Opposition Brief — Raul Villarreal and Fidel Villarreal, Petitioners v. United States

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No. 18-5468

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

RAUL VILLARREAL AND FIDEL VILLARREAL, PETITIONERS

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

JOSHUA K. HANDELL

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

QUESTIONS PRESENTED

court,

Whether, on review of a sentence imposed by the district

the

court

appeals

must

separately

consider

the

correctness of each departure from the Sentencing Guidelines in

addition to reviewing the ultimate sentence for procedural and

substantive reasonableness.

Whether a sentencing court may consider conduct that was

not charged, or for which a defendant was not found guilty beyond

reasonable

doubt,

calculating

Sentencing Guidelines range.

(I)

the

defendant’s

advisory

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 18-5468

RAUL VILLARREAL AND FIDEL VILLARREAL, PETITIONERS

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 5-10 *) is not

published in the Federal Reporter but is reprinted at 725 Fed.

Appx. 515.

A prior decision of the court of appeals (Pet. App.

11-21) is not published in the Federal Reporter but is reprinted

at 621 Fed. Appx. 883.

The appendix to the petition for a writ of certiorari is

not paginated.

This brief treats the appendix as if it were

chronologically paginated, with the first page following the cover

page to the appendix as page 1.

JURISDICTION

The judgment of the court of appeals was entered on February

23, 2018.

A petition for rehearing was denied on May 3, 2018 (Pet.

App. 3-4).

The petition for a writ of certiorari was filed on

August 1, 2018.

The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for

the

Southern

District

California,

petitioners

were

convicted on one count of conspiracy to bring unauthorized aliens

into the United States for financial gain, in violation of 18

U.S.C. 371; 11 counts of bringing unauthorized aliens into the

United

States

for

financial

gain,

violation

U.S.C.

1324(a)(2)(B)(ii); one count of receiving a bribe as a public

official, in violation of 18 U.S.C. 201(b)(2)(A) and (C); and one

count of conspiracy to launder money, in violation of 18 U.S.C.

1956(a)(2)(A) and (h).

Verdict Form 1-6; Indictment 2, 7-14.

The

district court sentenced petitioner Raul Villarreal to 420 months

in prison and petitioner Fidel Villarreal to 360 months, both to

be followed by three years of supervised release.

D. Ct. Doc.

362, at 2-3 (June 28, 2013); D. Ct. Doc. 363, at 2-3 (June 28,

2013).

The

court

appeals

vacated

petitioners’

bribery

convictions and remanded for resentencing.

Pet. App. 21.

The

district

Villarreal

336

court

resentenced

petitioner

Raul

months of imprisonment and petitioner Fidel Villarreal to 270

months, both to be followed by three years of supervised release.

D. Ct. Doc. 493, at 2-3 (Apr. 21, 2016) (Raul Amended Judgment);

D. Ct. Doc. 494, at 2-3 (Apr. 21, 2016) (Fidel Amended Judgment).

The court of appeals affirmed.

Pet. App. 5-10.

Petitioners are brothers and former agents with the U.S.

Border Patrol.

In 2005, while petitioners were still employed as

Border Patrol agents, they formed an immigrant-smuggling ring with

help from a sizable network of coordinators and transporters on

both sides of the U.S.-Mexico border.

See D. Ct. Doc. 451 ¶¶ 6-10

(Dec.

PSR).

23,

2015)

(Fidel

Corrected

Under

petitioners’

direction and control, the operation regularly transported groups

of unauthorized aliens into the United States in exchange for

bribes,

using

detection.

petitioners’

Id. ¶¶ 9-10.

Border

Patrol

Id. ¶ 10.

2006,

evade

Petitioners smuggled more

than 50 such groups over roughly 16 months.

June

Each group comprised approximately seven

to ten unauthorized aliens.

vehicles

petitioners

and

Ibid.

several

their

co-

conspirators fled to Guadalajara, Mexico, after learning that they

were under investigation by U.S. authorities.

