TONY VICTOR BUNION, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-7626

   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 Eleventh Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1) is not reported.

                             JURISDICTION

   The judgment of the court of appeals was entered on April 12, 1990.
 The petition for a writ of certiorari was filed on May 14, 1990.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether, under Sentencing Guidelines Section 3B1.1(b), a defendant
who is found to be a mid-level manager or supervisor of a drug
distribution ring may have his offense level adjusted upward on that
basis, even though no other person was charged with participating in
the discrete drug offense that constituted the offense of conviction.

                               STATEMENT

   On April 6, 1989, a three-count superseding indictment was returned
in the United States District Court for the Northern District of
Florida charging petitioner with distribution of "crack" cocaine, in
violation of 21 U.S.C. 841(a)(1).  Petitioner subsequently pleaded
guilty to a single distribution count in return for the dismissal of
the remaining charges.  He was sentenced to 138 months' imprisonment,
to be followed by a five-year term of supervised release.  The court
of appeals affirmed without opinion.

   1. The facts are set out in the government's brief in the court of
appeals.  Gov't. C.A. Br. 3-4.  On September 11, 1988, a police
officer was standing in a checkout line at a grocery store when he
noticed petitioner standing in front of him.  Petitioner's left front
pants pocket was bulging out so that the officer could see what
appeared to be a large quantity of "crack" cocaine in a plastic bag.
The officer seized the bag, which was found to contain 50 grams of
"crack" cocaine.

   After being advised of his Miranda rights, petitioner stated that
the "crack" cocaine belonged to a "big dealer" from Miami named
"Milo," who travelled back and forth between Miami and Tallahassee.
According to petitioner, "Milo" had rented both the van that
petitioner was using at the time of his arrest and the telephone
beeper that he was carrying.  A police check of the rental records for
the van and the beeper revealed that both had been rented by Leonard
Darby, who was known as "Milo." Darby was known to law enforcement
officers to be a large distributor of "crack" cocaine in the Miami
area.  /1/

   2. Petitioner eventually agreed to plead guilty to Count I of the
superseding indictment and to cooperate with the government in its
investigation of the Darby organization.  At petitioner's
rearraignment proceeding, the court inquired about petitioner's
position within the Darby organization.  In response, the prosecutor
informed the court that petitioner admitted immediately following his
arrest that he was "in the business of selling ("crack" cocaine) for
(Darby)," Pet. 8, and that since that time petitioner had revealed to
the government "a great deal more" about the "overall organization"
for which petitioner worked, Pet. 10.  Based on this, the prosecutor
stated that petitioner "was in between" in the organization:  "(h)e
was certainly not the top man, but he wasn't right on the very
bottom." Pet. 9.  The court then questioned petitioner whether it was
accurate to say that he was "more than a street dealer," but "not
upper management." Pet. 10-11.  Petitioner replied, "Yes, sir." Ibid.
See also 3 R. 12 (petitioner's admissions at plea hearing).  /2/

   3. Because approximately 50 grams of cocaine base was involved, the
base offense level for petitioner's offense was level 30.  See
Guidelines Section 2D1.1 Drug Quantity Table.  The district court
adjusted petitioner's offense level upward by three levels under
Guidelines Section 3B1.1(b) because petitioner committed the offense
while acting as "a manager or supervisor" in the Darby drug
organization.  /3/ As the court stated, Sent. Tr. 17:

      It's my view that the three level upward adjustment for
      (petitioner's) role in the offense is warranted in this case.  *
      * * (A)t the Rule 11 plea and while this negotiated plea deals
      only with one incident, I think it's very clear that the facts
      here indicate that (petitioner) was part of a much larger
      operation and it was just a fortuitous circumstance that he was
      * * * arrested when he was.

The resulting sentencing range under the Guidelines was 138-151
months' imprisonment, based on an adjusted offense level of 33 and
criminal history category of I.  The district court sentenced
petitioner to a term of 138 months' imprisonment.

