Opposition Brief — Morris v. United States (No. 07-1094)

2

No. 07-1094 4-25-08

In the Supreme Court of the Gnited States

DENARD MORRIS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

ALICE S. FISHER

Assistant Attorney General

ELIZABETH D. COLLERY

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioner was entitled to a new trial

based on a prosecutor’s misleading statement that a co-

operating witness was certain to receive a mandatory

minimum sentence, when the statement had no reason-

able likelihood of affecting the verdict.

2. Whether petitioner’s Sixth Amendment rights

were violated on the theory that his sentence would be

unreasonable but for the sentencing court’s reliance on

conduct underlying a charge on which the jury had re-

turned a verdict of not guilty.

(I)

TABLE OF CONTENTS

Page

SE TEPER RE OE POSTE EE TC OUT Oe Cee 1

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CN et ds aid ael as Cassa bk akoe nek a eeeee 1

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TABLE OF AUTHORITIES

Cases:

Alexander v. United States, cert. denied, 128 S. Ct.

R21, ame NSS GS. CA. UROG O) n none cc cic ccccc 12

Armstrong v. United States, cert. denied, 127 S. Ct.

I Sle a A cue aeae tae 15

Ashworth v. United States, cert. denied, No. 07-8076

II a oes SSS a vos ws kes 16

Berger v. United States, 295 U.S. 78 (1935) ............ 11

Bradford v. United States, cert. denied, 128 S. Ct.

MOE aun eo widevnces eva 5) ori tn a 12

Brady v. Maryland, 373 U.S. 83 (1963) ............... 10

Dorcely v. United States, cert. denied, 127 S. Ct. 691

a5 ik Che shits oad oak oe kaw AD wea eo eenieed 15

Edwards v. United States, cert. denied, 127 S. Ct.

DD, Fish Gu wane ak boa e kk eS ae eee ea ae ks 15

Freeman v. United States, cert. denied, No. 07-9368

te I bia i 5g sae ne pho es Roc oo cows 16

Gall v. United States, 128 S. Ct. 586 (2007) ......... 14,15

(III)

IV

Cases—Continued: Page

Hurn v. United States, cert. denied, No. 07-605 (Mar.

EE SE UGG Ca Caw dae CEN SROKA SE eek eae 16

Lynch v. United States, cert. denied, 127 S. Ct. 89

«TUNES APiNe Saran aceraeey wane Seb Sr ery Nt or ene 15

Magluta v. United States, cert. denied, 126 S. Ct. 2966

NR 5 ka 46k ba hse CUA Ren eae Cea aia os 15

Mercado v. United States, cert. denied, No. 07-5810

CN IE by oc 5k cas Nae Ae Rae hewn eas 16

Rita v. United States, 127 S. Ct. 2456 (2007) ........ 12,13

Smith v. United States, cert. denied, No. 07-7432

I eI is pe One eek awe eek cae nae 16

Solles v. Israel, 868 F.2d 242 (7th Cir.), cert. denied,

ee ok ok cs Ssh cede ee be sd cds cows 11

United States v. Agurs, 427 U.S. 97 (1976) .......... 5, 6,9

United States v. Ashworth, 247 Fed. Appx. 409 (4th

Cir. 2007), cert. denied, No. 07-8076 (Mar. 31, 2008) .. 15

United States v. Bagley, 473 U.S. 667 (1985) ..... 5, 8,9, 11

United States v. Booker, 543 U.S. 220 (2005) ...... 7, 14,15

United States v. Dorcely, 454 F.3d 366 (D.C. Cir.),

cert. denied, 127 S. Ct. 691 (2006) .................. 15

United States v. Duncan, 400 F.3d 1297 (11th Cir.),

cert. denied, 546 U.S. 940 (2005) ................... 15

United States v. Farias, 469 F.3d 393 (5th Cir. 2006),

cert. denied, 127 S. Ct. 1502 (2007) ................. 15

United States v. Frith, 461 F.3d 914 (7th Cir. 2006) ...... 7

United States v. Gobbi, 471 F.3d 302 (1st Cir. 2006) ..... 15

United States v. Grintjes, 237 F.3d 876 (7th Cir. 2001) .. 10

V

Cases—Continued: Page

United States v. High Elk, 442 F.3d 622 (8th Cir.

