Opposition Brief — United States v. Gonzales

Supreme Court, U.S.

J FIiLs D

MAY 15 1996

No. 95-1605 | CLERK

In the Supreme Court of the United States

October Term, 1995

UNITED STATES OF AMERICA,

Petitioner,

v.

MIGUEL GONZALES, ORLENIS HERNANDEZ-DIAZ

AND MARIO PEREZ,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MIGUEL GONZALES' BRIEF IN OPPOSITION

TO PETITION FOR CERTIORARI

EDWARD O. BUSTAMANTE, ESQ.

1412 Lomas Bivd., N.W.

Albuquerque, New Mexico 87104

(S05) 842-0392

Attorney for Miguel Gonzales

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Boston Sand & Gravel Co. v. United States, 278 U.S. 41 (1928) ............... 6

Church of the Holy Trinity v. United States, 143 U.S. 457 (1892)............... 6

EDIC v. Philadelphia Gear Corp., 476 U.S. 426 (1986) ................00... 6

ete See, BE OB. TOO ois x pee a od vob wn bh hee eek eo 7

Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989) .................. 6

Public Citizen v. United States Dep't. of Justice, 491 U.S. 440 (1989) ............ 6

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United States v. American Trucking Ass’ns., Inc., 310 U.S. 534

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Cabell v. Markham, 148 F.2d 737 (2d Cir.), aff’d, 326 U.S. 404 (1945) .......... 6

United States v. Flowers, 13 F.3d 395, 397 (11th Cir.1994) .................., 8

United States v. Fossett. 881 F.2d 976 (1Ith Cir. 1989), .................... 9

United States v. Gonzales, 65 F.3d 814 (10th Cir. 1995) ............. 3, 4, 6, 8,9

United States v. Johnson, 40 F.3d 1079 (10th Cir.1994) ........0..00.0.00.., 8

United States v. Shewmaker, 936 F.2d 1124 (10th Cir. 1991) ................. 9

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Statutes and rules

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United States Sentencing Commission Guidelines (Nov. 1993)

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Other Sources

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MIGUEL GONZALES’ BRIEF IN OPPOSITION

Respondent, Miguel Gonzales, through counsel, hereby responds in opposition to the

United States’ petition for a writ of ce;tiorari to review the judgment of the United States Court

of Appeals for the Tenth Circuit in this case

FEDERAL SENTENCING GUIDELINES

United _States__ Sentencing Commission Guidelines, (Nov. 1993), § SG1.3

(hereinafter,"sentencing guidelines"), provides:

(a) If the instant offense was committed while the defendant was

serving a term of imprisonment (including work release, furlough

or escape status) or after sentencing for , but before commencing

service of, such term of imprisonment, the sentence for the instant

offense shall be imposed to run consecutively to the undischarged

term of imprisonment.

(b) — If subsection (a) does not apply, and the undischarged term of

imprisonment resulted from oftense(s) that have been fully taken

into account in the determination of the offense level for the instant

offense, the sentence for the instant offense shall be imposed to

run concurrently to the undischarged term of imprisonment.

(c) (Policy Statement) In any other case, the sentence for the instant

offense may be imposed to run concurrently, partially

concurrently, or consecutively to the prior undischarged term of

imprisonment to achieve a reasonable punishment for the instant

offense.

STATEMENT

In addition to the procedural history described by the United States in its Petition for Writ

of Certiorari, the following is pertinent to Miguel Gonzales ("Gonzales"):

The underlying criminal conduct on which Gonzales’ convictions were based took place

in April, 1991. He was prosecuted and convicted in January, 1992 in a New Mexico state court.

On March 10, 1992, he was sentenced to serve thirteen years in prison. His state sentence

incorporated a firearm enhancement. On May 8, 1992, while he was serving his state sentence,

he was indicted in federal court for federal offenses arising out of the same course of conduct.

He was convicted of some of the federal charges on June 18, 1993, and was sentenced on

September 29, 1993. Although the district court ordered that Gonzales’ sixty month sentence

for the narcotics convictions would run concurrently with his state sentence, it believed that 18

U.S.C. § 924(c) required it to order that the federal five year firearm enhancement run

consecutively to the state court sentence. (R. 121, TR 698-700).

Accordingly, since Gonzales’ state sentence is longer than his concurrent federal

sentence, the firearm enhancement must be served after the completion of both his state and

federal sentences. Finding this result to be in conflict with the both the legislative history of §

924(c) and the applicable sentencing guidelines, the Tenth Circuit reversed, holding that--under

the unique circumstances of this case--to read § 924(c) as mandating a consecutive sentence

would lead to an absurd and unreasonably harsh result at odds with Congressional intent.