Fidel Corrected PSR

¶¶ 11, 26-29. While in Mexico, petitioners discussed killing other

members of the conspiracy to prevent them from cooperating with

law enforcement, id. ¶ 31, and Raul later brandished a gun while

threatening co-conspirator Hector Cabrera, id. ¶ 32; 4/5/16 Sent.

Tr. 13-15.

Shortly thereafter, Cabrera fled to the United States

and began cooperating with the investigation.

4/5/16 Sent. Tr. at

15-16.

A federal grand jury charged petitioners with one count

of conspiracy to bring unauthorized aliens into the United States

for financial gain, in violation of 18 U.S.C. 371; 11 counts of

bringing unauthorized aliens into the United States for financial

gain, in violation of 8 U.S.C. 1324(a)(2)(B)(ii); one count of

receiving a bribe as a public official, in violation of 18 U.S.C.

201(b)(2)(A) and (C); one count of conspiracy to launder money, in

violation

U.S.C.

1956(a)(2)(A)

and

(h);

one

count

conspiracy to tamper with a witness, in violation of 18 U.S.C.

1512(a)(2)(A), (b)(1), and (k); and one count of tampering with a

witness, in violation of 18 U.S.C. 1512(a)(2)(A). Indictment 1-15.

Petitioners were arrested in Tijuana, Mexico; extradited to the

United States; and eventually convicted on all counts except those

related to witness tampering.

Form 1-6.

Fidel Corrected PSR ¶ 13; Verdict

The district court sentenced Raul to 420 months of

imprisonment and Fidel to 360 months of imprisonment, both to be

followed by three years of supervised release.

D. Ct. Doc. 362,

at 2-3; D. Ct. Doc. 363, at 2-3.

The

court

appeals

affirmed

all

petitioners’

convictions except for the bribery convictions, which the court

vacated and remanded due to an erroneous jury instruction.

Pet.

App. 16.

The government decided not to retry petitioners on the

bribery count, see D. Ct. Docket Entry No. 448 (Aug. 10, 2015),

and the district court proceeded with resentencing.

Petitioners

contended, among other things, that the calculation of their

advisory

Sentencing

Guidelines

ranges

under

the

Sentencing

Guidelines should not include an upward departure under Sentencing

Guidelines § 2L1.1 (2011) based on the number of aliens they

illegally brought into the United States because the evidence

supported a finding of only “between 280 aliens and 500 aliens,”

3/15/16 Sent. Tr. 17, nor an upward departure under Section 3C1.1

for obstruction of justice because the jury did not find them

guilty beyond a reasonable doubt on tampering charges alleging the

same conduct, id. at 32-33.

Petitioners further contended that

their initial sentences created unwarranted disparities with the

sentences imposed on defendants in unrelated corruption cases.

Id. at 56-62.

The government responded that, according to the

evidence introduced at trial, petitioners’ operation transported

ten aliens or more across the border “three to four times a week”

for over a year, id. at 21, and argued that none of petitioners’

purported comparator cases involved similar facts, id. at 70.

The district court determined that, with respect to the aliensmuggling counts, Raul was subject to an adjusted offense level of

31 and a Guidelines range of 108-135 months in custody; and Fidel

to an adjusted offense level of 32 and a Guidelines range of

121-151 months in custody.

4/5/16 Sent. Tr. 20-21.

The court

further determined that the same adjusted offense levels applied

to the money-laundering counts, id. at 21-22, and that Raul’s and

Fidel’s combined offense levels were, thus, 31 for Raul and 32 for

Fidel, id. at 22.

