Petition for Writ of Certiorari — Rogala v. United States

9 2 -_ ] 4 () a. Supreme: Sour U.S

SF - >? | H I i t iJ

DEC 28 1992

i . -

No.

IN THE SUPREME COURT OF THE UNITED

STATES

OCTOBER TERM 1992

JOHN PATRICK ROGALA, Petitioner,

V.

UNITED STATES OF AMERICA, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

STEPHEN M. ORR

800 Brazos, Suite 720

Austin, Texas 78701

(512) 472-8392

Counsel for Petitioner

QUESTION PRESENTED

1. WHETHER THE FIFTH CIRCUIT'S RETROACTIVE

APPLICATION OF A CLARIFYING AMENDMENT TO

THE UNITED STATES SENTENCING GUIDELINES,

VIOLATES THE EX POST FACTO PROVISIONS OF

THE CONSTITUTION?

LIST OF PARTIES

The parties to the proceedings below were the petitioner

Mr. John Patrick Rogala and the United States.

The United States is the respondent before this Court.

TABLE OF CONTENTS

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REASONS FOR GRANTING THE WRIT.............0000+. 4

A. THE CIRCUITS ARE SPLIT

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B. THE AMENDMENT RETROACTIVELY

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PRESENTS A SIGNIFICANT

CONSTITUTIONAL DIMENSION.............. 6

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CONSTITUTIONAL PROVISIONS

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CASES

Miller v. Florida, 482 U.S. 423,

107 S.Ct. 2446, 96 L.Ed.2d 351 (1987)............. 5,6,7

United States v. Barbontin,

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United States v. Foster, 876 F.2d 377 (Sth Cir. 1989)...... 5

United States v. Furlow, 952 F.2d 171 (8th Cir. 1992)..... 4

United States v. Mir, 919 F.2d 940

eee: Se. + De cans eeneeiaa onsen 6,7,8

United States v. Murillo, 933 F.2d 195 (3rd Cir. 1991).....4

United States v. Rodgers,

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United States v. Saucedo, 950 F.2d 1508

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Weaver v. Graham, 450 U.S. 24,

101 S.Ct. 960, 67 L.Ed.2d 17 (1981)...........000.000.. 8

Wolff v. McDonnell, 418 U.S. 539,

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STATUTES

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UNITED STATES SENTENCING GUIDELINES

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

JOHN PATRICK ROGALA, Petitioner,

V.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner John Patrick Rogala respectfully prays

that a writ of certiori issue to review the judgment and

opinion of the United States Court of Appeals for the Fifth

Circuit, entered in the above-entitled proceeding on August

18, 1992. Petition for rehearing in the Fifth Circuit was

denied September 30, 1992.

OPINIONS BELOW

The opinion of the Court of Appeals for the Fifth

Circuit is reprinted in the appendix hereto, p. A-1 infra. The

per curiam opinion was not published. The Court of Appeals

did not issue an opinion in connection with its denial of

l

Petitioner's petition for panel rehearing. p. A-4, infra. The

district court did not issue an opinion.

JURISDICTION

The United States District Court was granted

exclusive original jurisdiction over this case by 18 U.S.C. §

3231.

Appeal was made from the final judgment of the

District Court to the Fifth Circuit Court of Appeals under 18

U.S.C. § 3742.

The Court of Appeals affirmed the judgment of the

District Court in an order entered August 18, 1992. Panel

rehearing was denied on September 30, 1992.

The jurisdiction of this Court to review the judgment

of the Fifth Circuit is invoked under 28 U.S.C. § 1254(1).

STATUTE INVOLVED

The amended introductory commentary to United

States Sentencing Guideline § 3B1.1 provides in relevant

part:

The determination of a defendant's role in the

offense is to be made on the basis of all

conduct within the scope of section 1B1.3

(Relevant Conduct), i.e., all conduct included

under section 1B1.3(a)(1)-(4), and not solely

on the basis of elements and acts cited in the

count of conviction.

Prior to the amendment, which was effective

November 1, 1990, the introductory commentary read as

follows in relevant part:

This part provides adjustments to the offense

level based upon the role the defendant

played in committing the offense.

