No. 96-7921 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 GARY L. LUFKIN, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT BRIEF FOR THE UNITED STATES WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General NINA GOODMAN Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the Sentencing Commission's implementation of the Career Offender Guideline (Section 4B1.1) conflicts with the Commission's obligation under 28 U.S.C. 994 (h) to "assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of " career offenders. (I) ------------------------------------------ Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-7921 GARY L. LUFKIN, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT BRIEF FOR THE UNITED STATES OPINION BELOW The judgment order of the court of appeals (Pet. App. 2-3) is unpublished, but the judgment is noted at 103 F.3d 134 (Table). JURISDICTION The judgment of the court of appeals was entered on November 26, 1996. The petition for a writ of certiorari was filed on February 18, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). STATEMENT Petitioner pleaded guilty in the United States District Court for the Central District of Illinois to possession of ---------------------------------------- Page Break ---------------------------------------- 2 marijuana with the intent to distribute it, in violation of 21 U.S.C. 841 (a) (1). He was sentenced to 77 months' imprisonment. The court of appeals affirmed. 1. Petitioner and an accomplice agreed to sell five pounds of marijuana to an undercover Illinois State Police officer and a government informant. Petitioner was arrested when he arrived at the accomplice's residence with the marijuana. He pleaded guilty to possessing marijuana with the intent to distribute it, in violation of 21 U.S.C. 841 (a) (1). Before the guilty plea, the government filed an information pursuant to 21 U.S.C. 851 (a), alleging that petitioner had previously been convicted of two felony drug offenses. Under 21 U.S.C. 841 (b) (1) (D), the prior convictions raised the maximum statutory penalty for petitioner's drug offense from five to ten years' imprisonment. 1. Gov't C.A. Br. 3. 2. In 1984, Congress created the United States Sentencing Commission and charged it with the responsibility to promulgate sentencing guidelines for the federal system. See 28 U.S.C. 991; Mistretta v. United States, 448 U.S. 361, 366 (1989). In ___________________(footnotes) 1 Section 841 (b) (1) (D) provides that persons convicted of controlled substance offenses involving less than 50 kilograms of marijuana "shall * * * be sentenced to a term of imprisonment of not more than 5 years ," but that "[i]f any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 10 years." The enhanced penalty may be imposed only if "before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon." 21 U.S.C. 851 (a) (1). ---------------------------------------- Page Break ---------------------------------------- 3 addition to directing the Commission to meet general goals for federal sentencing, see Neal v. United States, 116 S. Ct. 763, 767 (1996), Congress gave the Commission a variety of specific requirements with which it was to comply. 28 U.S.C. 944 (b)- (n). Among those requirements is the following provision, dealing with career offenders convicted of crimes of violence or drug trafficking crimes: The [Sentencing] Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and [(1) has been convicted of a felony that is a crime of violence or a drug trafficking crime, and (2) has two prior felony convictions involving crimes of violence or drug trafficking crimes]. 28 U.S.C. 994 (h). The Sentencing Commission implemented Section 994 (h) in Section 4B1.1 of the Sentencing Guidelines, entitled "Career Offender," which provides as follows: A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. If the offense level for a career criminal from the table below is greater than the offense level otherwise applicable, the offense level from the table below shall apply. A career offender's criminal history category in every case shall be Category VI. Offense Statutory Maximum Offense Level* (A) Life 37 (B) 25 years or more 34 (C) 20 years or more, but less than 25 years 32 (D) 15 years or more, but less than 20 years 29 (E) 10 years or more, but less than 15 years 24 (F) 5 years or more, but less than 10 years 17 -------------------------------------------- Page Break ---------------------------------------- 4 (G) More than 1 year, but less than 5 years 12 * If an adjustment from 3E1.1 (Acceptance of Responsibility) applies, decrease the offense level by the number of levels corresponding to that adjustment. Before November 1, 1994, the commentary to that Guideline defined the phrase "offense statutory maximum" to mean "the maximum term of imprisonment authorized for the offense of conviction." Neither the Guideline itself nor any accompanying commentary specified the manner in which the "offense statutory maximum" was to be determined when federal law specified a basic statutory maximum for all persons