HARRY ALBERT GREEN, PETITIONER V UNITED STATES OF AMERICA

   No. 89-7694

   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 Sixth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. A1-A3) is
unpublished.

                             JURISDICTION

   The judgment of the court of appeals was entered on March 6, 1990.
The petition for a writ of certiorari was filed on June 4, 1990.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the district court denied petitioner due process by failing
to consider his military record, cooperation with the government and
the court, and mental and emotional condition.

                               STATEMENT

   After a plea of guilty in the United States District Court for the
Southern District of Ohio, petitioner was convicted on two counts of
unarmed robbery of a federally insured bank, in violation of 18 U.S.C.
2113(a).  He was sentenced to concurrent terms of 180 months'
imprisonment, to be followed by three years' supervised release.  The
court of appeals affirmed.  Pet. App. A1-A3;  C.A. App. 6.

   1. On February 28 and March 10, 1989, petitioner robbed two
federally insured banks in Columbus, Ohio.  Pursuant to the United
States Sentencing Guidelines, the United States Probation Office
prepared a presentence report that assigned petitioner to offense
level 19 and placed him in criminal history category V.  In
calculating the offense level, the report gave petitioner credit for
acceptance of responsibility.  The report's calculation resulted in a
sentencing range of 57 to 71 months' imprisonment.  The presentence
report stated that petitioner's history of continued criminal
activity, which was not reflected in his criminal history category
assignment, and his proven propensity to commit new crimes while on
parole might justify an upward departure from the sentence provided
for by the Guidelines.  In this respect, the report noted that
petitioner's criminal activity began in 1969;  that he was awaiting
trial on state assault, aggravated robbery, and concealed weapons
charges at the time he committed the offenses for which he was being
sentenced;  that other prior offenses were not being used in
calculating petitioner's criminal history;  and that he had been on
parole from a prior bank robbery when he committed the instant
offense.  The presentence report also contained a summary of
petitioner's military service, which included service in Vietnam,
followed by an honorable discharge.  Pet. App. A1-A2;  Gov't C.A. Br.
2-3, 6-7;  Presentence Report 6, 13.

   At sentencing, petitioner's counsel stated that the court was aware
of counsel's expressed concern that petitioner was suffering from
"post traumatic distress syndrome." Sentencing Proceedings (July 12,
1989) Tr. 3.  Petitioner himself also addressed the court, and stated
that he had "made a couple mistakes" and that "there is something
wrong with (him) mentally in certain areas." Ibid.  The district judge
nevertheless stated that he would depart upward from the sentence
required by the Guidelines on the ground that petitioner's past
criminal activity was not adequately reflected in his criminal history
category.  Specifically, the court observed that petitioner's criminal
behavior began in 1969, that it was "not just a couple of problems,"
and that this "early beginning" was not adequately reflected in the
criminal history calculation.  The court stated that incarceration for
a longer period than required by the Guidelines was necessary to
protect the public.  Accordingly, the court sentenced petitioner to
180 months' incarceration.  Id. at 3-4;  Pet. App. A2.

   2. On appeal, petitioner contended that the district court failed
to consider four factors in deciding to depart upward:  "(1) his
cooperation subsequent to arrest, (2) his cooperation with the court
by entering a guilty plea;  (3) his service in the armed forces
including an award of a purple heart decoration;  and (4) the
possibility that (his) criminal activity may have resulted from
'Post-Traumatic Distress Syndrome' from his military service." Pet.
App. A2.  The court of appeals rejected these contentions, stating
that, after a review of the record, it found "that the assignments of
error are without merit." Ibid.

                               ARGUMENT

   Petitioner contends (Pet. 6-10) that the district court departed
from the sentence set in the Sentencing Guidelines without considering
his military service, his mental and emotional problems, and his
cooperation with the authorities and the court.  He claims that the
court's asserted failure to consider these factors was arbitrary and
denied him due process.  This contention is without merit.

   At the outset, petitioner's claim must be put in perspective.  He
does not claim that the district court relied on an improper ground in
deciding to depart upward from the Guidelines sentence.  Nor does he
contend that the ground relied upon by the district court does not
support the extent of the district court's departure.  Instead, he
apparently claims only that if the district court had considered the
factors that he claims the court ignored, the court would not have
departed upward.  Pet. 8-10.  /1/

   Nothing in the record supports petitioner's claim that the district
court failed to consider these factors.  Petitioner's military service
was summarized in the presentence report.  See Presentence Report 13
(noting that petitioner served in Vietnam and received an honorable
discharge).  In addition, the presentence report gave petitioner a
downward adjustment in his offense level because of his acceptance of
responsibility for the crimes.  Id. at 6.  Finally, counsel
specifically brought petitioner's mental condition to the district
court's attention, and the court took note of petitioner's mental
problem when it recommended to the Bureau of Prisons that petitioner
be incarcerated at a facility where he could receive a psychiatric
evaluation.  See C.A. App. 5 (Judgment and Commitment Order).  Thus,
the district court was aware of the factors that petitioner identifies
and must be presumed to have considered them in arriving at his
sentence.  For this reason, petitioner's claim lacks factual support.

