CHRISTOPHER E. WILLIAMS, PETITIONER V. UNITED STATES OF AMERICA No. 89-7781 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 Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-18) is reported at 898 F.2d 659. JURISDICTION The judgment of the court of appeals was entered on March 15, 1990. The petition for a writ of certiorari was filed on June 12, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the Sentencing Guidelines' different treatment of defendants convicted of using a firearm during a drug trafficking crime, in violation of 18 U.S.C. 924(c), and those otherwise found to have possessed a firearm during such an offense, is an unwarranted sentencing disparity. 2. Whether the district court properly based petitioner's sentence on the total amount of cocaine involved in the underlying narcotics conspiracy. STATEMENT 1. Petitioner was charged in the Western District of Missouri with a number of offenses arising out of his participation in a crack cocaine distribution ring that operated in Kansas City, Missouri. Under a plea agreement with the government, petitioner pleaded guilty to one count of conspiring to distribute cocaine, in violation of 21 U.S.C. 846, and one count of using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. 924(c). /1/ At sentencing, the probation officer recommended a sentence of 63-78 months' imprisonment under the Sentencing Guidelines for the conspiracy count and the mandatory consecutive sentence of 60 months' imprisonment on the firearms count. /2/ The probation officer determined that petitioner's narcotics offense had a "total offense level" of 26: an adjusted level of 28 based on the total amount of 23.1 grams of cocaine involved during the course of the conspiracy, see Sentencing Guidelines Sections 2D1.1(a)(3), 2D1.1(c), and 2D1.4(a), and a two-level decrease for petitioner's acceptance of responsibility, see Sentencing Guidelines Section 3E1.1. Pet. App. 72-82. Petitioner challenged the probation officer's recommendation on two grounds. First, petitioner contended that the Sentencing Guidelines' different treatment of defendants convicted of using a firearm during a drug trafficking crime, in violation of 18 U.S.C. 924(c), and those otherwise found to have possessed a firearm during such an offense, is an unwarranted sentencing disparity. Petitioner pointed out that had he not been charged with the separate substantive offense under Section 924(c), application of the enhancement under Sentencing Guidelines Section 2D1.1(b)(1) for the underlying conduct of possessing a firearm would have resulted in a recommended total term of 78-97 months' imprisonment -- as opposed to the recommended total term of 123-138 months' imprisonment he actually faced. Pet. App. 96-98. Second, petitioner claimed that he should not be sentenced on the conspiracy count based on the total amount of cocaine involved in the distribution ring. /3/ Instead, he argued that he should be held accountable only for the amount of cocaine he actually helped distribute -- 4.7 grams. Accordingly, petitioner asked the court to reduce the applicable base offense level to 24, which would have called for a sentencing range of 51-53 months' imprisonment. Pet. App. 55-57. The district court rejected both of petitioner's arguments and accordingly sentenced him to a term of 63 months' imprisonment on the conspiracy count and a consecutive term of 60 months' imprisonment on the firearms count, to be followed by a term of five years' supervised release. Pet. App. 19, 22, 62. 2. The court of appeals affirmed. Pet. App. 1-18. In the court of appeals, petitioner renewed his contention that the Sentencing Guidelines' different treatment of defendants convicted of using a firearm during a drug trafficking crime, in violation of 18 U.S.C. 924(c), and those otherwise found to have possessed a firearm during such an offense, is an unwarranted sentencing disparity. Pet. App. 12-13; Pet. C.A. Br. 5-7. The court rejected that argument, noting that the "Sentencing Commission was fully aware of the existence of section 924(c) and its mandatory sentencing requirement when it constructed the Guidelines system." Pet. App. 13. "The fact that the prosecutor is empowered to choose between charging a violation of section 924(c) and merely seeking an enhancement of sentence based on his evaluation of the strength of the case against the defendant," the court concluded, "does not in any way violate the statutory goal of 'avoid(ing) unwarranted sentencing disparities.'" Pet. App. 13 (quoting 18 U.S.C. 3553(a)(6)). /4/ Petitioner also claimed that the district court erred in basing his sentence on the total amount of cocaine involved in the underlying narcotics conspiracy. Pet. C.A. Br. 10-12. The court of appeals determined that since petitioner "pleaded guilty to knowingly and intentionally engaging in a conspiracy to distribute cocaine(,) * * * (h)e is * * * criminally responsible for his conduct and as much of the conduct of his coconspirators in furtherance of the conspiracy as he either knew about or reasonably could foresee." Pet. App. 15 (citing Sentencing Guidelines Section 2D1.4 comment). Here, the record showed that "23.2 grams of cocaine were involved in the conspiracy * * * and that the drug transactions of (petitioner's) coconspirators were reasonably foreseeable by him." Pet. App. 15. Accordingly, the court upheld petitioner's sentence based on the total amount of cocaine involved in the conspiracy. /5/ ARGUMENT 1. Petitioner contends (Pet. 5-9) that the Sentencing Guidelines' different treatment of defendants convicted of using a firearm during a drug trafficking crime, in violation of 18 U.S.C. 924(c), and those otherwise found to have possessed a firearm during such an offense, is an unwarranted sentencing disparity. See 28 U.S.C. 991b(b)(1)(B) and 994(f). /6/ That claim is mistaken, since