# Petition for Writ of Certiorari — Rogala v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 939

## Text

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DEC 28 1992

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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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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
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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2164%3A1. Public record. Not legal advice.