   In any event, to the extent that petitioner claims that the
Sentencing Guidelines deny him due process by precluding district
courts from considering individualized factors during sentencing, his
contention has been rejected by every court of appeals which has
considered it.  See, e.g., United States v. Brady, 895 F.2d 538,
543-544 (9th Cir. 1990);  United States v. Thomas, 884 F.2d 540,
542-544 (10th Cir. 1989);  United States v. Erves, 880 F.2d 376, 379
(11th Cir.), cert. denied, 110 S. Ct. 416 (1989);  United States v.
Bolding, 876 F.2d 21, 22-23 (4th Cir. 1989);  United States v. Pinto,
875 F.2d 143, 144-146 (7th Cir. 1989);  United States v. Allen, 873
F.2d 963, 964-966 (6th Cir. 1989);  United States v. Seluk, 873 F.2d
15, 16 (1st Cir. 1989);  United States v. Brittman, 872 F.2d 827, 828
(8th Cir.), cert. denied, 110 S. Ct. 184 (1989);  United States v.
Vizcaino, 870 F.2d 52, 54-56 (2d Cir. 1989);  United States v. White,
869 F.2d 822, 825 (5th Cir.), cert. denied, 110 S. Ct. 560 (1989);
United States v. Frank, 864 F.2d 992, 1008-1010 (3d Cir. 1988), cert.
denied, 109 S. Ct. 2442 (1989).  Because the courts of appeals are
unanimous in rejecting this contention and because this Court has
denied several petitions for certiorari raising this issue, there is
no need to review petitioner's claim.  /2/

   Petitioner particularly emphasizes (Pet. 8-9) that the district
court should have considered his military service in sentencing him.
A defendant's military service, however, is no different from other
factors that are not required to be considered by the Guidelines.
Thus, there is no merit in the contention that the Guidelines deny
petitioner due process by not requiring the district court to consider
this factor.  See United States v. Chiarelli, 898 F.2d 373, 382-383
(3d Cir. 1990) (no due process right to sentencing court's
consideration of military service).

   Contrary to petitioner's suggestion that the district court's
action was "arbitrary" (Pet. 7), moreover, it is clear that, under the
Guidelines, a personal characteristic such as military service should
be relevant only in exceptional cases.  In enacting the Guidelines'
enabling legislation, Congress made clear that various personal
characteristics of the defendant ordinarily are not relevant to the
sentencing decision.  In that legislation, Congress required the
Sentencing Commission to "assure that the guidelines * * * reflect the
general inappropriateness of considering the education, vocational
skills, employment record, family ties and responsibilities, and
community ties of the defendant." 28 U.S.C. 994(e).  Congress also
focused the Commission's attention on the nature of the offense and
disclaimed rehabilitation as a goal of sentencing, two other
provisions that show that the defendant's personal noncriminal past
ordinarily is irrelevant to the Guidelines calculation.  See 28 U.S.C.
994(c) and 994(k).

   The Guidelines implement this mandate.  Sentencing under the
Guidelines is based almost wholly on the circumstances of the
defendant's offense (offense level) and on the defendant's past
criminal conduct (criminal history category).  In addition, the
Guidelines make clear not only that departures from the Guideline
sentence should be rare, but also that they should occur only in
"atypical" cases in which the defendant's "conduct significantly
differs from the norm." Guideline 1A4(b).  Moreover, the Guidelines
specifically state that various personal characteristics of the
defendant, including his "previous employment record," are "not
ordinarily relevant in determining whether a sentence should be
outside the guidelines." Guidelines Sections 5H1.1-5H1.5.

   Accordingly, although the Guidelines do not specifically address
military service, it is clear that, like other personal
characteristics, military service does not ordinarily justify a
departure from the Guidelines.  Contrary to petitioner's claim,
moreover, it is equally clear that, as with other personal
characteristics, the failure of a district court to mitigate a
particular sentence on the basis of military service is not a
violation of due process.  /3/

                              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

   J. DOUGLAS WILSON

      Attorney

   AUGUST 1990

   /1/ To the extent that petitioner argues (Pet. 8) that his military
service would have affirmatively supported a downward departure from
the Guidelines (rather than arguing that the district court should
have stayed within the Guidelines), it is settled that a district
court's failure to depart downward is not subject to appeal.  See,
e.g., United States v. Evidente, 894 F.2d 1000, 1003-1004 (8th Cir.),
cert. denied, 110 S. Ct. 1956 (1990);  United States v. Tucker, 892
F.2d 8, 10-11 (1st Cir. 1989);  United States v. Franz, 886 F.2d 973,
976-981 (7th Cir. 1989);  United States v. Colon, 884 F.2d 1550, 1554
(2d Cir.), cert. denied, 110 S. Ct. 553 (1989).

   /2/ As we have argued in Briefs in Opposition to several petitions
for certiorari, the Due Process Clause provides no right to
individualized sentences.  See, e.g., Duncan v. United States, No.
89-6792, cert. denied, 110 S. Ct. 2566 (1990);  Chambless v. United
States, No. 88-7595, cert. denied, 110 S. Ct. 560 (1989).

   /3/ Petitioner's reliance on United States v. Pipich, 688 F. Supp.
191 (D. Md. 1988), for a contrary proposition is misplaced.  In
Pipich, the court departed downward based on the defendant's
"exceptional military record" (id. at 193);  Pipich should be read as
holding simply that the defendant's military service was sufficiently
exceptional to warrant departure in that particular case.  See also
United States v. McCaleb, No. 89-2229 (7th Cir. July 23, 1990), slip
op. 7 ("(A) person's military record might, under some circumstances,
warrant a downward departure.");  United States v. Neil, 903 F.2d 564,
566 (8th Cir. 1990) (although military service could "'constitute
grounds for departure in an unusual case,'" defendant's military
service did not warrant a departure).