CHARLES ANTOIN NOVEY, PETITIONER V. UNITED STATES OF AMERICA No. 90-7566 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals, Pet. App. 1-14, is reported at 922 F.2d 624. JURISDICTION The judgment of the court of appeals was entered on January 3, 1991. The petition for a writ of certiorari was filed on April 1, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Section 851(a)(1) of 21 U.S.C. provides that "(n)o person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convict(i)ons to be relied upon." The question presented in this case is whether that provision requires prior written notice before a defendant may be sentenced as a career offender under Sentencing Guideline Section 4B1.1. STATEMENT Petitioner entered a plea of guilty in the United States District Court for the Western District of Oklahoma to one count of possessing with intent to distribute 68 marijuana plants and 3,837.5 grams of marijuana, in violation of 21 U.S.C. 841(a)(1); and to one count of making a false statement to the United States Postal Service, in violation 18 U.S.C. 1001. He was sentenced to concurrent terms of imprisonment of 262 months on the marijuana count and 60 months on the false statement count, /1/ to be followed by a six-year term of supervised release. He was also ordered to pay restitution in the amount of $21,752.25. 1. The facts underlying petitioner's convictions, which are not in dispute, are set forth in the presentence report. On June 14, 1988, petitioner rented a post office box in a false name to facilitate a stolen mail and bogus check writing scheme. When police arrested petitioner on April 24, 1989, on charges related to that scheme, they found him in possession of 3,837 grams of marijuana (8.5 pounds) and 68 marijuana plants. His residence and grounds, where the marijuana plants were growing, contained an elaborate cultivation and processing system. Presentence Report Paragraphs 7-18. On June 12, 1989, ten days before petitioner entered his guilty plea, the government filed an information under 21 U.S.C. 851(a)(1) alleging that petitioner had previously been convicted of a controlled substance offense -- namely, a March 31, 1983, conviction for distribution after a previous felony conviction. Pet. App. 2-3; Presentence Report Paragraph 42. Under 21 U.S.C. 841(b)(1)(C), petitioner's previous drug felony conviction would increase his maximum prison term for possessing the marijuana to 30 years from 20 years. See Pet. App. 2. The district court accepted petitioner's guilty plea and ordered preparation of a presentence report. That report disclosed that petitioner had been convicted of an additional drug felony in 1972 for which he was imprisoned until November 24, 1974. Pet. App. 3; Presentence Report Paragraph 40. In light of the second conviction, the district court determined that petitioner should be sentenced as a career offender under Sentencing Guidelines Section 4B1.1. A defendant is a career offender under that Section, and subject to a sentencing enhancement, if, among other conditions, he has "at least two prior felony convictions of either a crime of violence or a controlled substance offense." Application of the career offender Guideline increased petitioner's offense level from 16 to 34, his criminal history category from V to VI, and the applicable sentencing range from 41 to 51 months' imprisonment to 262 to 327 months' imprisonment. Presentence Report Paragraphs 47, 53-54; Pet. App. 3. The district court sentenced petitioner to 262 months' imprisonment on the drug offense. 2. The court of appeals affirmed. Pet. App. 1-14. It rejected petitioner's contention -- raised for the first time on appeal -- that the career offender Guideline could not be applied to him because he had not received notice under 21 U.S.C. 851(a)(1) of his 1972 conviction. /2/ The court observed that "the courts are divided on this issue," citing a split between United States v. Wallace, 895 F.2d 487, 490 (8th Cir. 1990), and United States v. Marshall, 910 F.2d 1241, 1244-1245 (5th Cir. 1990), both of which rejected the applicability of Section 851(a)(1) to the career offender Guideline, and United States v. Williams, 899 F.2d 1526, 1529 (6th Cir. 1990), which the court, without elaboration, cited as contrary authority. Pet. App. 8. Following Wallace and Marshall, the court of appeals held that Section 851(a)(1) requires notice only of prior convictions used to increase a defendant's statutory maximum or minimum sentence, and not of prior convictions used to determine a sentence within the statutory range. Pet. App. 8. /3/ It further held that the government complied with Section 851(a)(1) when it notified petitioner that it would rely on his 1983 felony conviction to enhance his maximum sentence to 30 years' imprisonment from 20 years' imprisonment. Pet. App. 8-9. Since application of the career offender Guideline merely narrowed the district court's sentencing discretion within the statutory range, the court of appeals reasoned, Section 851(a)(1) required no additional notice before allowing the district court to take into account petitioner's 1972 felony conviction in selecting a sentence in accordance with the career offender Guideline. Pet. App. 11. /4/ ARGUMENT The court of appeals' determination that 21 U.S.C. 851(a)(1) does not require notice of prior convictions used to sentence a defendant as a career offender under Guidelines Section 4B1.1 is correct and does not conflict with any decision of this Court or any other court of appeals. Contrary to petitioner's contention. Pet. 4, 21 U.S.C. 851(a)(1) refers to prior convictions used to increase a defendant's statutory maximum and minimum sentence -- not to the selection of a sentence within the statutory range under the Sentencing Guidelines. Section 851(a)(1) was enacted as Section 411(a)(1) of the Controlled Substances Act of 