RONNIE D. WALKER, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-6899

   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 judgment order of the court of appeals (Pet. App. 1a-3a) is not
reported.

                             JURISDICTION

   The judgment order of the court of appeals was entered on November
8, 1990.  Pet. App. 1a-3a.  The petition for a writ of certiorari was
filed on January 25, 1991.  The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the district court was required to make findings
concerning information contained in the presentence report after
petitioner had withdrawn his objections to that information.

   2. Whether the Sentencing Guidelines permit consideration of the
amounts of drugs involved in transactions that were part of the same
course of conduct as the offense on which petitioner was convicted.

                               STATEMENT

   Petitioner pleaded guilty in the United States District Court for
the District of New Mexico to one count of possessing cocaine with
intent to distribute it, in violation of 21 U.S.C. 841(a)(1).
Petitioner was sentenced to 72 months' imprisonment, to be followed by
five years' supervised release, and he was ordered to pay restitution
in the amount of $19,200.  The court of appeals affirmed.  Pet. App.
1a-3a.

   1. In October 1987, New Mexico police arrested a person with eight
ounces of cocaine that he said he had obtained from petitioner.  The
police thereupon began an undercover investigation of petitioner.  On
November 12, 1987, petitioner sold four ounces (113.4 grams) of
cocaine to undercover agents of the State police and the FBI.  On
February 17, 1988, petitioner sold one pound (454.06 grams) of cocaine
to an undercover FBI agent.  On March 31 and May 13, 1988, petitioner
gave an FBI agent 1-gram and 2.1-gram samples of cocaine,
respectively, during negotiations to sell the agent ten kilograms of
cocaine.  On August 11, 1988, petitioner's residence was searched
pursuant to a warrant.  The search yielded $12,800 in cash, four
ounces (113.4 grams) of cocaine, an unregistered weapon made from a
sawed-off .22 caliber rifle, and an unregistered silencer.  Gov't C.A.
Br. 4, 11 n.2;  Presentence Report (PSR) 4-5.

   On October 14, 1988, petitioner was indicted on two counts of
illegally possessing less than 500 grams of cocaine with intent to
distribute it, in violation of 21 U.S.C. 841(a)(1), 21 U.S.C.
841(b)(1)(C) and 18 U.S.C. 2;  three counts of intentionally
distributing less than 500 grams of cocaine, in violation of the same
provisions;  one count of possessing an unregistered sawed-off
shotgun, in violation of 26 U.S.C. 5861(d) and 5871;  and one count of
possessing an unregistered silencer, also in violation of 26 U.S.C.
5861(d) and 5871.

   Petitioner and the government entered into a "Memorandum of
Understanding Regarding Guilty Plea." In that memorandum, petitioner
agreed to plead guilty to the count of the indictment that concerned
the November 12, 1987, sale of cocaine.  The memorandum also stated:
"No further federal charges will be brought against the defendants
Ronnie D. Walker and Jeanette Walker relating to the following
transactions in which the defendant Ronnie D. Walker was involved:".
Among the transactions listed thereafter were the other sales of
cocaine charged in the indictment and the possession of the
unregistered firearm and silencer.  Petitioner signed the memorandum.
The district court accepted his guilty plea on December 19, 1988.
Gov't C.A. Br. 2;  PSR 2-3.

   2. The presentence report included a description of the drug and
weapons offenses charged in the indictment based on the description of
the offenses set forth in the Memorandum of Understanding Regarding
Guilty Plea.  See PSR 2-3.  At hearings on February 17 and 22, 1989,
petitioner objected to certain aspects of the presentence report.  As
relevant here, he denied that he had sold cocaine to an undercover
agent on May 13, 1988, as charged in Count IV of the indictment.  He
also denied possessing either an unregistered sawed-off shotgun or an
unregistered silencer, as charged in Counts VI and VII of the
indictment.  /1/

   The district court reminded petitioner that he had admitted
commission of these offenses in the Memorandum of Understanding.  The
court explained to petitioner that objecting to these matters was
tantamount to challenging the plea agreement.  IV Tr. 118-122;  see
also Pet. 7-9.  The district court was receptive, however, to the
possibility that petitioner misunderstood the significance of the
admissions he had made in the plea agreement:

      If there has been a misunderstanding * * * if he now takes the
      position that he was in error on that and * * * that the
      consequences of sentencing were of moment to him when he entered
      this plea;  then I suppose I can take some perspective on that.
      And, this perspective, perhaps he was mistaken;  perhaps we
      ought to go ahead and set the whole thing aside * * *.