The actual guideline, at all times pertinent to this

case, reads as follows:

§ 3B1.1 Aggravting Role

Based on the defendant's role

in the offense, increase the

offense level as follows:

(a) If the defendant was

an organizer or leader of a

criminal activity that involved

five or more participants or

was otherwise extensive,

increase by 4 levels.

The entire Guideline is reproduced at page A-S.

STATEMENT OF THE CASE

Petitioner Rogala was a member of a conspiracy, the

primary business of which was to distribute cocaine in the

central Texas area. Rogala held a position of some

importance within the conspiracy, although he was not its

"kingpin".

Rogala's chief role was to purchase cocaine in

Houston from his source and resell the cocaine to others.

These transactions took place from September of 1988 to the

summer of 1989. Either Rogala or one Townsen, under

Rogala's direction, would park a car in a specified mall.

Rogala or Townsen would then leave the car. The source,

who had a key to the car, would then drive the car away,

load cocaine into the vehicle, and return the car to the

parking lot.

Rogala directed other participants in the cocaine

business as well, but the scope of these actions was outside

that of the Houston cocaine business of 1988.

Rogala pleaded guilty to possessing 500 grams of

cocaine on November 1, 1988, with the intent to distribute.

Rogala also pleaded guilty to a single count of money

laundering.

The presentence investigatory report recommended

giving Rogala a four point enhancement under Guideline §

3B1.1(a) because Rogala had directed or led five or more

participants during the course of the conspiracy. Rogala

objected, contending that the four level enhancement should

only apply when the conduct supporting the enhancement

was related to the offense of conviction. The district court

overruled Rogala's objections.

Rogala appealed to the Fifth Circuit, contending that

Guideline § 3B1.1 prior to 1990 did not contemplate looking

to conduct not embraced in the offense of conviction. Rogala

further contended that any interpretation of the guideline to

the contrary which relied on the 1990 "clarifying"

amendment to the commentary would pose ex post facto

concerns. The Fifth Circuit, without addressing the ex post

fact argument, affirmed. Petition for panel rehearing was

denied.

REASONS FOR GRANTING THE WRIT

Petitioner's case brings to this Court the question of

whether an amendment's label as "clarifying" is controlling,

or whether a court should examine its actual impact on a

defendant in addressing ex post facto concerns.

A. THE CIRCUITS ARE SPLIT ON THIS ISSUE

The issue presented is one on which the Circuits

have split. See United States v. Murillo, 933 F.2d 195, 198

n.l (3rd Cir. 1991); United States v. Saucedo, 950 F.2d

1508, 1513-1517 (10th Cir. 1991); United States v.

Rodgers, 951 F.2d 1220 (11th Cir. 1992); United States v.

Furlow, 952 F.2d 171 (8th Cir. 1992). Other circuits have

been expressly critical of the Fifth Circuit's handling of the

ex post facto question: “We decline to perform such judicial

sleight of hand and make constitutional issues disappear."

Saucedo, 950 F.2d at 1515 n.11.

In light of the inevitability of similar problems arising

within the context of the Sentencing Guidelines, the issue

presented merits clear resolution by this nation's highest

court.

B. THE AMENDMENT RETROACTIVELY CHANGED

THE LAW.

Article I of the United States Constitution provides

that neither Congress nor any State shall pass any “ex post

facto Law." See Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. In order

to fall within the ex post facto prohibition, a criminal law

must possess two critical elements. First, the law “must be

5

retrospective, that is, it must apply to events occurring

before its enactment." Second, “it must disadvantage the

offender affected by it." Thus, a defendant must be

sentenced according to presumptive sentencing guideline

schemes as those schemes exist at the time of the offense,

not as they exist at the time of sentencing. Miller v. Florida,

482 U.S. 423, 107 S.Ct. 2446, 96 L:Ed.2d 351 (1987).

In order to determine whether the clarifying

amendment to the commentary changed the law, a bref

examination of the law prior to the amendment is merited.

Under the Guideline, enhancement for leadership is

expressly limited to the “defendant's role in the offense".

