Opposition Brief — Eng v. United States

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eh JUL 11 1994

No. 93-1632

OFFICE OF THE CLERK

In the Supreme Court of the United States :

OCTOBER TERM, 1994

JOHNNY ENG, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Drew S. DAYS, Ill

Solicitor General

JO ANN HARRIS

Assistant Attorney General

THOMAS M. GANNON

Altorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioner waived his objection to the

district court’s exclusion of materials from a prior trial of

his co-conspirators.

2. Whether the district court properly increased peti-

tioner’s offense level to account for his role in the offense.

3. Whether the district court properly sentenced peti-

tioner to supervised release under 21 U.S.C. 841(b)(1)(A),

which requires imposition of a term of supervised release

of “at least 5 years” for trafficking in more than one kilo-

gram of heroin, rather than 18 U.S.C. 3583(b), which

authorizes a supervised release term of “not more than five

years” for a Class A or B felony, “[e]xcept as otherwise

provided.”

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

United States v. Beaulieau, 959 F.2d 375 (2d Cir.

cee beneegvenegeeeessens

United States v. Cardenas, 917 F.2d 683 (2d Cir.

PUN ccc cuubaceces eves seeeereeverecorsss

United States v. David, 940 F.2d 722 (ist Cir.

1991). cert. denied, 112 S. Ct. 2301 (1992) ......

United States v. Dougherty, 895 F.2d 399 (th Cir.

ee cc L Oe ee CS See eect ereeesecres

United States v. Esparsen, 930 F.2d 1461 (10th

Cir. 1991), cert. denied, 112 S. Ct. 8827 (1992) ...

United States v. Fells, 920 F.2d 1179 (4th Cir.

1990). cert. denied, 501 U.S. 1219 (1991)...

United States v. GAF Corp., 928 F.2d 1253 (2d

SE cee ae ebevesestoeccres eer

United States v. Gracia, 983 F.2d 625 (Sth Cir.

ET oe ee eee ep eeecseseses ae

United States v. Harris, 959 F.2d 246 (D.C. Cir.),

cert. denied, 113 S. Ct. 362 (1992) ..... ras

United States v. Kelly, 974 F.2d 22 (Sth Cir.

ee race das eeaeescesteverseces

United States v. LeMay, 952 F.2d 995 (Sth Cir.

cee shisi sa stecheceesese.

United States v. McKeon, 738 F.2d 26 (2d Cir.

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IV

Cases — Continued: Page

United States v. Padilla, 947 F.2d 893 (10th Cir.

1991), cert. denied, 113 S. Ct. 2452 (1993) ...... 17

United States v. Providence Journal Co., 485 U.S.

SGU b hadk ewes ison teens teaeeeereates 15

United States v. Riles, 928 F.2d 339 (10th Cir.

oo EPP ET Ee Peer Ore Re rere er err Pr ree 13

United States v. Watson, 988 F.2d 544 (Sth Cir.

1993), cert. denied, 114S. Ct. 698 (1994) ....... 12

United States v. Woo, 917 F.2d 96 (2d Cir. 1990) . . 1]

United States v. Yu, No. 88-CR-138(S) (E.D.N_Y.

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Constitution, statutes, and rules:

U.S. Const. Art. I, § 9, Cl. 3 (Ex Post Facto

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Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570,

Tit. 1, 100 Stat. 3207:

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§ 1006, 100 Stat. 3207-6 ................... 16

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21 U.S.C. 841(b)UI(A) . 2... PAP PA erro 9, 15, 16, 17

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Sentencing Guidelines (1987):

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§ 3D1.3, Commentary .......-----

Application Note | (1988) .....

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An the Supreme Court of the United States

OCTOBER TERM, 1994

No. 93-1632

JOHNNY ENG, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-18a)

is reported at 14 F.3d 165. The oral order of the district

court excluding materials from the prior trial (Pet. App.