The district court then granted upward departures of (1) four

levels for an offense “involving substantially more than 100

aliens” under Section 2L1.1, 4/5/16 Sent. Tr. 24-25; (2) two levels

for “egregious” obstruction of justice under § 3C1.1 by Raul, based

on his pulling a gun on a co-conspirator, id. at 26-27; (3) two

levels

for

“disruption

government

function”

under

Section

5K2.7, id. at 28-30; and (4) four levels for the “dismissed charge

of bribery” under Section 5K2.21, id. at 31-33.

Granting these

departures (and denying others that the government requested)

yielded a total offense level of 43 and resulting Guidelines range

of life in prison for Raul and a total offense level of 42 and

Guidelines range of 360 months to life for Fidel.

Id. at 33-34.

Addressing petitioners’ argument that “other alien-smuggling

cases and other corruption cases” established that their sentences

were “unreasonable” and would “result in an unwarranted sentence

disparity,”

the

district

court

observed

that,

unlike

the

defendants in the cited cases, petitioners here displayed “a lack

of remorse” and “have remained mum as to the

* * *

identification

and the location and concealment of ill-gotten gains.”

4/5/16

Sent. Tr. 45-49.

The court sentenced Raul to 336 months in prison

and Fidel to 270 months, both to be followed by three years of

supervised release.

The

district

Id. at 56-60.

court

subsequently

clarified

that,

“to

the

extent it was improper” to comment on petitioners’ failure to

provide information about the location of the proceeds from their

crimes, those statements “were mostly footnotes” because it was

petitioners’ receipt of bribes that predominantly informed the

Guidelines calculation.

4/11/16 Sent. Tr. 5-6.

The court further

addressed petitioners’ sentencing-disparity argument, identifying

additional distinctions between their case and the ones on which

they relied.

Id. at 6-7.

The court of appeals affirmed.

Pet. App. 5-10.

The

court determined that the district court had “adequately explained

the

extent

imposed.”

its

departures

Id. at 6.

and

the

ultimate

sentences

The court of appeals explained that the

district court had permissibly found “that [petitioners]’ abuse of

their official positions to carry out a scheme whose goal was

directly contrary to the mission of [their] agency, coupled with

[their] violent efforts to obstruct justice, warranted sentences

well above the pre-departure Guidelines ranges.”

Id. at 7.

The

court of appeals also rejected petitioners’ contentions that the

district court’s conclusions “rest[ed] * * * on clearly erroneous

facts,” specifically upholding the district court’s finding that

petitioners’ “smuggling scheme involved 1,000 aliens.”

Ibid.

The

court of appeals additionally found no error in the district

court’s “comment regarding [petitioners]’ ‘remaining mum,’” which

was, “considered in context,

* * *

an explanation for the

relatively lenient sentences imposed in cases that the court was

comparing to this case for purposes of” 18 U.S.C. 3553.

App. 8.

Pet.

Finally, the court of appeals rejected petitioners’

argument that consideration of conduct underlying the dismissed

bribery charge, or conduct underlying the tampering charge as to

which petitioners were not found guilty beyond a reasonable doubt,

violated their Fifth and Sixth Amendment rights, id. at 9, and it

found their sentences to be substantively reasonable, id. at 9-10.

ARGUMENT

Petitioners contend (Pet. 9-17) that the court of appeals

erred by “limit[ing] its analysis to reasonableness review” rather

than

separately

procedurally

erred

considering

with

Sentencing Guidelines.

this

case

Guidelines

did

respect

Pet. 10.

independently

departures,

any

whether

each

the

district

departure

court

under

the

But because the court of appeals

analyze

circuit

the

district

disagreement

Guidelines departures is not implicated.

court’s

review

Petitioners further

contend (Pet. 17-19) that the district court violated their rights

under the Fifth and Sixth Amendments by taking into account at

sentencing conduct relating to counts that were dismissed or for

which

were

not

Alternatively,

found

they

guilty

contend

beyond

(Pet.

19-22)

reasonable

that

doubt.

“statutory

and

common law” precludes consideration of such conduct at sentencing.

That contention lacks merit and implicates no conflict among the

courts of appeals.

