# Opposition Brief — Tankersley v. United States (No. 08-1104) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0248%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2009 ## Text a” vy ; ei ™~ st No. 08-1104 Jn the Supreme Court of the Gnited States KENDALL TANKERSLEY, PETITIONER Vv. UNITED STATES OF AMERICA ON PETITION FORA WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION ELENA KAGAN Solicitor General Counsel of Record LANNY A. BREUER Assistant Attorney General STEPHAN E. OESTREICHER, JR. Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 QUESTION PRESENTED Whether the court of appeals correctly affirmed petitioner’s sentence as reasonable under United States v. Booker, 543 U.S. 220 (2005), and the factors set forth in 18 U.S.C. 3553(a), notwithstanding the court’s failure to consider whether the district court had correctly relied on Sentencing Guidelines § 5K2.0 in departing from the advisory Guidelines range. TABLE OF CONTENTS Page Opinion below... 4. oss5 oe Gh esc caks eee... 1 JUTTSICCIOM . «ss « dG as caw se cc esses 1 Se) ] ASEM, .. oo 5 ee een ee ees... by) CORCHIBIGR on aaa ve sec sess. 16 TABLE OF AUTHORITIES Cases: Kimbrough v. United States, 128 S. Ct. 558 (2007) ....... 8 Koon v. Unated States, 518 U.S. 81 (1996) ............. 12 Smith v. Marsh, 194 F.3d 1045 (9th Cir. 1999) ......... 15 United States v. Booker, 543 U.S. 220 (2005) ......... 8, 10 United States v. Crawford, 407 F.3d 1174 (11th Cir. ya} i; ) a ee 1] United States v. Johnson, 427 F.3d 423 (7th Cir. 2005) .. 11 United States v. Mohamed, 459 F.3d 979 (9th Cir. 2OOG) . . o-0 5 ou EEE bodwases. 8, 11, 14 United States v. Munoz-Tello, 531 F.3d 1174 (10th Cir. 2008), cert. denied, 129 S. Ct. 1314 (2009) ....... 11 United States v. Saldana, 427 F.3d 298 (5th Cir.), cert. denied, 546 U.S. 1067 (2005), and 546 U.S. 1 822 CE oe ee es cw ees... 11 United States v. Selioutsky, 409 F.3d 114 (2d Cir. oi) 1] lU/nited States v. Villareal-Amamrillas, Na. 07-3616, 2009 WL 939125 (8th Cir. Apr. 9, 2009) ............ 12 United States v. Wallace, 461 F.3d 15 (1st Cir. 2006) .... 10 United States v. Williams, 504 U.S. 36 (1992) .......... 15 (IIT) IV Case—Continued: Page Williams v. United States, 503 U.S. 193 (1992) ...... 14,15 Constitution, statutes, guidelines and rule: as en MII, WAP se eeu lam ha eee eee 10 Pe OR pais beeen ks beak see eee 2,3 Oe Ae a We 85 we ono do ane ena eee 1,3 De Se as Gn 0S Be res bee oa eS Oe eee 2,3, 4 Be Re I i hb ae hk ew aneesn ede) CARO eee 4 16 USA, BEN) (BOO) onc cece ccc ceeesewuuens 4 EE Ca ED edes de wacdenewevaeuae eens 4 SE aD kos ok wa cas ueuceeeuees 7,8, 10, 11, 14, 15 OR Uh ess Se hn sas cs oc ees en ee eee 12 18 U.S.C. 3553(b)(1) (Supp. IV 2004) ................... 10 18 U.S.C. 3742(e) (2000 & Supp. IV 2004) .............. 10 18 UT. Bee CRD hoe hick cei eens 10 a SEs ao as eee a eek ease 14, 15 United States Sentencing Guidelines (2000): § 1B1.1, comment. (n.1(E)) (2008) .................. 10 DEED Wb 5.6 Pi nr Cu be oben one ee cee 5 FN a5 on 0k oie ORE ee Re 5 a se ins a oes Soo heme Lea ee ee 5 OD 6.5 os sh ok oe ee eee 5 a oa oon eg des Sd we be ae ee 5 Ne eso base ee te ae passim ee ee ee 5 ee ne rer ra 4 §$ 3A1.4, comment. (n.4) (2002) .................---. 13 Vy Guidelines and rule—Continued: Page NR odie a Wh cane tbe pe ea ow a dee 6 EE ey Piss hh Bek eee PNR S EAA OK ON 5, 6 NE ia ak Lie 50th bake eee kay eae eee 5 2 ee ere rem eno 5 ic a bed ads NEKO aba a8 Oeee ay Ree Oe 6 oan aie Ak ov Kea Soa Oe 6, 8, 10, 11, 12, 13 NR 9. 53's o 0s hw a ea ge ee 13 ee ee Sd kb vkdo sa Wen w eee O¥0eeee ee 14 Jn the Supreme Court of the Gnited States No. 08-1104 KENDALL TANKERSLEY, PETITIONER UV. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-35a) is reported at 537 F.3d 1100. JURISDICTION The judgment of the court of appeals was entered on August 12, 2008. A petition for rehearing was denied on December 1, 2008 (Pet. App. 68a). The petition for a writ of certiorari was filed on March 2, 2009 (a Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT Following a guilty plea in the United States District Court for the District of Oregon, petitioner was convic- ted of conspiracy to commit arson and destruction of an energy facility, in violation of 18 U.S.C. 371; attempted (1) 2 arson, in violation of 18 U.S.C. 2 and 844(i); and arson, in violation of 18 U.S.C. 2 and 844(i). She