner prescribed by the Sentencing Guidelines, the factual context of petitioner's offense of conviction, along with petitioner's other criminal history, does not distinguish this case from traditional sentencing practices, and does not change the constitutional analysis. See Watts, 117 S. Ct. at 635-636; Witte 115 S. Ct. at 2207-2208; Nichols v. United ---------------------------------------- Page Break ---------------------------------------- 14 States, 511 U.S. 738, 747-748 (1994); Wisconsin v. Mitchell, 508 U.S. 476, 485-486 (1993); McMillan, 477 U.S. at 92 ("Sentencing courts necessarily consider the circumstances of an offense in selecting the appropriate punishment," and "[w]e have some difficulty fathoming why the due process calculus would change simply because the legislature has seen fit to provide [such] courts with additional guidance."); Pet. App. A, at 9. 3. Although petitioner does not explicitly make the point, this Court has recently noted that there is "a divergence of opinion among the Circuits as to whether, in extreme circumstances, [a finding at sentencing of] relevant conduct that would dramatically increase the sentence must be based on clear and convincing evidence." Watts, 117 U.S. at 637 & n.2 (collecting cases). It is true that a number of courts of appeals have reserved that question, on either statutory or constitutional grounds. 2. Even those courts, however, have almost never found occasion to apply a higher standard in any case that has actually come before them. See, e.g., United States v. Porter, 23 F.3d 1274, 1277-1278 (7th Cir. 1994); United States v. Harrison-Philpot, ___________________(footnotes) 2 See, e.g., United States v. Mergerson, 4 F.3d 337, 343-344 (5th Cir. 1993), cert. denied, 510 U.S. 1198 (1994); United States v. Conception, 983 F.2d 369, 390 (2d Cir. 1992), cert. denied, 510 U.S. 856 (1993); United States v. Masters, 978 F.2d 281, 286-287 (7th Cir. 1992), cert. denied, 508 U.S. 906 (1993); United States v. Galloway, 976 F.2d 414, 425-426 (8th Cir. 1992) (en banc), cert. denied, 507 U.S. 974 (1993); United States v. Lam Kwong-Wah, 966 F.2d 682, 687-688 (D.C. Cir.), cert. denied, 506 U.S. 901 (1992); United States v. Restrepo, 946 F.2d 654, 661 & n.12 (9th Cir. 1991) (en banc), cert. denied, 503 U.S. 961 (1992); United States v. Townley, 929 F.2d 365, 370 (8th Cir. 1991). ---------------------------------------- Page Break ---------------------------------------- 15 978 F.2d 1520, 1524 & n.1 (9th Cir. 1992), cert. denied, 508 U.S. 929 (1993); United State v. Masters, 978 F.2d at 286-287. We are aware of only two cases in which a court has actually found a sentencing -- decision in both cases, a departure from the otherwise applicable Guidelines range -- so exceptional that it has required the use of a higher standard of proof. United States v. Kikumura, 918 F.2d 1084, 1100-1102 (3d Cir. 1990) (22-level upward departure, increasing prison sentence from 30 months to 30 years); United States v. Seale 20 F.3d 1279, 1288 (3d Cir. 1994) (seven-fold, 1.5 million departure from maximum Guidelines fine). As the court of appeals in this case put the point (Pet. App. A, at 10), however, Kikumura has been "much discussed but generally not followed"; and the government has not to date concluded that Kikumura's erroneous statutory analysis posed a sufficient barrier to effective sentencing to justify seeking this Court's review of the issue. In any event, this case does not implicate any divergence in approach among the courts of appeals. As explained above (at pages 11-12), petitioner's life sentence, while severe, was not several times greater than the 262-327 month sentence he would have faced under the Guidelines if the district court had not taken account of his participation in the Martin and Lindsey murders. Compare Kikumura, 918 F.2d at 1101-1102; Mergerson, 4 F.3d at 344 -345 (no heightened standard where facts found for sentencing increased prison sentence from 30 years to life). Moreover, petitioner's sentence resulted from application of, not departure from, the ---------------------------------------- Page Break ---------------------------------------- 16 Sentencing Guidelines range, and Kikumura's holding, which rested on "the statutory requirement that a sentencing court 'find' certain considerations in order to justify a departure, 18 U.S.C. 3553(b), "is therefore inapplicable here. Finally, we are aware of no case that has applied to sentencing the stringent "reasonable doubt" standard that petitioner seeks: Even Kikumura and Seale required only that sentencing findings be made on the basis of "clear and convincing" evidence, a standard the court of appeals thought the trial judge "would probably find * * * had been amply met" in this case. Pet. App. A, at 10-11. There is thus no reason to believe that any court of appeals -- including the Third Circuit -- would find petitioner's sentence sufficiently extraordinary to trigger a constitutional requirement that facts on which it was based be found by more than a preponderance of the evidence, or that the proof at sentencing here would fail the only heightened standard of proof that any appellate court has ever required. 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 DANIEL S. GOODMAN Attorney MAY 1997