19a-28a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

January 14, 1994. The petition for a writ of certiorari was

filed on April 14, 1994. The jurisdiction of this Court is in-

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

(1)

STATEMENT

Following a jury trial in the United States District Court

for the Eastern District of New York, petitioner was con-

victed of conducting a continuing criminal enterprise

(CCE), in violation of 21 U.S.C. 848(a) (Count 1); con-

spiring to distribute heroin and to possess heroin with the

intent to distribute it, in violation of 21 U.S.C. 841(b) and

846 (Count 2); importing heroin, in violation of 21 U.S.C.

952(a) (Counts 3, 5, 7, 9, 11, 13); and distributing heroin

and possessing heroin with the intent to distribute it, in

violation of 21 U.S.C. 841(a)(1) (Counts 4, 6, 8, 10, 12,

14). C.A. App. 60a-66a, 401a. The district court sentenced

petitioner to a term of 151 months’ imprisonment on the

CCE count' and concurrent terms of 292 months’ im-

prisonment, to be followed by a lifetime term of super-

vised release, on the remaining counts of conviction. Pet.

App. 7a. The court of appeals affirmed. /d. at la-18a.

1. From 1987 to 1988, petitioner ran a heroin traffick-

ing operaticn that imported heroin from Hong Kong for

distribution in the United States. Petitioner employed

three different methods to import the drugs: transporting

them by couriers who flew into New York’s John F. Ken-

nedy International Airport, packaging them in parcels

mailed from Hong Kong, and concealing them inside a

bean sprout washing machine imported from Hong Kong.

Pet. App. 3a; Gov't C.A. Br. 3-4.

In early 1987, petitioner paid Wah Tom Lee $50,000 for

each of six shipments of heroin that she picked up from

couriers traveling through Kennedy Airport. The total

amount of heroin delivered by that method was 66 kilo-

grams of heroin. The bean sprout washing machine was

used to conceal 78 kilograms of heroin. Pet. App. 3a.

The conspiracy conviction on Count 2 merged with the CCE con-

viction on Count | for sentencing purposes. See C.A. App. 401a; Pet.

App. 10a n.t.

In the spring of 1987, petitioner asked Wah Tom Lee

and Michael Yu to recruit individuals to receive drugs sent

in parcels from Hong Kong. Yu and Lee obtained the

names of three persons, Tina Wong, Cathy Leung, and a

woman known as Helen or “Ah Ling,” who were willing to

receive the packages in return for $20,000 each. After

Wong received the first parcel, petitioner instructed Yu

and Lee to inspect it at Wong’s apartment. They found

that the parcel contained stuffed animals, peppers, and

numerous tea boxes. The tea boxes contained seven kilo-

grams of heroin. Several days later, petitioner instructed

Lee to deliver the heroin to him near a bakery in New York

City’s Chinatown. At Lee’s instruction, Wong brought the

heroin to a meeting place near the bakery, met petitioner

there, and transferred the package to him. Pet. App.

3a-4a; Gov't C.A. Br. 8-10.

A week later, petitioner informed Lee that a second

parcel would arrive soon. Lee, in turn, called Tina Wong,

who notified Cathy Leung. After receiving the package,

Leung took it to Wong’s apartment. Wong examined its

contents and informed Lee how much heroin it contained.

Lee called petitioner to confirm the delivery. Petitioner in-

structed her to leave the heroin in Wong’s apartment.

Later, petitioner asked Lee to deliver the parcel to some-

one named “Lap.” Lee arranged for Wong to deliver the

heroin to Lap the following day. Pet. App. 4a; Gov't C.A.

Br. 10.

Following the second delivery, Lee and Yu accompanied

petitioner to Hong Kong at petitioner’s expense. Petitioner

introduced Lee and Yu to “Ming,” the person who was

sending the heroin parcels, and told Ming to contact Yu

and Lee if he was not available. Lee provided petitioner

with a list of four more people willing to receive packages.

Pet. App. 4a; Gov't C.A. Br. I].

4

Shortly after the group returned from Hong Kong, four

more packages were delivered, each containing seven kilo-

grams of heroin. The third parcel was delivered to Cathy

Leung’s residence. With petitioner’s permission, Lee sold a

portion of the heroin to Ching-Yi Chen. At about the

same time, Lee and Yu again traveled to Hong Kong, at

petitioner’s direction, this time accompanied by Tina

Wong and two other women. The five of them concealed

more than $500,000 on their persons for delivery to Ming.