This Court has repeatedly denied writs of

certiorari in cases presenting similar questions and should follow

the same course here.

Petitioners

seek

review

(Pet.

10)

“‘departures’ under the Sentencing Guidelines are

whether

* * *

subject

to appellate review” independent of the broader “‘reasonableness’

[review] under 18 U.S.C. 3553(a).”

This case does not present

that question because, whatever the Ninth Circuit’s practice has

been in other cases, the court of appeals here separately evaluated

the procedural reasonableness of the sentencing court’s departures

before

reviewing

the

resulting

sentences

for

substantive

reasonableness.

Before United States v. Booker, 543 U.S. 220 (2005), the

Sentencing Guidelines were mandatory and generally binding on

district courts at sentencing.

See Irizarry v. United States, 553

U.S.

Guidelines

708,

713

(2008).

The

themselves,

however,

authorized sentencing courts to “depart[]” from the applicable

Guidelines range in various circumstances.

See id. at 713-714;

see generally, e.g., Sentencing Guidelines, Ch. 5, Pt. K (2004).

“‘Departure’ is a term of art under the Guidelines and refers only

to non-Guidelines sentences imposed under the framework set out in

the Guidelines.”

Irizarry, 553 U.S. at 714.

Under the mandatory

Guidelines, “departures” were subject to “a de novo standard of

review.”

Gall v. United States, 552 U.S. 38, 46 (2007).

In Booker, this Court held that the mandatory Sentencing

Guidelines system was invalid under the Sixth Amendment.

U.S. at 226-227, 245.

See 543

As a remedy, the Court invalidated those

provisions of federal sentencing law that made the Guidelines

mandatory, 18 U.S.C. 3553(b)(1) (Supp. IV 2004), and that required

appellate review in conformance with the Guidelines, 18 U.S.C.

3742(e) (2000 & Supp. IV 2004).

result,

although

district

the

543 U.S. at 245, 259.

courts

Guidelines,”

must

the

“give

Guidelines

As a

respectful

consideration

are

now

“‘advisory.’”

Kimbrough v. United States, 552 U.S. 85, 101 (2007)

(citation omitted); see, e.g., Beckles v. United States, 137 S.

Ct. 886, 894 (2017).

Consequently, a sentencing court “may vary from Guidelines

ranges” based on its application of the statutory sentencing

factors

U.S.C.

3553(a),

whether

not

authorize a departure under the circumstances.

the

Guidelines

Kimbrough, 552

U.S. at 101 (brackets, citation, and internal quotation marks

omitted).

A court may do so based on “policy considerations,

including disagreements with the Guidelines.”

Ibid. (citation

omitted). A “variance” based on the court’s exercise of discretion

under 18 U.S.C. 3553(a) is thus distinct from a “departure” within

the Guidelines framework.

See Irizarry, 553 U.S. at 712-714

(citation omitted).

The courts of appeals have taken different approaches to the

review

sentences

involving

potential

departures

under

the

Guidelines. The Seventh and Ninth Circuits have generally reviewed

sentences

for

reasonableness

under

Section

3553(a),

without

separately considering the correctness of any departure decisions

under the Guidelines.

See, e.g., United States v. Johnson, 427

F.3d 423, 426-427 (7th Cir. 2005); United States v. Mohamed, 459

F.3d 979, 987 (9th Cir. 2006).

Those courts “do[] not preclude

consultation of the system of departures that existed under the

mandatory regime, either by the district court or by th[e] court

[of appeals].”

Mohamed, 459 F.3d at 987.

But they recognize that

“after Booker what is at stake is the reasonableness of the

sentence, not the correctness of the ‘departures’ as measured

against

pre-Booker

sentencing

mandatory.”

courts

decisions

that

cabined

from

guidelines

depart

Johnson, 427 F.3d at 426.

the

discretion

that

were

then

Those courts further

recognize that “if a district court were to employ a post-Booker

‘departure’ improperly, the sentencing judge still would be free

on remand to impose exactly the same sentence by exercising his

discretion” to impose a variance.

