Opposition Brief — Kumar v. United States

$1 @)

No. 10-961

Jn the Supreme Court of the Gnited States

SANJAY KUMAR, PETITIONE!

NITED STATES OF AMERIt

ON PETITION FOR A WRIT OF CERTIORARI

OTHE UNITED STATES COURT OF APPEAI

FOR THE SECOND CIRCUTi

BRIEF FOR THE UNITED STATES IN OPPOSITIO?S

NEAL KUMAR KATYAI

Acting Solicitor Gene?

Counsel of Record

LANNY A. BREUER

Assistant Attorney Gen

DANIEL S. GOODMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.go

(202) 514-2217

QUESTION PRESENTED

Whether the one-book rule in Sentencing Guideline

§ 1B1.11(b)(3), which requires that the revised edition of

the Guidelines be used to calculate a defendant’s advi

sory sentencing range when the defendant’s offenses

occurred both before and after the revised Guidelines

took effect, violates the Ex Post Facto Clause as applied

to offenses that are considered as a group under the

(,uldelines

TABLE OF CONTEN'’

Opinion below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF AUTHORITII

Case:

Gall v. United States, 552 U.S. 38 (2007

Greenfield v. Scafati, 277 F. Supp. 644 (D. Ma

1967), aff'd, 390 U.S. 713 (1968) . . .

Irizarry v. United States, 553 U.S. 708 (2008)

Kimbrough v. United States, 552 U.S. 85 (2007)

Miller v. Florida, 482 U.S. 423 (1987) . .

Pepper v. United States, 131 S. Ct. 1229 (2011

Rita v. United States, 551 U.S. 338 (2007) .

Spears v. United States, 129 S. Ct. 840 (2009)

United States v. Bertolz, 40 F.3d 1384 (3d Cir. 1994

cert. denied, 517 U.S. 1137 (1996) .......

United States v. Booker, 543 U.S. 220 (2005)

United States v. Cooper, 35 F.3d 1248 (8th Cir. 1994

cert. denied, 517 U.S. 1158 (1996) ......

mited States v. Demaree, 459 F.3d 791 (2006), cert

denied, 551 U.S. 1167 (2007) ..........

United States v. Lanham, 617 F.3d 873 (6th Cir

United States v. Lewis, 606 F.3d 193 (4th C

2010)

ae

%

In the Supreme Court of the Anited Stat

lm

liagmne I tne court appt

August 12, 2010. A petition for rehearing was deni

October 25, 2010 (Pet. App. 84a-85a). The petition

writ of certiorari was filed on January 24,.2011 (a M

day). The jurisdict

7

ourt for the Eastern District of New York, petiti

was convicted on multiple counts of consp!

L445

re |

ris Se <4 i ¥ ‘ Ca if |

+)

false statements. Pet. App. 2a. In particular, petitioner

was convicted on one count of conspiracy to commit se-

curities and wire fraud, in violation of 18 U.S.C. 371; one

count of securities fraud, in violation of 15 U.S.C. 78j(b)

and 78ff; three counts of making false statements to the

Securities and Exchange Commission (SEC), in violation

of 15 U.S.C. 78m(a) and 78ff; one count of conspiracy to

obstruct justice, in violation of 18 U.S.C. 1512(k); one

count of obstruction of justice, in violation of 18 U.S.C.

1512(c)(2); and one count of making false statements, 2

violation of 18 U.S.C. 1001(a)(1) and (2). Pet. C.A. Spe-

cial App. SPAI-SPA2. He was sentenced to 144 months

of imprisonment, to be followed by three years of super-

vised release. Jd. at SPA38-SPA4. The court of appeals

affirmed his sentence. Pet. App. la-83a.

1. In August 1987, petitioner joined Computer Asso-

ciates International Inc., a publicly traded corporation.