Pet. App. 4a-Sa; Gov’t C.A. Br. 11-13.

The fourth parcel was delivered to “Helen,” and then

transferred to Wong’s residence. Lee again sold part of the

heroin in that parcel to Ching-Yi Chen. The fifth parcel

arrived at Agnes Chin’s residence, and was stored in

Wong’s house. Once again, Lee sold part of the heroin in

the parcel to Chen. The sixth parcel was delivered in

December 1987 or January 1988 to “Helen,” who trans-

ferred it to Lee. The seventh parcel arrived at Gwendolyn

Chan’s residence, and was later delivered by Lee to a man

named Dai Gow. The eighth shipment arrived in January

or February 1988 at Agnes Chin’s residence. The package

was transferred to Lee, who delivered it to petitioner by

placing it in his jeep. Pet. App. 5a; Gov’t C.A. Br. 11-14.

On February 9 and 10, 1988, three more boxes from

Hong Kong containing heroin and addressed to residences

in the New York metropolitan area were intercepted by

customs officials in California. One of these packages was

marked for delivery to an “M. Hsieh” at Gwendolyn

Chan’s address. The Drug Enforcement Agency (DEA)

conducted a controlled delivery of the package that re-

sulted in Chan’s arrest. When Chan agreed to cooperate.

with the government, the conspiracy began to unravel.

That cooperation led to the arrest of Leung, who also

agreed to cooperate. Leung’s cooperation led to the arrest

5

of Lee, Yu, and Tina Wong in early March 1988. Pet.

App. 5a-6a; Gov’t C.A. Br. 14-15.

2. a. The government had presented a somewhat dif-

ferent version of the scheme in another prosecution arising

out of the same conspiracy, United States v. Yu, No.

88-CR-138(S) (E.D.N.Y. verdicts returned Aug. 31, 1988).

In that case, the government charged petitioner’s co-

conspirators, Lee and Yu, and four others with conspiring

to distribute drugs and with importing and distributing

heroin. The charges stemmed from the same mail parcel

deliveries that underlay petitioner’s indictment in this case.

Pet. App. 6a.?

In Yu, the government had maintained that Tina Wong

delivered the first two packages to Ching-Yi Chen, where-

as, in petitioner’s case, the government claimed that Wong

delivered the first package to petitioner (through Lee) and

the second package to “Lap” at petitioner’s direction. In

the version of events presented by the government at peti-

tioner’s trial, Ching-Yi Chen appeared as a buyer of heroin

near the end of the scheme, after Yu and Lee had begun to

sell the drugs themselves. Pet. App. 6a.

The government’s changed account of Chen’s role re-

sulted from a re-evaluation of Tina Wong’s veracity,

prompted in part by the account of the conspiracy provid-

ed by Lee after she began to cooperate with the govern-

ment. Following its reconsideration of Wong’s testimony

and a polygraph examination of Wong, the government

agreed to the vacatur of Ching-Yi Chen’s convictions.

Chen subsequently pleaded guilty to a one-count informa-

2 Both Lee and Yu were convicted following their trial. Yu’s convic-

tion, however, was vacated by the district court. Instead of seeking a

retrial, Yu decided to cooperate with the government and pleaded

guilty to a heroin offense carrying a sentence of up to 20 years’ im-

prisonment. Following her conviction, Lee also decided to cooperate

with the government. Gov’t C.A. Br. 4 n.2.

6

tion charging her with conspiring to import heroin, and

was sentenced to time served. Pet. App. 6a; Gov’t C.A.

Br. 20-21.

In the present case, petitioner sought to introduce at

trial various materials from the Yu case, to show that the

government had previously asserted that two of the mail

parcels allegedly delivered to petitioner had been delivered

to Ching-Yi Chen. Gov’t C.A. Br. 19-20. Petitioner sought

specifically to introduce the bill of particulars from Yu

and the Assistant United States Attorney’s summation in

that case, and also sought to cross-examine a DEA agent

about his grand jury testimony in Yu. See Pet. 5. During

argument on the motion, petitioner’s counsel also stated

that he had subpoenaed Tina Wong and intended to call

her as a witness. Gov’t C.A. Br. 21-22.

