Opposition Brief — Guerra v. United States

| Fiipreme Court Ue

FILED

SEP 17 1993

No. 93-14

See

In the Supreme Court of the Anited States

OCTOBER TERM, 1993

ELUID GONZALES GUERRA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

DREW S. DAYS, III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530

(202; 514-2217

eer

| | BEST AVAILABLE COPY)

QUESTIONS PRESENTED

1. Whether the enhancement of petitioner’s sentence

for his aggravating role in the offense, under Sentencing

Guidelines § 3B1.1(a), violated the Ex Post Facto Clause.

2. Whether the court of appeals used the correct stan-

dard of review in determining whether petitioner was en-

titled to a reduction in his offense level for acceptance of

responsibility under Sentencing Guidelines § 3E1.1

3. Whether the district court violated the Fifth

Amendment privilege against compelled self-incrimina-

tion in denying petitioner a reduction in his offense level

for acceptance of responsibility under Sentencing Guide-

lines § 3E1.1.

(I)

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ............

Cummings v. Missouri, 71 U.S. (4 Wail.) 277 (1866) ........

Gryger v. Burke, 334 U.S. 728 (1948) .o..cccccccccecccccesceceeeeee

United States v. Allen, 886 F.2d 143 (8th Cir. 1989) ........

United States v. Atkinson, 297 U.S. 157 (1986) ...............

United States v. Cooper, 912 F.2d 344 (9th Cir. 1990) .....

United States v. Cusack, 901 F.2d 29 (4th Cir. 1990) ......

United States v. Fells, 920 F.2d 1179 (4th Cir. 1990),

cert. denied, 111 S. Ct. 2831 (1991) ...........................

United States v. Franklin, 902 F.2d 501 (7th Cir.), cert.

Genied, 496 U.S. O06 (1990) ............0...ccccccsccocssessceccceess

United States v. Haddock, 956 F.2d 1534 (10th Cir.),

cert. denied, 113 S. Ct. 88 (1992) .......ccccccccccccccccccecses

United States v. Hibbert, 929 F.2d 434 (8th Cir. 1991) ....

United States v. Lillard, 929 F.2d 500 (9th Cir. 1991) .....

United States v. Lovasco, 431 U.S. 783 (1977) ccccocccccccceeee

United States v. Mir, 919 F.2d 940 (5th Cir. 1990) ..........

United States v. Mourning, 914 F.2d 699 (5th Cir.

Nee ee ee ccumunevencecoes

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

United States v. Olano, 113 S. Ct. 1770 (1998) ...ccccccccceeee.

United States v. Oliveras, 905 F.2d 623 (2d Cir. 1990) .....

(III)

IV

Cases—Continued: Page

United States v. Olvera, 954 F.2d 788 (2d Cir.), cert.

merase, BRE Ti Uh. GEE COO wvcsissssiseidientcsrcecemcnss 13

United States v. O’Neil, 936 F.2d 599 (1st Cir. 1991) ....... 13

United States v. Perdomo, 927 F.2d 111 (2d Cir. 1991) ... 9

United States v. Perez-Franco, 873 F.2d 455 (1st Cir.

COR | Kacusecachvcnapelss sauteed matdeeceatarisi toca dueaia Gdonasaees 11

United States v. Pettit, 903 F.2d 1336 (10th Cir.), cert.

GOTO, TO TBs Bie Cae wenscihecinekccetnantaindasecziviescciaiies 8-9

United States v. Reed, 951 F.2d 97 (6th Cir. 1991), cert.

Guam, TES BOC. Fee. ee Miike Seeeotieieiievs 13

United States v. Regan, 989 F.2d 44 (1st Cir. 1993) ......... 9, 10

United States v. Rodriguez, 925 F.2d 107 (5th Cir.

DAD i dewicdsialeseteiduanntctedalotuss tanledindcd dames nae ees 9

United States v. Sheffer, 896 F.2d 842 (4th Cir.), cert.

ae. SD RE: ee Ce ich cesar iiatinn 10

United States v. Terzado-Madruga, 897 F.2d 1099 (11th

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United States v. Villarino, 930 F.2d 1527 (11th Cir.

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United States v. Williams, 891 F.2d 921 (D.C. Cir.