was sentenced to 41 months of imprisonment, to be followed by three years of supervised release. The court of appeals af- firmed. Pet. App. la-35a. 1. From 1996 to 2001, activist groups known as the Earth Liberation Front (ELF ) and the Animal Libera- tion Front worked to damage or destroy property be- longing to government agencies and private companies that the group believed were harming the environment. As many as 16 individuals, including petitioner, partici- pated in the conspiracy to destroy property. The con- spirators committed multiple crimes in five Western States and caused tens of millions of dollars in property damage. Pet. App. 2a-4a. In December 1998, as part of the conspiracy, peti- tioner and several co-conspirators agreed to target the headquarters building of U.S. Forest Industries, Inc., a private timber company in Oregon that had substantial logging contracts with the United States Forest Service, a government entity. Pet. App. 2a, 6a-7a, 14an.7. Peti- tioner conducted the initial research of the company’s building. Gov’t C.A. Br. 9. On December 22, she served as a lookout while her cohorts placed timed incendiary devices near the building. The conspirators fled after placing the devices, and they learned later that the de- vices had malfunctioned. A few days later, petitioner and one of her co-conspirators, Jacob Ferguson, gath- ered materials for new devices. Petitioner then drove Ferguson back to the U.S. Forest Industries building and wa'ted in the ear while Ferguson placed the new devices. This time the devices ignited and the building burned. The fire caused a loss of about $990,000. Pet. 3 App. 6a-7a; Gov’t C.A. Br. 9-11; Presentence Report (PSR) 19 25-32. In January 1999, after conferring with petitioner, Ferguson released a “media communiqué” in which ELF took credit for the fire. The communiqué stated that the fire was “in retribution for all the wild forests and ani- mals lost to feed the wallets of greedy fucks like Jerry Bramwell, U.S.F.1. president,” and was “payback and * * * a warning, to all others responsible we do not sleep and we won’t quit. For the future generations we will fight back.” Pet. App. 7a-8a. In February 1999, petitioner and Ferguson re- searched and performed reconnaissance at a United States Bureau of Land Management facility in Litch- field, California. Later, without petitioner’s involve- ment, the conspirators destroyed that government facil- ity through arson. Pet. App. 8a-9a; Gov’t C.A. Br. 13; PSR # 64. 2. In December 2005, petitioner was arrested. She waived indictment and pleaded guilty to a three-count information charging her with conspiracy to commit ar- son and destruction of an energy facility, in violation of 18 U.S.C. 371; attempted arson, in violation of 18 U.S.C. 2 and 844(i); and arson, in violation of 18 U.S.C. 2 and 844(i). Pet. App. la, 4a-5a, 9a; Gov’t C.A. Br. 2-38. Before sentencing, the government submitted a de- tailed sentencing memorandum recounting the conspir- acy as relevant to each defendant’s sentencing calcula- tions. C.A. E.R. 250-408. As to petitioner, the govern- ment argued for, inter alia, a terrorism enhancement under Sentencing Guidelines § 3A1.4 (2000),' which pro- ' Unless otherwise indicated, citations in this brief to the Sentencing Guidelines refer to the November 2000 Guidelines Manual, under which A vides for a 12-level upward offense-level adjustment and an automatic increase to criminal history category VI where “the offense is a felony that involved, or was in- tended to promote, a federal crime of terrorism.” The - Guidelines incorporate the definition of “federal crime of terrorism” in 18 U.S.C. 2332b(g), which includes the arson of certain property in violation of 18 U.S.C. 844(i), where the offense “is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” Guidelines § 3A1.4, comment. (n.1); 18 U.S.C. 2332b(g)(5) (2000).