Braxton v. United States – Oral Argument – March 18, 1991

Media for Braxton v. United States

Audio Transcription for Opinion Announcement – May 28, 1991 in Braxton v. United States

del

William H. Rehnquist:

We’ll hear now in argument No. 90-5358, Thomas Braxton v. The United States.

Mr. Cribari.

Stephen J. Cribari:

Mr. Chief Justice, and may it please the Court:

This is a sentencing guidelines case of some consequence to criminal defendants and practitioners of criminal law.

As you know the sentencing guidelines implement a charge offense system of sentencing.

Under the guidelines a defendant expects to be sentenced or the offense or offenses for which he is convicted.

There are defined exceptions to that general rule, and the guideline at issue in this case contains one of those exceptions.

The exception is that when a defendant enters a guilty plea containing a stipulation which establishes an offense more serious than the offense of conviction, that defendant can expect his base offense level or, if you will, his presumptive sentence, to be based on the stipulated offense, not the offense of conviction.

The issue in Mr. Braxton’s case is whether the technical term “stipulation” can be so broadly interpreted that a defendant who refuses to stipulate, who makes it clear on the record that he does not intend the stipulation, denies committing the more serious offense, and keeps in issue an essential element of that offense may nevertheless be found to have stipulated because he acknowledges the Government’s factual proffer on the offenses to which he intends to plead guilty.

William H. Rehnquist:

How is the Government… how does the Government’s factual proffer come up in this case?

Was it to show the voluntariness of the plea?

Stephen J. Cribari:

It came up in the extremely ordinary fashion of turning to the Government at the appropriate time during the Rule 11 inquiry and asking for the factual basis for the plea.

The Government proffered what its facts would be… had… would the case go to trial, and Mr. Braxton acknowledged those facts as acts that he did.

At the same time he maintained that he did not intend to kill anybody.

It is clear in the statement of facts that the Government proffered, that Mr. Braxton, who has been on a community release from a mental hospital, had stopped reporting for his medication.

The marshals had been dispatched to bring him back.

When they identified who they were and why they were there, he then threatened them.

He refused to go back.

And when they kicked his door open, he fired shots at the door.

I think it’s important to bear in mind factually that Mr. Braxton… and the evidence would be clear on this… did not fire through the opening of the door at the people outside.

The bullets lodged in the outside of the door.

So that when the door was kicked open, shots were fired across toward the open door, hitting the outside of the door.

The door then closed.

William H. Rehnquist:

I don’t really get exactly… perhaps you should be more explicit about it.

Stephen J. Cribari:

About how that happened?

William H. Rehnquist:

Well, was the door open when he fired the shots?

Stephen J. Cribari:

The door had a chain guard on it.

And one of the marshals kicked the door open so that it snapped open into the apartment.

The shots were then fired and lodged in the… what would be the front of that door… which they could only do had the shots been fired across the front of the apartment toward what was now the open face of the door.

In other words, they were fired perpendicularly to the opening of the door.

Byron R. White:

But none were fired before the door was kicked open?

Stephen J. Cribari:

None were fired before the door was kicked open.

The words were exchanged.

And when the door was kicked open, the shots were fired.

Anthony M. Kennedy:

So he intended to assault the door?

Stephen J. Cribari:

Well, I think it’s clear he intended to assault the marshals by this act to frighten them away… to say, I am not going back to the mental hospital.

If you… he went to so far as to threaten, if you come in, I’ll kill you.

I mean, there were overt threats made.

But at the time the proffer was made by the Government, what Mr. Braxton said and what he said at sentencing was, I did not intend to kill those people.

I intended not to go back to St. Elizabeth’s.

I intended to frighten them.

I did not intend killing.

Now–

Sandra Day O’Connor:

Mr. Cribari, based on the facts that were admitted at the plea hearing, could the sentencing judge have imposed the same sentence by enhancing the sentence under the guidelines and reach the same result that he reached here?

Stephen J. Cribari:

–Justice O’Connor, I think it’s certainly possible, but what’s at issue is the manner of doing it.

And under the guidelines, the manner of doing it is crucial.

Sandra Day O’Connor:

But on these facts he could have achieved the same result by another mechanism.

Stephen J. Cribari:

I hesitate to say, categorically, yes.

The answer is he could do it.

But the answer also is that in doing so, he would have to engage in a departure analysis.

And engaging in a departure analysis, the courts have been fairly clear that all departures, upward or downward, have to be structured.

We’ve developed the term “guided departures”.

At–

Sandra Day O’Connor:

Well, if you were correct on the proposition that you bring to us, at the very least I suppose we should remand to let the trial judge determine if the same sentence should be imposed on another basis.

Stephen J. Cribari:

–We would happily take that hearing, Your Honor.

I think that that’s the correct procedure that has to happen.

You have to start from the base offense level for the aggravated assault, and you have to engage in discussion as to why the next level is not appropriate, why the next level… and why this sentence would be acceptable.

Sandra Day O’Connor:

Now, would you tell us what the Sentencing Guidelines Commission’s position is at present on the interpretation of this provision?

Stephen J. Cribari:

This stipulation provision?

Sandra Day O’Connor:

Yes.

Stephen J. Cribari:

Your Honor, I think the sentencing guidelines interpretation is fairly clear.

Under 1B1.2 in the commentary, the Sentencing Commission cites to a House report which is the subject of some discussion in the briefs that refers to stipulations of this nature being contained in plea agreements.

There’s not a specific discussion that they should be in writing necessarily, but that they should be part of a plea agreement.

Antonin Scalia:

Mr. Cribari, does… has the Sentencing Commission taken any… after issuing the guidelines, do they take positions on their interpretation of what they’ve issued?

I mean, any other agency that we review we especially give great deference to their interpretation of their own rules.

And this is sort of like a rule of the guidelines.

I just don’t know how to handle it.

Do they take any positions on interpretation or is the only thing they can do is reenact a different guideline?

They have this under consideration right now, don’t they?

Stephen J. Cribari:

They do.

They have under consideration a proposed amendment to this guideline questioning whether it should be made specifically clear in the guideline as part of the black letter law that–

Antonin Scalia:

And what if they do?

Is that retroactive?