Mohamed, 459 F.3d at 987.

The

Seventh and Ninth Circuits therefore generally review a sentence

involving

potential

departure

factor

for

substantive

reasonableness, treating the departure analysis as part of the

district court’s broad sentencing discretion.

Ibid.

Several other courts of appeals, however, have indicated

that, after considering calculation of the Guidelines range, a

reviewing court should review the propriety of any potential

Guidelines

departures

under

the

relevant

Guidelines

departure

provisions before addressing whether the ultimate sentence was

reasonable under Section 3553(a).

See, e.g., United States v.

Wallace, 461 F.3d 15, 32-33 (1st Cir. 2006); United States v.

Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005); United States v.

Fumo, 655 F.3d 288, 308 (3d Cir. 2011); United States v. GutierrezHernandez, 581 F.3d 251, 254-255 (5th Cir. 2009); United States v.

Woods,

670

F.3d

883,

886

(8th

Cir.

2012);

United

States

Robertson, 568 F.3d 1203, 1210 (10th Cir.), cert. denied, 558 U.S.

1083 (2009); United States v. Crawford, 407 F.3d 1174, 1178, 11811182 (11th Cir. 2005).

review

This

the

Court

has

repeatedly

denied

circuits’

different

approaches

Guidelines departures.

petitions

seeking

review

See Mendez-Maldonado v. United States, 137

S. Ct. 2116 (2017) (No. 16-7489); Dominguez-Garcia v. United

States, 136 S. Ct. 36 (2015) (No. 14-9292); Vasquez-Cruz v. United

States, 571 U.S. 837 (2013) (No. 12-10038); Cruz-Lopez v. United

States, 568 U.S. 941 (2012) (No. 11-10989).

The same result is

appropriate here.

Each of petitioners’ sentencing claims (Pet.

C.A. Br. 17-35) -- that the district court “refused to address”

their disparity arguments, that it “failed to explain adequately

the extent of its upward departures,” that it erroneously derived

culpability from their “‘remain[ing] mum’” about the disposition

of their criminal proceeds, and that it erroneously calculated the

number of immigrants transported –- was reviewed by the court of

appeals.

Id. at 17, 25 (citation omitted).

In particular, the

court undertook a step-by-step review of petitioners’ arguments

about the departures without suggesting that their arguments were

foreclosed or citing any of the circuit precedent petitioners now

challenge.

Before

considering

whether

petitioners’

sentences

were

substantively reasonable, see Pet. App. 9-10, the court of appeals

determined that the district court had “adequately explained the

extent of its departures and the ultimate sentences it imposed,”

id. at 6; and that the district court “did not rest its sentencing

decisions on clearly erroneous facts,” id. at 7 (recounting the

“finding

that

[petitioners]’

smuggling

scheme

involved

1,000

aliens,” and the reliance on petitioners’ “abuse of their official

positions” and “efforts to obstruct justice” as “primary drivers

behind

the

lengthy

sentences”).

separately

addressed

petitioners’

And

the

arguments

court

unwarranted

appeals

sentencing disparities, id. at 8; consideration of acquitted and

dismissed conduct, id. at 9; and the district court’s “enhancement

for bodily injury,” id. at 10. Contrary to petitioners’ contention

(Pet. 16), no reason exists to believe that “petitioners’ ability

to attack the heart of the district court’s sentencing analysis

* * *

[was] curtailed” by the court of appeals or that “appellate

review of [their] sentences” was in any way “limit[ed].”

Review

of the question presented in this case is accordingly unwarranted.

grant

Petitioners assert (Pet. 17) that this Court should

review

consider

dismissed conduct to support

“whether

* * *

reliance

acquitted

and

dramatic departures under the

Sentencing Guidelines violates the Fifth and Sixth Amendments.”

