# Reply Brief — Bouvier v. United States (No. 92-5257) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0413%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1992 ## Text / 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0413%3A3. Public record. Not legal advice.