ERE SL ra SRE eae ae aa 15

United States v. Hurn, 496 F.3d 784 (7th Cir. 2007),

cert. denied, No. 07-605 (Mar. 31, 2008) ............. 15

United States v. Jimenez, 513 F.3d 62 (8d Cir. 2008) .... 15

United States v. Magallanez, 408 F.3d 672 (10th Cir.),

cert. denied, 546 U.S. 955 (2005) ..............0008- 15

United States v. Mendez, 498 F.3d 423 (6th Cir. 2007) ... 15

United States v. Mercado, 474 F.3d 654 (9th Cir.

2007), cert. denied, No. 07-5810 (Mar. 31, 2008) ...... 15

United States v. Ortiz, 422 U.S. 891 (1975) .......... 9,10

United States v. Vaughn, 430 F.3d 518 (2d Cir. 2005),

cert. denied, 547 U.S. 1060 (2006) .................. 15

United States v. Watts, 519 U.S. 148 (1997) ......... 14,15

United States v. White, 503 F.3d 487 (6th Cir. 2007) .... 16

United States v. Williams, 504 U.S. 36 (1992) .......... 13

Wemmering v. United States, cert. denied, No.

Ere a rere rr 16

Constitution, statutes and guidelines:

U.S. Const. Amend. VI (Speedy Trial Clause) 7, 8, 12, 13, 14

SNS SLE TR TT 7

Ne, seed lcaclaeuah 3

18 U.S.C. 3553(e) (Supp. V 2005) ............. eee ee. 3,4

ee cc vncccusccues 2

21 U.S.C. 841(b)(1)(A) (2000 & Supp. V 2005) .......... 14

ES 8) 14

VI

Guidelines: Page

United States Sentencing Guidelines:

Ch. 2:

I ean naa Woes mao 4b Gkae meee 5

Ch. 3:

In the Supreme Court of the Anited States

No. 07-1094

DENARD MORRIS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-20a)

is reported at 498 F.3d 634.

JURISDICTION

The judgment of the court of appeals was entered on

August 20, 2007. A petition for rehearing was denied on

September 25, 2007 (Pet. App. 55a-56a). On January 9,

2008, Justice Stevens extended the time within which to

file a petition for a writ of certiorari to and including

February 22, 2008, and the petition was filed on that

date. The jurisdiction of this Court is invoked under

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

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of Indiana, petitioner

(1)

rs

}

4

2

was convicted of possessing 50 grams or more of cocaine

base with intent to distribute it, in violation of 21 U.S.C.

841(a)(1) (Count 1); and possessing marijuana with in-

tent to distribute it, in violation of 21 U.S.C. 841(a)(1)

(Count 2). He was sentenced to a total of 262 months of

imprisonment, to be followed by five years of supervised

release. Pet. App. 21a-29a. The court of appeals af-

firmed in relevant part. Jd. at 1a-20a.'

1. On August 15, 2003, petitioner pulled his white

van up to a street corner in East Chicago, Indiana,

where his cousin, Tramayne Peterson, was standing.

Pet. App. 2a. Peterson got into the van, intending to ask

petitioner for a ride to the mall. Jbid.; 01/19/05 Tr. 56-

57. A few blocks later, the men drove past East Chicago

police officer George Valdez, who, knowing that there

was an outstanding warrant for petitioner’s arrest, initi-

ated a stop of the van. Pet. App. 2a.

As Officer Valdez approached the van, petitioner

handed Peterson a gray plastic bag and said: “ake this

and run.” Pet. App. 2a. Peterson exited the van with

the bag, and Officer Cima DeVilla, who had just arrived

on the scene, gave chase. /bid.; Gov’t C.A. Br. 3-4. As

Peterson scaled a fence, items began falling out of the

bag, including baggies containing cocaine base and mari-

juana, a .45 caliber pistol, and an electronic scale. Pet.