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United States v. Ykema, 887 F.2d 697 (6th Cir. 1989),

cert. denied, 406 US, 1068 (1G00) c.ccciiccccscacccicscccinces. 9-10

Weaver v. Graham, 450 U.S. 24 (1981) ............ccceeceeeeeeeeees 7

Williams v. New York, 337 U.S. 241 (1949) ...................00. )

Constitution, statutes, rule, and Sentencing Guidelines:

U.S. Const.:

Art. I, § 9, Cl. 3 (Ex Post Facto Clause) ................. 6, 7, 8, 10

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Sentencing Guidelines—Continued: Page

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Jn the Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-14

KLUID GONZALES GUERRA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals, Pet. App. A3-A22,

is unpublished, but the judgment is noted at 990 F.2d 627

(Table).

JURISDICTION

The judgment of the court of appeals was entered on

March 31, 1993. The petition for a writ of certiorari was

filed on June 29, 1993. The jurisdiction of this Court is

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

(1)

STATEMENT

Petitioner entered a plea of guilty in the United

States District Court for the Southern District of

Texas to filing false income tax returns, in violation of

26 U.S.C. 7206(1) (Counts 10 and 11); re-entering the

United States as a deported alien, in violation of 8 U.S.C.

1326 (Count 12); conspiring to possess marijuana with

the intent to distribute it, in violation of 21 U.S.C. 846

(Count 1); distributing marijuana, in violation of 21

U.S.C. 841(a)(1) (Counts 2 and 4); and using a communi-

cations facility in the commission of a felony, in violation

of 21 U.S.C. 843(b) (Counts 7 and 8). Presentence Report

(PSI) 1. He was sentenced to 384 months’ imprisonment,

to be followed by a three-year period of supervised re-

lease. 4/24/92 Tr. 23. The court of appeals affirmed.

1. Between 1984 and 1987, petitioner, his brother

Efrain Gonzales Guerra, his sister-in-law Elma Flores

Guerra, and other persons operated a marijuana enter-

prise that distributed more than 1,000 kilograms of mari-

juana within the Southern District of Texas. Pet. App.

A4-A5. The ring’s primary supplier was Ernesto Garza-

Saenz, a Mexican national and the head of a drug-

smuggling family in Mexico. PSI 11-12.

During the execution of a search warrant at the resi-

dence of petitioner’s brother and sister-in-law, federal

agents seized two pounds of marijuana and six narcotics

notebooks. The notebooks contained detailed records of

the ring’s marijuana transactions. The records estab-

lished that between 1984 and 1987, petitioner and his co-

conspirators distributed quantities of marijuana valued

at more than $2 million. Of that amount, approximately

$1 million was directly attributable to petitioner. On

May 5, 1989, petitioner filed his income tax returns for

the years 1985 and 1986. On those returns, he did not re-

port any income from his drug transactions. Pet. App.

A4-A5; Gov’t C.A. Br. 5-6; PSI 3.

2. Because the drug conspiracy and the illegal use of a

communications facility occurred before November 1,

1987, petitioner received non-Guidelines sentences for

those offenses.' He was sentenced under the Sentencing

Guidelines on his convictions for filing false income tax

returns and for re-entering the United States as a de-

ported alien.

The PSI recommended that petitioner receive a four-

level enhancement in his offense level pursuant to Sen-

tencing Guidelines § 3B1.1(a), based on evidence that pe-

titioner was the leader of the marijuana distribution

network. PSI 16. The PSI recommended against award-

ing petitioner a two-level reduction for acceptance of re-

sponsibility pursuant to Sentencing Guidelines § 3K1.1,

on the ground that petitioner “has not clearly demon-

strated a recognition and affirmative acceptance of per-

sonal responsibility for his criminal conduct.” PSI 17.

The PSI explained, PSI 14-15:

During [petitioner’s] interview for this case he did

not accept responsibility for his criminal conduct.

He was evasive and did not want to provide any

information regarding his culpability. He stated that

he could not add any details to those already

! In particular, petitioner was sentenced to 180 months’ impris-

onment on the marijuana conspiracy count, 60 months’ imprison-

ment on the two distribution counts, and 48 months’ imprisonment

on the two communications facility counts, for a total of 288

months’ imprisonment on the pre-Guidelines convictions. 4/24/92

Tr. 22-28. He was sentenced to 72 months’ imprisonment on the

two tax evasion counts, and to 24 months’ imprisonment for the

illegal reentry count, for a total of 96 months’ imprisonment on the

Guidelines convictions. The Guidelines sentences are to run

consecutively to the pre-Guidelines sentences, for a total sentence

of 384 months’ imprisonment.

contained in the Government’s report. He related

that any attempt on his part to explain his version of

the case would be useless since he had already pled

guilty. In his opinion, any attempt to mitigate or

clarify his role in the offense would be futile in view

of the Government’s vast resources already allocated

to obtain his conviction. He constantly commented

‘if you want to know what I did, just look at the

report, it’s all there.” Additionally, he maintained

that his income was earned from legitimate sources

such as the sale of tractor trailers and some farm

equipment which he said he reported on his taxes.