Do we treat that as though it’s an agency’s interpretation of its own… of its own regulation?

Or is like Congress’ enactment of a new statute?

Stephen J. Cribari:

–Well, I think the Commission take the position that these would clarifying amendments which would be effective at the time anyone would be sentenced under them and would have no retroactive effect in–

Antonin Scalia:

Would not be retro–

Stephen J. Cribari:

–Well, if it’s a clarifying amendment, all it’s doing is making more clear what once was the case.

Antonin Scalia:

–So it would have a retroactive effect?

Stephen J. Cribari:

Excuse me; Your Honor?

Antonin Scalia:

So it would have a retroactive effect?

Stephen J. Cribari:

It would have a retroactive effect in the sense that–

Antonin Scalia:

But would not be retroactive?

Right.

I know what you mean.

Stephen J. Cribari:

–Well, Your Honor, I think it would have a retroactive offense… effect in the sense that it is making clear what has always been the case.

But I don’t think people who have already been sentenced could have all of their sentences reheard because some… the law had been changed in a way that would have a benefit to those people.

Antonin Scalia:

What–

–What precisely is the amendment that the Commission is considering?

Stephen J. Cribari:

The Commission’s amendment reads as follows, and it’s extremely short: proposed amendment to 1B1.2, regard… which regards stipulations to more serious offense should be amended to provide expressly that such stipulation must be part of a formal plea agreement.

William H. Rehnquist:

And that is what it is considering but has not acted upon?

Stephen J. Cribari:

That is what it is soliciting comment on doing.

Anthony M. Kennedy:

Is this a formal plea agreement?

Stephen J. Cribari:

There was no plea agreement in this case, Your Honor.

There was no plea agreement of any kind.

Anthony M. Kennedy:

Does formal plea agreement mean written, in your view?

Stephen J. Cribari:

Well, I think the better practice is written, and I think the rules… at least the local rules of the district court in Maryland would require in the felony situation that we have a written agreement.

I’m not sure it needs to be written.

I think the Second Circuit in McCall has said that, whether written or oral, it must be formal and must be part of a plea agreement.

Of course, what’s ultimately at issue is will a defendant be sentenced presumptively to a base offense level for an offense that he does not acknowledge committing.

Antonin Scalia:

Mr. Cribari, am I correct that if the Commission adopts what they have proposed to adopt, your client would… would win?

Is that… is that right?

Stephen J. Cribari:

That’s accurate.

Since–

Antonin Scalia:

Now, what if… what if we… what if we find against your client, and then the Commission adopts what it has proposed to adopt?

Stephen J. Cribari:

–Your Honor, that puts me in the awkward position of saying perhaps my client then should file some kind of 2255 alleging my ineffectiveness for not foreseeing that that would be the case for him.

Antonin Scalia:

Oh, but you think we would win though?

Stephen J. Cribari:

Well, I… you would have a situation where the Commission will have changed the guidelines, or… sorry… where the Commission will have clarified guidelines in a way opposite to what this Court could do in this case.

Certainly, you have a situation where that would be concededly unfair to a defendant.

And hopefully there could be some kind of review.

Antonin Scalia:

Well, why not–

Stephen J. Cribari:

But if the Commission’s adoption would be a clarifying amendment–

Byron R. White:

–Why not treat the Commission in such a situation like we had… treat Congress?

Congress can always overrule some statutory interpretation.

Stephen J. Cribari:

–Well, certainly the Commission… if this Court found a… in the Government’s favor in this case… the Commission could enact the guideline or reenact the guideline or amend the guideline to make it consistent with my position.

The question is what happens to Mr. Braxton in the meantime?

Byron R. White:

He goes to jail.

Stephen J. Cribari:

Well, he’s already there, and I think he stays there.

Byron R. White:

Uh-huh.

Stephen J. Cribari:

And I don’t think he gets the benefit of… of the Commission’s amending a guideline once this Court concludes this case against him, if it were to do that.

Stephen J. Cribari:

But to conclude this case against Mr. Braxton, the Court is going to have to say that Mr. Braxton, who proclaimed his innocence of a stipulated offense, nevertheless stipulated to that offense.

I–

Harry A. Blackmun:

Counsel, does… was there any attempt to take this Court en banc in the Fourth Circuit?

Stephen J. Cribari:

–There was not, Your Honor.

I’ll be happy to say why.

We had won one portion of the appeal in this case.

On the acceptance of responsibility issue the trial court had ruled that Mr. Braxton could not get it to a level of reduction for acceptance of responsibility because he frankly was insane… could not show remorse for his actions.

Remorse was necessary to show rehabilitation, and rehabilitation was necessary to get the benefit of acceptance of responsibility.

The Fourth Circuit ruled that that’s not true, that rehabilitation has nothing to do with incarceration, and at least in the incarceration sentence a defendant need not show a step toward rehabilitation to show that he accepts responsibility.

Harry A. Blackmun:

Well, you’ve got a divided vote here.

It would have been interesting to know where Judge Wilkins stood.

Stephen J. Cribari:

Well, it would have, Your Honor.

I think you can get that from his low review article.

And I think you can understand where Judge Wilkins stands from the proposed amendment, which was proposed after the Fourth Circuit’s decision in Braxton, and certainly he would not have been ware of that sitting on that court.

Antonin Scalia:

Do we give special weight to those courts that have members of the Commission on them?

Is that the–

Stephen J. Cribari:

Well, Your Honor, I… we tried that in Mistretta I think.

Antonin Scalia:

–Yes, I see.

Stephen J. Cribari:

And… and it was not particularly availing.

I think you give weight to expert judges in light of what their expertise is.

I don’t think you can say just because Judge Wilkins wrote a law review article, taking a certain position, that therefore that’s the position of the Commission, and this is a pronouncement that you must defer to.

But you certainly can be aware of who Judge Wilkins is and what the low review article is all about.

Antonin Scalia:

Could I ask the inverse situation of the question I asked before?

Suppose we find, not against your client, but for your client.

And then the Commission does not adopt its proposed clarification, but… well… either two questions.

Either it doesn’t adopt the proposed clarification.

It does nothing.

Or else it adopts just the opposite clarification.

Then… then what would happen?

