Reply Brief — Bouvier v. United States (No. 92-5257)

/ Nz Supreme Court, U.S.

DISTRIBUTED FILED

ar ww i492 NO. 92-5257 “ ) QCT i5 199?

UFFICE OF THE CLERA

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

Robert Wayne Bouvier, Petitioner

vs.

United States of America, Respondent

REPLY BRIEF OF ROBERT WAYNE BOUVIER

TO BRIEF FOR THE UNITED STATES IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

NO. 92-5257

- IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

Robert Wayne Bouvier, Petitioner

vs.

United States of America, Respondent

Respectfully submitted,

QUESTION PRESENTED:

DAVIS & WILKERSON, P.C. |

P.O. Box 2283 |

Austin, Texas 78768-2283 WHETHER THE WEIGHT OF TOXIC WASTE MATERIAL, WHICH IS THE

(512) 482-0614 BYPRODUCT OF A DRUG MANUFACTURING PROCESS, SHOULD BE INCLUDED IN

(512) 482-0340 (Fax) THE CALCULATION OF A DEFENDANT’S BASE OFFENSE LEVEL UNDER FEDERAL

SENTENCING GUIDELINES § 2D1.1.

Y dew

David A. Wright

State Bar No./ 22026300

Leonard Woods, Jr.

State Bar No. 21958050

COUNSEL FOR PETITIONER

SERVICE TO:

Solicitor General

Department of Justice

Washington, D.C. 20530

July 22, 1992

NO. 92-5257

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

Robert Wayne Bouvier, Petitioner

vs.

United States of America, Respondent

REPLY BRIEF OF ROBERT WAYNE BOUVIER

TO BRIEF FOR THE UNITED STATES IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Robert Bouvier respectfully files this his Reply Brief To

Brief For The United States In Opposition To Petition For Writ Of

Certiorari To The United States Court Of Appeals For The Fifth

Circuit.

ARGUMENT FOR ALLOWANCE OF WRIT

The United States in its Brief in Opposition to this Writ

admits that there is a split of authority among the circuits as to

the calculation of drug amount to determine a defendant’s base

offense level under the Federal Sentencing Guidelines. Although

the Government has interpreted the decision of this Court in

Chapman vy. United States, 111 S.Ct. 1919 (1991) to be consistent

with its position, the Second, Sixth, Ninth and Eleventh Circuits

;

have all considered and rejected the position now taken by the

Government. To accept the argument of the Government and deny

certiorari would serve only to perpetuate a system in which the

length of the sentence imposed upon a person accused of a violation

of controlled substance laws would vary widely depending upon the

Circuit in which he was charged. The position of the Government

would further frustrate the objective of Congress in enacting the

Sentencing Reform Act of 1984 to impose reasonable uniformity in

sentencing by narrowing the wide disparity of sentences imposed for

similar offenses by similar offenders.

Movant further takes exception to Footnote 2 of the Brief For

' The United States In Opposition regarding Mr. Bouvier’s proper base

offense level under the Sentencing Guidelines. Apparently, the

Government requests this Court assume that the one hundred forty-

six (146) grams of methamphetamine seized was "actual" (a word not

used in the Drug Quantity Table) or “pure” methamphetamine. The

Government has no evidence to suggest anything to support their

assertion concerning the quality of the methamphetamine seized.

Obviously, a consideration of the quality of methamphetamine for

sentencing purposes would be a factual question for consideration

by the trial court and has no relevance to this Court’s

consideration of this petition. In truth, the proper application

of drug amount to base offense level in Mr. Bouvier case would

; United States v. Acoste, 963 F.2d 551 (2nd Cir. 1992); United States v. Touby, 909 F.2d 759

(3rd Cir.), aff'd om other grounds, 111 S. Ct 1752 (1991); United Stetes v. Jennings, 945 F.2d 129 (éth Cir.

1991); United States v. Rolande-Gabriel 938 F.2d 1231 (11th Cir. 1991).

5

result in an offense level of 26 and not 32 as asserted by the

Government.

CONCLUSION

The petition should be granted in this case to correct the

Fifth cCircuit’s misinterpretation of the Federal Sentencing

Guidelines and to settle the discrepancy among the circuit courts

concerning sentencing for controlled substance offenses.

Respectfully submitted,

DAVIS & WILKERSON, P.Cc.

P.O. Box 2283

Austin, Texas 78768-2283

(512) 482-0614

(512) 482-0340 (Fax)

Vary

David A. Wright

State Bar No. 22026300

Leonard W s, Jr.

State Bar No. 21958050

COUNSEL FOR PETITIONER

NO. 22-5257

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

Robert Wayne Bouvier, Petitioner

vs.

United States of America, Respondent

PROOF OF SERVICE

The undersigned counsel of record for Petitioner Robert Wayne

Bouvier hereby certifies that on this the LAK day of Ctoter

1992, true and correct copies of the foregoing Reply Brief To Brief

For The United States In Opposition To Petition For Writ of

Certiorari To The United States Court of Appeals For the Fifth

Circuit have been served by depositing the same in a United States

Office or mailbox, with first class postage prepaid, addressed to

counsel of record of all parties required to be served, at their

proper post offices addresses as follows:

Le Roy Moran Jahn

U.S. Attorney’s Office

727 E. Durango

Suite A-601

San Antonio, Texas 78206

512/229-6500

ATTORNEY FOR THE UNITED STATES OF AMERICA

Solicitor General

Department of Justice

Washington, C.D. 20530

202/514-2000

ATTORNEY FOR THE UNITED STATES OF AMERICA

James M. Nias

Small, Craig & Werkenthin

A Professional Corporation

100 Congress, Suite 1100

Austin, Texas 78701

512/472-8355

ATTORNEY FOR JOE GUERRA

Kenneth E. Houp, Jr.

Attorney at Law

910 West Avenue

Austin, Texas 78701

512/477-4434

ATTORNEY FOR WAYNE EUGENE WALKER

Respectfully submitted,

DAVIS & WILKERSON, P.C.

1680 One American Center

600 Congress Avenue

P.O. Box 2283

Austin, Texas 78768-2283

(512) 482-0614

(512) 482-9342 (Facsimile)

w: Dt Jey

David A. Wright

State Bar No 22026300

ATTORNEYS FOR ROBERT WAYNE BOUVIER