° In support of the terrorism enhancement, the govern- ment contended that the arson of U.S. Forest Indus- tries’ headquarters “was calculated to influence or affect the future conduct of government and private business,” and it was therefore a “federal crime of terrorism” un- der Section 3A1.4, noting that: (a) U.S. Forest Indus- tries was “well known” for its extensive logging con- tracts with the federal government (C.A. E.R. 322); (b) Ferguson’s communiqué had sent “a warning” to “all others responsible” for the “los{s]” of “wild forests,” which forests necessarily included federally owned land subject to timber sales (267d.); and (c) for her part, peti- tioner “frequently and publicly spoke out against the government, particularly on television,” and her re- search on U.S. Forest Industries included the company’s timber contracts with the federal government (id. at 328). petitioner's advisory Guidelines sentence was calculated. See PSR 5. ~ Although Section 2332b(2)(5) has since been amended, the current version of the statute is identical in all material respects to the version in effect in 2000. See 18 U.S.C. 2332b(2)(5) (2006). 5 In petitioner’s PSR, the Probation Office calculated a base offense level of six (PSR % 42; see Guidelines §§ 2K1.4(a)(4), 2B1.3(a)); added a 13-level enhancement because the arson caused a loss of between $800,000 and $1.5 million (PSR 4 43; see Guidelines §§ 2B1.3(b)(1), 2B1.1(b)(1)(N)); assessed a two-level enhancement be- cause the arson involved more than minimal planning (PSR 11 44; see Guidelines § 2B1.3(b)(3)); agreed with the government that a 12-level increase was warranted be- cause the arson “involved, or was intended to promote, a federal crime of terrorism” (PSR 4% 45; see Guidelines § 3A1.4); recommended a two-level downward adjust- ment because petitioner was a minor participant in the arson (PSR 4 46; see Guidelines § 3B1.2(b)); and recom- mended a three-level downward adjustment because petitioner accepted responsibility for her offenses (PSR 7 49; see Guidelines § 3E1.1). The probation office thus calculated a total offense level of 28. PSR 4150. It fur- ther reported that petitioner had three adult criminal convictions but that they did not result in any criminal history points. PSR {1 52-55. Though Zero criminal history points would normally result in a criminal his- tory category of I, the Probation Office assessed a crimi- nal history category of VI under Guidelines § 3A1.4. PSR 1 56; see Guidelines § 3A1.4(b); see also Pet. App. 12a. At its initial sentencing hearing, the district court adopted all of the PSR’s Guidelines assessments except one: it declined to apply the terrorism enhancement under Guidelines § 3A1.4. Pet. App. 61a. Emphasizing that Ferguson’s post-arson communiqué did not specifi cally “mention any conduct of government,” the court concluded that the government had failed to prove, “by clear and convincing evidence,” that the arson of the 6 U.S. Forest Industries building “was calculated to retal- iate against government conduct.” /bid. (suggesting that the government’s evidence may have sufficed “un- der a more likely than not standard, but not [under the] clear and convincing” standard required by relevant Ninth Circuit case law). Nevertheless, the district court decided to depart upward by 12 levels under Guidelines § 5K2.0, on grounds that the advisory Guidelines range, absent the enhancement, did “not adequately take into account [petitioner’s] intent to frighten, intimidate, and coerce private individuals at the U.S. Forest Industries through her actions.” Pet. App. 63a-64a. The court ex- plained that “we have to recognize using intimidation and violence against private individuals really isn’t much different” from using intimidation and violence against the government, and it should not be treated as “so dra- matically different” that offenders receive a “pass” be cause they destroyed “private property” rather than “torch{ing] [the] government.” /d. at 68a. The district court’s 12-level upward departure re- sulted in an offense level equivalent to the offense level that would have applied under the terrorism enhance- ment in Guidelines § 3A1.4(a). Pet. App. 64a. The court did not, however, depart upward in petitioner’s criminal history category, which remained at category I, rather than VI. J/bid.; ef. Guidelines § 3A1.4(b). The court granted a downward departure of four levels (to offense level 24) based on the government’s substantial-assis- tance motion under Guidelines § 5K1.1, and “chlo]se to depart one additional level for a final offense level of 23” because petitioner had ceased her involvement in the conspiracy “long before” the conspirators were appre- hended. Pet. App. 64a-66a. With a total offense level of lard ( 23 and a criminal history category of I, petitioner’s