Opposition Brief — Oliver v. United States

No. 93-148 } i

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Jn the Supreme Court of the Cinited States

OCTOBER TERM, 1995

CRAIG WINES OLIVER, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, ITI

Nolicitor (se hié ral

JOANN HARRIS

Assista j Alt

Ornveuyd AY pi¢ ral

MICHAEL EF. O'NEILI

Attorney

Department f Just

Or. Ce

Washington, tk ty

tA | 15.20

202) 514-2217

QUESTIONS PRESENTED

1. Whether the district court erred in sentencing

petitioner on the basis of the number of marijuana plants

involved in his offense rather than the weight of the con-

sumable marijuana those plants might have produced.

2. Whether the court of appeals properly determined

that the government did not violate its plea agreement

with petitioner.

(1)

‘ition macs aii

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Braxton v. United States, 111 S. Ct. 1854 (1991) 0.000... 12

Paradiso v. United States, 689 F.2d 28 (2d Cir. 1982),

| cert. denied, 459 U.S. 1116 (1988) .......:sssseesessesseeseesessee 13

United States v. Badaracco, 954 F.2d 928 (3d Cir.

| Nes ossthsoususnsnnisoveenasovsones 13

United States v. Blume, 967 F.2d 45 (2d Cir. 1992) ....... 11, 12

United States v. Bradley, 905 F.2d 359 (11th Cir.

| ss Asssidvodsninauenvesvesvenvene 11

: United States v. Canada, 960 F.2d 263 (1st Cir. 1992) .. 13

United States v. Corley, 909 F.2d 359 (9th Cir. 1990) .... 10

United States v. Curry, 977 F.2d 1042 (7th Cir. 1992),

cere, Gemiee, Bia ©. CE. 1807 (19GB) ........crccccccccscccsescrsess )

United States v. DeLeon:

955 F.2d 1346, withdrawn, 979 F.2d 761 (9th Cir.

Teen acs sa seubassensescibbscssnsscenes 11

979 F.2d 761 (9th Cir. 1992) .....c.cccecscecesseeeseseeseeseeeeee. 11

United States v. Eves, 9382 F.2d 856 (10th Cir.), cert.

) Ee SE ) i)

| United States v. Goldfaden, 959 F.2d 1824 (5th Cir.

Neen ead ccveslenivsnenssancisansasonssos 13

United States v. Hayes, 946 F.2d 230 (3d Cir. 1991) ...... 14

United States v. Haynes, 969 F.2d 569 (7th Cir. 1992) .. 9

United States v. Holmes, 961 F.2d 599 (6th Cir.), cert.

I SE CUED sass cacscnssnscvnseacecssssoscenssosesess 8

! (III)

IV

Cases—Continued: Page

United States v. Osburn, 955 F.2d 1500 (11th Cir.),

certs. denied, 113 S. Ct. 223 and 113 S. Ct. 290 (1992) .... 8-9, 11

United States v. Pryor, 957 F.2d 478 (7th Cir. 1992) ..... 13

United States v. Valencia, 985 F.2d 758 (5th Cir.

BED esecinssdcascebachunacsssisaencacedatecnmeavaalenaer anions ileueloutnices 13

United States v. Webb, 945 F.2d 967 (7th Cir. 1991),

curt. demted, 292 &. Cb, TE CHOICE wvsevseiscsccccccccsssscsexerss 8)

Statutes and rules:

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eh Meat ts MUNCIE as canccavdusthenenalissigesceschixuosataesnsegtinsercteewaasha 11

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Be ER, Cree ee WOOD sn siccexcntavacocnuseceaeccatenstnasnunssns 7

Bee AF ic: ND hk adieniucrel acaba keane trae 12

Sentencing Guidelines:

Per bie ends tase vacsnciewnienanbete sa alaacnacbhdenactoniausedensetairas 7, 9, 12

§ZD1L.1, Application Note 10. .0......cccarccvessssesessesonssness 8

DAP RUE) -<ctatdvnascccsedaehansenerensmesundeenacediaussauete tence 5,

DRT EAMUOD TAs” ccaceanctt biconshentidceaserssbesstiiusiandiuaaaecaameeans 5

DMR EE earned sacsackinclanciandsanacegecsmcamaresadecasncucandenininss 5, 14, 16

i irk OF aes vis accceervceverceravecsvestsccininctadsccacpeesnaeieicasouns 16

In the Supreme Court of the Giuted States

OCTOBER TERM, 1993

No. 93-148

CRAIG WINES OLIVER, PETITIONER

UP

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 3a-

10a) is unpublished, but the judgment is noted at 989

F.2d 501 (Table).