In 1994, he became President and Chief Operating Offi-

cer and, in August 2000, he was made Chief Executive

Officer. Together with co-defendant Stephen Richards,

the company’s Executive Vice President of Sales, peti-

tioner engaged in a scheme, which had begun in the

1980s under his predecessor, in which Computer Associ-

ates backdated license agreements to deceive investors

into believing that the company had met quarterly earn-

ings forecasts. The backdating scheme continued until

the fall of 2000. After the scheme was uncovered, Com-

puter Associates was required to restate approximately

$2.2 billion in revenue into the correct quarters. Gov’t

C.A. Br. 4; Pet. App. 3a, 7a n.2; Pet. C.A. App. A448.

In 2002, the Federal Bureau of Investigation, the

United States Attorney’s Office for the Eastern District

of New York, and the SEC began a joint investigation

into the fraudulent scheme. The investigation continued

3

through the fall of 2004. In an effort to obstruct the in-

vestigation, petitioner lied to Computer Asscciates’ out-

side counsel, instructed the company’s general counsel

to coach employees to lie to government investigators,

authorized the general counsel to pay a $3.7 million

bribe to secure the silence of a potential witness, and

lied to FBI agents. Pet. App. 4a-5a; Presentence Inves-

tigation Report (PSR) 11 54-56, 70.

2. In a superseding indictment filed on June 28,

2005, petitioner and Richards were charged with numer-

ous counts of conspiracy, securities fraud, wire fraud,

obstruction of justice, and making false statements. Pet.

C.A. App. A39-A84. In April 2006, petitioner pleaded

guilty to the charges against him. Pet. App. 6a. As re-

flected in the judgment, petitioner’s offenses of conspir-

acy, securities fraud, and making false statements to the

SEC ended by October 31, 2000. Pet. C.A. Special App.

SPA1-SPA2. In contrast, petitioner’s obstruction of-

fenses ended in April 2004. 7d. at SPA2.

The PSR calculated petitioner’s advisory sentencing

range under the Sentencing Guidelines based on the

2005 version of the Guidelines, which was the same in all

relevant respects as the version in effect when peti-

tioner’s obstruction offenses ended in April 2004. Pet.

App. 6a; Pet. 4.4. The PSR first grouped together peti-

tioner’s convictions for conspiracy, securities fraud, and

false statements to the SEC. See Guidelines § 3D1.2(d).

In part based on enhancements for causing a loss of

more than $400 million and for victimizing more than

250 people that were added to the Guidelines between

2001 and 2003, the PSR calculated that petitioner had an

adjusted offense level of 53 for that group. PSR 4 120-

127. The PSR also grouped together petitioner’s convic-

tions for conspiracy to obstruct justice, obstruction of

4

justice, and making false statements in violation of

18 U.S.C. 1001 and calculated an adjusted offense level

of 21 for that group. PSR 419 128-133. The PSR further

concluded that the two groups should themselves be

grouped together under Guidelines § 3D.1.2(c) and that

the adjusted offense level for all of the combined of-

fenses was 53, since that was the highest offense level of

the grouped counts. PSR 19 135-139; see Guidelines

§ 3D1.3(a). After awarding petitioner a two-level down-

ward adjustment for acceptance of responsibility, the

PSR calculated a total offense level of 51. PSR 19 140-

141. That offense level, combined with petitioner’s crim-

inal history category of I, yielded an advisory Guidelines

range of life imprisonment. PSR 4 181.

At sentencing on November 2, 2006, the district court

noted that petitioner had raised “an ex post facto issue”

based on the completion of his conspiracy and securities

fraud offenses in October 31, 2000, when the applicable

advisory Guidelines for fraud offenses were “less oner-

ous” than the fraud Guidelines “in effect when the ob-

struction and false statement crimes were committed”

in 2003 and 2004. Pet. C.A. App. A437-A438. The court

rejected petitioner’s ex post facto claim, explaining that

although the Guidelines sometimes presented ex post

facto issues when they were mandatory before United

States v. Booker, 543 U.S. 220 (2005), “the ex post facto

clause has no application to the advisory guidelines.”

