Opposition Brief — United States v. Gonzales

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_ vst ® CRIGINAL g JUN 6 1996

yor _—

NO. 95-1605

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

UNITED STATES OF AMERICA,

Petitioner,

Vv.

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

MARIO PEREZ’ BRIEF_IN OPPOSITION

TQ PETITION FOR CERTIORARI

ROBERTO ALBERTORIO, ESQ.

P.O. BOX 90351

Albuquerque, New Mexico 87199-0351

505-768-3917

Attorney for Mario Perez

RECEIVED —

JUN 6 1996

OFFICE OF THE CLERK

SUPREME COURT, U.S.

TABLE OF CONTENTS

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Respondent, Mario Perez, by and through his Court Appointed counsel,

TABLE OF AUTHORITIES

Cases: hereby respectfully submits the following in opposition to the United States’

Petition for a Writ of Certiorar! to review the judgment of the United States

Church of the Holy Trinity v. United States, 143 U.S. 457 (1982)..... 3 Court of Appeals for the Tenth Circuit in this case.

ingraben v. Bright, 430 U.S. GSI CIGIO)....nccccsccccvvcccvescccceses 5

ee n,n is Oe Ci cock) dhs ded ddedie od bdebeseewidces 5 FEDERAL SENTENCING GUIDELINES

United States Sentencing Commission Guidelines, ‘Nov. 1993) Section

Statutes and rules 5G1.3(b)(c) (hereinafter "Sentencing Guidelines"), provides:

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

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

Te Dueiee ME CEE Rcrsacpacvccddsbupnetéecdbabndgdansenastectses passim into account in the determination of the offense level for the Instant

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

Se ee ED GEOR cavbccdes seule ecbdns codes Odeon teddeistcde 2 concurrently to the undischarged term of imprisonment.

Fae Geeta Dy DES oben ncdWanbasdacdes sechebesiniebosasdededs 2 (c) (Policy Statement) In any other case, the sentence for the instant

offense may be imposed to run concurrently, partially concurrently,

Py ain Dy Miccduducabatebindecebed conetesbatneduied desde 2 or consecutively to the prior undischarged term of imprisonment to

achieve a reasonable punishment for the instant offense.

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Se ey ED Pn dkcaddckbatheadcekieddedeeotoccsdatsauenvis 2 ° STATEMENT

ee Se ite bd cde cus ph beedeoeds-sobebedensiels 2 The Respondent Mario Perez ("Perez) submits the following statement.

74 Perez was arrested in the State of Florida on April 23, 1991 pursuant to

United States Sentencing Commission Guidelines (Nov. 1993) amr arrest warrant issued by the Second Judicial District Court, County of

Bernalillo, State of New Mexico under CR. NO. 91-0776. An Indictment had been

SUR Cskhe nhs dhdeeendnesecsdkndecsddbekedeiaddbiiakohs ateinbics 1, 4 returned charging the defendant with Armed Robbery, Attempt to Commit Armed

een neddvsbedsus scabeds ch neddubertaededden tetedksesailasnes 1, 4 Robbery of Marijuana, Conspiracy to Commit Possession of Marijuana Over eight

a ounces, and Eluding an Officer. On February 11, 1992, a jury returned guilty

Other Sources verdicts on the charges. Perez was sentenced to seventeen years imprisonment

which included Firearm Enhancement one year for each offense, excluding

See. GOPUUD Cy Cendhanssdcensckchnkdtebaserercctounendices 1 Eluding an Officer pursuant to Section 31-18-16 NMSA, 1978, and placed in

custody.

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On May 8, 1992, a Federal Grand Jury returned a six-count Indictment under

CR. NO. 92-236 JC . charging Perez with Count I, Conspiracy to Possess with

Intent to Distribute Less than 50 Kilograms of Marijuana, in violation of 21

U.S.C. Section 846; Aiding and Abetting, 18 U.S.C. Section 2; Count II,

Carrying or Use of a Firearm During or in Relation to a Drug Trafficking Crime

in violation of 18 U.S.C. Section 924 (c)(1), 18 U.S.C. Section 924 (a)(2) and

Aiding and Abetting, 18 U.S.C. Section 2; Count VI, Possession with Intent to

Distribute Less Than 50 kilograms of Marijuana in violation of 21 U.S.C.

Section 841 (a)(1) and 21 U.S.C. Section 841 (b)(1)(D).

On June 11, 1993, the United States Attorney for the District of New

Mexico filed an Enhancement Information charging the defendant with prior

felony convictions.