They

identify

conflict

among

the

courts

appeals

development in this Court’s jurisprudence that would justify such

review.

When selecting an appropriate sentence, a district court

may, consistent with the Fifth and Sixth Amendments, consider

conduct that was not intrinsic to the underlying conviction.

Although the Sixth Amendment requires that, other than the fact of

a prior conviction, “any fact that increase[s] the prescribed

statutory maximum sentence” or the statutory “minimum sentence”

for an offense “must be submitted to the jury and found beyond a

reasonable doubt,” Alleyne v. United States, 133 S. Ct. 2151,

2157-2158

(2013)

(opinion

Thomas,

J.),

judges

have

broad

discretion to engage in factfinding to determine an appropriate

sentence within a statutorily authorized range, see, e.g., id. at

2163 (majority opinion) (“[B]road sentencing discretion, informed

by judicial factfinding, does not violate the Sixth Amendment.”);

Booker, 543 U.S. at 233 (“[W]hen a trial judge exercises his

discretion to select a specific sentence within a defined range,

the defendant has no right to a jury determination of the facts

that the judge deems relevant.”).

Contrary to petitioners’ contention (Pet. 17-19), neither the

Fifth

Amendment

courts

from

nor

finding

the

Sixth

facts

Amendment

about

relevant

precludes

conduct

sentencing

under

this

framework when the defendant is acquitted of that conduct under a

higher

standard

proof

trial,

voluntarily dismisses the charge.

when

the

government

As this Court explained in

United States v. Watts, 519 U.S. 148 (1997) (per curiam), in

addressing judicial factfinding under the Guidelines, “a jury’s

verdict of acquittal does not prevent the sentencing court from

considering conduct underlying the acquitted charge, so long as

that conduct has been proved by a preponderance of the evidence.”

Id. at 157.

The Court found it “well established” in pre-

Guidelines practice “that a sentencing judge may take into account

facts introduced at trial relating to other charges, even ones of

which the defendant has been acquitted.”

omitted).

Id. at 152 (citation

And as Watts explained, a jury’s determination that the

government failed to prove a fact beyond a reasonable doubt does

not have preclusive effect “in a subsequent action governed by a

lower standard of proof.” Id. at 156 (citation omitted). Although

Watts specifically addressed a challenge to acquitted conduct

based

double-jeopardy

principles,

rather

than

the

Sixth

Amendment, its clear import is that sentencing courts may take

acquitted or uncharged conduct into account without offending the

Constitution.

See id. at 157.

Watts’s analysis is incompatible with the arguments that

petitioners press here, and their effort to distinguish Watts (Pet.

21-22) as involving only “dramatic guidelines increases” lacks

merit.

Watts did not purport to limit the use of acquitted or

dismissed conduct to situations where it would result in only small

sentencing increases.

“essential”

To the contrary, the Court reiterated that

that

sentencing

courts

use

“the

fullest

information possible” about the defendant when “select[ing]

an appropriate sentence.”

omitted).

* * *

Watts, 519 U.S. at 151-152 (citation

And Booker cited Watts for the proposition that “a

sentencing judge could rely for sentencing purposes upon a fact

that a jury had found unproved (beyond a reasonable doubt).”

543

U.S. at 251 (emphasis omitted).

Petitioners’

constitutional

warrant further review.

argument

therefore

does

not

As petitioners acknowledge (Pet. 18), an

“unbroken string of cases” –- indeed, every court of appeals with

criminal jurisdiction

has held since Booker that a district

court may consider acquitted or uncharged conduct for sentencing

purposes.

See United States v. Gobbi, 471 F.3d 302, 313-314 (1st

Cir. 2006); United States v. Vaughn, 430 F.3d 518, 526-527 (2d

Cir. 2005), cert. denied, 547 U.S. 1060 (2006); United States v.