The district court denied the motion. Pet. App. 19a-28a.

After noting its concern about distraction of the jury by

extraneous issues, the court ruled that the appropriate way

to present the conflict between the government’s two ver-

sions of the conspiracy was to have Tina Wong and “all of

these witnesses testify,” id. at 22a, thus ailowing the jury

to assess the witnesses’ credibility. Jd. at 22a-23a. The

court also held that it would allow petitioner “to explore

with Ms. Wong, [i]f she’s called, the fact that she was

called by the government in the prior trial,” id. at 23a, and

it observed that, if Wong testified and was cross-

examined, there would be “very little lost to the defense.”

Ibid. The district court therefore held that the defense

could not introduce the bill of particulars or the govern-

ment’s summation from the Yu case or the case agent’s

grand jury testimony. /d. at 24a-28a.

b. Under the 1987 version of the Sentencing Guide-

lines,’ the base offense level for petitioner’s CCE convic-

’ The district court did not use the Guidelines in effect at the time of

petitioner’s sentencing because of concern that they might operate as

os

7

tion was 32, and the base offense level for his substantive

heroin convictions, which involved ten or more kilograms

of heroin, was 36. See Guidelines §§ 2D1.1, 2D1.5 (1987).

The district court did not adjust petitioner’s offense level

for his role in the CCE offense, and it sentenced him to

151 months’ imprisonment on that count. For the heroin

offenses, the district court added a four-point upward ad-

justment because petitioner was a leader of the importa-

tion organization. On the basis of petitioner’s total offense

level of 40, the court imposed a 292-month sentence. In

addition, the court imposed a lifetime term of supervised

release for the heroin offenses, departing upward from the

Guidelines. C.A. App. 395a, 398a-399a.

3. The court of appeals affirmed. Pet. App. la-18a. It

first held (id. at 8a)* that the district court had properly ex-

cluded the materials from the Yu trial after concluding

that the inconsistency between the government’s positions

at the two trials would be fully presented to the jury when

Wong testified, as petitioner had assured the court she

would. The court of appeals then held (id. at 8a, 10a) that,

because neither the government nor petitioner had called

Wong to testify, and because petitioner had not renewed

his objection and given the district court the opportunity

to reconsider the need for the evidence from the Yvw trial,

petitioner had waived his right to object to the exclusion of

the evidence.

The court of appeals rejected petitioner’s contention

(see Pet. C.A. Br. 37-40) that, because the district court

treated all 14 of his convictions as a single group for

an ex post facto law with respect to petitioner’s CCE conviction. See

Gov't C.A. Br. 38 n.13.

4 Two pages in the appendix to the petition are transposed. Page 8a

should be page 9a, and vice versa. To avoid further confusion, we

follow the irregular pagination of the appendix.

8

sentencing purposes, see Guidelines §§ 3D1.1-3D1.5

(1987), his conviction on the CCE count, which included

in its elements a leadership role, should have precluded the

district court from increasing his offense level for his

leadership role in the substantive drug offenses. The court

noted that the Guidelines required the district court to

compare aggregated, adjusted offense levels for offenses

that are grouped together, and to choose the highest of-

fense level among the grouped offenses when determining

the sentence. Pet. App. Ila; see Guidelines § 3D1.3(b)

(1987). The court held that the district court had properly

combined the substantive heroin counts under the drug

quantity aggregation principles of Guidelines § 3D1.2(d)

(1987) (Pet. App. 10a-lla), and also had properly ad-

justed the offense level for those combined heroin counts

to reflect petitioner’s leadership role (id. at 11a). Because

the offense level for petitioner’s heroin offenses, adjusted

to reflect his leadership role, was 40, while his CCE con-

viction carried an offense level of 32, the district court cor-

rectly used the higher adjusted offense level, 40, to deter-

mine the combined offense level for the group. /bid.

The court of appeals also rejected (Pet. App. 13a-15a)

petitioner’s argument that the district court had improper-

ly departed upward from the Guidelines in sentencing him

to a life term of supervised release. The court noted (id. at

13a) that the 1987 version of the Guidelines provided for a

maximum term of five years’ supervised release. See

Guidelines § 5D3.2(a) (1987). The court held (Pet. App.