The Federal Indictment was based on the identical set of facts as the

state charges and subsequent convictions.

On June 18; 1993, pursuant to a jury trial before the United States

District Court for the District of New Mexico, Perez was found guilty to

Counts I, II, and V1, of the Indictment and sentenced to a term of

imprisonment of 12.25 years, Mcluding 5 years for the use of a firearm.

The Tenth Circuit has held that a combined reading, under which the

five-year sentence on the Section 924(c) gun count would have to follow a

previously imposed state sentence and would have to precede a corresponding

federal sentence would be a total of 29.25 years for Perez. The Tenth Circuit

has held that “this approach would more than double the custodial price that

Congress and the Guidelines have set for committing the total criminal conduct

engaged in by these defendants”.

RESPONDENT RESPECTFULLY REQUESTS THAT THE PETITION BE DENIED

The United States prays that the petition be granted because it submits

that the Tenth Circuit's opinion ts inconsistent with that of the Eleventh and

Sixth Circuits (Petition at pg. 7) and further that because 18 U.S.C. 924(c)

is an Important and widely used statute, the court of appeals’ error calls for

correction by this Court.

Perez incorporates by reference the Briefs in Opposition submitted by

co-respondents counsel, Edward 0. Bustamante, Esq., on behalf of Miguel

Gonzales and Angela Arrellanes, Esq., on behalf of Orlenis Hernandez-Diaz.

I. Perez submits that the Tenth Circuit holding in this case is based

only on the unique facts relevant to the case and does not have

The Tenth Circuit in its opinion tnterpreted the statute as follows:

Where a literal reading of the statutory language would produce

an absurd result- particularly one clearly not contemplated by

Congress- Courts will adopt a more sensible statutory construction.

Church of the Holy Trinity v. United States, 143 U.S. 457, 459,

12 S.Ct. SIT, 512, 36 L.Ed. 226 (1892).

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

result,” we must search for other evidence of congressional intent

to lend the term its proper scope.... 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’

intent.

Perez submits that the intent of the statute was not for the purposes of

exposing individuals to sentences duplicative to state sentences where firearm

enhancements already attached. As above described, Perez' state sentence was

enhanced one year “or Counts |, and 2, Armed Robbery, Count 3 Armed Robbery of

Marijuana, Count 4, Conspiracy to Commit Armed Robbery, Count 5, False

Imprisonment. Clearly, the imposition of the 924 (c) to be consecutive to the

state sentences increasing the total of 10 years is precisely the type of

anomaly and absurd result which the Tenth Circuit concludes was not intended

by Congress. The United States has not presented any authority or set of

facts which are remotely similar to this case. Accordingly, to suggest that

this decision has broad implications 1s without merit.

II. The Tenth Circuit correctly holds that the statute applies to

any other federal term of imprisonment.

The Tenth Circuit concludes that the phrase “any other offense”

encompasses only federal offenses is required if they are to follow Congress’

stated intent that Section 924(c) sentences be served prior to “any other

offense,” for if a defendant is sentenced in state court first, there is no

way in which a _ later-sentencing federal court can cause the mandatory

five-year Section 924(c) sentence to be served before a siate sentence that Is

already being served.

As stated above, Perez has been serving the state sentence since his

arrest on April 23, 1991. Accordingly, the federal imposition of a

consecutive term for the Section 924(c) violation Is tnapplicable.

III. The Tenth Circuit is correct in finding that the District

Court's application of a consecutive sentence for the 924(c)

is_“anomalously” harsh and that the application of Sentencing

Guidelines Section 5G).3 provides for a concurrent sentence

Perez submits that the only applicable section for consideration is

Section 5G1.3(b). Subsection (a) Is not applicable to this case as Perez did

not commit the offense will serving a term of imprisonment, or after

sentencing for , but before commencing service of such term of imprisonment.

Accordingly, pursuant to the Sentencing Guidelines, Subsection (b) Is

applicable if subsection (a) does not apply, and 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. Furthermore, Perez submits that subsection

(c) 1s particularly applicable in that the court may impose a sentence

concurrently to achleve a reasonable punishment and avold unwarranted

disparity. Perez respectfully submits that the Tenth Circuits’ review of all

of the circumstances and in particular the unduly harsh results that attach

warrant the finding of concurrent sentencing.