advi- sory Guidelines range was 46 to 57 months. /d. at 66a. After “consider|ing]” the “factors that are set out in 18 U.S.C. [§$] 3553,” the court sentenced petitioner to 46 months, stating that 46 months of imprisonment was “reasonable but not greater than necessary.” /d. at 66a- 67a. Shortly after the initial sentencing hearing, petition- er moved to reopen the sentencing on the ground that she had received insufficient notice of the district court’s intent to depart upward by 12 levels. The court granted the motion and held a second hearing. Pet. App. 16a- 17a. At the second sentencing hearing, the district court largely adhered to its earlier determinations. Pet. App. 36a-49a. The court again imposed a 12-level upward departure on the ground that the advisory range, absent the terrorism enhancement, did not adequately account for petitioner’s “intent to frighten, intimidate, and co erce private individuals at * * * U.S. Forest Indus- tries.” /d. at 45a. The court further explained that the departure was designed in part to ensure sentencing parity between petitioner and her co-conspirators, some of whom had received enhancements under Guidelines § 3A1.4, since “the purposes of the conspiracy, the means, motives, intents, and actions to carry out those purposes were the same and should be treated simi- larly.” Pet. App. 38a. The court departed downward one additional level, however, based on petitioner’s early abandonment of the conspiracy, resulting in a total of- fense level of 22, and an advisory Guidelines ranye of 41 to51 months. /d. at 42a, 48a. The court imposed a sen- tence of 41 months of imprisonment, stating that such a 8 term was consistent with the sentencing factors set forth in 18 U.S.C. 3553(a). Pet. App. 47a-49a. 3. The court of appeals affirmed. Pet. App. La-35a. The court rejected petitioner’s arguments that her sen- tence was unreasonable. Pet. C.A. Br. 22-34. First, re- lying on Kimbrough v. United States, 128 S. Ct. 558 (2007), the court rejected petitioner’s argument that the district court’s decision to impose a 12-level upward de- parture was unreasonable because, in petitioner’s view, it was based on a policy ar ag with the Sentenc- ing Guidelines. Pet. App. 25a-29 The court of appeals next ned to petitioner’s argu- ments that the upward departure was erroneous under Guidelines § 5K2.0 and that a 12-level departure was unreasonable in any event. Pet. App. 29a-35a. The court reviewed both contentions under a “unitary” stan- dard of reasonableness. /d. at 29a-3la (quoting United States v. Mohamed, 459 F.3d 979, 987 (ath Cir. 2006)). The court noted that, after this Court’s decision in United States v. Booker, 543 U.S. 220° (2 2005), “the scheme of downward and upward departures” under the Guidelines “has been replaced by the requirement that judges impose a reasonable sentence.” Pet. App. 29a (citing Mohamed, 459 F.3d at 986). The court further explained that, under circuit law, although the departure scheme remains relevant “insofar as factors that might have supported (or not supported) a departure may tend to show that a non-guidelines sentence is (or is not) rea- sonable,” id. at 30a, the court did not “need to consider whether the district court correctly applied the depar- ture provision in § 5K2.0,” but rather whether the dis- trict court imposed a reasonable sentence, id. at 3la. Reviewing petitioner's 41-month sentence in light of the factors enumerated in 18 U.S.C. 3553(a), the court of 3 appeals concluded that the sentence was reasonable. Pet. App. 3la-35a. The court noted that the district judge had sentenced ten individuals involved in the con- spiracy, 7d. at 35a, and held that the judge could prop- erly “conclude that, given the objectives of the criminal conspiracy, those co-defendants for whom the terrorism enhancement did not directly apply should not be treated” substantially more leniently than the conspira- tors for whom it did apply, zd. at 34a. The court further reasoned that the judge could properly consider “the grave nature and aggravated circumstances of [peti- tioner’s] offense, the enormous destruction it caused, and the intent to harm and intimidate entire communi- ties.” /d. at 35a. Finally, the court noted that the dis- trict judge had granted downward departures from the advisory Guidelines range based on several mitigating