(emphasis supplied) The prior commentary also read, “This

part provides adjustments to the offense level based upon the

role the defendant played in committing the offense."

(emphasis supplied) Not surprisingly, the courts read §

3B1.1 as referring to conduct related to "the" offense and not

to “an" or “any" offense. The Fifth Circuit had always

construed "the offense" as the offense of conviction since the

first time the issue was visited upon the court of appeals.

United States v. Foster, 876 F.2d 377, 378 (Sth Cir. 1989).

In United States v. Barbontin, 907 F.2d 1494, 1497 (Sth

Cir. 1990), the Fifth Circuit reversed as “the government

failed to demonstrate that a minimum of five participants

were involved in the precise transaction underlying the

conviction." (emphasis in original). The Fifth Circuit went

on to hold that while the district court could make inferences,

it could “not look beyond the offense of conviction to

enlarge the class of participants." Barbontin, 907. F.2d at

1498. The Fifth Circuit rejected an interpretation of § 3B1.1

where “a four level adjustment may be imposed incident to

larger drug-trafficking activities which are not the subject of

the conviction." /d.

The 1990 amendment to the § 3B1.1 introductory

commentary had an immediate and drastic impact on the

courts.! This was so even though the Sentencing

Commission labeled it as “clarifying". See United States

Sentencing Guidelines, Appendix C, { 345.

In the Fifth Circuit, the amendment was given

retroactive effect. Now all relevant conduct, not just conduct

tied to the offense of conviction, would be considered for §

3B1.1 purposes. United States v. Mir, 919 F.2d 940 (Sth

Cir. 1990). The Mir court distinguished Barbontin and other

cases on the facts, but it is plain that the very legal standard

for § 3B1.1 had changed because of the new commentary:

“This language [of the new commentary] shows that section

3B1.1 is intended to comport with other guidelines sections

allowing a sentencing judge to look beyond the narrow

confines of the offense charged to consider all relevant

conduct." Mir, 919 F.2d at 945 (emphasis supplied).

Other Circuits found that the impact of the clarifying

amendment was substantial and declined to apply it

retroactively, citing ex post facto concerns. See cases cited

supra.

The “clarifying” amendment has actually worked to

change the law regarding § 3B1.1 in the Fifth Circuit.

Before the amendment, the Fifth Circuit quite naturally

interpreted § 3B1.1 as limited to conduct arising from

transactions giving rise to the offense of conviction. After

Mir accepted the amended commentary retroactively, the

enhancement could be given for any relevant conduct.

1 The introductory commentary carries considerable weight. Guidelines

§ 1B1.7 provides that “it may interpret tae guideline or explain how it

is to be applied."

The change is retroactive, as the offense for which

Rogala was convicted took place in 1988, well before the

1990 amendment became effective. The amendment was

applied to Rogala, as the district court specifically relied on

the Mir holding to enhance his sentence. See p. A-7.

Rogala has been disadvantaged. Rogala did direct

Townsen in transactions similar to the offense of conviction.

Others were directed by Rogala in other schemes distant in

time and place from the Houston cocaine transaction. While

these transactions may fall under the relevant conduct

umbrella, they had nothing to do with the transaction which

led to Rogala's conviction. The Court of Appeals relied on

this relevant conduct in affirming Rogala's conviction: “As

this organization involved more than five participants, the

increase in Rogala's offense level was proper." See p. A-3.

Rogala should have been sentenced under the

Guidelines as a level 34 under the Guidelines. His sentence

would thus have been 168-210 months. Instead, Rogala's

offense level was increased by four, and his sentence under

the Guidelines became 262-327 months. United States

Sentencing Guidelines §5A [Table]. Like the petitioner in

Miller v. Florida, supra, Rogala has plainly been

substantially disadvantaged by the retroactive application of

the amendment.

34 THE EX POST FACTO ISSUE PRESENTS

A SIGNIFICANT CONSTITUTIONAL

DIMENSION.