He also declared that he was not part of any

marijuana conspiracy even though he did admit to his

conviction for marijuana distribution in 1974. He

adamantly denied being involved in the double

homicide as alleged in some of the information found

in the investigative material.[? |

Adopting the findings of the PSI, the district court

imposed a four-level increase pursuant to Sentencing

Guidelines § 3B1.1(a) based on the finding in the PSI that

petitioner was a leader or organizer of the marijuana

conspiracy. 4/24/92 Tr. 18. The court declined to award

petitioner a two-level reduction in offense level for accep-

tance of responsibility pursuant to Sentencing Guide-

lines § 8Eh.1.1. The court explained, 4/24/92 Tr. 19:

The acceptance of responsibility, it’s very clear to me

from the P.S.1. that [petitioner] simply refused to

talk about what he had done, and his references to the

* DEA agents interviewed Garza-Saenz while he was impris-

oned in Mexico. Garza-Saenz confirmed previous intelligence that

petitioner owed him $1.5 million from consigned drug. sales.

Garza-Saenz also told the agents that petitioner shot and killed

Garza-Saenz’s brother and a cousin while attempting to resolve the

issue of the outstanding debt. Gov't C.A. Br. 6-7; PSI 12-13.

records simply were his refusal to discuss with the

probation officer his activities, which is part of com-

ing up with the two point reduction for acceptance of

responsibility. So I have no question in my mind he’s

not accepting responsibility as that term is used in

the Guidelines.

For those reasons I will adopt the Findings of Fact of

the presentence report as my own Findings of Fact,

and I also adopt the application of those facts to the

Guidelines as found in the presentence report.

3. The court of appeals affirmed. Pet. App. A5-A2z2. It

upheld the role-in-the-offense enhancement under Sen-

tencing Guidelines § 3B1.1(a), rejecting petitioner’s ar-

gument that an increase could not rest on his leadership

role in the marijuana trafficking transactions. The

court held that petitioner’s base offense level was prop-

erly based on all relevant conduct, not merely on acts

that were cited in the counts of conviction. The court

found that petitioner’s gross receipts from his drug

transactions constituted the unreported income that was

the basis for his tax offenses. Based on that determina-

tion, the court ruled that petitioner’s role in the mari-

juana conspiracy constituted “relevant conduct” for his

income tax offenses under Sentencing Guidelines

§ 1B1.8, and that the district court therefore properly

considered that conduct in determining petitioner’s sen-

tence. Pet. App. A7-A10.

The court also rejected petitioner’s claim that the dis-

trict court erred in not granting him a reduction in his

offense level pursuant to Sentencing Guidelines § 31.1

for acceptance of responsibility. The court noted that

the district court’s findings on the matter were entitled

to greater deference on review than is conferred by the

clearly erroneous standard, and that the district court’s

conclusion would stand unless it was “without founda-

6

tion.” Pet. App. A138. Applying that standard, the court

found that the district court had not erred in denying pe-

titioner an acceptance-of-responsibility reduction. The

court explained:

The record shows that [petitioner] denied

involvement in any marijuana conspiracy, denied

participating in a double homicide which occurred in

Mexico and claimed his income was earned from

legitimate sources. [Petitioner] also denied he had a

leadership role in the conspiracy. Furthermore,

petitioner] was evasive and refused to cooperate with

probation officials following the entry of his guilty

plea.

Pet. App. A14-A15 (footnote and citations omitted).”

ARGUMENT

1. Petitioner claims that the Ex Post Facto Clause

prohibited the district court from increasing his offense

level for being a leader or organizer of the marijuana

conspiracy, under Sentencing Guidelines § 3B1.1(a),

since the conspiracy terminated prior to the date the

Sentencing Guidelines went into effect. Pet. 7-16. As an

initial matter, petitioner did not raise that issue in ei-

ther the district court or the court of appeals, and thus

he may not raise it here for the first time. United States

v. Lovasco, 431 U.S. 783, 788 n.7 (1977); Adickes v. S.H.