IV Tr. 122.  Rather than seeking to withdraw the plea agreement,
however, petitioner withdrew his objections to the presentence report.
 Gov't C.A. Br. 7;  Pet. 9, 16.

   The presentence report calculated a base offense level of 26, to
which no adjustments were made.  The offense level was based on the
total amount of cocaine with which petitioner was found to have been
involved during the undercover investigation.  See PSR 5;  see also
Guidelines Section 2D1.1, Drug Quantity Table, at 2.44.  Petitioner's
criminal history put him in Category I.  The resulting sentencing
range was 63 to 78 months.  /2/

   The district court sentenced petitioner to 72 months' imprisonment.
 The court indicated that the sentence took into account petitioner's
illegal possession of the sawed-off shotgun and the silencer.  Pet.
App. B at 2;  Pet. 17.

   3. The court of appeals affirmed.  Pet. App. 1a-3a.  The court
rejected petitioner's claim that the district court improperly based
his sentence on amounts of drugs in addition to the amount involved in
the offense on which he was convicted.  The court of appeals observed
that the Sentencing Guidelines direct the sentencing court to
"consider quantities of drugs beyond the amount specified in the
conviction if they are part of the same course of conduct or part of a
common scheme or plan." Pet. App. 2a (citing Guidelines Section 1B1.3,
Commentary, at 1.19).  The court upheld the district court's
determination that the amounts of drugs on which petitioner's sentence
was based were part of the same course of conduct as the offense on
which he was convicted.  Pet. App. 2a.

   The court of appeals also rejected petitioner's contention that the
district court was required to make findings regarding petitioner's
challenge to information in the presentence report about his unlawful
possession of a shotgun and a silencer:

      The record is clear that the district court held an evidentiary
      hearing regarding the contents of the presentence report and
      (petitioner's) counsel waived or abandoned his objections
      relating to the shotgun and the silencer.  Thus having withdrawn
      the objections * * * (petitioner) is precluded from raising the
      issue on appeal.

Pet. App. 2a.  The court noted that, before petitioner withdrew his
objections, he was provided with "ample opportunity" to discuss them.
Ibid.

                               ARGUMENT

   1. Petitioner renews his contention (Pet. 11-20) that the district
court was required to make findings regarding his challenge to the
information in the presentence report concerning his unlawful
possession of a sawed-off rifle and a silencer.  The court of appeals
correctly rejected that contention.  As the court of appeals
recognized (Pet. App. 2a), petitioner withdrew his objections to this
portion of the presentence report.  He did so after he was given
"ample opportunity" (ibid.) to discuss the objections.  Moreover, in
the plea agreement petitioner had stipulated to the very conduct that
was described in the challenged portion of the presentence report.
The district court was careful to remind petitioner of his prior
stipulations and to explain that petitioner could withdraw the guilty
plea to which he had agreed if he wished to maintain his objections.
Under these circumstances, the district court was not compelled to
make findings regarding petitioner's objections after he had abandoned
them.

   Contrary to petitioner's contention (Pet. 18-19), the court of
appeals' conclusion does not conflict with any other court of appeals
decision.  Petitioner asserts that this case "is not unlike" United
States v. Petitto, 767 F.2d 607 (9th Cir. 1985), /3/ and "also bears
similarities to" United States v. Rosa, 891 F.2d 1071 (3d Cir. 1989).
Neither of those cases, however, involved a stipulation by the
defendant to facts that he later sought to challenge when they were
included in the presentence report.  Moreover, in contrast to the
present case, in both Petitto and Rosa, the district court failed to
make findings despite the defendant's insistence on resolving the
factual dispute.  Rosa, 891 F.2d at 1072-1073;  Petitto, 767 F.2d at
609.  Petitioner here did not insist on maintaining his objections;
as petitioner concedes (Pet. 16), he "abandoned" them.  /4/

   2. Petitioner also renews his contention (Pet. 21-23) that the
district court improperly calculated his sentence by aggregating the
amounts of cocaine involved in the transactions in which petitioner
was found to be involved between October 1987 and August 1988.  This
contention is meritless.