JURISDICTION

The judgment of the court of appeals was entered on

March 10, 1993. A petition for rehearing was denied

on April 21, 1993. Pet. App. la-2a. The petition for a

writ of certiorari was filed on July 20, 1993. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

After pleading guilty in the United States District

Court for the Western District of Michigan to manu-

facturing marijuana, in violation of 21 U.S.C. 841,

petitioner was sentenced to 150 months’ imprison-

ment, to be followed by five years’ supervised release,

and was ordered to pay a $30,000 fine. The court of

appeals affirmed.

1. On September 18, 1990, narcotics officers ob-

tained and executed a search warrant for petitioner’s

garage. Pet. App. 4a. During that search, the agents

discovered 509 bundled marijuana plants hanging from

the garage’s rafters. Petitioner was subsequently

arrested and charged in a two-count indictment with

manufacturing marijuana from April 1, 1989, through

September 18, 1990, and conspiring to distribute

marijuana. bid.

Petitioner pleaded guilty to one count of manufac-

turing marijuana. Pet. App. 4a. In the written plea

agreement, the government and petitioner entered

into three stipulations. First, they agreed that the

marijuana seized from petitioner’s garage “repre-

sented the product of at least 100 marijuana plants

but in no case more [than] 509 marijuana plants.”

C.A. App. 97. In qualifying that stipulation, petitioner

reserved “the right to present evidence and argu-

ment” that there were fewer than 509 plants in his

garage and that “the total number of plants to be

considered by the court under [petitioner’s] relevant

conduct [was] less than 700 plants.” Ibid. The gov-

ernment reserved the right “to present argument and

evidence as to these issues.” /bid. The parties also

agreed that “the readily provable relevant conduct of

3

[petitioner did] not exceed 700 plants for this offense,

inclusive of the 509 plants discussed above.” Ibid.

Second, the parties stipulated that the government

would recommend a two-level reduction for accep-

tance of responsibility if petitioner refrained from

additional criminal activity and fully cooperated with

the probation officer in preparing the presentence

report. C.A. App. 97-98. Finally, the parties stipu-

lated that, based upon the known evidence, petitioner

“was not an organizer or leader of a criminal activity

that involved five or more participants or was

otherwise extensive as discussed in [Sentencing

Guidelines] § 3B1.1(a).” Jd. at 98. Each party once

again reserved “the right to present evidence and/or

argument as to [petitioner’s] leadership role or lack

thereof * * * other [than] as indicated in § 3B1.1(a).”

Ibid.

Additionally, petitioner acknowledged that he was

subject to sentencing under the Sentencing Guide-

lines and that the government would fully apprise the

district court and probation office of “the nature,

scope and extent of [petitioner’s] conduct regarding

the charges against him, including matters of aggra-

vation and mitigation relevant to the issue of

sentencing.” C.A. App. 96, 98-99. Both parties also

acknowledged explicitly that the plea agreement was

“advisory” only and was not binding on the district

court. Jd. at 99.

2. Petitioner entered his guilty plea on February

12, 1992. Because the plea agreement did not specify

the number of marijuana plants that petitioner had

possessed, the district court held an evidentiary

hearing to determine that number for sentencing

purposes.

4

At that hearing, two state police officers described

finding the marijuana plants hanging from the rafters

of petitioner’s garage and discussed the overall

physical condition of the plants. See Evid. Hrg. Tr. 5-

83. The detective who had counted the bundled plants

testified that he had counted 509 plants. Jd. at 76.