' The district court initially sentenced petitioner to concurrent terms

of 262 months of imprisonment, to be followed by concurrent terms of

five years of supervised release. Pet. App. la, 21a-29a. Because the

term of imprisonment initially imposed for Count 2 exceeded the

statutory maximum, the court of appeals remanded for resentencing

with respect to that count. /d. at 20a. The district court then issued an

amended judgment sentencing petitioner to concurrent terms of 262

months of imprisonment on Count 1 and 120 months of imprisonment

on Count 2. /d. at 44a.

eine

3

App. 2a-3a, 17a-18a. Peterson was ultimately appre-

hended by a third officer, and Officer Morris arrested

petitioner back at the van. Pet. App. 3a.

2. On September 4, 2003, a grand jury charged peti-

tioner and Peterson with possessing 50 or more grams

of cocaine base with intent to distribute it (Count 1);

possessing marijuana with intent to distribute it (Count

2); and carrying a firearm during and in relation to a

drug trafficking offense, in violation of 18 U.S.C.

924(c)(1) (Count 3). Indictment 1-3.

On November 3, 2004, Peterson agreed to plead

guilty to the cocaine base count (Count 1), and to testify

truthfully at petitioner’s trial. Plea Agreement 1, 6-7.

In return, the government agreed to dismiss the mari-

juana and firearm counts at sentencing, id. at 7, to seek

a downward adjustment for acceptance of responsibility

under Sentencing Guidelines § 3E1.1, id. at 2, and to

regommend “a period of imprisonment at the low end of

the applicable guideline range,” id. at 5. The plea agree-

ment stated that Peterson “underst[ands]” that the

charge to which he would be pleading guilty carried a

term of “imprisonment of not less than ten (10) years.”

Id. at 3. The plea agreement did not mention the possi-

bility of a further sentencing reduction under Sentenc-

ing Guidelines § 5K1.1 or 18 U.S.C. 3553(e) (Supp. V

2005).

At petitioner’s trial, Peterson testified that he had

not seen the gray bag when he first got into the van,

that petitioner “threw [the bag] on [his] lap” at the time

of the stop, and that he did not know what was in the

bag until after he started running. 1/19/05 Tr. 59, 76-80.

Under questioning from the government, Peterson ac-

knowledged that he had entered into “a plea agreement”

under which the government had agreed to dismiss

4

Counts 2 and 3 and “make a recommendation to sen-

tence me at the low end of the guidelines.” Jd. at 55; see

id. at 81 (cross examination). Peterson also stated that

he “underst|ood]” that he was facing a ten year “manda-

tory sentence.” /d. at 55; see zd. at 81 (cross examina-

tion).

During both its opening statement and its closing

argument, the defense asserted that Peterson’s testi-

mony had been influenced by the plea agreement, noting

that he was “not coming in here as a concerned citizen,”

but rather had “cut a deal.” 1 Tr. 112-113 (Jan. 18,

2005); see 1/20/05 Tr. 23 (“What is [Peterson’s] interest

or bias? Got a great plea agreement, and he has a huge

interest in testifying as the government expects him to

testify.”); see also id. at 35-36, 38. In its own closing

arguments, the government acknowledged that “Peter-

son had a plea agreement,” but stated that Peterson had

testified that “[h]e’s looking at a mandatory minimum

sentence” of ten years of imprisonment, and that that

sentence “has to be imposed” and was “the lowest he can

get.” Jd. at 11-12; see id. at 17 (“It would be agreed that

a ten-year sentence is something. It’s not—not facing

anything.”); id. at 46 (“[A] mandatory sentence of ten

years is not a great deal.”). The jury found petitioner

guilty on the cocaine base and marijuana counts (Counts

1 and 2) and not guilty on the firearms count (Count 3).

Pet. App. 2la-22a.

After petitioner’s jury returned its verdict, the gov-

ernment filed a motion for a downward departure on

Peterson’s behalf pursuant to Sentencing Guidelines

§ 5K1.1 and 18 U.S.C. 3553(e) (Supp. V 2005). Pet. App.

la-2a. The district court granted the government’s mo-

tion, and sentenced Peterson to 70 months of imprison-

ment. /d. at 2a.