This issue, aside from bringing to this Court a

question on which the circuits have split, also possesses

important constitutional dimensions. The ex post facto

clauses ensure that enactments “give fair warning of their

effect and permit individuals to rely on their meaning until

8

explicitly changed." Miller, 482 U.S. at 430. This assurance

is not merely an abstract nicety. Often, a defendant's

perspective of punishment is a significant factor entering into

his decision to plea bargain, as has been recognized by this

Court. Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct.

2963, 2975, 41 L.Ed.2d 935 (1974). A defendant such as

Rogala, acting on the advice of competent counsel, may very

well decide to plead.2 That decision is now clouded for

future similarly situated defendants. Should this and other

decisions relying on Mir stand, the law will be rendered

instrinsicly unpredictable. Virtually any slightly vague area

of the law may be "clarified" to the defendant's considerable

detriment. Rogala's term of imprisonment, for example, was

made nearly twice as onerous by a amendment issued exactly

two years after his offense.

The United States Sentencing Commission should

not be permitted to retroactively and substantially amend the

Guidelines in the guise of issuing “clarifying” amendments.

The clear and unanimous holding of Miller v. Florida

demands that Rogala be resentenced under the Guidelines as

they stood in 1988, the time of the offense.

2 Whether or not Rogala relied on the the previous interpretation of §

3B1.1 is immaterial to the instant case. Ex post facto inquiries look to

the challenged provision, not the particular individual. Weaver v.

Graham, 450 U.S. 24, 33, 101 S.Ct. 960, 966, 67 L.Ed.2d

17 (1981).

CONCLUSION

For the foregoing reasons, I respectfully urge that the

writ of certiorari be granted.

Respectfully submitted,

Stephen M. Orr

800 Brazos, Suite 720

Austin, Texas 78701

(512) 472-8392

Texas Bar No. 15317000

Counsel for Petitioner

10

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

JOHN PATRICK ROGALA, Petitioner

VS.

UNITED STATES OF AMERICA, Respondent.

APPENDIX

TO

PETITION FOR A WRIT OF CERTIORARI

CONTENTS

Page

Decision of the Court of Appeals

OE i ee Ri scons vec ikatsssincadsncencnecs A-1

Order of the Fifth Circuit on

Petition for Panel Rehearing ........................ A-4

United States Sentencing Guideline

Section 3B, with

Introductory Commentary ................cceeeeeeees A-5

Trial Transcript from the United States

District Court, Sentencing Hearing................. A-7

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-8624

Conference Calendar

D.C. Docket No. W-90-CR-121(4)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN PATRICK ROGALA,

Defendant-Appellant

Appeal from the United States District Court for the Western

District of Texas

Before DAVIS, JONES, and EMILIO M. GARZA, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the record on

appeal and was taken under submission on the briefs on file.

ON CONSIDERATION WHEREOPF, It is now here

ordered and adjudged by this Court that the judgment of the

District Court in this cause is affirmed.

August 18, 1992

A-1

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-8624

Conference Calendar

D.C. Docket No. W-90-CR-121(4)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN PATRICK ROGALA,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. W-90-CR-121(04)

Before DAVIS, JONES, and EMILIO M. GARZA, Circuit

Judges.

PER CURIAM!:

The district court increased Rogala's offense level by four

points under § 3B1.1(a) of the Sentencing Guidelines

because he was the organizer of criminal activity including

five or more participants. Rogala argues that this. increase

was inappropriate because he pleaded guilty to a single

charge of possession with intent to distribute cocaine and

that less than five individuals participated in that transaction.

1 Local Rule 47.5 provides: "The publication of opinions that have no

precedential value and merely decide particular cases on the basis of

well-settled principles of law imposes needless expense on the public

and burdens on the legal profession." Pursuant to that Rule, the Court

has determined that this opinion should not be published.

In United States v. Barbontin, 907 F.2d 1494, 1498 (Sth

Cir. 1990), the Court held “that a Section 3B1.1(a)

adjustment is anchored to the transaction leading to the

conviction." In Uni ates v. Manthei, 913 F.2d 1130,

1137 (Sth Cir. 1990), the Court held that "it is not necessary

for participants to be charged in the offense in order to be

considered for § 3B1.1(a) purposes." In United States v.