Two of petitioner’s associates also testified at the

hearing, describing the marijuana growing and har-

vesting process. /d. at 85-167. One associate es-

timated that petitioner’s 1989 marijuana crop (7.e., the

harvest prior to the one found hanging in petitioner’s

garage) had included between “800 and 1,200 plants,”

which would yield a total of between 30 and 40 pounds

of salable marijuana.’ Jd. at 93, 103-104. The other,

although unable to give an estimate of the number of

plants grown in 1989, testified that on the basis of the

portion of the crop that he saw, the usable marijuana

yield would have been “[a]pproximately ten pounds.”

Id. at 163. Petitioner presented the affidavit of an

expert witness who viewed videotaped and still

photographs of the marijuana seized from petitioner

and concluded that at least some of the bundles

contained only branches, rather than full plants. C.A.

App. 103-104.

At the close of the evidentiary hearing the district

court found that the seized 1990 harvest contained “at

least 400 plants as plants are defined, that is, a

rootball [with a] plant connected.” Exc. Evid. Hrg.

(Ruling) Tr. 5. The court concluded further that in

the absence of evidence to contradict the testimony of

1 At the grand jury hearing, the witness had estimated the

1989 crop to include between 600 and 1000 marijuana plants.

Gov’t C.A. Br. 11 n.8.

5

petitioner’s associates, the government had estab-

lished that there had been 400 to 700 more marijuana

plants in the 1989 harvest. Jd. at 6.

3. The presentence report calculated petitioner’s

base offense level to be 32, based upon 1000 or more

marijuana plants involved in petitioner’s relevant

conduct. Sentencing Guidelines § 2D1.1(c) & n.*. The

report recommended a four-level enhancement for

petitioner’s role in the offense under Guidelines

§ 3B1.1(a), and denied petitioner credit for acceptance

of responsibility on the ground that petitioner had

manifested no contrition and had not cooperated in the

preparation of the report, yielding a total offense level

of 36. C.A. App. 23-26. After calculating petitioner’s

criminal history category to be II, the probation

officer concluded that the Guidelines sentencing

range should be 210 to 262 months’ imprisonment. /d.

at 28.

Petitioner filed a sentencing memorandum chal-

lenging the presentence report’s recommendations.

He argued that the number of plants should be below

500, that the upward adjustment pursuant to Section

3B1.1(a) was unjustified, and that his criminal history

category should have been I. The government also

filed a sentencing memorandum, recommending that

the relevant number of plants for sentencing purposes

should be “between seven hundred and one thousand.”

C.A. App. 336. Noting that “the number of individuals

involved was not as clear at the time of the plea

agreement as it was after the Evidentiary Hearing,”

the prosecutor urged a four-level enhancement under

Guidelines § 3B1.1(a). C.A. App. 340. The prosecutor

also refused to support petitioner’s request for a

downward departure based upon acceptance of

6

responsibility, because petitioner had not cooperated

fully in the preparation of the presentence report. /d.

at 340-341. The government did, however, concur in

petitioner’s contention that he fell within Criminal

History Category I. /d. at 341-843.

At sentencing, the district court concluded that the

proper quantity of marijuana for sentencing purposes

was between 700 and 1000 plants. The court also made

a two-level upward adjustment in petitioner’s offense

level based on petitioner’s role in the offense, denied

petitioner’s motion for acceptance of responsibility,

and granted petitioner’s objection to his proposed

criminal history category of II. The court’s rulings

resulted in an adjusted offense level of 32, a criminal

history category of I, and a Guidelines sentencing

range of 121-151 months. Pet. App. 5a n.1. The court

sentenced petitioner to 150 months’ incarceration.