Stephen J. Cribari:

Then–

Antonin Scalia:

Would that apply retroactively to your client, and he would deprived of the victory that we have given him?

Stephen J. Cribari:

–No, I don’t think so at all.

Antonin Scalia:

So it’s sort of a one-way street.

Stephen J. Cribari:

At that point I think it is.

I think that’s really no different than the cases where this Court says you cannot be convicted of bank robbery by intimidation with a gun, and then use… or hand gun offense and bank robbery by armed robbery.

And then Congress turns around and changes it.

I’m not sure that people in the interstices get any benefit one way or the other.

Antonin Scalia:

Well, you do agree they should be treated like Congress and not like an agency?

They’re–

Stephen J. Cribari:

Well, they are laws.

Antonin Scalia:

–not just interpreting their guidelines.

They are issuing a new guideline essentially, right?

Stephen J. Cribari:

They are not?

Antonin Scalia:

They are not just interpreting a guideline the way an agency does.

They are issuing a new guideline.

It’s a… it’s a new enactment.

Stephen J. Cribari:

To the extent that they issue a new guideline, they… I mean, there’s a period where they would have to be… could be vetoed and so forth.

But to the extent that they merely clarify, I wonder if they’re issuing in fact a new substantive law or whether they’re just clarifying an old one.

Anthony M. Kennedy:

Well, do you have to concede that what they are doing is a clarification?

Stephen J. Cribari:

For my case I do not.

I think for this case–

Anthony M. Kennedy:

I mean, why can’t you argue it to this… to us, well, this would be a new guideline?

Stephen J. Cribari:

–Well, we could.

It could be a new guideline.

It could be a clarification, but it’s going to affect the people in the future.

For this case, I don’t think it’s going to affect Mr. Braxton one way or the other once this Court decides this case, if for no other reason there’s no procedural vehicle to get him back into court once this Court decides the case.

For the people in the future, there will be notice.

It will be there.

It can be read, and proceedings can be… can happen accordingly.

Byron R. White:

Well, of course there’s… what’s the time table for the Commission to act?

Stephen J. Cribari:

I think comment is due by… I think it’s by May 1st, and there would be amendments probably in June.

It’s possible the Commission could pass an amendment while this Court is considering this case.

Byron R. White:

It’s possible we might wait for them.

Stephen J. Cribari:

It’s very possible.

I understand that.

Byron R. White:

Do you suggest we do?

I would think you would at least, rather than hold against you.

[Laughter]

Stephen J. Cribari:

Your Honor, given… given the legislative history and Judge Wilkins’ comments, I… it would not trouble me if the Court waited for that amendment.

I don’t think the Commission will take the position.

I think it would be unexpected for the Commission to take the contrary position, saying that the decision in Braxton is what the law ought to be, in effect, telling the Second Circuit, the Fifth Circuit, and the other circuits that you don’t need formal stipulations.

I think the word stipulation in 1B1.2 is a formal, technical term.

It doesn’t say a plea in which the defendant agrees to certain facts.

It doesn’t say a plea in which a defendant acknowledges an offense greater than the offense at conviction.

It says,

“a plea in which the defendant stipulates. “

And I think… even in the Government’s brief… I don’t think there’s any dispute between the parties as to what a stipulation is.

It is a… certainly an agreement, and it is an agreement between the parties… that’s the Government and the defense.

I think Judge Sprouse was correct in the Fourth Circuit when he said, the stipulation envisions an agreement between the defendant and the Government.

Without that agreement… without that assurance that the defendant knows he is admitting to greater offense conduct… you can’t turn around and say your presumptive sentence is based on an offense you deny committing.

William H. Rehnquist:

Well, when you say that a stipulation is a word of art meaning an agreement between the Government and the defendant, do you mean that it can’t be entered into by attorneys?

Stephen J. Cribari:

Well, the… the attorneys representing the parties could certainly do it.

I think being an attorney on behalf of the defendant and the attorney representing the Government–

William H. Rehnquist:

So what… what then is your point when you say that it’s an agreement between the defendant and the Government?

Stephen J. Cribari:

–My point is that without a formal agreement between the parties or between the lawyers representing the parties, the Government should not be a position of coming to court, making its factual proffer, having a defendant acknowledge, that’s what I did for purposes of what I want to plead guilty to, and then find out he stipulated to greater offense conduct.

William H. Rehnquist:

You say that what happened here with the Government making a proffer for the voluntariness purposes, the judge asking the defendant if he agreed, he says that is not an agreement between the parties.

Stephen J. Cribari:

No, not after the parties discussed plea agreements and rejected them.

I mean, there’s a… it’s a clear statement in the record even from the Government: we do not have a plea agreement, and we’re going to wait and see what sentence you give.

And if we like it, fine.

If we don’t like it, we may reevaluate this case and take the attempted murder charge to trial or whatever.

William H. Rehnquist:

Well, how–

Stephen J. Cribari:

The only agreement was that the Government would do what it wants to do.

Byron R. White:

–I don’t suppose if there… if there had been a plea agreement in this case, what… what do you think it would have been about?

You… that I agree to plead guilty to… to assault, but I don’t… I’m not pleading to a… to attempted murder.

But I stipulate to these facts for purposes of… now, would the case be any different then?

Stephen J. Cribari:

I think if would be very different.

I think if there had been that plea agreement with the stipulation to the greater offense conduct–

Byron R. White:

Yes–

Stephen J. Cribari:

–Mr. Braxton could not have–

Byron R. White:

–I know, but what if Mr. Braxton said, I’m not pleading guilty to the… either in the agreement or in open court, he says, I didn’t plead guilty to attempted murder.

And I didn’t commit attempted murder.

Stephen J. Cribari:

–Then, in fact–

Byron R. White:

I do not… I do not agree that I committed it.

Stephen J. Cribari:

–Then either that would be a violation of a plea agreement or that… there would be no plea agreement.

That’s why we did what we did.

Byron R. White:

Why would that be a violation of the plea agreement?

Stephen J. Cribari:

Because if the… the plea agreement… assuming the plea agreement had proceeded… excuse me… assuming the plea agreement represented the Government’s position in this case, there would have been a stipulation to conduct that established the greater offense of attempted murder that would have been required in the plea agreement.

