# Opposition Brief — Guerra v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 913

## Text

| 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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1092%3A3. Public record. Not legal advice.