4. The court of appeals affirmed petitioner’s con-

viction and sentence. Pet. App. 3a-8a. The court re-

jected (id. at 5a-Ga) petitioner’s claim that the gov-

ernment violated the plea agreement by presenting

witnesses who testified that the total numker of

marijuana plants exceeded 1000. The court noted that

the government had reserved in the agreement “the

right to present argument and evidence proving that

the total number of plants exceeded 700.” Moreover,

observing that the government had indicated in the

plea agreement that it would “apprise the district

court of ‘the nature, scope and extent of [petitioner’s]

conduct’ ” and that petitioner had “assented to this

provision,” the court concluded that petitioner could

not later “complain that the government’s fulfillment

of thlat] pledge violated the plea agreement.” /d.

at 6a.

7

The court recounted testimony from the govern-

ment’s witnesses and concluded that “[t]he district

court evaluated the evidence and ruled conservatively

in determining that [petitioner] had grown between

700 and 1000 marijuana plants during 1989 and 1990.”

Pet. App. 7a. Deferring to that factual conclusion, the

court declined to consider petitioner’s contention that

the district court should not have calculated his

sentence on a per-plant basis. /bid. The court also

found no error in the district court’s refusal to grant

petitioner a two-level reduction in his offense level for

acceptance of responsibility (/bid.), held that the

district court did not impermissibly double count the

same criminal conduct (id. at 8a), and ruled that

petitioner had failed to demonstrate that he was

unable to pay the fine imposed by the district court

(ibid.).

ARGUMENT

1. Petitioner contends (Pet. 9-21) that he was

improperly sentenced on the basis of the number of

marijuana plants involved in his offense, rather than

the dry weight of the usable marijuana produced by

those plants. Petitioner argues (see Pet. 9-10) that

the courts of appeals are in conflict on this issue both

under the controlled.substance sentencing statute (21

U.S.C. 841(b)(1)(A)(vii), 841(b)(1)(B)(vii)) and under

Section 2D1.1 of the Sentencing Guidelines. If the

district court correctly applied the Sentencing Guide-

lines, however, the minimum sentence under the

applicable Guidelines range (see Pet. App. 5a & n.1)

was greater than the 10-year mandatory minimum

sentence prescribed by 21 U.S.C. 841(b)(1)(B)(vii), and 7

the proper interpretation of the statutory provisions

8

is irrelevant to petitioner’s case. The primary issue

presented therefore involves only interpretation of

Guidelines § 2D1.1(c), which provides that in the case

of an offense involving 50 or more marijuana plants,

the base offense level is to be calculated by treating

each plant as equivalent to one kilogram of con-

sumable marijuana.” Guidelines § 2D1.1(c) n.*.

The court of appeals declined to address that issue,

Pet. App. 7a, and held only that the district court’s

factual determination of the number of plants involved

in petitioner’s conduct over the two years in question

was not clearly erroneous. Even if that decision is

viewed as an implicit rejection of petitioner’s theory

that his marijuana, having already been harvested,

should have been evaluated only by weight, the court’s

judgment was correct on the facts of this case.

As several courts have noted, the establishment of

per-plant sentencing equivalencies for cases involv-

ing plants rather than fully processed marijuana

avoids disputes over the weight of consumable product

that would be produced from unprocessed plants, and

reflects a judgment that the large-scale cultivation

and processing of marijuana is a more serious offense

than distribution or possession of the processed drug.

See, e.g., United States v. Holmes, 961 F.2d 599, 601-

602 (6th Cir.), cert. denied, 113 S. Ct. 232 (1992);

United States v. Osburn, 955 F.2d 1500, 1506-1509

(11th Cir.), certs. denied, 113 S. Ct. 223 and 113 S. Ct.

* The Guidelines derived their treatment of marijuana

plants in cases involving more than 50 plants from the statu-

tory provisions in 21 U.S.C. 841(b)(1). See Guidelines § 2D1.1,

Application Note 10; Background. The sentence in this case

resulted from application of the Guidelines, however, and it is

their interpretation that is directly at issue.

9

290 (1992); United States v. Webb, 945 F.2d 967, 968-

969 (7th Cir. 1991), cert. denied, 112 S. Ct. 1228 (1992);

United States v. Eves, 932 F.2d 856, 859 (10th Cir.),

cert. denied, 112 S. Ct. 236 (1991). On both rationales,

it was appropriate for the district court to sentence

petitioner based on the number of plants he produced.