Kress & Co., 398 U.S. 144, 147 n.2 (1970).* Moreover, the

% The court of appeals also rejected petitioner’s claim that, in

setting his offense level, the district court had improperly calcu-

lated the amount of gross income he had failed to report, as well as

a challenge to the competency of petitioner’s counsel. Pet. App.

A16-A21.

4 Furthermore, because petitioner did not lodge an ex post

facto objection at sentencing to the district court’s consideration of

his leadership role in the marijuana conspiracy, he could not obtain

relief unless the district court committed “plain error” under Fed.

i aieesaemeanaetiiinaeaiat enn

7

issue is of diminishing importance, because there are few

remaining instances in which the courts will have ocea-

sion to consider pre-Guidelines activities as relevant

conduct for sentencing purposes, and because there will

be even fewer such cases as time passes.

“The ex post facto prohibition forbids the Congress

and the States to enact any law ‘which imposes a pun-

ishment for an act which was not punishable at the time

it was committed; or imposes additional punishment to

that then prescribed.’” Weaver v. Graham, 450 U.S. 24,

28 (1981) (footnote omitted) (quoting Camm ings v. Mis-

souri, 71 U.S. (4 Wall.) 277, 325-326 (1866)). To establish

a violation of the Ex Post Facto Clause, this Court has

made clear that “the law must be retrospective, that is, it

must apply to events occurring before its enactment,”

and the law “must disadvantage the offender affected by

it.” Miller v. Florida, 482 U.S. 423, 430 (1987) (quoting

Weaver, 450 U.S. at 29). “A law is retrospective if it

‘changes the legal consequences of acts completed before

its effective date.’” Miller, 482 U.S. at 430 (quoting

Weaver, 450 U.S. at 31).

Petitioner pleaded guilty to a tax offense that he com-

mitted after the effective date of the Sentencing Guide-

lines. Because the actual crime for which petitioner was

being sentenced occurred after the effective date of the

Sentencing Guidelines, application of Sentencing Guide-

lines § 3B1.1(a) to that count did not violate the Ex Post

Facto Clause.

R. Crim. P. 52(b). Petitioner could not satisfy the rigorous stan-

dard of Rule 52(b), however, because he could not show that the

district court’s ruling was clearly or obviously wrong, or that it

“seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Olano, 113 S. Ct. 1770, 1776

(1993) (quoting United States v. Atkinson, 297 U.S. 157, 160

(1936)).

ra!

Nor was the Ex Post Facto Clause violated because

the district court calculated petitioner’s base offense

level in part by considering activities that petitioner

committed before the effective date of the Sentencing

Guidelines. Sentencing Guidelines § 3B1.1(a) provides for

a four-levei enhancement in the defendant’s offense level

“lilf the defendant was an organizer or leader of a crimi-

nal activity that involved five or more participants or

was otherwise extensive.” Petitioner’s sentence on the

tax count was enhanced under that Section based on evi-

dence in the presentence report that petitioner was the

ieader of an extensive marijuana distribution network

through which he netted the approximately $1 million

that he failed to report as income. That enhancement

was in accordance with Fifth Circuit law at the time pe-

titioner committed the tax offense, which directed that

“the section 8B1.1(a) adjustment must be anchored to the

transaction leading to the conviction.” United States v.

Mir, 919 F.2d 940, 944 (1990). Thus, the “transaction”

was not seen as limited to the “minimal elements

necessary for conviction,” but instead was defined by the

“contours of the underiying scheme itself.” Jd. at 945.

Accordingly, “[a]ll participation firmly based in that

underlying transaction [was] ripe for consideration.”

Ibid. A November 1, 1990, amendment to the in-

troductory commentary to Sentencing Guidelines

§ 3B1.1 confirmed that interpretation by making clear

that “[t]he determination of the defendant’s role in the

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

within the scope of § 1B1.3 (Relevant Conduct), * * *

and not solely on the basis of elements and acts cited in

the count of conviction.”

®* The courts of appeals initially were divided over whether the

sentencing court could consider only the offense of conviction, see

United States v. Pettit, 903 F.2d 1336, 1340-1341 (10th Cir.), cert.

