Opposition Brief — Hagen v. United States

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Nos. 01-1113 and 01-8356!

AE LENE PIO LAO LINE OE AN 0 RR RRC IN oO NRE

Jn the Supreme Court of the Uniten Stites

JOEL HAGEN, PETITIONER

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UNITEDSTATES OF AMERICA

TREVOR BJORKMAN, ET AL., PETITIONERS

Y.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

THEODORE B. OLSON

Solicitor General

Counsel of Record

MICHAEL CHERTOFF

Assistant Attorney General

JOSEPH C. WYDERKO

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioners’ sentences violate Apprendi

v. New Jersey, 530 U.S. 466 (2000), because they were

based on drug quantities that were not alleged in the

indictment.

2. Whether, in enhancing petitioner Hagen’s offense

level under Sentencing Guidelines § 2D1.1(b)(1) for pos-

session of firearms, the district court correctly held that

petitioner bears the burden of proving that it was

clearly improbable that the firearms were connected

with the offense.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Apprendi vy. New Jerse}, 530 U.S. 466 (2000) .....ccccccecceees 6,7

Braxton v. United States, 500 U.S. 344 (1991) 2. 10

United States v. Betz, 82 F.3d 205 (8th Cir. 1996) ........... g

United States v. Bost, 968 F.2d 729 (8th Cir.

a y

United States v. Corcimiglia, 967 F.2d 724 (1st Cir.

| 8

United States v. Hall, 46 F.3d 62 (11th Cir. 1995) ........... 8

United States v. Marmolejo, 106 F.3d 1213 (5th

Cir. 1997), cert. denied, 525 U.S. 1056 (1988)... x

United States v. McGhee, 882 F.2d 1095 (6th Cir.

ee 8

United States v. Price, 13 F.3d 711 (3d Cir. 1994),

cert. denied, 514 U.S. 1023 (1995) .........ccscccreerserseeeeeenees )

United States v. Restrepo, 884 F.2d 1294 (9th Cir.

a 8

United States v. Richmond, 37 F.3d 418 (8th Cir.

1994), cert. denied, 513 U.S. 1178 (1995) .......cceceeeeeeeneees i)

United States v. Roberts, 980 F.2d 645 (10th Cir.

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Statutes and regulations:

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21 U.S.C. 853 (1994 & Supp. V 1999) ceccecscssscccseceesssseeesenneseee D

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Regulations—Continued: Page

United States Sentencing Guidelines:

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Jn the Supreme Court of the Anited States

No. 01-1118

JOEL HAGEN, PETITIONER

VU.

UNITED STATES OF AMERICA

No. 01-8356

TREVOR BJORKMAN, ET AL., PETITIONERS

VU.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-

A31)' is reported at 270 F.3d 482.

JURISDICTION

The judgment of the court of appeals was entered on

October 30, 2001. The petition for a writ of certiorari in

' References to “Pet. App.” refer to the appendix to the peti-

tion in No. 01-1113.

(1)

»

No. 01-1113 was filed on January 28, 2002, and the

petition in No. 01-8356 was filed on January 25, 2002.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

After entering guilty pleas in the United States

District Court for the Western District of Wisconsin,

petitioners were each convicted of conspiracy to pos-

sess marijuana with intent to distribute it, in violation

of 21 U.S.C. 841(a) and 846° Petitioner Hagen was

sentenced to 155 months’ imprisonment and fined

$40,000, petitioner Bjorkman to 146 months’ imprison-

ment, petitioner Paul Gunderson to 148 months’ impris-

onment, petitioner Fearing to 105 months’ imprison-

ment, and petitioner Dennis Gunderson to 125 months’

imprisonment. All five petitioners were also sentenced

to five years of supervised release following their terms

of imprisonment. The court of appeals affirmed. Pet.

App. Al-A31.

1. In 1996, petitioners Hagen and Paul Gunderson

became partners in a drug operation that bought mari-

juana from Mexican sources through contacts in

Arizona and then transported it to Minnesota. Peti-

tioners Dennis Gunderson, Bjorkman, and Fearing

were drivers who transported 100-pound loads of mari-

juana from Arizona to Hagen’s and Paul Gunderson’s

residences, where the marijuana was repackaged and

then sold to customers. Pet. App. Al-A2; Gov’t C.A.

Br. 11-12.