Finally, Perez respectfully submits that the imposition of consecutive

sentencing by the District Court ts tantamount to cruel and unusual

punishment. While the Tenth Circuit did not address this constitutional

right, Perez submits that under the totality of the circumstances

consideration of the Eighth Amendment by this Court Is warranted. The Cruel

and Unusual Punishment Clause of the Eight Amendment prohibits punishment

grossly disproportionate to the severity of the offense. Ingraham v. Wright,

430 U.S. 651 (1970). Perez does not argue that standing alone, the Section

924(c) consecutive sentencing provision is disproportionate to the offense.

As noted by the Tenth Circuit, “the adoption of a reading that Section 924(c)

prohibition against concurrent sentences refers only to federal sentences does

not at all depreciate the severity of the crimes involved.” Perez argues that

imposition of Section 924(c) firearm enhancement to an already state statute

attaching firearm enhancement results in a grossly disproportionate sentence

and unduly harsh.

In Solem vy. Helm, 463 U.S. 277 (1983), the Supreme Court posited three

criteria for analyzing the proportionality of sentences: (1) a comparison of

the gravity of the offense with the harshness of the penalty: (2) a comparison

of the sentence with those imposed for various offenses in the same

jurisdiction; and (3) a comparison of the sentence with those imposed for the

same or similar offenses in other jurisdictions. Solem, 436 U.S. at 292.

Perez respectfully submits that the sentences imposed by the District

Court and the consecutive five year term as provided by Section 924(c)

establishes a term of imprisonment which is incomparable to any other

sentences for similar criminal acts in the same or other jurisdictions. As

the Tenth Circuit noted in its decision, if the consecutive provisions of the

sentencing guidelines are imposed, Perez and co-respondents would be sentenced

to more than double the custodial price that Congress and the Guidelines have

set for committing the total criminal conduct engaged in.

Perez respectfully submits that the Tenth Circuit's Vacation of the

sentences imposed are consistent with the intent of Congress as provided for

by the authorities of the Sentencing Guidelines as well as Section 924(c).

CONCLUSION

For the foregoing reasons, this Court should deny the United States’

Petition for a Writ of Certiorar!.

RTO ALBERTORIO

-O. BOX 90351

ALBUQUERQUE, NEW MEXICO 87199-0351

505 - 768-3917

Attorney for Mario Perez

.

CERTIFICATE OF SERVICE

This certifies a true and accurate cope of this Brief In Opposition to

Petition for Certiorar! was sent by first class mail to the following

interested parties on May 31, 1996, at the last know addresses:

Miguel Estrada

Assistance Solicitor Genera!

Room 5614

Department of Justice

10th Street and Constitution Avenue, N.H.

Washington, D.C. 20530

Angela Arrellanes

423 Sixth Street, N.H.

Albuquerque, N.M. 87102

Edward O. Bustamante

1412 Lomas Bivd., N.H.

May 30, 1996

Mr. William Suter

Clerk of the Court

Supreme Court of the United States

Washington, D.C. 20543

Re: U.S.A. v. MARIO PEREZ, No. 95-1605

Dear Mr. Suter:

Please accept this letter as a request for an extension to the deadline in

which to file the brief in opposition to the petition for a Writ of Certiorar!

to the United States Court of Appeals for the Tenth Circuit. The Petition was

filed April 5, 1996, by the Office of the Solicitor General. Pursuant to S.

Ct. Rule 15.2 a brief in opposition was due 30 days thereafter. The deadline

expired May 6, 1996. Counsel has been In United States District Court In the

United States vs. Richard Haworth, et. al., Criminal No. 95-491 LH in which

his client is one of seventeen defendants. Trial on this matter has been

scheduled for August 1996, which has been preceded by numerous motions before

the Court as well as numerous scheduling conferences. In addition, counsel

serves as a Zoning Hearing Examiner/Administrative Judge and during the months

of April and May of 1996, was required to preside in over eighty

administrative hearings.

Due to the press of business, counsel was unable to file the brief in

opposition and respectfully request to June 6, In which to do so. If there

are any questions or concerns, please contact me.

Th

J

you for your courtesies.

ERTO ALBERTORIO

16

cc: Drew S. Days, IIT

Solicitor General

Ss

Miguel Estrada

Assistant to the RECEIVED

Solicitor General

JUN 6 1996

Angela Arellanes, Attorney for Orlenis Hernandez-Digz OFFICE CLERK

Edward Bustamante, Attorney for Miguel Gonzales ee ae U.S.

PO. Box 90351 + Mbuguegue, New Mexico 87199-0351 + 505-768-3917 + Mobile 505-264-9868