14a-15a), however, that, because the 1987 Guidelines had

made no distinctions among defendants convicted of

smuggling more than ten kilograms of heroin, the Sentenc-

ing Commission had not adequately considered the need

to impose longer terms of supervised release on defendants

who were part of “an extremely large heroin trafficking

operation.” /d. at 15a. The court of appeals therefore con-

9

cluded that the district court was entitled to depart from

the supervised release Guidelines to fashion a sentence

“that reflected its concern over the scale of [petitioner’s]

narcotics activities.” /bid.

The court also addressed an issue that it had raised sua

sponte at oral argument, namely, whether the lifetime

term of supervised release imposed by the district court

violated 18 U.S.C. 3583(b)(1), which generally establishes

a maximum supervised release term of five years for Class

A or B felonies, “[e]xcept as otherwise provided.” Pet.

App 1!5a-18a. After noting that petitioner was convicted

under 21 U.S.C. 841(b)(1)(A), which requires a supervised

release term of “at least 5 years,” and after reviewing the

history of the legislation that established terms of super-

vised release for drug offenses and inserted the “except as

otherwise provided” language in Section 3583(b), the court

concluded that Congress intended the specific penalties for

drug offenses in 21 U.S.C. 841 to override the general

maximum penalties set forth in 18 U.S.C. 3583(b). Pet.

App. I5a-17a. The court therefore held (id. at 18a) that

the district court had not violated Section 3583(b) in im-

posing a lifetime term of supervised release on petitioner.

ARGUMENT

1. Petitioner contends (Pet. 16-21) that the court of

appeals erred when it ruled that he did not adequately

preserve his objection to the district court’s exclusion of

the materials from the Yu trial. Petitioner argues (Pet.

17-21) that, because the district court did not state express-

ly that its exclusion of the Yu materials was conditioned

on testimony by Tina Wong, the court of appeals’ “expan-

sion” of the concept of waiver rests on an inadequate fac-

tual foundation. That contention is without merit.

isis aii

10

a. The district court’s exclusion of the proffered evi-

dence from the Yu trial was closely related to the prospect

that Tina Wong would testify. See, e.g., Pet. App. 22a

(issue of admission of government’s summation from

earlier trial need not be addressed because witnesses are all

available for jury to hear; defense will call Tina Wong if

government does not); id. at 23a (court will allow defense

to explore with Wong, if she is called, fact that she had

been called by government in earlier case; allowance of

such testimony will permit defense to put before jury fact

that government at one time supported Wong’s version of

events); id. at 27a (jury will not be ignorant of fact that

Wong testified before and is not now a governn ent

witness); id. at 28a (court will allow evidence of govern-

ment’s prior belief in witnesses to come in only as to

Wong, “who will be able to testify”). In light of these state-

ments by the district court basing its exclusion of the Yu

materials on the prospect of Wong’s testimony, the court

of appeals accurately characterized (id. at 10a) those

materials as “in effect, conditionally excluded.” As the

court of appeals recognized (id. at 8a, 10a), the situation

resembled one in which evidence has been conditionally

admitted, where the party seeking to exclude the evidence

has the burden of renewing its objection if the condition is

not satisfied. See, e.g., United States v. Dougherty, 895

F.2d 399, 403-404 (7th Cir. 1990). Because petitioner did

not renew his motion for admission of the Yu materials

once he decided not to call Wong as a witness, the court of

appeals correctly ruled that he had not preserved his objec-

tion to their exclusion.

b. In any event, the district court correctly concluded

that the probative value of the materials that petitioner

sought to introduce was outweighed by the danger that

those materials would unduly distract the jury from the

11

central issues in the case. See Pet. App. 22a-24a; Fed. R.

Evid. 403. In the summation in Yu, the government relied

on the testimony of Tina Wong to argue that the first two

mail parcels had been delivered to Chen. That argument,

however, was not based on the personal knowledge of any

government agent, see Pet. App. 24a, and thus was not the

“equivalent of [a] testimonial statement.” United States v.