Pet. C.A. App. A440. Later in the sentencing, the court

also observed that “the conspiracy in a very real sense

continued” after October 31, 2000. Jd. at A449. In par-

ticular, the court pointed out that, “between 2002 and

2004,” petitioner “lied to the FBI” about the backdating

practices at Computer Associates and “conspired to ob-

struct and impede the government’s investigation into

that security fraud.” /bid.

The district court made a couple of adjustments to

the PSR’s Guidelines calculations (reducing the base

offense level for the fraud group by one level, rejecting

as duplicative the upward adjustment to the fraud of-

fense level for obstruction of justice, and rejecting as

unwarranted the downward adjustment for acceptance

of responsibility), but those adjustments did not alte)

petitioner’s advisory Guidelines range, which remained

life imprisonment. Pet. C.A. Special App. SPA7; Pet.

C.A. App. A446. Immediately after determining the

advisory range, however, the court rejected the Guide-

lines recommendation, stating that imposing a sentence

of life imprisonment “would shock the conscience of this

Court.” Pet. C.A. App. A446.

Consistent with United States v. Booker, 543 U.S.

220 (2005), the district court then engaged in an exten-

Sive analysis of the sentencing factors in 18 U.S.C.

3553(a). Pet. C.A. App. A447-A455. The court noted

that petitioner’s crimes were serious, that he could have

stopped the fraud upon becoming President and Chief

Operating Officer, and that by instead embracing the

scheme he “did violence to the legitimate expectations”

of “untold numbers of investors.” Jd. at A450; see 2d. at

A448, A453. The court also stressed that petitioner had

exacerbated his wrong-doing by obstructing justice. /d.

at A449, A451. The court observed that it was not likely,

however, that petitioner would commit crimes in the

future, so imprisonment was not needed either to pro-

tect the public or for specific deterrence. Jd. at A452-

A453. The court also noted that petitioner had engaged

in substantial public and private acts of charity, al

though that charity was made possible by the consider

6

able wealth that he had amassed at Computer Associ-

ates. Jd. at A449. Balancing all of those considerations,

the court arrived at a total sentence of 144 months of

imprisonment. Jd. at A456. The court specified that its

sentence was “sufficient, but not greater than necessary

to comply with the purposes of [Section] 3553(a).” Jd. at

A452.

3. The court of appeals affirmed petitioner’s sen-

tence. Pet. App. la-83a. As relevant here, the court

rejected petitioner’s contention “that application of the

2005 Guidelines to [his] fraud offenses, which were com-

pleted in 2000, violated the Ex Post Facto clause.” Id. at

21a. The court noted that the Guidelines one-book rule,

which was in effect before petitioner committed any of

his offenses, provides that “[i]Jf the defendant is con-

victed of two offenses, the first committed before, and

the second after, a revised edition of the Guidelines

Manual became effective, the revised edition of the

Guidelines Manual is to be applied to both offenses.” Jd.

at 22a (quoting Guidelines § 1B1.11(b)(3)). Although

petitioner claimed that the advisory Guidelines range for

his fraud offenses should have been calculated based on

the 1998 Guidelines, which were in effect when he com-

mitted those offenses, the one-book rule called for appli-

cation of the Guidelines in effect when petitioner com-

mitted his obstruction offenses, which were not com-

pleted until the fall of 2004.

The court of appeals stated that the central question

before it was “whether the one-book rule violates the Ex

Post Facto clause” when, as in this case, it results ina

higher advisory Guidelines range than would have ap-

plied under the Guidelines in effect when the defendant

committed the first of his offenses. Pet. App. 25a. The

court noted the district court had “found that the one-

7

book rule did not raise an ex post facto issue,” reasoning

that, after Booker, “the Ex Post Facto clause does not

apply to the previously mandatory, now advisory, Guide-

lines.” Jd. at 24an.12. Because, however, the govern-

ment had “disclaimed reliance on the district court’s

analysis,” the court of appeals proceeded “on the as-

sumption that the Hx Post Facto clause applies to the

advisory Guidelines.” Jbzd.; see Gov’t C.A. Br. 45 n.15.

