# Opposition Brief — Oliver v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1212%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1109

## Text

No. 93-148 } i
= ——— ait |
t oe +-* 3 ae i acai

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
| LT eds as ca scnsankceshnacebesesossnssavsvensneas 1
asic LA Sdcdases hse deaberhssaiexestntoheususicnnnesunnnvaiversss 1,
Nee ee ee ails cid asecc yuna tskenunainhavevasenseessnse 2
NE elas cal slo ikivaaherkguesdsenenseaxdnecunsenevens 7
Neen eee ee acs k ccc cuadnabuandieenzeaveacesesennsonsente 17
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955 F.2d 1346, withdrawn, 979 F.2d 761 (9th Cir.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:

en Netlist WE cucdesdcccdncausacesnacdcsasegiessuvncesckeresatcasareneseless 2
eh Meat ts MUNCIE as canccavdusthenenalissigesceschixuosataesnsegtinsercteewaasha 11
See Eee tire UII Deane dnicaciinaniaipanntnaciiavnnestnacssanidaiancousoness 8
Be Rr: Mr I WIRD eiicciicsncicunaceuccsddunasnosassameacincon 7
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1212%3A2. Public record. Not legal advice.