TIMOTHY JOHN O'MEARA, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-5215

   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 Eighth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. A1-A8) is reported
at 895 F.2d 1216.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 12,
1990.  A petition for rehearing was denied on May 11, 1990.  Pet. App.
A9.  The petition for a writ of certiorari was filed on July 20, 1990.
 The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether petitioner was properly sentenced for conspiracy to possess
eight ounces of cocaine with the intent to distribute it, even though
petitioner may have thought he and his co-conspirator were buying only
six ounces of cocaine.

                               STATEMENT

   Following a jury trial in the United States District Court for the
District of Minnesota, petitioner and a codefendant were convicted of
conspiring to possess cocaine with intent to distribute it, in
violation of 21 U.S.C. 846.  Petitioner was sentenced to 33 months'
imprisonment, followed by three years' supervised release.  The court
of appeals affirmed (Pet. App. A1-A8).

   The evidence at trial showed that an undercover law enforcement
agent contacted petitioner's codefendant, David Kost, in March 1988
and attempted to buy five kilograms of cocaine.  The negotiations were
unsuccessful.  At the end of the month, however, Kost asked the agent
to sell him two ounces of cocaine.  Several days later, Kost asked the
agent to sell him six ounces of cocaine at $1,000 per ounce.  Kost and
the agent agreed to meet later to complete the sale.  Pet. App. A2.

   On April 5, Kost and petitioner drove to a parking lot in
Minneapolis.  There, the agent and Kost negotiated the sale in the
agent's car while petitioner waited in another car.  As petitioner
admits (Pet. 13), he planned to buy four ounces, and Kost was to keep
two ounces.  The agent told Kost that he had eight ounces of cocaine,
and that he preferred to sell the entire eight ounces in a single
transaction.  The agent agreed to "front" Kost the remaining two
ounces (that is, to permit Kost to take delivery of the drugs
immediately and make payment later).  Kost paid the agent $1,000 and
told him that petitioner would pay him $5,000.  Kost planned to tell
petitioner that the price of the cocaine was $1,250 an ounce, so that
petitioner would pay $5,000 for four ounces, and Kost get two ounces
for $1,000.  Pet. App. A2.

   Kost summoned petitioner to the agent's car to deliver the money.
Petitioner tasted the cocaine, pronounced it to be of good quality and
passed the bag of cocaine to Kost.  The agent asked petitioner what
cocaine sold for where petitioner lived.  Petitioner replied that
cocaine sold for about $2,000 an ounce when diluted by 25%.  At that
point, other law enforcement agents arrested petitioner and Kost.
Pet. App. A2-A3.

   In computing petitioner's total offense level under the Sentencing
Guidelines, the district court concluded that petitioner was
accountable for the eight grams of cocaine involved in the
transaction.  Pet. App. A6.

   The court of appeals affirmed.  The court held that the district
court's decision to sentence petitioner on the basis of an eight-ounce
cocaine transaction was not clearly erroneous.  The court concluded
that petitioner was responsible for the full amount because it was
reasonably foreseeable that his co-conspirator would purchase eight
ounces of cocaine.  The court noted that petitioner willingly accepted
the eight ounces of cocaine and did not question its weight or verify
that he and Kost were purchasing only six ounces.  The court stated
that petitioner "has not persuaded us that it was unforeseeable that
Kost, as his co-conspirator, would accept an additional two ounces if
offered to him." Pet. App. A6.  /1/

   Judge Bright dissented.  Pet. App. A6-A8.  Although his dissent
principally concerned petitioner's codefendant Kost, Judge Bright
stated in a footnote to his opinion that he could not agree that
petitioner was properly sentenced based on an eight-ounce transaction.
 Pet. App. A6-A7 n.1.  Judge Bright concluded that the government had
produced no reliable evidence that petitioner reasonably could have
foreseen Kost's negotiations for an additional two ounces of cocaine.
Ibid.

                               ARGUMENT

   Petitioner "does not contest his conviction" and "admits to
conspiracy to obtain six ounces of cocaine, four of which were to be
his, with the intent to distribute." Pet. 13.  Petitioner contends,
however (Pet. 9-13), that he did not know Kost had agreed to purchase
an additional two ounces of cocaine, and that therefore the district
court should have computed his sentence based on the six ounces of
cocaine that petitioner and his codefendant planned to obtain rather
than the eight ounces that they actually obtained.  This narrow
contention merits no further review.