In early 1997, Hagen and Paul Gunderson ended their

partnership. Thereafter, Paul and Dennis Gunderson

* Petitioner Hagen also pleaded guilty to criminal forfeiture of

$286,900 pursuant to 21 U.S.C. 853 (1994 & Supp. V 1999).

3

continued to obtain marijuana from their Mexican

sources in Arizona, using a new set of drivers. After a

search warrant was executed at his residence in June

1997, Paul Gunderson sold the operation to Dennis and

another individual. Meanwhile, Hagen and co-defen-

dant Scot Hendricks used couriers, included Fearing, to

obtain marijuana from Arizona throughout the summer

of 1998. The marijuana was repackaged at Hagen’s

residence before it was divided for sale by Hagen and

co-defendant Hendricks. Pet. App. A2-A3; Gov’t C.A.

Br. 12-13.

In August 1998, search warrants were executed at

various locations in Minnesota and Wisconsin. During a

search of Hagen’s Minnesota residence, law enforce-

ment agents found $122,640, two handguns, a clip

loaded with hollow-point bullets, a scale, and drug

packaging materials. The two handguns were found

together with $12,000 in cash in a basement safe. Pet.

App. A3, Al2-A13; Gov't C.A. Br. 14, 23-24.

2. Petitioners and two co-defendants were charged

in a multi-count superseding indictment. Count One

charged that petitioners and the two co-defendants

conspired to possess marijuana with intent to distribute

it, and to distribute “marijuana, a Schedule I controlled

substance * * *.” Superseding Indictment 1.

Pursuant to written plea agreements, petitioners

each pleaded guilty to this count. The plea agreement

for each petitioner provided that he was subject to a

mandatory minimum five-year sentence and a maxi-

mum 40-year sentence, and the district court recon-

firmed those penalties at each petitioner’s plea hearing.

In addition, the plea agreements of petitioners

Bjorkman, Paul Gunderson, and Fearing set forth the

quantities of marijuana that the government believed

to be properly attributable to each. Pet. App. A3-A5;

Gov't C.A. Br. 6-8.

3. At sentencing, the district court found that peti-

tioner Hagen was responsible under the Sentencing

Guidelines for between 700 and 1000 kilograms of mari-

juana, resulting in a base offense level of 30 under

Guidelines § 2D1.1(¢c)(5). Hagen Judgment 7. The court

increased the offense level by two levels under

§ 2D1.1(b)(1) for possession of firearms, finding that it

was “not clearly improbable” that the two handguns

found in the basement safe in Hagen’s residence were

connected with the offense.’ Jbid. Before sentencing,

Hagen had submitted affidavits from two individuals

who stated that they owned the handguns and had

stored them at Hagen’s residence. Pet. App. Al3. The

district court found that it did not matter who owned

the handguns because there was “substantially more

than a preponderance of the evidence * * * that Joel

Hagen was in possession of the firearm which was

located in the basement where marijuana processing

was performed, where indeed the safe was held, where

there was money in the safe attributable to the drug.”

Sentencing Tr. 22-23. Accordingly, the court concluded

that Hagen had not carried his burden of showing that

it was clearly improbable that the handguns were

connected with the offense. Jd. at 23.

After making other adjustments to the offense level,

the court determined that Hagen’s Guidelines’ range

was 168-210 months’ imprisonment, based on a total

3 Guidelines § 2D1.1(b)(1) requires a two-level enhancement of

the offense level “[{i!f a dangerous weapon (including a firearm)

was possessed[.]” Application note 3 in the commentary to

§ 2D1.1(b)(1) provides that “[t]he adjustment should be applied if

the weapon was present, unless it is clearly improbable that the

weapon was connected with the offense.”

D

offense level of 33 and a criminal history category of

Ill. Hagen Judgment 7. Granting the government’s

motion for a downward departure pursuant to Guide-

lines § 5K1.1, the court sentenced Hagen to 155 months’

imprisonment. /d. at 2, 7.

The district court found that petitioner Bjorkman

was responsible under the Sentencing Guidelines for

163.6 kilograms of marijuana, resulting in a base offense

level of 26 under Guidelines § 2D1.1(¢c)(7). Bjorkman

Judgment 7. After reducing the offense level under

Guidelines § 3E1.1 for acceptance of responsibility, the

court determined that Bjorkman’s Guidelines’ range

was 92-115 months’ imprisonment, based on a total

offense level of 23 and a criminal history category of VI.