1970. The "increased punishment" to which the statute referred was the enhanced penalty imposed by other provisions of the Controlled Substances Act on offenders who had been convicted of prior drug offenses. The statute clearly did not apply, for example, to decisions by sentencing judges to impose longer sentences than they otherwise would have imposed, because of a defendant's lengthy criminal record. By extension, the statute also does not apply to the provisions of the Sentencing Guidelines, which do not "increase() punishment," but calculate the appropriate sentencing range for defendants within the applicable statutory limits. As the court below correctly explained: "Given that the statutory punishment of thirty years could be imposed with notice of one prior conviction, the lesser sentence for a career offender (dictated by the career offender Guideline) may also be imposed with the same notice." Pet. App. 11. /5/ Other courts of appeals have likewise rejected the argument that 21 U.S.C. 851 requires pretrial or pre-plea notice that prior convictions will be used to select a sentence within the statutory range under the Sentencing Guidelines. United States v. McDougherty, 920 F.2d 569 (9th Cir. 1990); United States v. Auman, 920 F.2d 495 (8th Cir. 1990); United States v. Sanchez, 917 F.2d 616 (1st Cir. 1990); United States v. Marshall, 910 F.2d 1241 (5th Cir. 1990); United States v. Wallace, 895 F.2d 487, 489-490 (8th Cir. 1990). /6/ Although petitioner does not contend that the circuits are divided, the court of appeals thought that its interpretation of 21 U.S.C. 851(a)(1) conflicted with that of the Sixth Circuit in United States v. Williams, 899 F.2d 1526, 1529 (1990). That belief is mistaken, because Williams concerned an increase in the statutory mandatory minimum sentence based on the defendant's prior conviction (to which Section 851(a)(1) plainly applies), not selection of a sentence within the statutory range under the Sentencing Guidelines (the question at issue in this case). In Williams, the defendant's Guideline range was either 51 to 63 months' imprisonment or 63 to 78 months' imprisonment, depending upon whether a disputed second kilogram of cocaine was attributed to him or not. 899 F.2d at 1528. The district court, however, did not impose a sentence within the Guidelines range. It imposed the ten-year statutory mandatory minimum sentence required by 21 U.S.C. 841(b)(1)(B), 899 F.2d at 1527; at the time of William's offense, that Section increased the statutory minimum sentence to ten years' imprisonment from five years' imprisonment if a defendant was convicted of trafficking in 500 grams or more of cocaine and had a previous drug felony conviction. In light of the government's concession that it had not filed pre-plea notice under Section 851(a)(1) that Williams's previous conviction would be used to enhance his statutory mandatory minimum sentence, the court of appeals reversed and remanded for resentencing. 899 F.2d at 1529. For purposes of this case, the Williams court's analysis would require only that petitioner receive pre-plea notice of one prior drug felony conviction before the district court could impose a sentence of more than 20 years (but less than 30 years) under 21 U.S.C. 841(b)(1)(C). Petitioner received that notice (with respect to his 1983 conviction). Williams does not hold that petitioner was also entitled to pre-plea notice before a second prior conviction (his 1972 drug felony conviction) could be used to select a sentence within the statutory range in accordance with the career offender Guideline. Williams is therefore not in conflict with the decision of the court below. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General KAREN SKRIVSETH Attorney MAY 1991 /1/ The court of appeals' opinion, Pet. App. 3, incorrectly states that petitioner's sentence on the false statement count is 40 months' imprisonment. /2/ In the district court, petitioner challenged the use of the 1972 conviction only on the ground that it had occurred more than 15 years before the instant offense. 8/30/89 Tr. 6-8. The district court rejected that claim because Guidelines Section 4A1.2(e)(1) permits such a conviction to be used in calculating a defendant's criminal history if the defendant had been sentenced to more than one year and one month in prison and had been incarcerated for the offense within 15 years of committing the offense for which he is being sentenced. Ibid. The court of appeals affirmed the district court on this point, Pet. App. 3-6, and petitioner does not seek further review. /3/ Section 851(a)(1) provides, in pertinent part: No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States Attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convict(i)ons to be relied upon. /4/ The court of appeals remanded the case for further factfinding and resentencing as to the amount of restitution attributable to the false statement offense in light of Hughey v. United States, 110 S. Ct. 1979 (1990), which was decided while the appeal was pending. Pet. App. 12-14. That issue is not before this Court. /5/ Since 21 U.S.C. 851(a)(1) requires notice only of prior convictions used to increase the statutory minimum and maximum sentence, and not of those used to select a sentence within the statutory range, there is no merit to petitioner's contention, Pet. 6-8, that the Sentencing Guidelines, as construed by the court of appeals, impliedly repealed or superseded Section 411(a)(1) of the 1970 Controlled Substances Act. /6/ See also Hansen v. United States Parole Commission, 904 F.2d 306 (5th Cir. 1990) (21 U.S.C. 851(a)(1) inapplicable to Parole Commission use of prior conviction in calculating release date under Sentencing Guidelines and 18 U.S.C. 4106(b)(1)(A) of defendant convicted in foreign country and transferred to United States to serve sentence).