   1. Section 1B1.3(a)(1) of the Sentencing Guidelines provides that
the defendant's Sentencing Guideline range is to be determined on the
basis of "all acts or omissions committed or aided and abetted by the
defendant, or for which the defendant would be otherwise accountable."
At the time of petitioner's offense, Application Note 1 to Guideline
Section 1B1.3 (Jan. 15, 1988) stated that if the defendant was
convicted of conspiracy, conduct "for which the defendant is otherwise
accountable" included "conduct in furtherance of the conspiracy that
was known to or was reasonably foreseeable by the defendant." The
current version of Application Note 1 contains a similar instruction.
/2/ Thus, if a defendant is convicted of a drug conspiracy offense,
his sentencing range is determined on the basis of the offenses that
were reasonably foreseeable as a result of the conspiracy.  See, e.g.,
United States v. Ross, 905 F.2d at 1054;  United States v. Drew, 894
F.2d 965, 973 (8th Cir.), cert. denied, 110 S. Ct. 1830 (1990);
United States v. Candito, 892 F.2d 182, 185-186 (2d Cir. 1989).

   Here, the district court properly sentenced petitioner on the basis
of the eight ounces of cocaine actually purchased.  As the court of
appeals noted (Pet. App. A6), petitioner accepted the eight-ounce bag
of cocaine, did not question its weight, and did not verify that it
only contained six ounces.  Even if petitioner thought he and his
co-conspirator were buying only six ounces of cocaine, it was
reasonably foreseeable that Kost might agree to purchase a larger
amount.  Petitioner, who was an experienced drug dealer (see Pet App.
A7 & n.2), knew that Kost might agree to purchase additional cocaine
in order to reap additional profits.  Kost and the undercover agent
had negotiated possible cocaine transactions ranging from five
kilograms to two ounces.  Thus, it was hardly surprising that Kost was
willing to purchase an additional two ounces of cocaine.  And
petitioner, as an experienced drug dealer, was aware of the practice
of "fronting" drugs to dealers.  In short, Kost's purchase of an
additional two ounces was reasonably foreseeable as part of the
charged conspiracy.  Accordingly, petitioner properly was held
accountable for the eight-ounce cocaine transaction.

   2. Petitioner incorrectly contends (Pet. 9-16) that the court of
appeals held that the burden of proof is on the defendant to show that
purchase of an additional quantity of drugs is not reasonably
foreseeable.  Petitioner contends that this burden-shifting violates
his due process rights and conflicts with decisions of other courts of
appeals.  Pet. 10-12 (citing United States v. Wright, 873 F.2d 437,
441-442 (1st Cir. 1989)).

   Petitioner's argument rests on a misreading of the court of
appeals' opinion.  To be sure, the court said that petitioner "has not
persuaded us that it was unforeseeable that Kost * * * would accept an
additional two ounces if offered to him." Pet. App. A6.  But it
continued:  "On these facts, we find that the district court's
decision to sentence (petitioner) on the basis of eight ounces of
cocaine is not clearly erroneous." Ibid.  Contrary to petitioner's
suggestion, the court of appeals was referring to the standard of
review on appeal, not the standard of proof at the sentencing hearing
before the district court.  The court of appeals merely stated the
established rule that, where a sentencing court has found that an
offense was a reasonably foreseeable consequence of a conspiracy for
which the defendant was convicted, that finding will not be disturbed
on appeal unless the defendant can show that it was clearly erroneous.
 See, e.g., United States v. Ross, 905 F.2d 1050, 1054 (7th Cir.
1990);  United States v. Willis, 899 F.2d 873, 874 (9th Cir. 1990).
See generally Maine v. Taylor, 477 U.S. 131, 145-146 (1986).  Thus,
the court of appeals' statement that petitioner had not persuaded "us"
that his conduct was unforeseeable indicated only that petitioner had
not met the standard of review on appeal;  it was not a comment on the
burden of proof at sentencing.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Acting Assistant Attorney General

   THOMAS E. BOOTH

      Attorney

   SEPTEMBER 1990

   /1/ The court of appeals also rejected a number of other challenges
to the convictions and sentences.  Pet. App. A2-A6.  Petitioner does
not seek further review of any of these issues.

   /2/ Application Note 1 to Guideline Section 1.B1.3 (Nov. 1, 1989)
provides that in the case of concerted criminal activity, whether or
not charged as a conspiracy, the defendant is accountable for conduct
"in furtherance of the execution of the jointly-undertaken criminal
activity that was reasonably foreseeable by the defendant."