Mir, 919 F.2d 940, 945 (Sth Cir. 1990), the Court

specifically rejected an interpretation of Barbontin and

Manthei that defined a “transactional participant so narrowly

as to preclude any examination of the context of the crime

beyond the minimal elements necessary for conviction."

Rogala operated as a wholesale distributor of cocaine. It is

undisputed that between 1988 and 1989 he distributed 93

kilos of cocaine. While five people did not participate in the

sale of cocaine to which Rogala pleaded guilty, he would not

have been able to sell the cocaine without his wholesale

distribution organization. As this organization involved more

than five participants, the increase in Rogala's offense level

was proper.

Rogala also objects to the testimony of Elizabeth

Chapman, a special agent with the IRS, given at sentencing.

Rogala has not shown that Chapman's testimony was

“materially untrue, inaccurate or unreliable." United States v.

Angulo, 927 F.2d 202, 205 (Sth Cir. 1991). Further,

Rogala was allowed to cross-examine Agent Chapman. See

United States v. Byrd, 898 F.2d 450, 453 (Sth Cir. 1990)

(opportunity to question probation officer sufficient

opportunity for confrontation).

AFFIRMED

A-3

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-8624

D.C. Docket No. W-90-CR-121(4)

UNITED STATES OF AMERICA,

Plainuff-Appellee,

versus

JOHN PATRICK ROGALA,

Defendant-Appellant

Appeal from the United States District Court for the Western

District of Texas

ON PETITION FOR REHEARING

(September 30, 1992)

Before DAVIS, JONES, and EMILIO M. GARZA, Circuit

Judges.

PER CURIAM

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the same is

hereby DENIED.

ENTERED FOR THE COURT:

W. EUGENE DAVIS

UNITED STATES CIRCUIT JUDGE

A-4

PART B - ROLE IN THE OFFENSE

Introducto mmen

This part provides adjustments to the offense level

based upon the role the defendant played in committing the

offense. The determination of a defendant's role in the

offense is to be made on the basis of all conduct within the

scope of §1B1.3 (Relevant Conduct), i.e., all conduct

included under §1B1.3(a)(1)-(4), and not solely on the basis

of elements and acts cited in the count of conviction.

However, where the defendant has received mitigation by

virtue of being convicted of an offense significantly less

serious than his actual criminal conduct, e.g., the defendant

is convicted of unlawful possession of a controlled

substance but his actual conduct involved drug trafficking, a

further reduction in the offense level under §3B1.2

(Mitigating Role) ordinarily is not warranted because the

defendant is not substantially less culpable than a defendant

whose only conduct involved the less serious offense.

When an offense is committed by more than one

participant, §3B1.1 or §3B1.2 (or neither) may apply.

Section 3B1.3 may apply to offenses committed by any

number of participants.

Historical Note: Effective November 1, 1987. Amended

effective November 1, 1990 (see Appendix C, amendment

345).

§3B1.1 Aggravating Role

Based on the defendant's role in the offense, increase the

offense level as follows:

(a) If the defendant was an organizer or leader of a

criminal activity that involved five or more participants or

was otherwise extensive, increase by 4 levels.

(b) If the defendant was a manager or supervisor (but

not an organizer or leader) and the criminal activity involved

A-5

ee

five or more participants or was otherwise extensive,

increase by 3 levels.

(c) If the defendant was an organizer, leader, manager,

or supervisor in any criminal activity other than described in

(a) or (b), increase by 2 levels.

THE COURT: The objection concerning being an

organizer or leader will not be granted. The Court finds that

the opinion of Judge Smith in the Mear [sic] case is more

compelling than the opinion of Judge “mith in the Barrentine

(phonetically), and finds that Mr. Rogala was an organizer

or leader in the criminal activity that involved five or more

persons, or equally important and equally evident from the

evidence that the activity was otherwise an extensive criminal

activity.

The Offense Level would be reduced by two to a

Level 40, the Guideline range would become 324 to 405, if

I'm correct in my --

MR. MOORE: I believe it's a Level 38, Your Honor.

MR. SNYDER: I believe they had it as a Level

40, Your Honor, in the report on page 69, Your Honor, so

that would take it to a Level 38.

A-7