REASONS FOR DENYING THE PETITION

The United States urges that the petition be granted because, it contends, the Tenth

Circuit's opinion is in conflict with the decisions of other courts of appeal and because it

disagrees with the mode of statutory analysis relied on by the Tenth Circuit. It argues that

because 18 U.S.C. § 924(c) is "an important and widely used statute,” this case requires this

Court's intervention and interpretation. None of these grounds supports granting the petition.

1. The Tenth Circuit's holding in this case does

not have broad implications for federal law.

Although 18 U.S.C. § 924(c) is frequently used to enhance the sentence of a defendant

convicted for the use of a deadly weapon in conjunction with a federal crime of violence or drug

trafficking, the fact pattern of this case is unique and not likely to be repeated with any notable

frequency. Furthermore, the Tenth Circuit's decision was narrow and confined to the specific

facts before it. It decided only “whether § 924(c)'s “mandatory five-year sentence may run

concurrently with a previously imposed state sentence that a defendant has already begun to

serve.” United States v. Gonzales, 65 F.3d 814, 819 (10th Cir. 1995) (emphasis supplied by

the court).

This holding will have absolutely no effect on the vast majority of cases in which §

924(c) is applied. Accordingly, there is no real need for this Court to intervene.

2. The Tenth Circuit properly interpreted § 924(c) so that

its application under the circumstances of this case

would not produce a result contrary to Congressional

intent.

Contrary to the United States’ argument, the mode of statutory analysis utilized by the Tenth

Circuit was entirely in accord with well established methods of statutory construction. Even if

the language at issue’ is not ambiguous on its face, the Tenth Circuit's analysis was entirely

appropriate. As it held, the strict application of the statute's apparent prohibition against

‘At the time of the relevant offenses, § 924(c)(1) provided:

Whoever, during and in relation to any ... drug trafficking crime ... for

which he may be prosecuted in a court of the United States. uses or

carries a firearm, shall, in addition to the punishment provided for such

crime ..., be sentenced to imprisonment for five vyears....

Notwithstanding any other provision of law, the court shall not place on

probation or suspend the sentence of any person convicted of a violation

of this subsection, nor shall the term of imprisonment imposed under this

subsection run concurrently with any other term of imprisonment including

that imposed for the crime of violence or drug trafficking crime in which

the firearm was used or carried. —

concurrent sentences, under these circumstances, would be in direct conflict both with clear

legislative intent and with the sentencing guidelines. In addition, it would lead to an absurd and

unreasonable result in this case.

It is important to remember that Miguel Gonzales was the subject of two consecutive

prosecutions based on the same acts: the first in state court and the second in federal court. He

was already serving a lengthy state sentence incorporating a state firearm enhancement when he

was convicted and sentenced under the federal statutes. Under these circumstances, it is not at

all clear that § 924(c) prevents the federal court from ordering that the firearm enhancement be

served concurrently with the state sentence.

In contrast, had this been a single, federal prosecution, the application of § 924(c) would

have been quite clear: the federal firearm enhancement would be served consecutively to the

term of imprisonment imposed for the crime in which the firearm was used or carried. Under

such circumstances, § 924(c) would plainly prohibit an order that the enhancement run

concurrently with the sentence imposed for the underlying crime. Indeed, the Senate Report

accompanying the 1984 amendment to § 924(c) direct that “the Committee intends that the

mandatory sentence under the revised subsection 924(c) be served prior to the start of the

sentence for the underlying or any other offense." S.Rep. No. 225, 98th Cong.. 2d Sess.

313-14, reprinted in 1984 U.S. Code Cong. and Ad News, 3182, 3492 (quoted in 65 F.2d 814

at 821) (emphasis added). In the vast majority of cases in which the statute is applied. this

directive and the language of the statute do not conflict.”

2 Indeed, the Committee Report goes on to describe the typical situation in which the

application of § 924(c) is straightforward:

For example, a person convicted of armed bank robbery in

4

However, because Miguel Gonzales was already in prison at the time of the federal

sentencing serving a sentence imposed by a state court for convictions arising-out of the same

conduct, it simply would not have been possible for him to serve his mandatory sentence under

§ 924(c) “prior to the start of the sentence for the underlying or any other offense.” Id.

Accordingly, the district court’s assumption that § 924(c) required that the federal firearm

enhancement run consecutively to his state sentence was contrary to Congressional intent as

described in the Committee Report. By ruling that the firearm enhancement could be served

concurrently with the state sentence and prior to the federal sentence, the Tenth Circuit

effectuated both the language of § 924(c) and Congress’ directions.

3. The mode of analysis the Tenth Circuit used

was appropriate.