The court of appeals concluded “that the one-book

rule set forth in § 1B1.11(b)(8) does not violate the Fx

Post Facto clause when applied to the sentencing of of-

fenses committed both before and after the publication

of a revised version of the Guidelines.” Pet. App. 29a.

The court noted that most courts of appeals have held

that the one-book rule does not violate the Ex Post

Facto Clause when, as here, the rule is applied to a se-

ries of grouped offenses. /d. at 25a. Those courts have

reasoned that “the combination of the grouping rules

and the one-book rule puts a defendant on notice that

‘the version of the sentencing guidelines in effect at the

time he committed the last of a series of grouped of-

fenses will apply to the entire group.’” /d. at 25a-26a

(quoting United States v. Vivit, 214 F.3d 908, 918 (7th

Cir.), cert. denied, 531 U.S. 961 (2000) (citation omit-

ted)). Although the court of appeals acknowledged that

two circuits have reached a contrary conclusion, see 2d.

at 26a-28a (citing United States v. Ortland, 109 F.3d

539, 547 (9th Cir.), cert. denied, 522 U.S. 851 (1997);

United States v. Bertoli, 40 F.3d 1384, 1404 n.17 (3d Cir.

1994), cert. denied, 517 U.S. 1137 (1996)), it agreed with

the majority of the circuits that application of the one-

book rule in the circumstances of this case does not of-

fend ex post facto principles.

8

The court of appeals noted that “[cJentral to the ex

post facto prohibition is a concern for the ‘lack of fair

notice and governmental restraint when the legislature

increases punishment beyond what is prescribed when

the crime was consummated.’” Pet. App. 29a (quoting

Miller v. Florida, 482 U.S. 423, 430 (1987) (quoting, in

turn, Weaver v. Graham, 450 U.S. 24, 30 (1981))). The

court reasoned that application of the one-book rule to

petitioner offends neither of those fundamental con-

cerns. Jd. at 30a. Because the rule was adopted before

petitioner committed his obstruction offense, the court

observed, he had notice before committing that offense

that the consequences of committing it would include

application of the later Guidelines to all of his offenses.

Ibid. Thus, the court explained, petitioner “could have

altered [his] conduct so as to avoid any heightened pun-

ishment imposed on the basis of the one-book rule by

choosing not to obstruct the government’s investigation

of [the] prior fraud.” Jbid. “As to governmental re-

straint,” the court reasoned, application of the one-book

rule did not involve the imposition of “heightened pun-

ishment following the commission of the criminal con-

duct triggering that punishment,” because application of

the amended Guidelines was triggered by petitioner’s

commission of the obstruction offenses, which were com-

mitted after the revised Guidelines took effect. Jd. at

30a-31la.

Judge Sack dissented in relevant part. Pet. App.

53a-83a. Like the majority, he decided the case on the

“assum[ption] that the ex post facto doctrine applies to

the Sentencing Guidelines after” Booker. Id. at 63a.

Unlike the majority, however, Judge Sack would have

concluded that application of the one-book rule to peti-

g

tioner violated the Ex Post Facto. Clause. /d. at 65a

83a.

ARGUMENT

Petitioner contends (Pet. 7-14) that this Court’s re-

view is warranted because the court of appeals erred in

holding that application of the Guidelines’ one-book rule

to his case did not violate the Ex Post Facto Clause.

Contrary to petitioner’s contention, the decision of the

court of appeals is correct. Although the circuits are

divided on the question whether the one-book rule vio-

lates the Ex Post Facto Clause when the rule results in

a higher Guidelines range than would have applied un-

der the Guidelines in effect at the time of the defen-

dant’s initial offense, that issue does not warrant this

Court’s review. The conflict among the circuits on that

issue depends on the premise that application of the

Guidelines can implicate the Ex Post Facto Clause, and

that premise is no longer correct after United States v.

Booker, 543 U.S. 220 (2005), which rendered the Guide-

lines advisory. Although the courts of appeals are also

divided on the broader question whether the advisory

Guidelines can ever raise ex post facto concerns, this

case is not an appropriate vehicle to resolve that ques-

tion. The court below did not decide the issue, and the

petition for a writ of certiorari does not raise it. Accord-

ingly, this Court should deny the petition.