5

On December 14, 2005, the district court sentenced

petitioner to 262 months of imprisonment. 12/14/05

Sent. Tr. 36. Applying the preponderance of the evi-

dence standard, the district court found that petitioner

had possessed a dangerous weapon within the meaning

of Sentencing Guidelines § 2D1.1(b)(1), which increased

his offense level by two. 12/14/05 Sent. Tr. 24-25. Given

petitioner’s criminal history category of VI, his advisory

Guidelines range was 262-367 months. /d. at 27. Had

the district court not imposed a two-level increase for

gun possession, petitioner’s advisory Guidelines range

would have been 210-262 months. Pet. 4; Sentencing

Guidelines Ch.5, Pt. A (Sentencing Table).

5. a. Petitioner appealed his conviction and sen-

tence. He argued that the government had engaged in

prosecutorial misconduct by “repeated[ly] referenc-

[ing] * * * a so-called ‘mandatory’ sentence of ten

years,” Pet. C.A. Br. 23, “allowing Peterson to deliver

* * * false testimony” to that effect, 7d. at 26, and then

“recommend[ing] * * * a sentence of only five years

for Peterson,” id. at 27. Petitioner asserted that

“(t]here are two standards for determining materiality

of [withheld] evidence”—standards that he associated

with United States v. Bagley, 473 U.S. 667 (1985), and

United States v. Agurs, 427 U.S. 97 (1976), respec-

tively—and he argued that he prevailed “under either

the Bagley or Agurs standard.” Pet. C.A. Br. 26-27.

In response, the government stated that, at the time

of petitioner’s trial, neither it nor Peterson had antici-

pated that a motion for a downward departure would be

filed on Peterson’s behalf. Gov’t C.A. Br. 24. The gov-

ernment explained that, under the original plea agree-

ment, “the only real benefit Peterson would have re-

ceived * * * would have been the avoidance of a 5 year

6

consecutive sentence on Count 3 (the 924(c) charge).”

Id. at 24n.4. Because the jury had acquitted petitioner

on the firearms charge, and because “the evidence on

that count was stronger on [petitioner] than it was on

Peterson,” the government determined that a Section

5K1.1 motion was appropriate in order to prevent the

benefits that Peterson was to obtain under the plea

agreement from becoming “illusory.” /bid. The govern-

ment also noted that “[b]oth the defense and the jury

were aware of Peterson’s motivation to lie,” and main-

tained that “[t]he fact that Peterson received some un-

anticipated and unexpected additional benefit down the

road does not impact his motivation/bias at the time he

testified.” /d. at 24.

b. The court of appeals affirmed in relevant part.

Pet. App. 1a-20a; see note 1, supra. The court concluded

that it had been “improper [for the prosecutor] both to

give the jury the impression that Peterson’s sentence

could not go below 10 years during his examination of

Peterson, and then later to argue the same thing to the

jury, at least when it is obvious that [at the time of peti-

tioner’s trial] the United States had not firmly rejected

the possibility of the § 5K1.1 motion.” Pet. App. 7a-8a.

The court of appeals further determined, however,

that the prosecutor’s conduct did not require reversal of

petitioner’s convictions. The court of appeals noted that

this Court “has announced two different standards to

employ in deciding whether improper comments were

material,” and that “[t]he easier standard for the defen-

dant to meet” asks whether “there is any reasonable

likelihood that the false testimony could have affected

the judgment of the jury.” Pet. App. 9a (quoting Agurs,

427 U.S. at 103). The court of appeals described the

Agurs standard as “not necessarily the best fit here,”

7

but it determined that, even under that standard, it

could not conclude that the prosecutor’s “improper com-

ments were material and therefore deprived [petitioner]

of a fair trial.” bid. The court explained that “(t]he

picture the jury had before it of Peterson’s plea agree-

ment made it aware that he was receiving a substantial

benefit for his testimony and, more importantly, that he

had strong incentives to please the government.” /bid.

And although the court of appeals acknowledged that

“the jury might have recognized the potential for an

additional reduction in Peterson’s sentence as a margin-

ally greater incentive for Peterson to tailor his testi-

mony in favor of the government,” it determined that

“the information that the jury had before it was not dif-

ferent enough to lead us to believe that there was a ‘rea-

sonable likelihood’ that the result would have changed.”

Ibid.