                               ARGUMENT

   Petitioner contends that the district court erred in adjusting his
offense level under Guidelines Section 3B1.1(b) on the ground that he
was a manager or supervisor.  Pet. 12-15.  First, petitioner argues
that he was the sole participant in the drug possession offense that
was the offense of conviction.  Second, he argues that there was "(n)o
evidence exclusive of (his) Rule 11 proffer * * * to establish that he
was a mid-level manager or supervisor." Pet. 15.  The question whether
a defendant was a manager or supervisor for purposes of Guidelines
Section 3B1.1(b) is a question of fact subject to review under the
clearly erroneous standard.  E.g., United States v. Barrett, 890 F.2d
855, 867 (6th Cir. 1990);  United States v. Wright, 873 F.2d 437, 443
(1st Cir. 1989);  United States v. Barreto, 871 F.2d 511, 512 (5th
Cir. 1989).  The fact-bound question presented by petitioner, which
was correctly resolved against him by the courts below, does not merit
further review by this Court.

   The text of Guidelines Section 3B1.1(b) provides that, "(b)ased on
the defendant's role in the offense," a defendant's offense level
should be increased "(i)f the defendant was a manager or supervisor
(but not an organizer or leader) and the criminal activity involved
five or more participants or was otherwise extensive." As both the
Commentary accompanying Guidelines Section 3B1.1 and the case law
construing it make clear, the Guidelines provisions for adjusting a
defendant's offense level based on his role in the offense "require()
that a defendant engage in criminal activity with at least one other
criminally culpable person." United States v. Carroll, 893 F.2d 1502,
1509 (6th Cir. 1990).  /4/ Thus, by providing a mechanism for weighing
the relative culpability of those committing multi-participant crimes,
Guidelines Section 3B1.1 comprehensively "provides a range of
adjustments to increase the offense level based upon the size of a
criminal organization (i.e., the number of participants in the
offense) and the degree to which the defendant was responsible for
committing the offense." Id. at p. 3.5 Commentary.  The requirements
for invoking the adjustment provided for in Guidelines Section 3B1.1
were surely satisfied here.

   As the district court held, petitioner's extensive admissions to
law enforcement officers concerning his role in the Darby drug
distribution organization, which petitioner acknowledged as true at
the rearraignment and plea proceedings, provided an ample basis for
enhancing his base offense level.  See United States v.
Fuentes-Moreno, 895 F.2d 24, 27 (1st Cir. 1990) (approving upward
adjustment based on the defendant's admissions concerning his role in
the offense);  United States v. Williams, 894 F.2d 208, 213-214 (6th
Cir. 1990) (same);  United States v. Diaz-Villafane, 874 F.2d 43, 48
(1st Cir.) (same), cert. denied, 110 S. Ct. 177 (1989).  Although
petitioner was charged individually with possession of "crack" cocaine
with intent to distribute it, there was a substantial evidentiary
basis for concluding that he possessed the contraband in his capacity
as a mid-level manager in the Darby organization.  As petitioner
admitted, the "crack" cocaine that he had in his possession belonged
to Darby.  Moreover, at the time of the offense, petitioner was using
a van and a beeper that had been rented for him by Darby.  Finally,
petitioner admitted that his role in the Darby organization -- which
was far-flung enough to operate in both the Miami and the Tallahassee
areas -- was below the upper leadership level, but above the level of
the street distributors.  See United States v. Barrett, 890 F.2d at
867-868 (upward adjustment where the defendant possessed relatively
small amount of cocaine as part of his role in a large-scale
distribution chain);  United States v. Holland, 884 F.2d 354, 359 (8th
Cir.) (upward adjustment where the defendant acted as an intermediary
between a major distributor and lower level dealers), cert. denied,
110 S. Ct. 552 (1989).  /5/ Under these circumstances, the adjustment
provided in Guidelines Section 3B1.1(b) was appropriate.