1. The court of appeals correctly held that applica

tion of the one-book rule to petitioner did not violate the

Ex Post Facto Clause.

a. Although the court of appeals decided the case “on

the assumption” that the Clause applies to the advisory

Guidelines, Pet. App. 24a n.12, in fact, as the district

court recognized, Pet. C.A. App. A439-A440, and the

government has explained in response to other recent

10

petitions for writs of certiorari, the Guidelines no longer

present any ex post facto concerns now that they are

advisory only. See, e.g., Sedratz v. United States, U.S.

Br. in Opp. 9-11 (No. 09-10911), 2010 WL 3713182, at

*4-*5 (filed Sept. 7, 2010); Hensley v. United States,

U.S. Br. in Opp. 9-14 (No. 09-480), 2010 WL 603304, at

*6-*9 (filed Jan. 10, 2010).

In Miller v. Florida, 482 U.S. 423 (1987), this Court

held that the Ex Post Facto Clause barred the retroac-

tive application of revised state sentencing guidelines

that increased a defendant’s presumptive sentencing

range compared to the guidelines in effect at the time

that the defendant committed the offense. The Court

reasoned that the new guidelines, which “ha[d] the force

and effect of law,” “substantially disadvantaged” the

defendant, because the state system created a “high

hurdle that must be cleared before discretion [could] be

exercised” to impose a non-guidelines sentence. /d. at

432, 435. The Court distinguished the Florida guidelines

system from the United States Parole Commission’s

guidelines, noting that the federal parole guidelines

“simply provide flexible ‘guideposts’ for use in the exer-

cise of discretion.” Jd. at 435.

Before Booker, the federal Sentencing Guidelines

(unlike the former federal parole guidelines) were man-

datory. Thus, like the Florida guidelines at issue in

Miller, the federal Sentencing Guidelines both “ha[d]

the force and effect of laws,” Booker, 543 U.S. at 234,

and significantly constrained district courts’ discretion

to impose sentences outside of the Guidelines range.

See 18 U.S.C. 3553(b)(1). Courts of appeals had there

fore uniformly held that, under Miller, the Ex Post

Facto Clause precluded the application of revised Guide-

lines provisions that provided for a more severe sentenc-

1]

ing range than authorized by the Guidelines in effect

when the defendant committed the offense. See, e.g.,

United States v. Seacott, 15 F.3d 1380, 1386 (7th Cir.

1994).

This Court’s recent decisions explaining the role of

the Guidelines in post-Booker sentencing have, however,

made clear that the Guidelines, far from having the force

and effect of laws, are now only advisory and do not limit

the discretion of sentencing courts in the manner that

the guidelines at issue in Miller did. In Rita v. United

States, 551 U.S. 338, 341, 350-354 (2007), the Court held

that sentencing courts may not presume a sentence

within the advisory Guidelines range to be reasonable

and may not presume a sentence outside of the advisory

range to be unreasonable. In Gall v. United States, 552

U.S. 38, 47 (2007), the Court held that a court of appeals

cannot apply a “rigid mathematical formula” that would

demand an increasingly strong justification for a sen-

tence the farther the sentence varies from the advisory

Guidelines range. And, in subsequent decisions, the

Court made clear both that sentencing courts may vary

from the advisory range “based solely on policy consid-

erations, including disagreements with the Guidelines”

and that the Guidelines are just “one factor among sev-

eral” that “courts must consider in determining an ap-

propriate sentence.” Kimbrough v. United States, 552

U.S. 85, 90, 101 (2007) (citation omitted); see Pepper v.

United States, 131 S. Ct. 1229, 1247 (2011) (“[OJjur post-

Booker decisions make clear that a district court may in

appropriate cases impose a non-Guidelines sentence

based on a disagreement with the Commission’s

views.”); Spears v. United States, 129 S. Ct. 840, 843

(2009) (per curiam). Finally, the Court has held that no

advance notice is required when a court sentences out-

12

side the advisory Guidelines range based on the sentenc-

ing factors in 18 U.S.C. 3553(a), because defendants no

longer have “[a]ny expectation subject to due process

protection” that they will receive a sentence within the

Guidelines range. Irizarry v. United States, 553 U.S.