The court of appeals also rejected petitioner’s con-

tention that his acquittal on the Section 924(c) count

made it improper for the district court to impose a two-

level sentencing enhancement for possessing a firearm.

Pet. App. 18a-19a. Relying on circuit precedent decided

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

court found that “‘{(cJonduct underlying an acquitted

charge may be included as long as that conduct is

proved by a preponderance of the evidence.’” Pet. App.

19a (quoting United States v. Frith, 461 F.3d 914, 917

(7th Cir. 2006)).*

* The court of appeals incorrectly stated that petitioner’s Sixth

Amendment claim had not been raised at trial, and was therefore

subject. to plain error review. Pet. App. 18a-19a. The court. corrected

that error in its order denying rehearing, stating that “the shift in

standard of review ultimately makes no difference.” Jd. at 55a.

8

ARGUMENT

Petitioner contends (Pet. 5-22) that this Court should

grant review to consider two questions: (1) whether to

recognize “a new, stricter standard of materiality” to be

applied in situations where the prosecution “knowingly

utilizes false testimony and disregards a specific request

by the defense for exculpatory evidence known to the

prosecution”; and (2) whether his Sixth Amendment

rights were violated because his sentence would be

found unreasonable were it not for the sentencing

court’s finding of a fact that constituted acquitted con-

duct. Pet. i. Further review is not warranted. The

court of appeals’ decision is correct, and petitioner does

not assert that it conflicts with the decisions of any

other court of appeals or state court of last resort. In

addition, petitioner did not properly raise either of the

questions upon which he seeks review before the court

of appeals.

1. Petitioner asserts that the court of appeals “re-

lied on a materiality standard that did not fully take into

account the prejudice and injustice served upon [him],”

Pet. 7, and that this Court should grant review to “con-

sider whether a stricter standard of materiality should

apply in cases that combine the knowing use of false

testimony with a disregard for specific evidentiary re-

quests,” Pet. 9; see Pet. 8-18. Petitioner did not propose

any “new, stricter standard of materiality” (Pet. i.) in

the court below. Instead, he argued (Pet. C.A. Br. 26)

that two already existing materiality standards were

relevant to his claim. The first was the standard an-

nounced in United States v. Bagley, 473 U.S. 667 (1985),

for cases “of prosecutorial failure to disclose evidence

favorable to the accused.” /d. at 682 (opinion of

Blackmun, J.); id. at 685 (White, J., concurring in part

9

and concurring in the judgment). Under that standard,

evidence is material “only if there is a reasonable proba-

bility that, had the evidence been disclosed to the de-

fense, the result of the proceeding would have been dif-

ferent.” Jd. at 682 (opinion of Blackmun, J.); zd. at 685

(White, J., concurring in part and concurring in the

judgment). The other standard petitioner identified

below was the one announced in United States v. Agurs,

427 U.S. 97 (1976), which applies where “the undisclosed

evidence demonstrates that the prosecution’s case in-

cludes perjured testimony and that the prosecution

knew, or should have known, of the perjury.” /d. at 103.

In that situation, this Court has stated that a defen-

dant’s conviction “must be set aside if there is any rea-

sonable likelihood that the false testimony could have

affected the judgment of the jury.” bid.

In resolving petitioner’s case, the court of appeals

applied the “easier” and more “favorable” Agurs stan-

dard, despite recognizing that it was “not necessarily

the best fit here.” Pet. App. 9a. Because the court of

appeals applied the most favorable materiality standard

actually proposed by petitioner, this Court should de-

cline to consider his current argument that a different,

stricter test should govern his case. See United States

v. Ortiz, 422 U.S. 891, 898 (1975) (declining to consider

an issue raised for the first time on appeal by a party

who advocated a contrary position in the court below).

And although petitioner also suggests without explana-

tion that the court of appeals “misapplied” the relevant

materiality standard, see Pet. 8; see Pet. 15-16, that

factbound claim does not warrant this Court’s review.