SS

3

Thus, under the Sentencing Guidelines, petitioner was

punished only for-his offense of conviction. His status as

a leader of the marijuana conspiracy, which was consid-

ered under Sentencing Guidelines § 3B1.1(a) as relevant

conduct, was simply one factor bearing on the appropri-

ate punishment for his offense of conviction. See, e.g.,

United States v. Haddock, 956 F.2d 1534, 1554 (10th Cir.),

cert. denied, 113 S. Ct. 88 (1992); United States v. Ykema,

887 F.2d 697, 770 (6th Cir. 1989), cert. denied, 493 U.S.

1062 (1990). The practice of considering a defendant’s

other offenses when sentencing him for the offense of

conviction is a longstanding feature of sentencing law,

see, e.g., Williams v. New York, 337 U.S. 241 (1949), and

the adoption of that principle under the Sentencing

Guidelines simply codifies prior law. As the Sixth Cir-

cuit explained in United States v. Ykema, “[o|mitting all

reference in sentencing to information that occurred be-

fore the effective date of the guidelines would cripple the

use of the guidelines to bring conformity to punishment

for like criminal conduct.” 887 F.2d at 700.

As applied to petitioner, the enhancement provision of

Sentencing Guidelines § 3B1.1(a) serves a function simi-

lar to that of an habitual criminal statute. United States

v. Regan, 989 F.2d 44, 48 (1st Cir. 1993); United States v.

denied, 498 U.S. 873 (1990); United States v. Willia ms, 891 F.2d

921, 925 (D.C. Cir. 1989), or whether the court also could consider

conduct that is part of the same course of conduct or common

scheme or plan, see United States v. Fells, 920 F.2d 1179 (4th Cir.

1990), cert. denied, 111 S. Ct. 283] (1991); United States v. Mir,

919 F.2d at 945. Since that amendment was adopted, the courts of

appeals have agreed that sentencing courts must use the relevant

conduct Guideline, Sentencing Guidelines § 1B1.3, in assessing the

defendant’s role in the offense under Part B of Chapter 3 of the

Guidelines. See, e.g., United States v. Lillard, 929 F.2d 500 (9th

Cir. 1991); United States v. Perdomo, 927 F.2d 111 (2d Cir. 1991):

United States v. Rodriguez, 925 F.2d 107 (5th Cir. 1991); United

States v. Murillo, 933 F.2d 195, 200 (3d Cir. 1991).

10

Ykema, 887 F.2d at 700; United States v. Allen, 886 F.2d

at 146. In Gryger v. Burke, 334 U.S. 728 (1948), this

Court held that an habitual criminal statute could be ap-

plied to a defendant without violating the Ex Post Facto

Clause even though the defendant had committed one of

his prior offenses before the recidivist statute became

law. This Court explained that “[t]he sentence as a

fourth offender or habitual criminal is not to be viewed as

either a new jeopardy or additional penalty for the

earlier crimes. It is a stiffened penalty for the latest

crime, which is considered to be an aggravated offense

because a repetitive one.” 334 U.S. at 732. The Court’s

reasoning in Gryger is equally applicable to this case.”

2. Petitioner argues that the standard applied by the

court of appeals for reviewing the district court’s accep-

tance of responsibility determination is at odds with the

“clearly erroneous” standard of review applied by other

circuits. Pet. 16-19. The court of appeals held that the

district court’s determination as to the defendant’s enti-

tlement to an acceptance of responsibility reduction will

be upheld unless the defendant shows it to be “without

foundation.” Pet. App. A138. The standard applied by the

court in this case is consistent with the Sentencing

Guidelines admonition that because “|[t]he sentencing

judge is in a unique position to evaluate a defendant’s ac-

® The circuits that have addressed the question have uniformly

held that a sentencing court does not violate the Ex Post Facto

Clause by considering offenses committed by a defendant before

the Sentencing Guidelines went into effect when calculating a de-

fendant’s sentence under the Guidelines. See United States v. Re-

gan, 989 F.2d at 48; United States v. Haddock, 956 F.2d at 1553;

United States v. Cusack, 901 F.2d 29, 32 (4th Cir. 1990); United

States v. Terzado-Madruga, 897 F.2d 1099, 1124 (Lith Cir. 1990);

United States v. Sheffer, 896 F.2d 842, 844-845 (4th Cir.), cert. de-

nied, 498 U.S. 838 (1990); United States v. Ykema, 887 F.2d at 700;

United States vy. Allen, 886 F.2d 143, 145-146 (8th Cir. 1989).