Byron R. White:

I know, but the plea agreement probably would have required the Government to dismiss the attempted murder charge.

Stephen J. Cribari:

In return for the defendant’s agreement that he committed an attempted murder.

Byron R. White:

Yes.

Stephen J. Cribari:

Without that quid pro quo, the plea agreement would have broken down.

If we had… if we had signed such an agreement, and then in open court said, by the way, we don’t agree we committed attempted murder.

The Government certainly could have said, well, then there’s no plea agreement.

It’s broken; we withdraw.

Byron R. White:

Yes.

Stephen J. Cribari:

And we would be where we are.

Byron R. White:

It’s a red herring then.

There never would have been a plea agreement that would have been relevant.

Stephen J. Cribari:

Not in this case.

Only unless the defendant would have agreed to the higher-base offense level.

Stephen J. Cribari:

What defendants says is… the defendant’s action in effect say, I will not agree to acknowledge an attempted murder.

I will agree to acknowledge use of the hand gun and the assault on the Federal officers.

We are left with two choices.

Go to trial or the choice given us by the guidelines… proceed to be sentenced for aggravated assault and try to minimize any damage from the lurking attempted murder charge.

That was taken away from the case by the trial court, using the base offense level for the higher offense.

Byron R. White:

Well, if the… if the court had proceeded to achieve this result by another way, would you be making your same argument that… that the stipulate… or the agreement as to these facts would not justify the court in enhancing the sentence?

Stephen J. Cribari:

No.

Byron R. White:

Would you say there still would have to be a formal stipulation?

Stephen J. Cribari:

No, I would not be making this argument.

If… if the trial court had established the base offense level for the aggravated assault and then said, I now think I’m going to depart upward.

And here is why I am going to do what I’m going to do.

And take an argument on the extent of the departure and the nature of the departure.

Then we would not be saying, well, there’s no stipulation, you can’t depart, because the judge could use what he believed the actual conduct of the case was as a ground for departure.

But significantly, the appellate review is very different.

The appellate review of establishing the base offense level is a clearly erroneous standard.

The appellate review of a departure is much more stringent.

Was there a ground for a departure?

Do the facts support the departure and was the extent of the departure reasonable?

That’s what we envisioned would happen from the beginning of this case, that we would have a base offense level for aggravated assault and we would engage in a departure analysis where the defense would try to constrain and restrict the upward departure and then argue in favor of a downward one.

Byron R. White:

But you’re saying… choosing the baseline is a… would be affirmed unless it was clearly erroneous?

Stephen J. Cribari:

Exactly, Your Honor.

That’s what the Fourth Circuit said.

I think that’s–

Byron R. White:

Well, do you agree with that?

It sounds like a questionable call to me.

Stephen J. Cribari:

–Well, if it’s a question of fact, I have to agree with it, because the Fourth Circuit’s standard is that questions of… determinations of fact will be given great deference and will be overturned only if clearly erroneous.

Byron R. White:

Yeah, surely.

Is that what’s involved in choosing another baseline?

Stephen J. Cribari:

That’s what should be involved because choosing the baseline is very simple.

You look it up.

Stephen J. Cribari:

According to 1B1.1 and 1B1.2, you take the offensive conviction and you look it up.

And if there’s more than one given, you use 1B1.3 to choose between them.

There was only one given here, and it wasn’t looked up.

Rather, what the trial court said was, you have not stipulated to any greater offense.

Nevertheless, because I think you attempted a murder, I’m going to give you the base offense level for the higher offense.

That puts the defense in the position of having to create a downward departure from a base [inaudible] that shouldn’t be done.

Byron R. White:

xxx view of that, that doesn’t sound like a question of fact.

It doesn’t sound like–

Stephen J. Cribari:

Well, what the Fourth Circuit determined was that since the base offense level set in this case was based upon a stipulation, it’s really just a finding of fact.

But the Fourth Circuit had to find a stipulation in the face of the defendant’s denial of the crime to which he was now being found does stipulate.

Byron R. White:

–Okay, go ahead.

Stephen J. Cribari:

I think the appellate review of departures is a significant difference from appellate review of base offense levels.

I think that the standard of proof for a departure, while much less, triggers the more extensive appellate review.

For a base offense level to be set on stipulated conduct, there’s really no doubt that the conduct occurred, because the defendant is saying I committed this greater conduct.

And I agreed to do it, and I agree to the effect of doing it.

Anthony M. Kennedy:

I take it there’s a difference as to whether or not the elements of the offense were established by the facts that were conceded.

Stephen J. Cribari:

Well, I think that’s… that’s a great help in this case for the defense.

And I think that it’s a strong point for the defense, because there is no concession to intent to murder.

And the legislative history of 11.14 indicates you need that.

But the argument would be the same even if that were not the case.

I would make the same argument if the defendant acknowledged all of the essential elements of the offense but still said, I refuse to stipulate.

What that tells the trial court is, if you want to sentence me from my actual conduct, you’re going to have to depart to do it.

And it might be very easy to do that departure.

I am not, however, going to agree to a base offense level for the greater offense.

Now, it may seem like a small point, but the Second Circuit certainly recognized in the McCall case that being sentenced under the wrong base offense level is the denial of a fundamental right under the guidelines.

Guideline sentencing hinges on the establishment of a base offense level and triggers procedures to move away from it.

The base offense level is the safe place.

Byron R. White:

Well, the… did the Government… I suppose the Government could have tried you for attempted murder… tried your client?

Stephen J. Cribari:

Absolutely.

We could have… we could have gone to trial for attempted murder.

Byron R. White:

Yes.

You say if you want to sentence me for… find me guilty of attempted murder and sentence me for that, let’s… try me.

Stephen J. Cribari:

That’s exactly right.

Byron R. White:

But the Government dismissed it?

Stephen J. Cribari:

The Government got the attempted murder sentence.

Why would it go to trial for attempted murder?

Byron R. White:

Yes, well–

Stephen J. Cribari:

But it should not have.

Byron R. White:

–But anyway it dismissed it.

Stephen J. Cribari:

It did.

Byron R. White:

When?

Stephen J. Cribari:

After sentencing.

