OLGA TORRES, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-6470

   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 judgment order of the court of appeals (Pet. App. 1) is not
reported, but the judgment is noted at 917 F.2d 568 (Table).

                             JURISDICTION

   The judgment of the court of appeals was entered on September 25,
1990.  The petition for a writ of certiorari was filed on December 10,
1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether the district court properly departed above the sentencing
range indicated by the Sentencing Guidelines because petitioner
permitted her son to participate in a drug trafficking conspiracy.

                               STATEMENT

   Petitioner pleaded guilty in the United States District Court for
the Southern District of Florida to possessing more than half a
kilogram of cocaine with intent to distribute it, in violation of 21
U.S.C. 841(a)(1).  /1/ She was sentenced to 72 months' imprisonment,
to be followed by a four-year term of supervised release.  The court
of appeals affirmed.  Pet. App. 1.

   1. The facts are summarized in the government's brief in the court
of appeals (Gov't C.A. Br. 3-4, 7).  During January 1988, petitioner
and several members of her family, including her husband (Carlos
Torres), her brother (Augustin Castro), and two sons (John and Efrein
Torres), participated in a conspiracy to distribute large quantities
of cocaine.  John Torres negotiated the sale of 50 kilograms of
cocaine to an undercover agent and thereafter delivered approximately
one kilogram to the agent as a sample.  On January 21, 1988, John
Torres and the agent went to the Torres family home.  There, in the
presence of John and Efrein Torres, petitioner retrieved a kilogram of
cocaine from a bedroom and displayed it for the agent.  At the time,
petitioner, John, and Efrein conversed in Spanish.  Later that day,
other conspirators showed the agent two additional sample kilograms of
cocaine.  One week later, the agent met with John and Efrein Torres to
discuss the actual delivery of the 50 kilograms of cocaine.  Efrein
Torres and other conspirators displayed another sample kilogram of
cocaine to the agent at that time.

   2. At sentencing, the district court determined that the offense
level for petitioner's offense was level 26.  The court adjusted the
offense level downward to level 24 because petitioner was a minor
participant in the offense.  Sentencing Guideline 3B1.2(b).
Petitioner was determined to have a criminal history category of I.
As a result, the Sentencing Guidelines indicated a range of 51-63
months' imprisonment.

   The court departed upward from the indicated Guidelines range and
imposed a sentence of 72 months' imprisonment.  Referring to
petitioner's younger son, the court noted that because of petitioner
and her husband, "the life of one young man has been absolutely
destroyed in this courtroom";  the court faulted them for allowing
Efrein Torres to become involved in the offense rather than exercising
their "ability * * * to have extricated Efrein Torres from this
situation." Gov't C.A. Br. 6.  The court announced that it was
departing upward by nine months "because of (petitioner's)
participation and because of the resulting damage that ha(d) been done
to Efrein Torres." Id. at 7.  /2/

                               ARGUMENT

   Petitioner contends that the district court erred in departing
above the recommended Guidelines range on account of her
responsibility for her youngest son's involvement in the drug
trafficking conspiracy.  Petitioner argues that this factor was not
sufficiently unusual to warrant a departure, that there was no
adequate factual basis to support a departure, and that the nine-month
departure from the Guidelines sentencing range was unreasonable.
There is no merit to petitioner's claims.

   A district court may impose a sentence outside the range
established by the Sentencing Guidelines if the court finds "that
there exists an aggravating or mitigating circumstance of a kind, or
to a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a
sentence different from that described." 18 U.S.C. 3553(b).
Petitioner's "abuse of her custodial relationship" with her son Efrein
constituted just such an aggravating factor.  See United States v.
Shuman, 902 F.2d 873, 876 (11th Cir. 1990) (upholding an upward
departure for a mother who "voluntarily and wilfully brought her son
into a drug business environment").  Although a parent's involvement
of an offspring in drug trafficking was not a circumstance
specifically taken considered by the drafters of the Guidelines, it is
analogous to other provisions in the Guidelines that treat abuse of a
custodial relationship or a position of trust as aggravating factors.
See, e.g., Sentencing Guidelines 2A3.1(b)(3) (offense level for sexual
abuse is increased if victim was in defendant's custody);  2G2.1(b)(2)
(offense level for sexual exploitation of a minor is increased if
defendant was a parent or guardian);  2P1.1(b)(4) (offense level for
assisting an escape is increased if defendant is a law enforcement or
corrections officer);  3B1.3 (upward adjustment is required if
defendant abused a position of public or private trust).