First, although the marijuana plants in this case

were no longer in the ground, they still retained the

shape and structure of plants: the branches had

generally not been removed from the stems (although

the evidence was disputed on this point), and in any

event individual leaves had not been removed from the

branches. See, e.g., Evid. Hrg. Tr. 70-71; C.A. App.

101-104. The plants had not been processed into easily

quantifiable amounts of consumable marijuana. Sec-

ond, petitioner pleaded guilty to manufacture of

marijuana, not to possession or distribution; although

he was charged with conspiracy to distribute the

drug, that charge was dismissed as part of the plea

agreement. See Pet. App. 4a; Sent. Tr. 24. In the

context of sentencing for a cultivation offense, it was

appropriate for the court to determine the Guidelines

sentencing range based on the per-plant provisions of

Section 2D1.1. See United States v. Haynes, 969 F.2d

569, 572 (7th Cir. 1992) (distinguishing cultivation and

harvesting from post-processing activities); United

States v. Curry, 977 F.2d 1042, 1060 n.18 (7th Cir.

1992), cert. denied, 113 S. Ct. 13857 (1993).

Contrary to petitioner’s contentions (see Pet. 19-

20), the district court’s decision to evaluate the

marijuana seized from petitioner on a per-plant basis

does not conflict with decisions of other courts of

appeals. To begin with, the cases petitioner cites

(Pet. 11) on the question of when a new seedling or

10

cutting becomes a “plant” for sentencing purposes

are largely irrelevant to this case. That courts may

look to the development of root structure to deter-

mine when a seedling has become mature enough to be

considered a “plant” sheds little light on the very

different question, presented here, of whether fully

grown plants must be treated differently under the

Guidelines simply because they are discovered and

seized shortly after rather than shortly before being

harvested.

The cases petitioner cites that do address that

issue (see Pet. 11-14) do not establish a conflict in the

circuits. United States v. Corley, 909 F.2d 359, 360-

361 (9th Cir. 1990), approved a district judge’s decision

to impose sentence on the basis of 500 seized

marijuana plants, while ignoring both 800 “seedlings”

and additional quantities of dried, separated “shake”

leaves. The court rejected the defendant’s position

that he should have been sentenced on the basis of the

“potential yield” of consumable marijuana from his

plants, finding a per-plant focus appropriate in light of

the difference in weight between live plants and dry

leaves and the difficulty of determining the actual

amount of usable marijuana that any given plant

would have produced. While the court drew a broad

distinction between live marijuana plants and

“marijuana leaves [that] have been dried,” 909 F.2d at

361, there is no indication that the court considered

the intermediate situation presented by this case.

The court’s rationales for upholding use of a per-plant

measure are consistent with a case such as this one,

where whole plants were seized after harvest and

during the drying process. There is therefore no

reason to assume that the Corley court would have

1]

disagreed with the district court’s ruling in this

case.*

Similarly, the decision in United States v. Bradley,

905 F.2d 359, 361 (11th Cir. 1990) (per curiam), simply

observes in dictum (citing the district court decision

upheld in Corley) that weight is the proper measure

for dry leaf (i.e., semi-processed) marijuana, while

holding that live plants are subject to per-plant

sentencing computations. The same court of appeals

in United States v. Osburn, 955 F.2d at 1509-1510, in

considering a constitutional challenge to the validity

of 21 U.S.C. 841(b), thought that it would present an

“anomaly in the Statutory scheme” if a marijuana

grower faced a different sentencing regime depending

upon whether he was apprehended just before or just

after the harvest. Because that case involved only

marijuana seized while it was still growing, however,

see 955 F.2d at 1502, the court did not face such a

situation, and did not, as petitioner states (Pet. 12),

“hol{d] that harvested materials are not plants for

guidelines purposes.” Indeed, the court explicitly

declined to address that issue in the abstract. 955

F.2d at 1509-1510.