The United States urges this Court to disregard the Committee Report's clear mandate

and to find the Tenth Circuit's analysis misguided and without precedent. It argues that the

courts have no choice but to apply the literal language of § 924(c) even where the result of such

application in a particular instance would be unreasonable and contrary to Congress’ intent. To

the contrary. the Tenth Circuit's refusal to do so in this case rests solidly on considerable

precedent.

As this Court has repeatedly emphasized:

Where the literal reading of a statutory term would compel an odd

violation of section 2113 . . . (d) and of using a gun in its

commission . . . would have to serve five years . . . before his

sentence for the conviction under section 2113 . . . (d) could start

to run.

it al

result, we must search for other evidence of congressional intent

to lend the term its proper scope. The circumstances of the

enactment of particular legislation, for example, may persuade a

court that Congress did not intend words of common meaning to

have their literal effect. Even though, as Judge Learned Hand

said, the words used, even in their literal sense, are the primary,

and ordinarily the most reliable, source of interpreting the meaning

of any writing, nevertheless it is one of the surest indexes of a

mature and developed jurisprudence not to make a fortress out of

the dictionary; but to remember that statutes always have some

purpose or object to accomplish, whose sympathetic and

imaginative discovery is the surest guide to their meaning.

Looking beyond the naked text for guidance is perfectly proper

when the result it apparently decrees is difficult to fathom or

where it seems inconsistent with Congress’ intention, since the

plain-meaning rule is rather an axiom of experience than a rule of

law, and does not preclude consideration of persuasive evidence if

it exists. . . When aid to construction of the meaning of words, as

used in the statute, is available, there certainly can be no rule of

law which forbids its use, however clear the words may appear on

superficial examination.

Public Citizen v. United States Dep't. of Justice, 491 U.S. 440, 454-55 (1989) (quoting Green

vy. Bock Laundry Machine Co., 490 U.S. 504, 509 (1989); Watt v. Alaska. 451 U.S. 259. 266

(1981); United States v. American Trucking Ass'ns.. Inc., 310 U.S. 534, 543-544 (1940);

Boston Sand & Gravel Co. v. United States. 278 U.S. 41, 48 (1928) (Holmes, J.) and Cabell

vy. Markham, 148 F.2d 737, 739 (2d Cir.), aff'd, 326 U.S. 404 (1945)) and citing EDIC v.

Philadelphia Gear Corp.. 476 U.S. 426. 432 (1986) and Church of the Holy Trinity v. United

States.143 U.S. 457, 472 (1892).

As the Tenth Circuit observed. [c])ommittee reports accompanying ultimately enacted bills

are a favored authoritative source of legislative history.” 65 F.2d at 823, citing Thornburg v.

Gingles. 478 U.S. 30, 43 n. 7 (1986). As this Court noted in Thornburg in response to an

argument that the Senate Report accompanying a bill should be given little weight: “[wje have

repeatedly recognized that the authoritative source for legislative intent lies in the Committee

Reports on the bill." Id., citing Garcia v. United States, 469 U.S. 70, 76, and n. 3 (1984);

Zuber v. Allen, 396 U.S. 168, 186 (1969).

Accordingly, the United States’ contention that the decision of the Tenth Circuit "is

insupportable under any mode of statutory analysis heretofore endorsed by this Court"? is

puzzling, at best. This Court has often relied on the Committee Report on a bill to ascertain

legislative intent. The decision of the Tenth Circuit that the § 924(c) enhancement be served

prior to the beginning of Gonzales’ federal sentence and concurrently with his state sentence

furthers that intent. Because Mr. Gonzales had already begun to serve his sentence when the

§ 924(c) enhancement was imposed. no other interpretation or application of that statute would

further that legislative intent.“ As in Thornburg, this Court should disapprove the United State's

argument that a statute should be interpreted in a manner that would conflict with clearly

articulated Congressional intent.

4. Congress did not intend that § 924(c) apply to a

state sentence that a defendant is already serving

at the time he is sentenced on the federal conviction.

The Committee's instruction that the gun enhancement be served "prior to the start of the

sentence for the underlying or any other offense,” makes it clear that Congress did not intend

that the term “any other term of imprisonment” would include a sentence arising from a prior

state prosecution. Common sense and the system of dual sovereignty plainly preclude a

3

Petition at. p. 8.

* See, also. Johnson v. Matthews. 751 F.Supp. 90, 92 (D.Kan. 1990) ("The legislative

history of the amendment [to § 924(c)] clearly demonstrates that the-mandatory sentence is to

be served before any other").

congressional mandate that a federal sentence be imposed prior to the start of a state sentence,

particularly when the state prosecution is initiated first and the defendant is already serving his

sentence when the federal prosecution is initiated.