factors, including petitioner’s remorse, withdrawal from the conspiracy, and cooperation with the government. Id. at 16a, 34a-35a. Thus, in the court’s view, the result- ing 41-month sentence “was well-reasoned and properly based on the § 3553(a) factors.” Jd. at 35a. ARGUMENT Petitioner renews her claim (Pet. 9-28) that her sen- tence was unreasonable because the district court erred in granting a 12-level upward departure under the Sen- tencing Guidelines. The court of appeals correctly held that petitioner’s 4l-month sentence was reasonable. Although the court’s standard of review differs some- what from the standards that some other circuits apply, this case would not be a suitable vehicle for resolving any tension between the approaches of the courts of ap- peals, since petitioner’s sentence was reasonable under any standard. Further review is unwarranted. 10 1. In United States v. Booker, 543 U.S. 220 (2005), this Court held that the mandatory Sentencing Guide- lines system was invalid under the Sixth Amendment. As a remedy, the Court invalidated those provisions of federal sentencing law that made the Guidelines manda- tory, 18 U.S.C. 3553(b)(1) (Supp. IV 2004), and that re- quired appellate review in conformance with the Guide- lines, 18 U.S.C. 3742(e) (2000 & Supp. TV 2004). 543 U.S. at 245, 259. Recognizing that the excision of Sec- tion 3742(e) would leave the federal sentencing statute without an explicit standard of appellate review, the Court relied on the pre-2003 version of the provision to “infer * * * a practical standard of review already fa- miliar to appellate courts: review for ‘unreason- able[ness],’” taking into consideration the statutory sen- tencing factors in 18 U.S.C. 3553(a). Booker, 543 USS. at 260-261 (brackets in original) (quoting i8 U.S.C. 3742(e)(3) (1994)). As petitioner correctly notes (Pet. 11-12), in the wake of Booker, the courts of appeals have taken different approaches to review of non-Guidelines sentences, de- pending on whether the district court’s deviation from the Guidelines range rested on the court’s authority un- der the Guidelines to “depart” from the Guidelines sen- tence, see Guidelines § 1B1l.1, comment. (n.1(E)) (2008), or its discretion to “vary” from the Guidelines sentence based on Section 3553(a). Several courts of appeals have indicated that, in reviewing a non-Guidelines sentence for reasonableness, a court should first review the pro- priety of any Guidelines departures under the relevant Guidelines departure provisions (e.g., Guidelines $ 5K2.0) and only thereafter review whether the ulti- mate sentence imposed was reasonable under Section 3553(a). See, e.g., United States v. Wallace, 461 F.3d 15, 11 32-33 (1st Cir. 2006); United States v. Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005); United States v. Saldana, 427 F.3d 298, 310-313 (5th Cir.), cert. denied, 546 U.S. 1067 (2005), and 546 U.S. 1122 (2006); United States v. Munoz-Tello, 531 F.3d 1174, 1186 (10th Cir. 2008), cert. denied, 129 S. Ct. 1314 (2009); United States v. Craw- ford, 407 F.3d 1174, 1181-1182 (11th Cir. 2005). By contrast, the Seventh and Ninth Circuits review all sentences outside the otherwise applicable Guidelines range, like within-Guidelines sentences, for reasonable- ness under Section 3553(a), without separately consider- ing the correctness of any departure under the Guide- lines. See, e.g., United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005); Unzted States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006).” 2. This case is not, however, a suitable vehicle for resolving any differences among the courts of appeals, since petitioner’s sentence was reasonable under any standard. Petitioner’s claim that the district court abused its discretion in departing upward by 12 levels under Guidelines § 5K2.0 (Pet. 23-27; see Pet. App. 25a- 35a) would fail even in those circuits that assess the pro- priety of traditional Guidelines departures as a discrete step of reasonableness review.