After sentencing and after it had determined it got the sentence… in fact it got a sentence through much higher than the sentence it was looking for.

Byron R. White:

So did you anticipate that… that you were going… that you’d plead guilty to assault and then were going to stand trial for attempted murder?

Stephen J. Cribari:

I anticipated that was a possible outcome, because the only other alternative was to go to trial on everything.

But it seems to me that it was worth the tactics of the case to say, if we can plead guilty to the two charges we would even acknowledge at trial, and try to limit the sentence, based upon the offense level for the aggravated assault, if we can reach a point that’s acceptable to the defense and the Government decides not to go forward on the attempted murder, we may have saved Mr. Braxton a certain number of years in jail.

And it was worth that attempt.

And the guidelines gave us the right to do that, and it gave us the procedure to do it.

And the trial court acknowledged that you didn’t stipulate to the greater offense.

You should not have the base offense level set for that according to the guidelines.

Nevertheless, that’s what happened.

We were not dealing with a departure case.

I would I think like to reserve the rest of my time for rebuttal.

If there are other questions at this time, I would certainly answer them.

Byron R. White:

You don’t think it would be enough then in this case I… if the… if the judge said, I would like your stipulation of these facts to be made formally?

Stephen J. Cribari:

We would have said we’re not doing that.

We refuse to make a stipulation to these facts formally, because we are not stipulating to them.

And if the trial court then said, I refuse to take a plea without a formal stipulation of facts, we would have said, fine.

Let’s go to trial.

But that seems to me less judicially economical than taking–

Byron R. White:

Well, let’s just assume that you… that you said, okay, judge, I’m… put it in writing and I’ll sign it.

And so they write out the facts and the last… I hereby stipulate to these facts.

You would not have signed that?

Is that it?

Stephen J. Cribari:

–We would not have signed that, because we could not stipulate to the facts of attempted murder because Mr. Braxton denied he committed an attempted murder.

If we would have done that, we would have entered the plea agreement.

But we rejected all of that.

In summation at this point, I would simply say that the guidelines must be interpreted strictly.

They mean what they say.

A stipulation is a formal agreement between the parties.

If you can extract that… that agreement during plea negotiation, you can get a higher base offense level set for a crime of conviction.

Without that stipulation, you must… you must… you must use the departure procedure, which is a different procedure, which has different benefits and pitfalls for the defense.

But that that’s a choice the parties can make, and the right to pick one of those procedures is, as you can see in this case, uniquely within the control of the defendant.

Thank you.

William H. Rehnquist:

Do you wish to reserve the balance of your time, Mr. Cribari?

Stephen J. Cribari:

Yes, sir.

William H. Rehnquist:

Very well.

Mr. Marzen, we’ll hear now from you.

Stephen J. Marzen:

The guidelines provide defendants who want to plead guilty two ways to respond to the Government’s factual proffer.

First, if the proffer is accurate, they can agree to it.

If they come clean, they will most likely get a two–

William H. Rehnquist:

When… when you say to respond to the Government’s factual proffer, what stage of the proceedings are you talking about?

The… the Rule 11?

Stephen J. Marzen:

–Yes, sir, Rule 11, basically the satisfaction of the requirement in Rule 11(f) that there be a factual basis for the plea.

It’s… the defendant can of course himself state the facts that support the plea, but it’s often the case that the district court will ask the Government what it would be able to prove if it went to trial.

And that’s the situation that arose in this case.

So that in this circumstance he had under the guidelines two options.

He could agree to that factual proffer–

William H. Rehnquist:

Well, why do the guidelines have anything to do with a proffer for a Rule 11 purpose?

Stephen J. Marzen:

–The guidelines don’t have any… don’t dictate the procedure at a Rule 11 hearing.

Stephen J. Marzen:

They do have different consequences… different consequences attach depending on what the defendant does at the Rule 11 hearing.

The–

William H. Rehnquist:

Well, I… I don’t… I didn’t see anything in the guidelines about what a defendant did at a Rule 11 hearing.

Stephen J. Marzen:

–With respect, I think guide… the language of guideline 1B1.2 does have that effect, and in particular the proviso.

Guideline 1B1.2 requires the sentencing to… determination generally to be based on the offense–

William H. Rehnquist:

Is that–

Stephen J. Marzen:

–of conviction except in one case.

And that case is the so-called proviso, which applies when three conditions are met.

First, there has to be a plea, a plea of guilty or nolo contendere, which implies that, you know, the requirements of Rule 11 have been satisfied.

Second, that there has to be a stipulation.

That–

William H. Rehnquist:

–It says… it says a plea containing a stipulation that’s specifically established.

Stephen J. Marzen:

–Right.

The plea has to contain a stipulation, and that’s where Rule 11 ties in.

At the–

William H. Rehnquist:

You… I… I think you’re assuming something when you bring Rule 11 in there.

Stephen J. Marzen:

–Well–

William H. Rehnquist:

I mean… well, go ahead.

Stephen J. Marzen:

–Okay.

What I was about to say is that the plea of guilty or nolo contendere has to, as you state, contain the stipulation.

And it’s for that reason that at the plea hearing and not later… for example… at the sentencing hearing, it has to be at the plea hearing there has to be the agreement to the facts, setting up the more serious offense.

It… what the guidelines forbid is at the sentencing hearing, the defendant saying, I did X, Y, and Z.

And then that the district court saying, well, I think that’s attempted murder and that’s what I’m going to sentence you on.

It’s got to be at the plea hearing specifically.

What–

Sandra Day O’Connor:

Mr. Marzen, if the Sentencing Guidelines Commission were to adopt its proposed revision to the guidelines, would you be making… taking the same position in this case?

Stephen J. Marzen:

–If the Sentencing Commission required a plea agreement, we would not.

It would be… it would be clear that–

Sandra Day O’Connor:

Is it clear that that is what they are proposing to adopt?

Stephen J. Marzen:

–No, and that’s the second–

Sandra Day O’Connor:

No?

Stephen J. Marzen:

–part I’d like to say.

There’s no explicit language that has been proposed with respect to any amendment of Rule 1B1.2.

They’re asking for comments whether they should expressly provide that they’ll be a plea agreement.