McKeon, 738 F.2d 26, 33 (2d Cir. 1984). Moreover, the

difference between that argument and the government’s

position in petitioner’s case had an “innocent explana-

tion,” ibid., namely, the government’s re-evaluation of

Wong’s credibility in light of the new evidence supplied by

Lee, Yu, and others. Similarly, the case agent’s grand jury

testimony was based solely on information supplied by

Wong and not on the agent’s personal knowledge. Pet.

App. 23a. Admission of the testimony might have caused

the jury to draw unsubstantiated and irrelevant inferences

about the agent’s own conduct. See United States v. Woo,

917 F.2d 96, 98 (2d Cir. 1990) (per curiam).

While the bills of particulars filed in Yu likewise stated

that Chen had received the first two parcels, the alteration

in the government’s theory of the conspiracy was not

based on tactical considerations designed to enhance its

chances for success. The change in position thus did not

create the potential for unfairness that might have re-

quired admission of the bill of particulars. Cf. United

States v. GAF Corp., 928 F.2d 1253, 1260 (2d Cir. 1991);

id. at 1264 (Altimari, J., concurring) (bills of particulars

are “generally of minimal probative value, and will tend to

confuse the issues and mislead the jury”; district courts

must determine whether “the circumstances of a particular

case are sufficiently compelling to necessitate admission”).

And since, in this case, petitioner was free, under the

district court’s ruling, to call Tina Wong to the stand and

to question her about her testimony at the prior trial, there

12

was no danger that the government could “make a funda-

mental change in its version of the facts between trials,

and then conceal this change from the final trier of the

facts.” Id. at 1260.

Finally, as the district court pointed out (Pet. App.

27a), because of the defense’s lengthy and revealing cross-

examination of the cooperating witnesses, the jury was not

“ignorant of the use of Mr. Yu, Ms. Lee, how they came to

be cooperating, the stages at which certain things came

about, the fact that Tina Wong testified before and she is

now not a government witness.” Petitioner therefore suf-

fered no prejudice from the district court’s exclusion of the

proffered evidence.

2. Petitioner contends (Pet. 21-27) that the district

court erred when it increased his offense level on the

substantive heroin counts by four levels to reflect his

leadership role in the offense. He argues that the four-level

adjustment was improper because the substantive counts

were grouped with the CCE count, and because the com-

mentary to the CCE Guideline stated that an “adjustment

for role in the offense * * * is not applicable.” Guidelines

§ 2D1.5, Commentary (1987).

Section 3B1.1(a) of the 1987 Guidelines provided for a

four-level increase “[i]f the defendant was an organizer or

leader of a criminal activity that involved five or more par-

ticipants[.]” Between January 1987 and September 1988,

petitioner orchestrated the importation and distribution of

numerous multi-kilogram shipments of heroin. See Gov’t

C.A. Br. 39. That conduct warranted an upward adjust-

ment for a leadership role in the offense. See, e.g., United

States v. Watson, 988 F.2d 544, 550-551 (Sth Cir. 1993),

cert. denied, 114 S. Ct. 698 (1994); United States v.

Beaulieau, 959 F.2d 375, 379-380 (2d Cir. 1992).

In addition, the district court employed the correct

analysis in grouping petitioner’s offenses. The district

13

court grouped the CCE and substantive heroin counts

together under Guidelines § 3D1.2(d) (1987). When counts

are grouped together under Section 3D1.2(d), the court

must “apply the offense guideline [among the grouped of-

fenses] that produces the highest offense level.” Guidelines

§ 3D1.3(b) (1987). That offense level, in turn, is defined as

the level after adjustments for matters such as treatment

of the victim, role in the offense, and obstruction of

justice. See Guidelines § 3D1.3, Commentary (Applica-

tion Note 1) (1988) (“[T]he ‘offense level’ for a count refers

to the offense level from Chapter Two after all adjust-

ments from Parts A, B, and C of Chapter Three.”) (em-

phasis added). These grouping rules thus required the

district court first to adjust petitioner’s offense level for

his substantive heroin violations to reflect his leadership

role and then to compare that adjusted offense level to the

offense level for the CCE count. See also Guidelines

§ 1B1.1(c) and (d) (1987) (sentencing court to apply ad-

justments in Parts A, B and C of Chapter Three before ap-

plying grouping analysis in Part D of Chapter Three).°

In this case, the CCE offense level obtained from

Chapter Two was 32, and the unadjusted offense level for

the heroin counts obtained from Chapter Two was, as

petitioner concedes (Pet. 24), 36. See United States v.