Ciavarella, 716 F.3d 705, 735-736 (3d Cir. 2013), cert. denied,

134 S. Ct. 1491 (2014); United States v. Grubbs, 585 F.3d 793,

798-799 (4th Cir. 2009), cert. denied, 559 U.S. 1022 (2010); United

States v. Farias, 469 F.3d 393, 399-400 & n.17 (5th Cir. 2006),

cert. denied, 549 U.S. 1272 (2007); United States v. White, 551

F.3d 381, 386 (6th Cir. 2008) (en banc), cert. denied, 556 U.S.

1215 (2009); United States v. Waltower, 643 F.3d 572, 575-578 (7th

Cir.), cert. denied, 565 U.S. 1019 (2011); United States v. High

Elk, 442 F.3d 622, 626 (8th Cir. 2006); United States v. Mercado,

474 F.3d 654, 656-658 (9th Cir. 2007), cert. denied, 552 U.S. 1297

(2008); United States v. Magallanez, 408 F.3d 672, 683-685 (10th

Cir.),

cert.

denied,

546

U.S.

955

(2005);

United

States

Siegelman, 786 F.3d 1322, 1332-1333 & n.12 (11th Cir. 2015), cert.

denied, 136 S. Ct. 798 (2016); United States v. Jones, 744 F.3d

1362, 1365 (D.C. Cir.), cert. denied, 135 S. Ct. 8 (2014).

In addition, this Court has repeatedly and recently denied

petitions for writs of certiorari raising constitutional claims

like petitioners’.

See, e.g., Muir v. United States, 138 S. Ct.

2643 (2018) (No. 17-8893); Mayhew v. United States, 138 S. Ct.

1314 (2018) (No. 17-7791); Morgan v. United States, 138 S. Ct. 754

(2018) (No. 17-7131); Cook v. United States, 137 S. Ct. 2142 (2017)

(No. 16-1210); Barnes v. United States, 137 S. Ct. 1353 (2017)

(No. 16-7850); Bell v. United States, 137 S. Ct. 37 (2016) (No.

15-8606); Krum v. United States, 137 S. Ct. 41 (2016) (No. 158875); Siegelman v. United States, 136 S. Ct. 798 (2016) (No. 15353).

The same result is appropriate here.

Petitioners’ alternative contention (Pet. 19-22) that

acquitted and dismissed conduct cannot be considered at sentencing

“as a matter of statutory and common law” is unfounded.

Section

3553’s

directive

that

sentencing

Focusing

courts

“avoid

unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct,” 18 U.S.C.

3553(a)(6), petitioners argue (Pet. 20) that the statute “requires

a comparison of convicted conduct, not acquitted conduct.”

That

argument lacks merit.

The statutory text imposes no general limitation on the facts

a sentencing court may consider in determining the appropriate

sentence.

Although the statute requires comparing a defendant’s

sentence to those imposed on defendants who have been convicted of

similar

crimes,

considering

conduct

does

not

extrinsic

preclude

the

sentencing

courts

counts

conviction,

from

including acquitted or uncharged conduct, in determining that

sentence.

The only constraint is to “avoid unwarranted sentence

disparities,”

and

petitioners

offer

basis,

textual

otherwise,

for

deeming

conduct

extrinsic

the

counts

conviction categorically “unwarranted” under 18 U.S.C. 3553.

To the contrary, Congress has expressly specified that “[n]o

limitation shall be placed on the information concerning the

background, character, and conduct of a person convicted of an

offense” that a district court “may receive and consider for the

purpose of imposing an appropriate sentence.”

(emphases added).

18 U.S.C. 3661

Petitioners’ assertion that Congress sought to

limit the consideration of certain conduct at sentencing cannot be

squared with that explicit statutory directive.

Nor do they

identify any court that has adopted the limitation they propose.

Further review is unwarranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

JOSHUA K. HANDELL

Attorney

OCTOBER 2018

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