Moreover, as the Tenth Circuit reasoned, to apply the language of § 924(c) literally and

as guided by the legislative intent set forth in the Committee Report would lead both to an

absurd and an unreasonably harsh and unjust result. In order for Mr. Gonzales to serve the five

year enhancement prior to his federal sentence but consecutively to his state sentence, he would

serve first the thirteen years imposed by the state, then his federal gun enhancement, and then

the sentence imposed for his narcotics conviction. As the Tenth Circuit observed, this would

"more than double the custodial price that Congress and the Guidelines have set" for Mr.

Gonzales’ crimes. 65 F.3d at 821.

5. The Tenth Circuit’s decision was consistent with

the sentencing guidelines.

The applicable sentencing guidelines provide that where “the undischarged term of

imprisonment resulted from offense(s) that have been fully taken into account in the

determination of the offense level for the instant offense, the sentence for the instant offense

shall be imposed to run concurrently to the undischarged term of imprisonment.” See,

sentencing guidelines § 5G1.3(b). It is well established that the intended purpose of that section

"is to effectively credit for guidelines purposes defendants who have already served

time--generally in another jurisdiction--for the same conduct or course of conduct.” United

States v. Johnson, 40 F.3d 1079, 1082 (10th Cir. 1994) (quoting United States v. Flowers. 13

F.3d 395, 397 (11th Cir. 1994)).

Thus, "“fi]f the all-encompassing reading of Sec. 924(c) were adopted so that the

gun-charge sentence would have to follow the service of the entire pre-existing state sentence

and precede the federal sentence covering the identical conduct, § 5G1.3’s concurrent sentencing

scheme would be rendered nugatory." 65 F.2d at 822. Courts should attempt to harmonize,

rather than negate, the provisions of the sentencing guidelines in their application of federal

sentencing statutes. See, United States v. Shewmaker, 936 F.2d 1124, 1128 (10th Cir. 1991),

citing United States v. Fossett, 881 F.2d 976, 980 (1ith Cir. 1989).

The United States’ contention that guidelines § 2K2.4 (requiring the sentencing court to

sentence a defendant convicted of a § 924(c) violation for the term set forth in that statute)

commands a different result is misplaced. See, Petition at p. 11. The Commentary and

Application Notes to that section specifically proscribe “double counting" where a previous

sentence was based ip any part on the use of a firearm.’ Accordingly, § 2K2.4 also supports

the Tenth Circuit's result. See, also, { 2 of the Application Notes to § 2K2.4 (proscribing an

upward departure in excess of the maximum of the guideline range that would have resulted had

there not been a conviction under § 924(c)).

Finally, ¢ 5 of the Application Notes to § 5G‘ .3 provides:

Occasionally, the court may be faced with a complex case in which

a defendant may be subject to multiple undischarged terms of

imprisonment that seemingly call for the application of different

rules. In such a case, the court may exercise its discretion in

accordance with subsection (c) to fashion a sentence of appropriate

length and structure it to run in any appropriate manner to achieve

a reasonable punishment for the instant offense.

The guidelines specifically endorse the Tenth Circuit's authority to adjust Mr. Gonzales’

sentence so that it would not more than double the custodial price set for his crimes. In

$

As noted above, Gonzales’ state sentence incorporated a firearm enhancement.

9

—

i a

short, neither § 924(c) nor the guidelines require that a defendant who received and is serving

a state sentence of thirteen years and has received a five year federal sentence for the same

conduct must serve his federal firearm enhancement consecutively and in addition to those

sentences. To the contrary, such a ruling would be contrary to both clear congressional intent

and the mandate of the sentencing guidelines. The Tenth Circuit used well recognized

principles of statutory construction and appropriately harmonized the statute and the guidelines

to further the goals of both. Its holding should not be disturbed.

CONCLUSION

‘For the foregoing reasons, this Court should deny the United States’ Petition for a Writ

of Certiorari.

Respectfully Submitted:

eum BUSTAMANTE, ESQ.

1412 Lomas Bivd., N.W.

Albuquerque, New Mexico 87104

(505) 842-0392

Attorney for Miguel Gonzales

10

CSERTEF IC LATE OF SERVICE

This certifies a true and accurate copy of this Brief In

Opposition To Petition For Certiorari was sent by first class

mail to the following interested parties on May 14, 1996 at the

last known addresses:

Miguel Estrada

Assistant Solicitor General

Room 5614

Department of Justice

10th Street and Constitution Avenue, N.W.

Washington, DC 20530

Roberto Albertorio

P.O. Box 90351

Albuquerque, NM 87199-0351

Angela Arrelilanes

423 Sixth Street NW

Albuquerque, NM 87102

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