In addition, petitioner’s argument in support of a

new materiality standard also rests on a dubious factual

assertion that was not presented to the lower courts. In

10

his petition for a writ of certiorari, petitioner relies

heavily on the fact that he made “a specific

request * * * for exculpatory evidence known to the

prosecutor.” Pet. i; see Pet. 6, 8, 10, 14, 16-17. In his

brief to the court of appeals, however, petitioner did not

even assert that he had made such a request, much less

claim that his doing so altered the relevant materiality

standard. See Pet. C.A. Br. 22-24, 25-27, 28-30. Asa

result, the court of appeals did not consider the issue,

and petitioner may not properly rely upon it as a basis

for seeking to overturn the court of appeals’ judgment.

See Ortiz, 422 U.S. at 898.

At any rate, petitioner’s contention that the govern-

ment “disregard[ed] a specific request” (Pet. i) lacks

merit. Petitioner sought disclosure of “all promises,

considerations, rewards, or inducements * * * wherein

the Government has agreed * * * [t]o recommend

* * * a downward departure from the Guidelines if [a

person] provides substantial assistance to authorities.”

Pet. App. 59a-60a. As the government explained in its

brief to the court of appeals, see pp. 5-6, supra, the gov-

ernment never agreed to make a downward departure

recommendation for Peterson, and decided to file such

a motion only after the jury had acquitted petitioner on

Count 3. Accordingly, the record does not support peti-

tioner’s claim that the government failed to disclose ex-

culpatory material in response to a specific discovery

request.®

3 It is true that “[n]o competent Assistant U.S. Attorney is unaware

of the existence of U.S.S.G. § 5K1.1.” Pet. 12 (quoting Pet. App. 7a).

But the same is true of all competent defense attorneys. As a result,

the government could not have violated its obligations under Brady v.

Maryland, 373 U.S. 83 (1963), merely by failing to disclose the exis-

tence of that Guidelines provision to the defense. See, e.g., United

11

Finally, even if petitioner’s claims had been properly

rajsed below and were supported by the record, this

Court’s review would still be unwarranted. Petitioner

fails to explain why this Court should adopt a wholly

new standard of materiality for cases that involve “mul-

tiple instances of” (Pet. 13) or “two forms of” (Pet. 9)

prosecutorial misconduct. Indeed, petitioner does not

even specify what standard of materiality the Court

should adopt, simply asserting that due process was vio-

lated here, Pet. 16, and urging the Court to adopt some

standard that will be “more deferential to the defense in

criminal trials,” Pet. 18. In any event, a new rule is un-

necessary because, under existing law, courts already

consider the cumulative impact of any government mis-

conduct. See, e.g., Berger v. United States, 295 U.S. 78,

89 (1935); Solles v. Israel, 868 F.2d 242, 248 (7th Cir.),

cert. denied, 490 U.S. 1101 (1989).

This Court has likewise already rejected petitioner’s

suggestion that a “stricter standard of materiality” is

called for when the prosecution “disregards a specific

request for exculpatory evidence.” Pet. i. In Bagley,

this Court held that, regardless of the existence or na-

ture of a defense request, exculpatory evidence is mate-

rial “if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different.” 473 U.S. at 682

(opinion of Blackmun, J.); td. at 685 (White, J., concur-

ring in part and concurring in judgment). Petitioner

‘identifies no reason why that decision merits reconsider-

ation, let alone reconsideration in a case where no lower

States v. Grintjes, 237 F.3d 876, 880 (7th Cir. 2001) (“Brady does not

apply to evidence that a defendant would have been able to discover

himself through reasonable diligence.”).

12

court has found that the government ignored a specific

discovery request.

2. Petitioner contends (Pet. 18-22) that his Sixth

Amendment rights were violated because his sentence

would be unreasonable absent the district court’s reli-

ance on conduct underlying a charge on which the jury

had returned a verdict of not guilty. That claim lacks

merit and does not warrant review.

a. Relying on Justice Scalia’s statement in Rita v.

United States, 127 S. Ct. 2456 (2007), that the Court’s

opinion “does not rule out as-applied Sixth Amendment

challenges to sentences that would not have been upheld

as reasonable on the facts encompassed by the jury ver-

dict or guilty plea,” id. at 2479 (Scalia, J., concurring in

part and concurring in the judgment), petitioner con-

tends that his Sixth Amendment rights were violated

here because his sentence “would not have been reason-

able without the district court finding by a preponder-

ance of the evidence that [petitioner] possessed a fire-

arm while trafficking drugs,” Pet. 20. This Court has

recently denied review in several cases that involved

similar claims. See, e.g., Bradford v. United States, 128

S. Ct. 1446 (Feb. 25, 2008); Alexander v. United States,

128 S. Ct. 1218 (Feb. 19, 2008), and 128 S. Ct. 1298 (Feb.

19, 2008). In addition, petitioner’s claim is without merit

and does not warrant this Court’s review.