   The cases on which petitioner relies are not to the contrary.  For
example, in United States v. Carroll, 893 F.2d at 1507-1509, a federal
prisoner seeking to escape from confinement enlisted the aid of a
prison informant, who in turn placed the defendant in contact with a
team of undercover FBI agents for the ostensible purpose of
orchestrating his escape.  In holding that an upward adjustment was
improperly imposed on Carroll because of his role as an organizer in
the failed escape, the court of appeals stated:  "Because Carroll only
'organized' law enforcement authorities -- persons who could not have
been 'criminally responsible' -- it is undisputed that Carroll's crime
involved only one offender and, therefore, no criminal organization or
enterprise." 893 F.2d at 1507.  Similarly, in United States v.
Tetzlaff, 896 F.2d 1071, 1073-1075 (7th Cir. 1990), a free-lance drug
dealer, who had once involved his children in a prior drug
transaction, sold drugs to an undercover agent in a later transaction
that did not involve his children.  Because Tetzlaff "acted alone in
the offense for which he was convicted," 896 F.2d at 1075, the court
of appeals held that an upward adjustment for his role in the offense
was impermissible.  Finally, in United States v. Fuller, 897 F.2d 1217
(1st Cir. 1990), the court refused to sustain an upward adjustment for
the defendant's role in the distribution of drugs since "the district
court did not make any finding that Fuller exercised control or was
otherwise responsible for organizing others" and the evidence showed
that Fuller merely "engaged in a number of private drug distributions,
in which he essentially did all the work himself." 897 F.2d at 1221.
To the same effect is United States v. Weidner, 703 F. Supp. 1530,
1352 (N.D. Ind. 1988) (record did not allow court to find that
defendant "organized or led anyone").

   By contrast, the evidence upon which the district court below based
its findings showed that petitioner did not act alone, but instead
acted as part of an organization.  Unlike in Carroll, Tetzlaff, or
Fuller, where the defendants either acted entirely alone or in
conjunction with others over whom they exercised no control, the
instant facts support the conclusion that petitioner possessed a
substantial quantity of "crack" cocaine as an intermediary between the
upper echelons of the Darby organization (which owned the cocaine) and
its street level distributors with whom petitioner was responsible for
dealing.  Because the decision below is entirely consistent with the
rule that an adjustment for a defendant's role in the offense is
appropriate only where there are multiple "participants" in an
offense, the fact-bound result in this case does not warrant review by
this Court.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   ROBERT J. ERICKSON

      Attorney

   JULY 1990

   /1/ Petitioner's possession of "crack" cocaine on September 11,
1988, formed the basis for the offense charged in Count I of the
superseding indictment to which petitioner pleaded guilty.

   /2/ "R." refers to the record on appeal.

   /3/ Sentencing Guideline Section 3B1.1 provides in pertinent part:

         Based on the defendant's role in the offense, increase the
      offense level as follows:

         (b) If the defendant was a manager or supervisor (but not an
      organizaer or leader) and the criminal activity involved five or
      more participants or was otherwise extensive, increase by 3
      levels.

   /4/ The Introductory Commentary to the part of the Guidelines
pertaining to adjustments based on a defendant's role in the offense
states that its provisions apply "(w)hen an offense is committed by
more than one participant." In turn, the Commentary accompanying
Sentencing Guideline Section 3B1.1 defines a "participant" as "a
person who is criminally responsible for the commission of the
offense."

   /5/ Nor is the availability of the adjustment undercut because
petitioner was charged alone in Count I and was not additionally
charged with conspiracy.  As the Commentary accompanying Sentencing
Guideline Section 3B1.1 indicates, a person may be regarded as a
"participant" in a criminal offense even though he is not convicted of
it.  Likewise, there is no requirement that a "participant" be charged
with the offense.  The critical point is that more than one person be
responsible for the offense.  Here, petitioner's possession of "crack"
cocaine was unquestionably part of the conspiratorial efforts of the
Darby organization to distribute drugs.  Although it was agreed as
part of the plea agreement, see Pet. 6, that petitioner's base offense
level would be calculated solely on the amount of "crack" cocaine that
he possessed on September 11, 1988, rather than any amounts for which
he might be responsible as a member of that conspiracy, the plea
agreement did not prohibit the court from determining whether there
were participants in the drug trafficking in which petitioner was
involved.