Riles, 928 F.2d 339, 343 (10th Cir. 1991) (district court

must aggregate quantity of drugs in all counts to deter-

mine offense level for related drug offenses). After the up-

ward adjustment for leadership role required by Chapter

Three, Part B, the offense level for the heroin counts was

’ After comparing those adjusted offense levels, the district court

was required to choose the highest level as petitioner’s offense level for

all the grouped offenses, see Guidelines § 3D1.3(b) (1987), and then

to consider whether the grouped offense level should be subject to any

further adjustment, e.g., for acceptance of responsibility or criminal

history. See Guidelines § 3D1.5, Commentary (1988).

14

40. Since the level for the heroin offenses (40) was higher

than the level for the CCE offense (32), the district court

correctly used the heroin level as the grouped offense level.

See Guidelines § 3D1.3(a) (1987); see also United States v.

Morrow, 929 F.2d 566, 567 (10th Cir. 1991); United States

v. Harris, 959 F.2d 246, 267 (D.C. Cir.), cert. denied, 113

S. Ct. 362 (1992); United States v. David, 940 F.2d 722,

741-742 (Ist Cir. 1991), cert. denied, 112 S. Ct. 2301

(1992).

Petitioner also seeks support (Pet. 24) from Application

Note 3 to Guidelines § 3D1.3 to argue that the district

court should have determined one combined offense level

for all the CCE and substantive heroin offenses before

making any adjustments under Parts A, B and C of

Chapter Three. That Application Note provides that of-

fense level adjustments under Parts A, B and C of Chapter

Three of the Guidelines should be “based upon the com-

bined offense behavior taken as a whole.” Guidelines

§ 3D1.3, Commentary (Application Note 3) (1988). The

Note, however, means simply that sentencing courts

should consider all of a defendant’s relevant conduct when

applying the adjustments in Parts A, B and C of Chapter

Three. See United States v. Fells, 920 F.2d 1179, 1184 (4th

Cir. 1990) (defendant’s role adjustment “is to be based,

not solely on his role in the counts of conviction, but on

his role in the entirety of the relevant conduct”), cert.

denied, 501 U.S. 1219 (1991).

3. Petitioner also contends (Pet. 27-29) that his life

term of supervised release exceeded the maximum permis-

® Petitioner’s only authority for a contrary rule is a Commentary to

Guidelines § 2D1.5 (1987), describing the CCE crime as “one of the

most serious forms of ongoing criminal activity.” See Pet. 25. There

is, however, no indication in either the Guidelines or the Commentary

that the Commission intended that the CCE offense should be treated

as more serious than substantive drug crimes for every purpose.

15

sible term for a Class A felony set forth in 18 U.S.C.

3583(b).’ That Section provides as follows:

(b) Authorized terms of supervised release. — Ex-

cept as otherwise provided, the authorized terms of

supervised release are —

(1) fora Class A or Class B felony, not more

than five years;

(2) fora Class C or Class D felony, not more

than three years; and

(3) for a Class E felony, or for a misde-

meanor (other than a petty offense), not more

than one year.

The phrase “Except as otherwise provided” means that

Section 3583(b) applies only when the specific penalty pro-

vision for a particular offense does not define the per-

missible term of supervised release. See United States v.

Providence Journal Co., 485 U.S. 693, 705 n.9 (1988) (“A

statute that begins with ‘Except as otherwise provided by

law’ creates a general rule that applies unless contradicted

in some other provision.”). Section 3583(b) is a default

provision to be applied in the absence of another statutory

directive.

In this case, that directive was provided by 21 U.S.C.