In other words, there’s been no determination at this stage that a majority of the members of the Sentencing Commission want to amend the current guideline to require that a plea agreement be a predicate for application of the proviso.

There’s one additional fact that the Court should note.

I had been informed within the past week or so that the Commission has in a public meeting voted to defer consideration of any amendment to the proviso pending the Court’s decision in this case.

[Laughter]

What that means… by statute under 28 U.S.C. 994, there are certain statutory time limits the Commission has to operate under.

They have to submit all of their amendments, if they have any this year, by May 1st.

So if the Court makes no decision by May 1st, effectively what that means is that there will be no amendment to the guidelines this year.

That may influence some decision you may want to take.

Under the guideline as it’s currently written, what petitioner Braxton had was two choices.

One choice was to agree to the Government’s factual proffer, agree that he took personal and affirmative responsibility for his criminal conduct.

And in all likelihood he would have gotten a 2-point reduction for acceptance of responsibility.

Go… it goes along with that acceptance of the Government’s facts, that if those facts established a more serious offense, the relevant guideline for calculation of his sentence would have been the more serious offense… in this case, the guideline for attempted murder.

If petitioner had wanted to avoid the higher guideline, he had a second choice under the guidelines.

He could simply have said, Government, I don’t agree with that factual proffer.

Or I don’t have time to read the in and outs of it now, but I don’t agree with it.

And here’s my own version of what the facts were.

Antonin Scalia:

Mr. Marzen, why did the stipulation, using it in your sense, the statement of facts that the Government had proffered, why did that, within the meaning of the guidelines, specifically establish the more serious offense?

Did… did that stipulation establish intent to kill?

Stephen J. Marzen:

I think it is.

But at this… at this stage that’s the most difficult thing to… to talk about, because the legal arguments why it didn’t appear for the most part for the first time in the reply brief.

But let me respond to your question, because I do think they did for two reasons.

First of all, the facts showed a specific intent to murder.

And in this case, I need to correct one factual misstatement on petitioner’s side.

And that is that the shots were fired at the marshals, at chest and head level, through the opening in the doorway.

Petitioner’s submission is basically that he was only trying to use the gunshots to frighten the marshals away, sort of firing in the air and say, don’t come into my apartment.

The problem is that no threats were made of don’t come into my apartment before the shots were fired.

Stephen J. Marzen:

The marshals kicked open the door and at that point, page 17 of the joint appendix indicates, and I quote,

“A gunshot was fired through the door opening. “

And later on in the same page, quote,

“A second gunshot was fired, again through the door opening. “

You don’t fire a warning shot at someone’s head or chest.

It’s… the warning is fatal basically.

Second, even if you credit the–

Antonin Scalia:

How do you suppose he missed?

Stephen J. Marzen:

–You know, he must have been a horrible shot, Justice Stevens.

Because it’s true that the marshal–

John Paul Stevens:

But your theory is he… he did aim at him and failed to hit him?

Stephen J. Marzen:

–Yes, because–

John Paul Stevens:

And that’s clear beyond a reasonable doubt?

Or what is the standard for establishing?

Is it something that the judge might find or must find?

Stephen J. Marzen:

–I think… I think it must… it must be a must find, if you will.

And that–

John Paul Stevens:

And he must find that he was a poor marksman rather than he did not intend to hit him?

Stephen J. Marzen:

–Yes, and in this case the district court, as a matter of fact, found that the facts compelled a finding of attempted murder and that finding by the district court was upheld on a… on appeal.

It–

William H. Rehnquist:

Well, but a finding is really quite different than an agreement or stipulation, isn’t it?

I mean, if the district court has to make a finding, doesn’t that perhaps negate the existence of a stipulation?

Stephen J. Marzen:

–I don’t think so, and I think again the language of guideline… the… specifically the proviso provides the answer to your question.

The point… the part we’re talking about now… now is not the stipulation part.

It’s the part that requires that the stipulation be one that, quote,

“specifically establishes a more serious offense than the offense of conviction. “

It doesn’t–

Byron R. White:

Well, it doesn’t… nothing like… he never agreed that he intended to kill.

You just have to infer it from the other facts.

Stephen J. Marzen:

–Well, it’s more than–

Byron R. White:

You say you don’t aim at somebody without intending to kill them.

Well, but you have to… you have to… he didn’t agree though with that inference.

Stephen J. Marzen:

–True.

He didn’t agree with that conclusion.

What he… what in fact is happening in this case is petitioner is trying to have it both ways in this sense.

He’s trying to agree to all the facts of his conduct and get a two-level reduction for acceptance of responsibility but say that those facts can’t be used to apply a higher guideline.

Anthony M. Kennedy:

Well, suppose you had this… the concession… we won’t call it a stipulation… the concession that you had here with one added element.

The defendant said, and I do not stipulate or concede that I had an intent to murder.

What result in that case?

Stephen J. Marzen:

I don’t think that would change the result in this case because it doesn’t change the agreement to the historical facts.

It may well be that the facts in this case are insufficient.

I shouldn’t say may well be.

I think the district court was right to find that these facts compelled a finding of malice of forethought.

If you disagreed with that–

Anthony M. Kennedy:

Well, that’s a rather odd… odd reading of specifically establish a defense.

If you say I want to make very clear I do not stipulate of had the intent to commit this crime.

Stephen J. Marzen:

–Well–

Anthony M. Kennedy:

And you say, well, what you’ve said specifically establishes this.

Stephen J. Marzen:

–I think it’s important the language you quote says specifically establish and not… and it does not say stipulate to the offense.

The guideline makes pretty clear that the stipulation need only specifically establish the offense and not be a… an agreement to the conclusion that I did commit the offense.

William H. Rehnquist:

But what does specifically establish a more serious offense mean if it doesn’t mean stipulate to the elements of the offense?

Stephen J. Marzen:

It means either… that’s exactly right.

It means a stipulation to the facts or the elements of the offense.

William H. Rehnquist:

But those are… those are… are they the same thing… the facts or the elements?

Stephen J. Marzen:

Yes, Chief Justice.

Application note 2 uses those interchangeably.

It talks about application of the proviso to cases in which either the facts prove the more serious offense or the elements of the more serious offense are established.

So it… yes, it does.

It uses those synonymously.