Finally, the Second Cirecuit’s decision in Up ited

States v. Blume, 967 F.2d 45, 49 (1992), also drew only

a general distinction between “live” plants and “dry

leaf” marijuana. Blume involved only plants that

were seized while they were still growing, and the

* Petitioner also cites (Pet. 12) the Ninth Circuit’s opinion in

United States v. DeLeon that is reported at 955 F.2d 1346

(1992). That opinion was withdrawn, however, and the final

decision in the case reversed the defendant’s conviction on

other grounds and did not reach the sentencing question.

United States v. DeLeon, 979 F.2d 761 (9th Cir. 1992).

12

district court’s estimate of plants previously grown

by the same defendants. The court therefore had no

occasion to consider whether marijuana plants in

harvested but unprocessed form should be evaluated

by number or weight for purposes of Section 2D1.1,

and its decision does not conflict with the district

court’s treatment of the drying plants seized from

petitioner’s garage in September 1990.

The court in Blume did hold, 967 F.2d at 49-50, that

it was improper for the district court to base the part

of its sentence that depended on an estimate of previ-

ous marijuana production on the estimated number of

plants grown, rather than on the estimated dry

weight of the finished marijuana produced over the

life of the operation. That holding is in tension with

the district court’s decision in this case (see Pet. App.

5a) to compute petitioner’s sentence in part on the

basis of a finding as to the number of marijuana plants

petitioner had produced during 1989. Any conflict

between the decisions does not, however, require

review by this Court. Any uncertainty that such a

conflict indicates as to the proper interpretation of

the Sentencing Guidelines in cases raising this

narrow issue can be resolved by the Sentencing

Commission in the discharge of its periodic duty to

“review and revise” the Guidelines. 28 U.S.C. 994(o0);

Braxton v. United States, 111 S. Ct. 1854, 1857-1858

(1991).

2. Petitioner contends (Pet 21-30) that the gov-

ernment violated the terms of his plea agreement, and

that if the court of appeals had applied a more lenient

standard of review it would have remanded his case

for resentencing. See Pet. 29; Pet. App. 5a. Peti-

tioner is correct in observing that there is some

13

disagreement among the courts of appeals over

whether a claim that the government has breached a

plea agreement must be raised before the district

court if it is to be reviewed other than for plain error.

Compare, e.g., United States v. Pryor, 957 F.2d 478,

482 (7th Cir. 1992) (claim normally waived if not

raised) with Paradiso v. United States, 689 F.2d 28, 30

(2d Cir. 1982) (per curiam) (claim normally not waived

if not raised), cert. denied, 459 U.S. 1116 (1983).4

Regardless of the standard of review applied in this

case, however, the government did not violate the plea

agreement.® The case therefore does not warrant

review by this Court.

* Not all of the cases petitioner cites on this issue support

his argument. United States v. Goldfaden, 959 F.2d 1324, 1327

(5th Cir. 1992), for example, held that because the defendant

had failed to raise his breach claim before the district court, it

would be reviewed only for plain error—precisely the position

adopted by the court of appeals in this case. Pet. App. 5a-6a.

® Petitioner’s argument (Pet. 22-23) that a court must

vacate a sentence in response to even a minor breach of a plea

agreement is therefore not raised in this case. In any event,

the cases cited by petitioner are inapposite. In each of them,

the court found that the government had violated an important

provision of the plea agreement. See United States v. Valen-

cia, 985 F.2d 758 (5th Cir. 1993) (finding breach where gov-

ernment argued evidence concerning acceptance although plea

agreement stipulated that acceptance credit should be given);

United States v. Canada, 960 F.2d 263 (1st Cir. 1992) (finding

breach where government argued for higher sentence than

that stipulated in plea agreement); United States v. Goldfaden,

959 F.2d 1324 (5th Cir. 1992) (finding breach where govern-

ment advocated specific Guidelines range even though plea

agreement provided that government would make no sentenc-

ing recommendations); United States v. Badaracco, 954 F.2d

928 (3d Cir. 1992) (finding breach where government endorsed

14

Petitioner contends (Pet. 5) that the government

breached the plea agreement when it permitted

witnesses in the evidentiary hearing to testify that

the total number of marijuana plants involved in the

charged conduct exceeded 700. Petitioner further

claims (Pet. 6) that the government compounded that

breach when it argued in its sentencing memorandum

that the district court should consider more than 700

plants for sentencing purposes. Finally, petitioner

argues (ibid.) that the government breached the plea

agreement when it argued in its sentencing memo-

randum that petitioner should receive the four-level

enhancement under Section 3B1.1(a) and should be

denied a reduction for acceptance of responsibility.