convicted of a particular offense, but an enhanced statutory maximum for persons convicted of that offense who also had prior convictions. Such enhanced sentences are a critical component of sentencing for federal narcotics crimes. See note 1, supra. The courts of appeals that had addressed the question uniformly concluded that the "offense statutory maximum" for a defendant with prior convictions was the enhanced maximum penalty, not the maximum penalty authorized for a defendant with no prior convictions. See United States v. Smith, 984 F.2d 1084, 1086-1087 (10th Cir.), cert. denied, 510 U.S. 873 (1993); United States v. Saunders, 973 F.2d 1354, 1364 (7th Cir. 1992), cert. denied, 506 U.S. 1070 (1993); United States v. Garrett, 959 F.2d 1005, 1009-1011 (D.C. Cir. 1992); United States v. Amis, 926 F.2d 328, 330 (3d Cir. 1991); United States v. Sanchez-Lopez, 879 F.2d 541, 558-560 (9th Cir. 1989). By Amendment 506, effective November 1, 1994, the Sentencing Commission amended the commentary to Guidelines 4B1.1 to define ---------------------------------------- Page Break ---------------------------------------- 5 the phrase "offense statutory maximum." The Commission defined that phrase to mean "the maximum term of imprisonment authorized for the offense of conviction * * * , not including any increase in that maximum term under a sentencing enhancement provision that applies because of the defendant's prior criminal record." U.S.S.C. App. C, Amend. 506. The Commission asserted that by precluding use of the enhanced statutory maximum terms, Amendment 506 "avoids unwarranted double counting as well as unwarranted disparity associated with variations in the exercise of prosecutorial discretion in seeking enhanced penalties based on prior convictions." Ibid. It also stated that "the enhanced maximum sentences provided for recidivist drug offenders * * * did not exist" at the time that 28 U.S.C. 994 (h) was enacted. Ibid. Pursuant to its authority under 28 U.S.C. 994 (u), the Commission made Amendment 506 retroactive, so that a sentencing court would have discretion to reduce a sentence imposed before the promulgation of the amendment. See Guidelines 1B1.10 (c) (Nov. 1, 1995). 2 3. Petitioner's criminal history triggered the career offender provision of Guidelines 4B1.1. Using an offense statutory maximum of ten years' imprisonment, the presentence report determined that petitioner's base offense level under Section 4B1.1 was 24. Reduced by three levels for acceptance of ___________________(footnotes) 2 The Department of Justice opposed the proposed amendment before the Commission, and, following its promulgation, determined that federal prosecutors should oppose the application of the amendment by sentencing courts on the ground that it is invalid as inconsistent with 28 U.S.C. 994(h). ---------------------------------------- Page Break ---------------------------------------- 6 responsibility under Section 3E1.1 (b), the adjusted offense level of 21 resulted in a sentencing range of 77 to 96 months' imprisonment. Gov't C.A. Br. 4. Petitioner objected to the presentence report, arguing that Amendment 506 required the court to disregard the enhancement from five to ten years in the statutorily authorized term of imprisonment and to set his base offense level at 17. Pet. App. 12-13; Gov't C.A. Br. 4. The district court concluded, however, that Amendment 506 is "inconsistent with the plain language" of 28 U.S.C. 994 (h) "and therefore inapplicable." Pet. App. 13; see Gov't C.A. Br. 5. Accordingly, the court adopted the finding of the presentence report that petitioner's base offense level was 24. The court sentenced petitioner to 77 months' imprisonment. Pet. App. 10-11, 14; Gov't C.A. Br. 5. 4. The court of appeal affirmed. Pet. App. 2-3. The court explained that it had previously held in United States v. Hernandez, 79 F.3d 584 (7th Cir.), petition for cert. pending, No. 95-9335 (filed June 17, 1996), that Amendment 506 is "inconsistent" with 28 U.S.C. 994 (h), and that therefore "the statute controlled." 3. Pet. App. 2. DISCUSSION This Court has granted the government's petition for a writ of certiorari in United States v. LaBonte, No. 95-1726 (argued ___________________(footnotes) 3 The Seventh Circuit recognized that its holding conflicted with the decision of the First Circuit in United States v. LaBonte, 70 F.3d 1396 (1st Cir. 1995), cert. granted, No. 95-1726 (June 24, 1996). Pet. App. 3n.2. ---------------------------------------- Page Break ---------------------------------------- 7 Jan. 7, 1997), which presents the same question as does the petition in the instant case. The petition should therefore be held pending the Court's decision in LaBonte and disposed of as appropriate in light of that decision. CONCLUSION The petition for a writ of certiorari should be held pending this Court's decision in United States v. LaBonte, No. 95-1726, and disposed of as appropriate in light of that decision. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General NINA GOODMAN Attorney MARCH 1997