708, 713 (2008).

b. The inapplicability of the Ex Post Facto Clause to

the advisory Guidelines by itself dictates the conclusion

that application of the one-book rule to petitioner did not

violate the Clause. In any event, as the court of appeals

recognized, even if the Clause applied to the advisory

Guidelines, application of the one-book rule to petitioner

would still not violate the Clause. Pet. App. 25a-37a.

“{Cjentral to the ex post facto prohibition is a concern

for ‘the lack of fair notice and governmental restraint

when the legislature increases punishment beyond what

was prescribed’” when the defendant committed the acts

that triggered that punishment. Miller, 482 U.S. at 430

(quoting Weaver v. Graham, 450 U.S. 24, 30 (1981)).

Those concerns are not implicated by applying the one-

book rule to offenses that are grouped to determine the

advisory Guidelines range.’

As the court of appeals explained, the defendant has

fair notice of the consequences of his criminal conduct

before he commits it. Pet. App. 30a. The one-book rule

puts the defendant on notice that, if he commits a series

of offenses and is prosecuted for those offenses in a sin-

' The court of appeals appears to have endorsed the broader

principle that application of the one-book rule does not violate the Ex

Post Facto Clause regardless of whether the offenses are prouped

under the Guidelines. See Pet. App. 29a; see also zd. at 69a-71a (Sack,

J., dissenting) (describing scope of the court’s ruling). But because the

offenses here were grouped, that broader issue is not directly presented

by the facts of this case, as Judge Sack noted in dissent. Jd. at 72a.

13

gle proceeding, the version of the Guidelines in effect

when he commits the last offense will be used to sen-

tence him for the entire group of offenses. /bid.*

[In addition, application of the one-booxk rule to

grouped offenses does not permit the government to

increase the defendant’s punishment beyond what was

prescribed when the defendant committed the series of

acts that triggered that punishment. The Guidelines

range is determined for the offenses as a group, and the

group includes a course of offense conduct that was not

completed until after the new version of the Guidelines

took effect. Thus, application of the one-book rule to

grouped offenses is similar to application of the most

recent version of the Guidelines to a continuing offense

than is begun under one version of the Guidelines but

not completed until a later version has taken effect. As

the courts of appeals that have addressed that scenario

have recognized, it does not present ex post facto con-

cerns. See, e.g., United States v. Cooper, 35 F.3d 1248,

1251 (8th Cir. 1994) (citing cases).°

Moreover, the specific conduct that triggers applica-

tion of the later version of the Guidelines to the group is

* The one-book rule was in effect before petitioner committed any of

the offenses for which he was punished. This case is thus unlike the

hypothetical posed by petitioner (Pet. 9-10), in which, after a securities

fraud has been completed, Congress enacts a statute increasing the

punishment for securities fraud and makes that increased punishment

retroactively applicable to frauds committed before the statute’s

enactment if the defendant obstructs the crime after the enactment.

* For similar reasons, petitioner’s reliance (Pet. 11-12) on Greenfield

v. Scafati, 277 F. Supp. 644 (D. Mass. 1967), aff'd, 390 U.S. 713 (1968),

is misplaced. Unlike this case, Greenfteld did not involve a continuing

course of criminal conduct. The increased punishment in Greenfield

was triggered by commission of a parole violation rather than a further

criminal offense.

14

the commission of the last offense, and the later version

of the Guidelines has already taken effect when the de-

fendant commits that offense. Thus, as the court of ap-

peals explained, in this case petitioner “could have al-

tered [his] conduct so as to avoid any heightened punish-

ment imposed on the basis of the one-book rule by

choosing not to obstruct the government’s investigation

of [the] prior fraud.” Pet. App. 30a.