* * Although the Ninth Circuit has held that departures and variances are subject to a “unitary” review for reasonableness, it has also made clear that courts may continue to consult the Guidelines’ departure provisions, Mohamed, 459 F.3d at 987, and that those provisions remain relevant “insofar as factors that might have supported (or not sup- ported) a departure may tend to show that a non-guidelines sentence is (or is not) reasonable,” Pet. App. 30a; see also Mohamed, 459 F.3d at 987. ' Indeed, it is far from clear that petitioner is not subject to the terrorism enhancement tn Guidelines § 3A1.4. The distmct court found 12 a. Section 5K2.0 authorizes a district court to depart from the advisory Guidelines range “if the court finds ‘that there exists an aggravating or mitigating circum- stance of a kind, or to a degree, not adequately taken into consideration’” by the advisory range. Guidelines § 5K2.0 (quoting 18 U.S.C. 3553(b)). The provision itself counsels strong deference to the district court: “The decision as to whether and to what extent [a] departure is warranted rests with the sentencing court on a case- specific basis.” Guidelines § 5K2.0; accord Koon v. United States, 518 U.S. 81, 96-100 (1996) (holding that decisions to depart from the Guidelines are reviewable for abuse of discretion). The district court in this case properly exercised its discretion based on the specifics of petitioner’s offense, concluding that the Guidelines did not “adequately take into account aggravating circumstances of the offense conduct.” Pet. App. 45a. The court emphasized that (1) petitioner shared the same overarching goals as her co-conspirators and should therefore “be treated simi- that the government had failed to establish by “clear and convincing evidence” that petitioner’s offense was “calculated to retaliate against government conduct,” but itacknowledged that, “{p]erhaps” it could be shown that petitioner’s offense was so calculated “under a more likely than not standard.” Pet. App. 61a. Although the government did not challenge the applicability of the “clear and convincing evidence” standard in the Ninth Circuit, and the court therefore “assume[d], without deciding” that it applied, zd. at lla n.d, the Ninth Circuit’s application of a “clear and convincing” standard to certain determina- tions under the Guidelines is a minority position that is ineorrect. See, e.g., United States v. Villareal-Amarillas, No. 07-3616, 2009 WL 939125, at *3-*4 & nn.38-4 (8th Cir. Apr. 9, 2009). Under the correct, preponderance standard, the district court might well have applied the terrorism enhancement because “U.S. Forest Industries,” the target of the arson, “harvested timber from federal lands.” Pet. App. 61a. 13 larly” to them even though her conduct, unlike theirs, did not directly target the government, id. at 38a;° and (2) petitioner’s arson of the U.S. Forest Industries building sent such a “devastating” and “frightenling]” “message” to the community that special deterrence was “need[ed]” to ensure that similarly-situated offenders would not think they would receive a “pass” when de- stroying private (as opposed to government) property, id. at 6l1a-63a.° b. In any event, even had the district court erred in granting a Guidelines departure, any such error would ° Notably, although the district court treated petitioner “similarly” to the co-conspirators who directly targeted the government (Pet. App. 38a), it did not treat her as though she herself had directly targeted the government under Guidelines § 3A1.4. As noted (p.6, supra), the court did not enhance petitioner’s criminal history category from I (the category that applied given her lack of criminal history points) to VI] (the category that would have applied under the terrorism enhance- ment). If the court had done so, petitioner’s ultimate advisory impris- onment range—even accounting for the downward departures that she received—would have been 84 to 105 months, or more than twice the range to which she was actually subject. * Petitioner contends (Pet. 23-24) that the upward departure was erroneous under Guidelines § 5K2.0 because the aggravating circum- stances cited by the district cuurt failed to constitute circumstances “not adequately taken into consideration by the Sentencing Commis- sion.” That argument appears to rest on an inference from the Guidelines’ deletion of a previous policy statement authorizing departures if “the defendant committed the offense in furtherance of a terroristic action.” Guidelines § 5K2.15 (1989); see Pet. 24. But petitioner offers no persuasive reason to think either that the aggravat- ing circumstances identified by the district court were already factored into the Guidelines calculation, or that the Guidelines preeluded consideration of those circumstances. Indeed, in 2002, the Sentencing Commission amended the commentary to Guidelines § 3A1.4 to clarify that upward departures may be warranted for terrorism offenses targeting civilians. Guidelines § 3A1.4, comment. (n.4) (2002). 