   There was an ample basis in the record to support the district
court's determination that petitioner seriously abused the
responsibilities imposed by the parent-child relationship in fostering
her teenage son's participation in a drug trafficking conspiracy that
resulted in his conviction and imprisonment.  /3/ As in Shuman, where
the defendant negotiated a drug sale in the presence of her
participating child, petitioner produced a sample kilogram of cocaine
for the undercover agent to inspect at the Torres family home in the
presence of Efrein.  Thereafter, Efrein drove the undercover agent to
several meetings, participated in negotiations regarding the planned
transaction, and was present when an additional sample kilogram of
cocaine was displayed to the agent.  Given these facts, together with
the involvement of Efrein in the related marijuana importation
conspiracy to which petitioner pleaded guilty, the district court was
fully justified in concluding that petitioner bore substantial
responsibility for fostering her son's participation in a course of
serious criminal conduct that ultimately had disastrous consequences
for him.  /4/

   Finally, the nine-month departure for abuse of parental trust was
not unreasonable.  In Shuman, the court upheld as reasonable an upward
departure of ten months in similar circumstances.  Moreover, the
analogous Guidelines provisions cited above that deal with abuses of
trust typically provide for a two-level adjustment in the offense
level.  Petitioner's sentence of 72 months' imprisonment was well
within the Guidelines range that would have been applicable if
petitioner's offense level had been two levels higher.  See United
States v. Hummer, 916 F.2d 186, 194 n.7 (4th Cir. 1990) (reference to
analogous Guidelines provisions useful in determining the
reasonableness of the departure);  United States v. Shuman, 902 F.2d
at 876-877 (accord);  United States v. Ferra, 900 F.2d 1057, 1062 (7th
Cir. 1990) (accord).

   In sum, the decision to depart in this case was fully consistent
with the Sentencing Guidelines and is not in conflict with the holding
of any court of appeals.  Further review is therefore inappropriate.

                              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

   ROBERT J. ERICKSON

      Attorney

   FEBRUARY 1991

   /1/ At the same time, petitioner pleaded guilty in a companion case
to a charge of importing in excess of 100 kilograms of marijuana.  See
United States v. Torres, No. 88-832-CR-Spellman(s) (S.D. Fla. 1988).

   /2/ The court provided that petitioner's sentence was to be
concurrent to a five-year sentence imposed as a result of her
conviction in a companion case.

   /3/ Petitioner argues (Pet. 11) she should not have been held
responsible for Efrein's criminal involvement because Efrein "was a
responsible married adult with a child" at the time of sentencing.
Efrein, however, was 19 years old at the time of the offense.
Moreover, Efrein was a co-defendant in the marijuana importation
conspiracy to which petitioner pleaded guilty.  See n.1, infra.  That
conspiracy was alleged to have begun in 1983, when Efrein was only 15
years old.  See Gov't C.A. Br. 7.

   /4/ Petitioner complains (Pet. 9) that the court's determination
that an upward departure was justified because her participation in
the offense involved an abuse of her parental responsibilities was
inconsistent with its determination that she was entitled to a
downward adjustment as a minor participant.  There was no
inconsistency:  although petitioner's participation in the offense may
have been minor in comparison to the participation of her
co-defendants, her abuse of her parental responsibilities in fostering
Efrein's participation in the drug trafficking conspiracy nonetheless
had serious and long-term implications for Efrein's well-being.

   Likewise, petitioner cannot complain because the court did not
depart upward in sentencing her equally or more responsible husband.
Because the circumstances of this case fully supported the court's
decision to depart above the Guidelines range in sentencing
petitioner, it is irrelevant that the court could have, but did not,
exercise its discretion to depart with respect to a co-defendant.  In
any event, petitioner's husband was subject to a higher penalty range
under the Guidelines than was petitioner, and the court sentenced her
husband at the top of that higher range.  Thus, even with the upward
departure, petitioner received a sentence that was six months shorter
than the 78-month sentence that her husband received.