Ibid. The court decided to depart upward from the

Guidelines’ range because Bjorkman’s criminal history

category did not adequately reflect the likelihood that

he would engage in future criminal conduct. Id. at 8.

Accordingly, the court sentenced Bjorkman to 146

months’ imprisonment. /d. at 2.

The district court found that petitioner Paul

Gunderson was responsible under the Sentencing

Guidelines for 862 kilograms of marijuana, resulting in a

base offense level of 30 under Guidelines § 2D1.1(c)(5).

P. Gunderson Judgment 7. After making adjustments

to the base offense level, the court determined that

Gunderson’s Guidelines’ range was 168-210 months’

imprisonment, based on a total offense level of 33 and a

criminal history category of III. Jbid. The court

granted the government’s motion for a downward de-

parture pursuant to Guidelines § 5K1.1 and sentenced

Gunderson to 148 months’ imprisonment. Jd. at 2, 7.

The district court found that petitioner Fearing was

responsible under the Sentencing Guidelines for 386

kilograms of marijuana, resulting in a base offense level

6

of 26 under Guidelines § 2D1.1(c)(7). Fearing Judgment

7. After making adjustments to the base offense level,

the court determined that Fearing’s Guidelines’ range

was 84-105 months’ imprisonment, based on a total

offense level of 25 and a criminal history category of IV.

Ibid. The court sentenced Fearing to 105 months’

imprisonment. /d. at 2.

The district court found that petitioner Dennis

Gunderson was responsible under the Sentencing

Guidelines for 808 kilograms of marijuana, resulting in a

base offense level of 30 under Guidelines § 2D1.1(c)(5).

D. Gunderson Judgment 7. After making adjustments

to the base offense level, the court determined that

Gunderson’s Guidelines’ range was 121-151 months’

imprisonment, based on a total offense level of 30 and a

criminal history category of III. Jbid. The court

sentenced Gunderson to 125 months’ imprisonment. /d.

at 2.

4. On appeal, petitioners argued, for the first time,

that their sentences were imposed in violation of Ap-

prendi v. New Jersey, 530 U.S. 466 (2000), because they

exceeded the otherwise applicable statutory maximum

based on a fact, drug quantity, that was not alleged in

the indictment. Pet. C.A. Br. 16-28.

The court of appeals affirmed. Pet. App. Al-A31. It

rejected petitioners’ argument that Apprendi required

automatic reversal of their sentences because the

superseding indictment failed to allege drug quantity.

Id. at A5-A10. Relying on circuit precedent, the court

ruled that “[i]f the indictment does not include type or

quantity, and the defendant does not object, then

review is for plain error * * *, and not for any

different standard (such as lack of jurisdiction or failure

to state an offense).” Jd. at Al0. Because “[nJone of the

[petitioners] even assert/ed] that he was responsible

7

for less than 100 kilograms of marijuana,” the court

concluded that “no injustice has been done and the

requirements for reversal on plain-error review have

not been met.” Jbid.

The court of appeals also upheld the district court’s

enhancement of petitioner Hagen’s offense level under

Sentencing Guidelines § 2D1.1(b)(1) for possession of

the two handguns. Pet. App. Al0-Al4. Based on

circuit precedent, the court rejected Hagen’s claim that

the government, rather than the defendant, bears the

burden of proving that it was not clearly improbable

that the weapons were connected to the offense. Jd. at

A10-A12. The court also rejected Hagen’s claim that he

had met this burden. /d. at Al2-A13. The court ex-

plained that “[gliven that the guns were found in a

residence where drugs were delivered and handled,

that they were found in close proximity to the proceeds

from the crime, and that drug paraphernalia was also

found in the house, the [district] court did not clearly

err in awarding the § 2D1.1(b)(1) enhancement to

Hagen.” Jd. at A13.‘

DISCUSSION

1. Petitioners renew their contention (01-1113 Pet. 9;

01-8356 Pet. 6-11) that their sentences violate Apprendi

v. New Jersey, 530 U.S. 466 (2000), because they exceed

the statutory maximum sentences to which they were

subject based on an indictment charging a marijuana

offense without specifying the drug quantities that

were involved in the offense. That claim, which was not

raised in the district court, is essentially the same claim

as is before the Court in United States v. Cotton, No.