   Sentencing Guidelines Section 1B1.3(a)(2) requires that, "with
respect to offenses of a character for which Section 3D1.2(d) would
require grouping of multiple counts," calculation of the base offense
level "shall be determined" based on all "acts and omissions that were
part of the same course of conduct or common scheme or plan as the
offense of conviction." /5/ This aggregation requirement applies even
if the defendant is convicted on only one count:

      Application of this provision does not require the defendant * *
      * to have been convicted of multiple counts.  For example, where
      the defendant engaged in three drug sales of 10, 15, and 20
      grams of cocaine, as part of the same course of conduct or
      common scheme or plan, subsection (a)(2) provides that the total
      quantity of cocaine involved (45 grams) is to be used to
      determine the offense level even if the defendant is convicted
      of a single count charging only one of the sales.

Guidelines Section 1B1.3, Application Note 2, at 1.17.  As the example
quoted above suggests, under the Guidelines drug offenses are among
the types of offenses subject to the aggregation requirement of
Section 1B1.3.  Guidelines Section 3D1.2(d);  see also Guidelines
Section 3D1.2, Application Note 6, at 3.17 (subsection (d) applies to
most "drug offenses" and other offenses as to which sentences "are
based primarily on quantity").  These provisions make clear that,
because the November 1987-August 1988 transactions were all part of
the same course of conduct, the district court correctly aggregated
the amounts of drugs involved in those transactions.  /6/

   Moreover, every court of appeals to consider the issue has upheld
the approach taken by the district court in this case.  See, e.g.,
United States v. Williams, 917 F.2d 112, 114 (3d Cir.), cert. denied,
111 S. Ct. 1001 (1991);  United States v. Rutter, 897 F.2d 1558,
1561-1562 (10th Cir.), cert. denied, 111 S. Ct. 88 (1990);  United
States v. Woolford, 896 F.2d 99, 102-104 (5th Cir. 1990);  United
States v. Alston, 895 F.2d 1362, 1371-1372 (11th Cir. 1990);  United
States v. Blanco, 888 F.2d 907, 909-911 (1st Cir. 1989);  United
States v. White, 888 F.2d 490, 496-497 (7th Cir. 1989);  United States
v. Allen, 886 F.2d 143, 145-146 (8th Cir. 1989);  United States v.
Williams, 880 F.2d 804, 805-806 (4th Cir. 1989);  United States v.
Fernandez, 877 F.2d 1138, 1141-1142 (2d Cir. 1989);  United States v.
Sailes, 872 F.2d 735, 738-739 (6th Cir. 1989).

   In contrast, there is no support for petitioner's contention (Pet.
21-22) that only the offense on which he was convicted could be
considered in calculating his sentence.  Although petitioner cites
United States v. Restrepo, 883 F.2d 781 (9th Cir. 1989), he recognizes
(Pet. 22) that after rehearing the panel rejected the interpretation
that petitioner advances here.  See 896 F.2d 1228 (9th Cir. 1990)
(withdrawing panel opinion reported at 883 F.2d 781), and 903 F.2d 648
(9th Cir. 1990) (panel opinion on rehearing).  The Ninth Circuit has
now taken the Restrepo case en banc (912 F.2d 1568 (9th Cir. 1990)).

                              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

   RICHARD A. FRIEDMAN

      Attorney

   MARCH 1991

   /1/ Petitioner claimed that the rifle in his possession was not a
sawed-off shotgun and that the silencer was a lawn mower muffler.  See
Pet. 8, 14.

   /2/ The statutory maximum penalty for the offense on which
petitioner was convicted -- possession with intent to distribute less
than 500 grams of cocaine -- is 20 years' imprisonment.  21 U.S.C.
841(b)(1)(C).

   /3/ Petitto was overruled in part on grounds not relevant here in
United States v. Fernandez-Angulo, 897 F.2d 1514, 1517 n.5 (9th Cir.
1990).

   /4/ For this reason, petitioner's reliance (Pet. 11-12) on Fed. R.
Crim. P. 32(c)(3)(D) and Guidelines Section 6A1.3 is misplaced.  These
provisions refer to resolution only of "controverted" or "disputed"
sentencing matters.  After petitioner withdrew his objections to
information concerning possession of the firearm and the silencer,
those matters were no longer in dispute.

   /5/ See also Sentencing Guidelines Section 1B1.3 Application Note 2
("This subsection applies to offenses of types for which convictions
on multiple counts would be grouped together pursuant to Section
3D1.2(d);  multiple convictions are not required.").

   /6/ Petitioner does not here dispute that the transactions on which
his Guidelines sentence was based constituted the "same course of
conduct or common scheme or plan as the offense of conviction"
(Sentencing Guidelines Section 1B1.3(a)(2)).