2. Although petitioner does not argue that this

Court’s review is needed to resolve a conflict among the

courts of appeals, the circuits are divided on the ques-

tion whether the one-book rule violates the Ex Post

Facto Clause when the rule results in a higher Guide-

lines range than would have applied under the Guide-

lines in effect at the time of the defendant’s initial of-

fense. Most of the courts of appeals have held that the

one-book rule does not violate the Ex Post Facto Clause,

at least when, as in this case, the rule is applied to a se-

ries of grouped offenses. See Pet. App. 25a-26a (citing

decisions from the Fourth, Fifth, Seventh, Eighth,

Tenth, and Eleventh Circuits). The Third and Ninth

Circuits, however, have disagreed. See 2d. at 26a-28a

(citing United States v. Ortland, 109 F.3d 539, 547 (9th

Cir.), cert. denied, 522 U.S. 851 (1997); United States v.

Bertoli, 40 F.3d 1384, 1404 n.17 (3d Cir. 1994), cert. de-

nied, 517 U.S. 1137 (1996)).

That conflict does not warrant this Court’s review.

The cases giving rise to the conflict were decided when

the Guidelines were mandatory, and the conflict is predi-

cated on the premise that application of the Guidelines

can raise ex post facto concerns. As explained above,

however, that premise is no longer correct now that the

Guidelines are advisory. The conflict is thus a vestige of

the mandatory Guidelines era and would only have con-

tinuing significance if the Court were to hold that the Ex

Post Facto Clause generally applies to the advisory

Guidelines—a question that is not properly raised in this

case. See pp. 17-18, infra.

Even assuming that this Court’s resolution of the

conflict on the one-book issue might be warranted in an

appropriate case, this case is not a suitable one to re-

solve it. The sentencing record strongly suggests that

petitioner would have received the same sentence even

if the district court had not used the one-book rule to

calculate his advisory range. The court rejected reliance

on the advisory range (which was life imprisonment)

almost as soon as the court had calculated it. Pet. C.A.

App. A446. The court then engaged in a careful and de-

tailed consideration of the remaining factors specified in

Section 3553(a) before sentencing petitioner to 144

months in prison. /d. at A447-A455. Nothing in the re-

cord suggests that the court would have selected a lower

prison term if the court had calculated the advisory

range using the 1998 Guidelines rather than the 2005

Guidelines. Not only did the range play no part in the

court’s selection of the 144-month term, but that term

would still be substantially below the advisory range

even under the 1998 Guidelines.“ And the court ex

* Although petitioner repeats (Pet. 5) the calculation of the court of

appeals (Pet. App. 23a) that petitioner’s advisory range under the 1998

Guidelines would have been 97 to 121 months of imprisonment, that

calculation is incorrect. Correctly calculated, petitioner’s total offense

level for the fraud offenses under the 1998 Guidelines would have been

36. His base offense level would have been 6, Guidelines § 2F 1.1(a); and

that level would have been increased by 18 because he caused a loss of

more than $80 million, id. § 2F1.1(b)(1)(S); by 2 because his offenses

involved more than minimal planning, zd. § 2F'1.1(b)(2)(A); by 2 because

the offenses were committed through mass marketing, zd. § 2F'1.1(b)(3);

by 2 because the offenses involved sophisticated means, id

16

pressly stated that a 144-month term was necessary to

comply with the statutory command that the sentence be

“sufficient, but not greater than necessary” to achieve

the purposes of sentencing. Jd. at A452.°

3. The courts of appeals are also divided on the

broader question whether the Ex Post Facto Ciause ap-

plies to the advisory Guidelines. Consistent with this

Court’s recent decisions, the Seventh Circuit held in

United States v. Demaree, 459 F.3d 791, 794-795 (2006),

cert. denied, 551 U.S. 1167 (2007), that the Ex Post

Facto Clause does not bar a district court’s consider-

ation of the version of the advisory Guidelines in effect

at the time of sentencing, even when the version of the

Guidelines in effect at the time of the offense provided

for a lower advisory sentencing range. Some other

courts of appeals have disagreed, however, and have

concluded that the Guidelines continue to implicate the

Ex Post Facto Clause even though they “are now advi-

sory” only. Kimbrough, 552 U.S. at 101 (citation omit-

ted). See United States v. Wetherald, No. 09-11687,

2011 WL 1107208, at *4 (11th Cir. Mar. 28, 2011);

United States v. Ortiz, 621 F.3d 82, 87 (2d Cir. 2010),

§ 2F1.1(b)(5); by 4 because petitioner played a leadership role, 2d.