Byron R. White:

Well, would the… as I understand your opponent, it wouldn’t have… unless it was the plea… formal plea agreement, it wouldn’t have done him any good… it wouldn’t have done the Government any good even if he… you had included in your statement of facts that he intended to kill and he agreed to that.

Byron R. White:

It would still say it has to be a formal plea agreement?

Stephen J. Marzen:

That’s a… that is a correct interpretation of their position.

In fact, his last… petitioner’s counsel’s last comments before sitting down were that even if he agreed to all the elements of the offense that that would not be sufficient to trigger application of the higher guideline.

What you have then is the case where someone is able to go before a district court and say, I agree there’s an offer.

There’s consideration, and there’s acceptance, and I should get a two-level reduction for accepting that those were the facts of the arrangement.

But you can’t make your… any determination on the basis that there was a contract here.

Thurgood Marshall:

Is there any difference between stipulation and admission?

Stephen J. Marzen:

For this purpose?

No.

And I think petitioner–

Thurgood Marshall:

Well, wasn’t there an admission in this case?

Stephen J. Marzen:

–There was indeed, Justice Marshall.

And that’s why–

Thurgood Marshall:

Well, why do you need a stipulation?

Stephen J. Marzen:

–They’re the same thing, Justice Marshall.

We agree with that.

And the definition that petitioner provides in both the opening and reply brief is one–

Thurgood Marshall:

So, in that point you agree with the petitioner?

Stephen J. Marzen:

–That’s absolutely right, that the definition of a stipulation, according to Black’s Law Dictionary, the ordinary definition, is the name, quote,

“the name given to any agreement made by attorneys regulating any matter incidental to the proceedings. “

Petitioner agrees that stipulation means an agreement and that he agreed to the Government’s factual proffer.

At page 19 in the joint appendix he says, quote, “Your Honor, we agree”, close quote, that the Government’s factual proffer is accurate, with two exceptions.

William H. Rehnquist:

The Government’s factual proffer leaves you short on the element of… on the issue of intent.

The… the… you say the judge had to do deduce that, and it was a permissible reduction from the stipulation.

But I… is that enough under this rule?

Stephen J. Marzen:

Justice Rehnquist, if it was just a deduction… if it was just something that a jury would be permitted to conclude, it is not enough.

Specifically establish means it’s got to be conclusive, necessary, or in the words of the district court, compelled.

I think the facts in this case compelled it.

And I was only able to give one of my reasons why.

The second reason was even… you don’t have to assume that–

Byron R. White:

Which one–

–Well, let him finish the answer.

All right, go ahead.

Go ahead.

Stephen J. Marzen:

–You don’t have to indulge the assumption that Mr. Braxton is a poor marksman.

The common law has also allowed as an interpretation of malice of forethought the sort of… the so-called depraved heart theory of intent… just reckless disregard.

And firing two shots through an open doorway, behind which marshals stood, is at the very least in reckless disregard.

Byron R. White:

Well, how do you… how do you fire through an open doorway and still have the marshal standing behind the door?

And where did these shots hit?

Do you… do you agree that this door was flung open and do you agree with the petitioner as to where the bullets hit the door?

Stephen J. Marzen:

Yes, sir, Justice White.

Byron R. White:

Well, then… and then they weren’t fired through an open doorway?

Stephen J. Marzen:

Well, actually–

Byron R. White:

They hit the door after it was open.

Stephen J. Marzen:

–There are two points here.

One is where petitioner aimed the shots, and the second is where the shots landed.

Petitioners and his counsel agreed to the proffer which says that those shots were basically aimed through the doorway but lodged in the door.

Remember the door was being kicked open at the time the shots were fired.

So we have in this case, as I quoted, the record establishes that the shots were fired–

Byron R. White:

Well, if the door… if the shots hit the door where he said it did, the door… the door certainly opened awfully fast if the bullets hit where he says they hit.

Stephen J. Marzen:

–It’s… it’s true.

Byron R. White:

They hit on the side of the door that before it was opened the officers were standing behind.

Stephen J. Marzen:

The first bullet did.

The second bullet did not.

The second bullet lodged approximately 5 feet high in the door and–

Byron R. White:

After it was… after it was open and it was on the outside of the door?

Stephen J. Marzen:

–The record doesn’t establish whether the second shot hit on what was the inside door of the apartment or the outside.

The record only indicates that the first bullet hit on the outside of the door after it had been kicked open.

Byron R. White:

Well, the second one must have.

The first I could understand.

Byron R. White:

But how could the first one hit the outside and the second one hit the inside?

Stephen J. Marzen:

Because the record also shows… shows that the door was kicked open the first time with such force that it snapped shut.

The marshal–

Byron R. White:

Ah, yes.

Stephen J. Marzen:

–the proffer indicated that the deputy had to kick it open a second time.

Byron R. White:

Well, in that event, certainly the… the bullet wasn’t fired through an open doorway.

[Laughter]

Stephen J. Marzen:

Well, when the marshal kicked open the door the second time, the… the initial proffer anyway was that the Government… that another shot was fired.

What this indicates though is that these kinds of factual determinants are probably best committed to the discretion of the district court who was there and could tell–

Anthony M. Kennedy:

Did the district court advise this defendant of the elements of count 1, which was attempted murder?

Stephen J. Marzen:

–No, he did not.

Anthony M. Kennedy:

And did he advise the defendant of the baseline offense level for attempted murder?

Stephen J. Marzen:

No, the proffer was given at the Rule 11 hearing, Justice Kennedy, and the Rule 11 now requires that one advise… that the judge advise the defendant that the guidelines apply but not the specific range or any of the particular points.

Anthony M. Kennedy:

But he didn’t advise him of the elements of attempted murder–

Stephen J. Marzen:

That’s–

Anthony M. Kennedy:

–so he had no real basis to know that he was stipulating to attempted murder, because he wasn’t… at least under Rule 11 because he wasn’t advised of the elements of that offense.

Stephen J. Marzen:

–I think I see where you’re driving.

The fear I guess is that the defendant might be agreeing to something without knowing the consequences.

Anthony M. Kennedy:

Well, that’s the whole purpose of this… of this rule, isn’t it?