First, petitioner did not make an as-applied chal-

lenge to his sentence in the court below, and the court of

appeals did not address such a challenge in its opinion.

See Pet. C.A. Br. 32 (summarizing constitutional chal-

lenge by stating that “Booker and Apprendi Mandate

that a Defendant is Entitled to Have a Jury Decide All

Facts that Result in the Imposition of Sentencing En-

hancements Beyond a Reasonable Doubt.”); see also 2d.

13

at 13, 31-33. This Court’s “traditional rule * * * pre-

cludes a grant of certiorari * * * when the question

presented was not pressed or passed upon below.”

United States v. Williams, 504 U.S. 36, 41 (1992) (quota-

tion marks and citation omitted).

Second, here, as in Rita, “even if some future unusu-

ally harsh sentence might violate the Sixth Amendment

because it exceeds some yet-to-be-defined judicial stan-

dard of reasonableness, * * * this case does not pres-

ent such a problem.” 1275S. Ct. at 2473 (Stevens, J.,

concurring but for Part II). The concurring opinion

upon which petitioner places primary reliance states

that an as-applied Sixth Amendment violation would

exist only if the defendant’s sentence “would have been

‘unreasonable in the absence of any judge-found facts.”

Rita, 127 8. Ct. at 2478 (Sealia, J., concurring in part

and concurring in the judgment).

Petitioner cannot meet that standard. Petitioner’s

sentence of 262 months of imprisonment is within the

advisory Guidelines range that would have applied even

had the district court not found that he possessed a fire-

arm. See p. 5, supra. Accordingly, it would have been

entitled to a presumption of reasonableness even absent

that finding. Rita, 127 S. Ct. at 2459.* Nor does peti-

tioner identify any reason why an appellate court would

set aside that presumption in his case. The jury found

that petitioner possessed with an intent to distribute 50

* Petitioner insists (Pet. 20-21) that, absent the firearms finding, the

district court would have given him a different sentence. There is no

way to know if this claim is true, but even assuming that it was, it would

not support a hypothetical “as-applied” Sixth Amendment challenge.

That a particular judge might have given him a lesser sentence absent

a specified fact does not mean that the sentence he received was un-

reasonable absent that fact.

oe

we

a4

a

14

grams or more of crack cocaine, a finding that, given his

prior felony drug conviction, subjected petitioner to a

mandatory minimum sentence of 240 months of impris-

onment. 21 U.S.C. 841(b)(1)(A) (2000 & Supp. V 2005).

Petitioner’s sentence is thus only 22 months above the

statutory minimum sentence, and is far below the maxi-

mum available sentence of life imprisonment. See 21

U.S.C. 841(b)(1)(A)(iii). In addition, petitioner had an

extensive criminal history and his offenses were commit-

ted less than two years after his release from custody

for another drug offense. Presentence Investigation

Report paras. 32-48, 50. See Booker, 543 U.S. at 244

(preserving rule that prior convictions are not subject to

the Sixth Amendment principles adopted in Apprendi

and applied to the federal Sentencing Guidelines).

Given these facts, a 262 month sentence would not be

unreasonable as a matter of law regardless of whether

petitioner possessed a firearm. See Gall, 128 S. Ct. at

598 (holding that a “deferential abuse-of-discretion stan-

dard of review * * * applies to all sentencing deci-

sions.”).