14 be subject to harmless-error review under Federal Rule of Criminal Procedure 52(a). Here, the district court’s extensive explanation of its sentencing decision indicates that the court would have imposed the same sentence on petitioner, regardless of the Guidelines departure provi- sions, in order to comply with its statutory obligation to “Impose a sentence sufficient, but not greater than nec- essary” under 18 U.S.C. 3558(a4). See Pet. App. 42a-43a, 47a-49a; see also zd. at 3la-32a. Petitioner does not con- tend that her 41-month sentence is unreasonable under Section 3553(a). Any error under the departure provi- sions of the Guidelines is therefore harmless. See Mohamed, 459 F.3d at 987.‘ 3. Petitioner also contends (Pet. 20-23) that this Court’s review is warranted to resolve whether and to what extent this Court’s decision in Williams v. United States, 503 U.S. 193 (1992), “remains valid after * * * Booker.” Pet. i; see Pet. 20-23. This Court held in Williams that when a sentencing court departs on both valid and invalid grounds, a re- mand is required unless the reviewing court determines that the sentence was reasonable and that the sentenc- ing court would have imposed the same sentence absent consideration of the invalid grounds. 503 U.S. at 199- 205. In so holding, the Court relied on 18 U.S.C. 3742(f)(1), which provides for a remand where “the court of appeals determines that * * * the sentence was * * * imposed as a result of an incorrect applica- ‘ Although petitioner argues (Pet. 27) that the district court’s sentencing of her co conspirators demonstrates that it would not have imposed a 41-month sentence on petitioner had it not deemed an upward departure to be appropriate under the Guidelines. the district court’s extensive discussion of the issue is to the contrary. See Pet. App. 36a-49a. 15 tion of the sentencing guidelines.” See Williams, 503 U.S. at 199-205. As petitioner points out (Pet. 20), the Court in interpreting Section 3742(f)(1) reasoned that “a sentencing court’s use of an invalid departure ground is an incorrect application of the Guidelines.” 503 U.S. at 200. Petitioner reads the latter statement to mean that Section 3742(f)(1), even after Booker, requires a court of appeals to evaluate a traditional Guidelines departure as a discrete step of its reasonableness review, rather than under a unitary standard focusing on Section 3553(a). Pet. 20-22. But petitioner did not make that argument in her opening brief on appeal (Pet. C.A. Br. 45-47), so neither the government (Gov't C.A. Br. 33-34) nor the court of appeals (Pet. App. 19a-20a, 29a-31a) had ocea- sion to address it.” And this Court’s “traditional” prac- tice ordinarily “precludes 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) (internal quotation marks and citation omitted). Petitioner suggests no basis for an exception to that principle. In any event, petitioner would not be entitled to re- lief under the rule in Williams because there was no error under the Guidelines. Remand is not required under Williams, moreover, if the reviewing court “con- cludes, on the record as a whole, that the error was harmless, 7.e., that the error did not affect the district court’s selection of the sentence imposed.” 503 U.S. at * Petitioner relied on Willrams for a non-unitary standard in her court of appeals reply brief (Pet. C.A. Reply Br. 2-3, 28), but the Ninth Circuit has long held that “arguments not raised by a party in its opening brief are deemed waived.” E.g., Smith v. Marsh, 194 F.3d 1045, 1052 (1999). 16 203. See pp. 12-14, supra. Because resolution of the Williams issue would have no effect on petitioner’s sen- tence, further review of that issue is not warranted in this case. CONCLUSION The petition for a writ of certiorari should b= denied. Respectfully submitted. ELENA KAGAN Solicitor General LANNY A. BREUER Assistant Attorney General STEPHAN E. OESTREICHER, JR. Attorney MAY 2009 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0248%3A2. Public record. Not legal advice.