* The court of appeals rejected several other claims raised by

individual petitioners, which they do not renew here.

8

01-687 (argued Apr. 15, 2002). Accordingly, the peti-

tions in this case should be held pending the decision in

Cotton and then disposed of as appropriate in light of

that decision.

2. Petitioner Hagen (01-1113 Pet. 9-13) contends

that his offense level was improperly enhanced under

Sentencing Guidelines § 2D1.1(b)(1) for possession of

the two handguns found during the search of his

residence. He argues that the courts below erred in

placing the burden on him to prove that it was clearly

improbable that the weapons were connected with the

offense.

Petitioner’s contention turns on the interpretation of

application note 3 in the commentary to Guidelines

§ 2D1.1(b)(1), which provides that the two-level

enhancement for possession of a dangerous weapon

“should be applied if the weapon was present, unless it

is clearly improbable that the weapon was connected

with the offense.” Like the Seventh Circuit, the

majority of the other courts of appeals have interpreted

the application note to mean that, although the

government initially bears the burden of proving that a

defendant possessed a weapon in a place where drugs

were present, the defendant must then show that it is

clearly improbable that the weapon was connected with

the offense in order not to be subject to the enhance-

ment. See, e.g., United States v. Marmolejo, 106 F.3d

1213, 1216 (5th Cir. 1997), cert. denied, 525 U.S. 1056

(1998); United States v. Hall, 46 F.3d 62, 63 (11th Cir.

1995); United States v. Roberts, 980 F.2d 645, 647 (10th

Cir. 1992); United States v. Corcimiglia, 967 F.2d 724,

727-728 (1st Cir. 1992); United States v. Restrepo, 884

F.2d 1294, 1296 (9th Cir. 1989); United States v.

McGhee, 882 F.2d 1095, 1097-1099 (6th Cir. 1989). The

Eighth Circuit, on the other hand, has held that “in

9

order for § 2D1.1(b)(1) to apply, the government has to

prove by a preponderance of the evidence that it is not

clearly improbable that the weapon had a nexus with

the criminal activity.” United States v. Richmond, 37

F.3d 418, 419 (8th Cir. 1994), cert. denied, 513 U.S. 1178

(1995); see also United States v. Bost, 968 F.2d 729, 732

(8th Cir. 1992).°

Notwithstanding this conflict among the circuits,

further review by this Court is unwarranted. To begin

with, the conflict is not implicated in this case, since

application of the Eighth Circuit’s standard likely

would not have produced a different outcome. The

government proved that petitioner Hagen possessed

the two handguns in his residence during the conspir-

acy, that marijuana had been delivered to the residence

and repackaged in the basement, that the handguns had

been stored together with $12,000 in drug proceeds in

the basement safe, and that drug paraphernalia was

present in the residence simultaneously with the

handguns. Pet. App. A138; Gov’t C.A. Br. 24-25. Such

overwhelming evidence of a probable nexus between

the handguns and the drug conspiracy would be

sufficient to show that it was not clearly improbable

that the firearms were connected with the marijuana

conspiracy. Cf. United States v. Betz, 82 F.3d 205, 210-

211 & n.4 (8th Cir. 1996) (noting that enhancements

imposed under § 2D1.1(b)(1) have been upheld by the

Kighth Circuit in a number of cases with facts similar to

those found here).

® The Third Circuit has not taken a position either way. In

United States v. Price, 13 F.3d 711, 733 (1994), cert. denied, 514

U.S. 1023 (1995), the Third Circuit assumed without deciding that

the government bears the burden of proof for purposes of deciding

that case.

10

In any event, a conflict over a question of Guidelines

interpretation would best be left for resolution by the

Sentencing Commission, rather than by this Court. See

Braxton v. United States, 500 U.S. 344, 348 (1991).

Accordingly, petitioner Hagen’s individual sentencing

claim merits no further review.

CONCLUSION

With respect to petitioners’ claim that their enhanced

sentences are unconstitutional, the petitions for a writ

of certiorari should be held pending the decision in

United States v. Cotton, No. 01-687, and then disposed

of as appropriate in light of that decision. In all other

respects, the petitions should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

MICHAEL CHERTOFF

Assistant Attorney General

JOSEPH C. WYDERKO

Attorney

APRIL 2002