The plea agreement provided that petitioner’s

“readily provable” relevant conduct did not exceed

“700 plants for this offense, inclusive of the 509 plants

discussed above.” C.A. App. 97. In qualifying that

stipulation, however, the government “reserve[d] the

right to present argument and evidence as to these

issues.”® Ibid. Moreover, petitioner acknowledged

that the government would apprise the district court

and probation office of “the nature, scope and extent of

presentence report’s recommendation to provide enhancement

for more than minimal planning although plea agreement

stipulated that such planning was not involved); United States

v. Hayes, 946 F.2d 230 (3d Cir. 1991) (finding breach where

government argued for specific sentence although plea agree-

ment stipulated that government would not recommend spe-

cific sentence).

6 Petitioner similarly reserved “the right to present

evidence and argument” that “the total number of plants to be

considered by the court under [petitioner’s] relevant conduct

[was] less than 700 plants.” C.A. App. 97.

———

15

[petitioner’s] conduct regarding the charges against

him, including matters of aggravation and mitigation

relevant to the issue of sentencing.” C.A. App. 96, 98-

99. When the court held its evidentiary hearing and

the government presented witnesses regarding the

number of marijuana plants, the government was

merely following the express terms of the plea

agreement, in which the government reserved the

right to offer evidence that the number of plants was

in fact greater than the number that was “readily

provable.” As the court of appeals found (Pet. App.

6a), the government’s evidence that the total number

of marijuana plants exceeded 700 “should not have

been unexpected.”

In argument at the end of the evidentiary hearing,

the prosecutor argued only the “readily provable”

number of plants specified in the agreement: he

maintained that “the Government has met its burden

because the total weight of the evidence shows by a

preponderance that the number of plants is clearly at

least between 400 and 700 plants during [petitioner’s]

relevant conduct.” Evid. Hrg. Tr. 182. He then

commented that “[w]hether it’s more than that, we

don’t know,” adding that the government would “leave

that to the Court’s discretion.” Ibid. The pros-

ecutor’s argument did not violate the terms of the

plea agreement.

Finally, the government did not breach the plea

agreement either by refusing to support petitioner’s

motion for a downward departure based on acceptance

of responsibility or by recommending a four-level

enhancement based upon petitioner’s role in the

offense. The government agreed that it would support

a downward departure only if petitioner “cooperate|d|]

nein

16

fully and truthfully with the probation office.” C.A.

App. 97-98. Because petitioner did not cooperate fully

in the preparation of the presentence report and did

not show contrition for having committed the offense,

the government was entitled to refuse to support

petitioner’s motion for a downward departure. Pet.

App. 7a; see C.A. App. 23-26 (presentence report).

Similarly, the plea agreement provided that based

upon the evidence “now known,” petitioner “was not

an organizer or leader of a criminal activity that

involved five or more participants” (C.A. App. 98

(emphasis added)), but the government expressly

“reserve[d] the right to present evidence and/or

argument as to [petitioner’s|] leadership role.” bid.

Because “the number of individuals involved was not

as clear at the time of the plea agreement as it was

after the Evidentiary Hearing,” the government after

the hearing appropriately recommended a four-level

enhancement under Section 3B1.1(a). C.A. App. 340.

In any event, the court ultimately imposed only a two-

level enhancement for petitioner’s role in the offense,

under Sentencing Guidelines § 3B1.1(¢c). Sent. Tr. 6.

ee

17

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. DAys, III

Solicitor Gene ral

JOANN HARRIS

Assistant Attorne y General

MicHAEL E. O'NEILL

Attorney

DECEMBER 1993