there are material differences between those two categories of criminal defendants. First, in order to convict a defendant of a substantive violation under Section 924(c), the government must shoulder a heavier burden of proof -- beyond a reasonable doubt -- as opposed to the preponderance of the evidence standard applicable to the defendant subject only to the sentence enhancement. Second, the statutory requirements under Section 924(c) that the defendant "uses or carries" a firearm "during and in relation to" a drug trafficking offense are more stringent than the prerequisites for application of the Guidelines enhancement, i.e., that the defendant "possessed" a firearm "during" the commission of the drug offense, Sentencing Guidelines Section 2D1.1(b)(1). In light of these differences, it is sensible for the Guidelines to treat convictions for the substantive offense under Section 924(c) more severely. /7/ 2. Petitioner also contends (Pet. 9-13) that the district court erred in basing his sentence on the total amount of cocaine involved in the underlying narcotics conspiracy. As the court of appeals pointed out, since petitioner "pleaded guilty to knowingly and intentionally engaging in a conspiracy to distribute cocaine(,) * * * (h)e is * * * criminally responsible for his conduct and as much of the conduct of his coconspirators in furtherance of the conspiracy as he either knew about or reasonably could foresee." Pet. App. 15; see, e.g., Pinkerton v. United States, 328 U.S. 640, 645-648 (1946). Here, the record showed that "23.2 grams of cocaine were involved in the conspiracy * * * and that the drug transactions of (petitioner's) coconspirators were reasonably foreseeable by him." Pet. App. 15. /8/ Indeed, as a matter of common sense, petitioner -- a member of a narcotics distribution ring -- would have known that his colleagues would sell cocaine even when he was not present and would leave unsold cocaine in the ring's headquarters. In these circumstances, petitioner's fact-specific claim fails. /9/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General RICHARD A. FRIEDMAN Attorney SEPTEMBER 1990 /1/ In return, the government agreed to move to dismiss the remaining six counts against petitioner at sentencing. In addition, the government agreed that petitioner was entitled to a two-level adjustment for his acceptance of responsibility under Sentencing Guidelines Section 3E1.1 Pet. App. 72-73. /2/ Under 18 U.S.C. 924(c), the mandatory five-year term of imprisonment must be imposed consecutively to any other term of imprisonment. Under the Sentencing Guidelines, a defendant's possession of a firearm during a narcotics offense calls for a two-level increase in the base offense level. Sentencing Guidelines Section 2D1.1(b)(1). That enhancement is inapplicable where the defendant stands convicted of the substantive offense under 18 U.S.C. 924(c). See Sentencing Guidelines Section 2K2.4. /3/ Petitioner did not dispute that the conspiracy involved 23.1 grams of cocaine. Pet. App. 83. /4/ Petitioner also contended that the district court should have departed downward from the Guidelines in order to eliminate the sentencing disparity caused by the prosecutor's charging decision, Pet. C.A. Br. 7-9, and that the Sentencing Commission, in promulgating the Guidelines, did not adequately consider federal prison capacity, as required by 28 U.S.C. 994(g), Pet. C.A. Br. 1-4. The court of appeals rejected each of those contentions, Pet. App. 13 n.3, 13-14, and petitioner has not sought further review of them. /5/ The court of appeals also rejected petitioner's contention that the district court should not have considered the 4.5 grams of cocaine seized when police officers raided the distribution ring's headquarters, because "evidence obtained during a police search is not a 'conspiracy transaction' as contemplated by (Sentencing Guidelines Section 2D1.4)." Pet. App. 15-16. Petitioner has not sought further review of that claim. /6/ Petitioner does not dispute that, under the terms of 18 U.S.C. 924(c) and Sentencing Guidelines Section 2K2.4, a defendant convicted of violating Section 924(c) is properly subject to a consecutive term of five years' imprisonment. Nor does petitioner otherwise dispute that the Guidelines' two-level increase for possession of a firearm during the commission of a narcotics offense, see Sentencing Guidelines Section 2D1.1(b)(1), falls within Congress's mandate that the Sentencing Commission consider the relevance of "the circumstances under which the offense was committed which * * * aggravate the seriousness of the offense," 28 U.S.C. 994(c)(2). /7/ To the extent petitioner's claim rests on his view that prosecutors have unfettered discretion to decide whether to charge substantive violations or seek enhancements under the Guidelines, he is wrong. The Attorney General has instructed all federal prosecutors that in all but exceptional cases such as those in which the defendant has provided substantial assistance to the government in the investigation or prosecution of crimes by others, federal prosecutors will seek conviction of any offense involving the unlawful use of a firearm which is readily provable. Memorandum of the Attorney General 1 (June 16, 1989), reprinted at Gov't C.A. Br. Add.; accord Department of Justice, Prosecutors Handbook on Sentencing Guidelines 50 (1987). /8/ In the district court, four of petitioner's codefendants stipulated at sentencing that the conspiracy involved 23.1 grams of cocaine. See Gov't C.A. Br. 11. /9/ In light of this record, the district court cannot be faulted for not making "explicit findings." Pet. 11. The state of the record also distinguishes this case from those cited by petitioner (Pet. 11-13) -- United States v. Warters, 885 F.2d 1266 (5th Cir. 1989), and United States v. Rivera, 898 F.2d 442 (5th Cir. 1990).