b. To the extent that petitioner challenges the sen-

tencing court’s reliance on acquitted conduct, that claim

also does not warrant review. In United States v. Watts,

519 U.S. 148, 157 (1997) (per curiam), this Court held

that “a jury’s verdict of acquittal does not prevent the

sentencing court from considering conduct underlying

the acquitted charge, so long as that conduct has been

proved by a preponderance of the evidence.” Although

Watts specifically addressed a challenge to consider-

ation of acquitted conduct based on double jeopardy

principles rather than the Sixth Amendment, the clear

import of the Court’s decision is that sentencing courts

may take acquitted conduct into account at sentencing

15

without offending the Constitution. See zd. at 157. That

principle predated the Sentencing Guidelines, see id. at

152, and it fully applies to the advisory Guidelines put in

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

Since Booker, every court of appeals has held that a

district court may consider acquitted conduct at sen-

tencing.” This Court has repeatedly denied petitions for

a writ of certiorari raising that issue,° including after its

recent decisions in Rita and Gall v. United States, 128

° See United States v. Jimenez, 513 F.3d 62, 88 (3d Cir. 2008);

United States v. Ashworth, 247 Fed. Appx. 409 (4th Cir. 2007), cert.

denied, No. 07-8076 (Mar. 31, 2008); United States v. Mendez, 498 F.3d

423, 426-427 (6th Cir. 2007); United States v. Hurn, 496 F.3d 784, 788

(7th Cir. 2007), cert. denied, No. 07-605 (Mar. 31, 2008); United States

v. Mercado, 474 F.3d 654, 656-658 (Sth Cir. 2007), cert. denied, No. 07-

581 (Mar. 31, 2008); United States v. Gobbi, 471 F.3d 302, 314 (1st Cir.

2006); United States v. Farias, 469 F.3d 393, 399 & n.17 (5th Cir. 2006),

cert. denied, 127 S. Ct. 1502 (2007); United States v. Dorcely, 454 F.3d

366, 371 (D.C. Cir.), cert. denied, 127 S. Ct. 691 (2006); United States v.

High Elk, 442 F.3d 622, 626 (8th Cir. 2006); United States v. Vaughn,

430 F.3d 518, 525-527 (2d Cir. 2005), cert. denied, 547 U.S. 1060 (2006);

United States v. Magallanez, 408 F.3d 672, 684-685 (10th Cir.), cert.

denied, 546 U.S. 955 (2005); United States v. Duncan, 400 F.3d 1297,

1304-1305 (11th Cir.), cert. denied, 546 U.S. 940 (2005).

° See, e.g., Edwards v. United States, cert. denied, 127 S. Ct. 1815

(2007) (No. 06-8430); Dorcely v. United States, cert. denied, 127 S. Ct.

691 (2006) (No. 06-547); Armstrong v. United States, cert. denied, 127

S. Ct. 109 (2006) (No. 05-1548); Lynch v. United States, cert. denied,

127 S. Ct. 89 (2006) (No. 05-10945); Magluta v. United States, cert.

denied, 126 S. Ct. 2966 (2006) (No. 05-952).

16

S. Ct. 586 (2007).’ There is no reason for a different

result here.®

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

ALICE S. FISHER

Assistant Attorney General

ELIZABETH D. COLLERY

Attorney

APRIL 2008

* See, e.g., Hurn v. United States, cert. denied, No. 07-605 (Mar. 31,

2008); Mercado v. United States, cert. denied, No. 07-5810 (Mar. 31,

2008); Smith v. United States, cert. denied, No. 07-7432 (Mar. 31, 2008);

Wemmering v. United States, cert. denied, No. 07-7739 (Mar. 31, 2008);

Ashworth v. United States, cert. denied, No. 07-8076 (Mar. 31, 2008);

Freeman v. United States, cert. denied, No. 07-9368 (Mar. 31, 2008).

8 After the Sixth Circuit upheld a district court’s consideration of

acquitted conduct in United States v. Mendez, 498 F.3d 423, 426-427

(2007), a panel of that court issued an opinion adhering to the Mendez

ruling but suggesting that the defendant file a petition for rehearing en

banc on the question of whether the continuing use of acquitted conduct

as a sentencing enhancement violates Booker. United States v. White,

503 F.3d 487, 487 (2007). On November 30, 2007, the Sixth Circuit

_ withdrew the panel opinion in White and granted rehearing en banc.

See 503 F.3d at 487. Because the panel decision in Mendez remains in

effect, however, there is no current conflict in lower court authority,

this Court’s review would be premature at this time.