1]

ceptance of responsibility” its determination in this re-

gard is “entitled to great deference on review.” Sentenc-

ing Guidelines § 3E1.1, Application Note 5. Any differ-

ence between the “clearly erroneous” test and the

“without foundation” standard applied by the court below

is unlikely to result in a difference in outcome in many

cases, if it affects any at all. Certainly the outcome of

this case would not be affected by a difference in the lan-

guage used to describe the standard of review, as the dis-

trict court’s ruling on the acceptance-of-responsibility

issue was firmly based in the record.

3. Petitioner maintains that the application of Sen-

tencing Guidelines § 3E1.1 in this case violated his Fifth

Amendment privilege against compulsory self-incrimi-

nation by punishing him for refusing to discuss any cir-

cumstances not related to his offenses of conviction.

Pet. 20-25. On appeal, petitioner argued that he was en-

titled to an acceptance-of-responsibility reduction under

Section 3E1.1 because he had pleaded guilty to all counts

against him. He did not claim, however, that the district

court’s failure to award him a reduction violated his

Fifth Amendment self-incrimination privilege. Thus, he

cannot raise that claim now. United States v. Lovasco,

431 U.S. at 788 n.7. In any event, petitioner’s claim does

not warrant further review.

Petitioner is correct that at one time there was some

disagreement among the courts of appeals with respect

to whether Sentencing Guidelines § 3E1.1, in requiring a

defendant to accept responsibility for conduct other than

what underlies the offense of conviction, implicates the

Fifth Amendment. Compare, e.g., United States v.

Mourning, 914 F.2d 699 (5th Cir. 1990), with United

States v. Oliveras, 905 F.2d 623, 626-628 (2d Cir. 1990),

and United States v. Perez-Franco, 873 F.2d 455, 463 (1st

Cir. 1989). The Sentencing Commission, however, has

now resolved that disagreement. An amendment to the

12

Sentencing Guidelines that became effective on Novem-

ber 1, 1992, changes the language in Sentencing Guide-

. lines § 3E1.1 to require a defendant to accept responsibil-

ity for “his offense.” Application Note l(a) to Section

31.1 also indicates that that Guideline requires a show-

ing of contrition only with respect to the offense of con-

viction. The disagreement cited by petitioner thus is

only a matter of historical interest; it is of no continuing

practical importance.

Nor did it implicate the Fifth Amendment for the dis-

trict court to deny petitioner an acceptance-of-responsi-

bility reduction for refusing to answer questions about

conduct unrelated to the specific offenses to which he

pleaded guilty. Other conduct on petitioner’s part amply

supports the district court’s conclusion that petitioner

did not show genuine remorse for his crime, and that he

was accordingly not entitled to an acceptance-of-respon-

sibility reduction in his offense level. :

Petitioner was evasive and refused to cooperate with

probation officials after entry of his guilty plea, declin-

ing to provide any information regarding his culpability.

He stated that he could not add any details to those al-

ready found in the government’s report, claiming that

any attempt on his part to explain his version of the case

would be useless since he had already pleaded guilty.

What is more, he maintained that his income was earned

from legitimate sources, such as the sale of tractor

trailers and farm equipment, which he said he reported

on his taxes. Pet. App. A14-A15; PSI 14. Petitioner’s re-

fusal to answer questions that were directly related to

his offenses of conviction justified the district court in

finding that petitioner had failed to carry his burden of

demonstrating an affirmative acceptance of responsi-

bility.

For that reason, the district court’s refusal to reduce

petitioner’s offense level under Section 3E1.1 rested on

eS Y

13

several factors apart from petitioner’s refusal to discuss

his participation in the marijuana conspiracy and the

double homicide. A sentencing court’s reliance on con-

duct that is inconsistent with the acceptance of respon-

sibility has been uniformly upheld. See, e.g., United

States v. Olvera, 954 F.2d 788, 793 (2d Cir.), cert. denied,

112 S. Ct. 3011 (1992); United States v. Reed, 951 F.2d 97,

99-100 (6th Cir. 1991), cert. denied, 112 S. Ct. 1700 (1992);

United States vy. O'Neil, 936 F.2d 599, 600-601 (1st Cir.

1991); United States v. Villarino, 930 F.2d 1527, 1529-

1530 (11th Cir. 1991); United States v. Hibbert, 929 F.2d

434, 435 (8th Cir. 1991); United States v. Cooper, 912 F.2d

5344, 346-348 (9th Cir. 1990); United States v. Franklin,

902 F.2d 501, 506 (7th Cir.), cert. denied, 498 U.S. 906

(1990).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREWS. Days III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

DEBORAH WATSON

Attorney

SEPTEMBER 1993