841, which prohibits the distribution of heroin. Section

841 contains its own supervised release provision that

trumps 18 U.S.C. 3583(b). Section 841(b)(1)(A) provides

in relevant part:

Any sentence under this subparagraph shall, in the

absence of a prior conviction, impose a term of super-

vised release of at least 5 years in addition to such

’ Petitioner argued in the court of appeals (see Pet. App. 13a-15a)

| that the district court’s upward departure violated his rights under the

Ex Post Facto Clause. We do not understand petitioner to press that

j claim in this Court.

16

term of imprisonment and shall, if there was such a

prior conviction, impose a term of supervised release

of at least 10 years in addition to such term of impris-

onment. °

Section 841(b)(1}(A) establishes a mandatory minimum

term of supervised release (of five or ten years) but no

maximum term. It therefore authorized the life term im-

posed in this case. Accord United States v. Cardenas, 917

F.2d 683, 687 (2d Cir. 1990) (defendant could receive life

term of supervised release under 21 U.S.C. 841(b)(1)(C)’s

provision of minimum term of “at least 3 years”).

The legislative history of Section 3583(b) confirms that

Congress did not intend the default rules for supervised

release to apply to drug trafficking offenses. The super-

vised release terms authorized by Congress for drug of-

fenses, including those in Section 841, were added in the

same statute that amended Section 3583(b) by adding the

introductory phrase “[e]xcept as otherwise provided.” See

Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, Tit. I,

§§ 1002, 1006, 100 Stat. 3207-3, 3207-6. As the court of

appeals explained, the 1986 legislation of which Section

841 was a part was “intended to enhance the penalties

available to combat drug offenses. That Congress intend-

ed these penalties to override the maximums set by 18

U.S.C. 3583(b) is clear from the fact that Congress simul-

taneously amended that section to add the phrase ‘[e]xcept

as Otherwise provided.’ ” Pet. App. 17a. See also United

States v. LeMay, 952 F.2d 995, 998 (8th Cir. 1991) (phrase

“fe]xcept as otherwise provided” was added to avoid con-

flict between Section 3583(b) and statutes such as Section

841(b)(1)(A) authorizing longer supervised release terms).

The court of appeals thus was correct in holding (Pet.

App. 18a) that the district court did not violate Section

3583(b) when it sentenced petitioner to a lifetime term of

supervised release.

17

Although there is a conflict among the circuits on the

issue whether the maximum terms of supervised release

authorized by 18 U.S.C. 3583(b) apply to drug trafficking

offenses that are subject to sentencing under 21 U.S.C.

841, we do not believe that the issue is currently pressing

enough to warrant this Court’s intervention. Apart from

the instant case, the issue has arisen in only a handful of

cases in three other circuits. The Eighth Circuit, like the

court below, has correctly ruled that the penalty provi-

sions of Section 841(b)(1)(A) override the fall-back provi-

sions of Section 3583(b). See United States v. LeMay, 952

F.2d at 998. The Tenth Circuit has twice held to the con-

trary, but in both of those cases the government conceded

that Section 3583(b) limited the maximum term of super-

vised release that a sentencing court may impose. See

United States v. Padilla, 947 F.2d 893, 894 (1991), cert.

denied, 113 S. Ct. 2452 (1993); United States v. Esparsen,

930 F.2d 1461, 1476-1477 (1991), cert. denied, 112 S. Ct.

882 (1992).* The only circuit that has rejected the govern-

ment’s argument that Section 3583(b) does not limit the

range of supervised release authorized by Section

841(b)(1)(A) is the Fifth Circuit. See United States v.

Gracia, 983 F.2d 625, 630 (1993); United States v. Kelly,

974 F.2d 22, 24-25 (1992).9 We are unaware of any cases in

other circuits in which this supervised-release issue has

been litigated. Because the issue has arisen infrequently in

the years since the relevant statutory amendments in 1986

and has not been widely litigated, we do not believe that

the issue is of sufficient general importance at present to

warrant plenary consideration by this Court.

5 We believe that those concessions were erroneous, and the Tenth

Circuit may reconsider its view on this issue if it were to arise in the

future.

* The government did not seek further review in either of those

18

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Drew S. DAys, Ill

Solicitor General

JO ANN HARRIS

Assistant Attorney General

THOMAS M. GANNON

Attorney

Jury 1994

US GOVERNMENT PRINTING OFFICE 1994—301-157/66173