§ 3B1.1(a); and by 2 because petitioner abused a position of trust, 2d.

§ 3B1.3. The level for the fraud offenses would have been used for all

of the offenses because it was the highest level in the group. Pet. App.

24a n.11; Guidelines § 3D1.3(a). Combined with petitioner’s criminal

history category of I, that offense level would have yielded an advisory

Guidelines range of 188 to 235 months of imprisonment.

’ The conclusion that the one-book rule did not affect petitioner’s

sentence is buttressed by the district court’s statement that, despite the

indictment’s allegation that the fraud conspiracy terminated on October

31, 2000, the conspiracy “in a very real sense continued” after that date

and embraced the conduct that was charged as obstruction of justice.

Pet. C.A. App. A449.

17

cert. denied, 2001 WL 1225806 (Apr. 4, 2011); United

States v. Lewis, 606 F.3d 193 (4th Cir. 2010); United

States v. Lanham, 617 F.3d 873, 889-890 (6th Cir. 2010);

United States v. Turner, 548 F.3d 1094, 1099-1100 (D.C.

Cir. 2008).

Although this Court’s resolution of the circuit conflict

on the general application of the Ex Post Facto Clause

to the now-advisory Guidelines may be warranted in an

appropriate case, this is not such a case. The court be-

low did not decide the question whether the Ex Post

Facto Clause applies to the advisory Guidelines. In-

stead, the court considered the case “on the assumption”

that the Clause applies. Pet. App. 24a n.12.° The court

chose to assume an answer tc the issue rather than de-

cide it because the government had “disclaimed reli-

ance” on the district court’s ruling that the Clause does

not apply to the advisory Guidelines. /bid. But the rea-

* The court of appeals subsequently concluded that the Ex Post

Facto Clause protects against post-offense changes in the advisory

Guidelines range when the change “creates a significant risk of

increasing the punishment.” Ortiz, 621 F.3d at 87 (brackets and citation

omitted). Under that test, however, petitioner would not prevail even

apart frem the court’s conclusion that the one-book rule did not violate

the Ex Post Facto Clause. In Ortiz, the court stated that its “standard

does not invalidate every sentence imposed after a Guidelines range has

been increased after the date of the offense,” zb7d., and it rejected the

defendant’s ex post facto claim where the defendant received a non-

Guidelines sentence of 120 months, 48 months below the bottom of the

time-of-offense range. /d. at 88. The court of appeals found “no

substantial risk, indeed, no risk at all,” that the higher time-of-sentenc

ing range increased the punishment, given the district court’s “gener-

ous deviation” from that range. /bid. The same is true here. See pp.

15-16 and note 4, supra. Moreover, for the same reasons, even

assuming that an ex post facto error occurred in applying the higher

Guidelines range, that error had no effect on the below-range sentence

imposed and therefore was harmless.

sons for the court’s failure to decide the issue do not

change the fact that the court did not decide it and that

this case is therefore not a suitable vehicle for this Court

to resolve the issue. Indeed, the reliance by the decision

below on an outdated view of the government’s position

only makes this an even more unsuitable case for this

Court to address the question. In any event, petitioner

has not sought the Court’s review of the broader ex post

facto issue. On the contrary, petitioner mentions the

issue only in a footnote, and that footnote asserts that

“the government’s concession remove[d] that issue from

this case.” Pet. 8 n.6.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted

NEAL KUMAR KATYAI

Acting Solicitor Gener

ANNY A. BREUER

Assistant Attorney G

MANIEL S. GOODMAN

t{nwn 24

j