So the defendant has a certain amount of notice.

He specifically stipulates that he’s committed a higher offense.

Stephen J. Marzen:

That’s right.

And I think that notice… the defendant had sufficient notice in this case for two reasons.

One, he… petitioner Braxton was represented by a very able counsel who knew the guidelines and also knew, as indicated on page 22 of the joint appendix, that the facts of attempted murder might well be used to determine the guideline applicable.

In other words, to determine that the attempted murder guideline applied.

Anthony M. Kennedy:

Well, I think the sophisticated counsel might have been very interested to know that the judge was going to consider the higher baseline offense, and that was never advised in open court until the sentence was pronounced.

Stephen J. Marzen:

It was never advised that he would, but defense counsel was certainly on notice that he could.

And that’s… and that gave him the ability to go into the Rule 11 hearing and either agree or disagree with the stipulation with his eyes open.

Second… and this is also important… defendants in general are not going to lightly agree to aggravating circumstances as part of satisfying the factual basis for a guilty plea because other things turn on it besides deciding which guideline applies.

The sentencing judge in all cases will still have the decision where within the guideline’s range to sentence the defendant.

Stephen J. Marzen:

That is an enormous incentive right there to make… to not agree to aggravating circumstances because you want your client to see the sentence at the low end of the guideline.

In addition, if the aggravating circumstances in the Government’s factual proffer are grave enough, they might well form the basis for a departure later at the sentencing hearing.

That would be another reason why, if anything, defense counsel would want to minimize the admission to any facts that don’t necessarily prove that he committed a worse offense.

Antonin Scalia:

Mr. Marzen, suppose we took no action on this case or suppose we found in your favor and the Guidelines Commission later adopted an amendment that would favor the defendant here, would… would that amendment be able to be applied to the defendant, or is this the end of the road?

Stephen J. Marzen:

I think the answer turns on whether there is… this case is still kicking around the courts.

If the sentence is still open, I think it would be a procedural amendment and would well apply retroactively.

If the sentence has already been meted out and the time for appeal has passed, I’m not sure there’s any procedural mechanism to get a different sentence, I think.

So I think, yes, the sentencing–

Antonin Scalia:

Well, what do you mean by kicking out?

Suppose… suppose… suppose the case were dismissed as improvidently granted, what… would the case still be kicking about or would that be the end of it?

Stephen J. Marzen:

–That would be the end of it.

The district court on remand from the court of appeals judgment has already determined that because of petitioner’s agreement to the facts that… of the criminal conduct… he was entitled to a two-point reduction.

The only issue left is the issue of what is the definition of stipulation.

Antonin Scalia:

2255.

We didn’t decide what the rule meant.

And he wanted us to decide what the rule meant.

You know, why couldn’t he go to 2255 and say, look, the district… the court of appeals was just wrong?

Stephen J. Marzen:

I–

Byron R. White:

And furthermore, I can prove it, because now the Sentencing Commission has interpreted it’s own rule.

Stephen J. Marzen:

–I must confess… confess I’m not sure that under 2255 that you’re… the defendant is entitled to the benefit of every procedural updating of a sentencing guideline.

It would be a rather dangerous thing for this Court–

Byron R. White:

Well, suppose the… suppose the… suppose the Sentencing Commission hadn’t done anything at all.

Can you… can you… can you use a 2255 to challenge an alleged misinterpretation of the guideline?

Stephen J. Marzen:

–Not to my knowledge.

I haven’t seen any judicial decision which has used it in that way.

The usual mechanisms for correcting it are an appeal within 10 days or a post-sentencing hearing motion in the district court, and that’s about it.

William H. Rehnquist:

Rule 35 one year?

Stephen J. Marzen:

Yes.

Petitioner’s principal submission in the briefs and in this Court is that the stipulation requires a plea agreement.

And I’d like to address that.

Stephen J. Marzen:

First, the proviso specifies the scope of the… of the proviso.

It applies, quote,

“in a case of a conviction by plea of guilty or nolo contendere– “

William H. Rehnquist:

Contendere.

Stephen J. Marzen:

–contendere… I apologize.

Petitioner has to add a word, the word “agreement”, to the proviso in order to effect the interpretation he proposes to this Court, which is a fairly significant reason counseling that that is not what the guideline means.

In the–

William H. Rehnquist:

Well, in petitioner [inaudible] argue that that the phrase containing a stipulation is a clause modifying the earlier clause?

Stephen J. Marzen:

–The word containing I think is consistent with the… yes, it does modify the word “plea”.

And I think supports our interpretation.

Black’s Law Dictionary defines plea of guilty to include not just the plea itself, guilty, not guilty, nolo contendere, but also to include the, quote, “confession of guilt”.

Petitioner’s confession, his agreement to the Government’s factual proffer, may contain a stipulation to a more serious offense.

If you–

William H. Rehnquist:

You say the plea of guilty itself doesn’t have to contain it?

Stephen J. Marzen:

–No, the plea of guilty does have to contain it, but the plea includes more than just the formal guilty, not guilty, or nolo contendere.

It also includes the confession of guilt or the factual basis for the plea in common legal parlance.

If you–

William H. Rehnquist:

That is a stipulation?

Stephen J. Marzen:

–Yes, sir.

William H. Rehnquist:

A stipulation between the Government and the defendant?

Stephen J. Marzen:

Yes.

The… I don’t–

William H. Rehnquist:

It seems like a unilateral act in many ways.

Stephen J. Marzen:

–Well, it’s a… it is… it should be a unilateral act in that it should be coming clean with what criminal conduct you did.

William H. Rehnquist:

But then if it’s a unilateral act, how can it be an agreement?

Stephen J. Marzen:

You… oh, I see.

You can have a unilateral act and have it still be an agreement even though there’s no consideration for it.

It doesn’t have to be a bargain for exchange in other words.

The defendant can agree to what… that he committed the offense for which he was indicted and agree that the facts satisfied the… a factual basis for that without the Government having to specifically propose something on the other side.

Thurgood Marshall:

How is an agreement to be guilty a stipulation?

Thurgood Marshall:

It’s only one party involved.

Stephen J. Marzen:

Well, Justice Marshall, it’s usually more–

Thurgood Marshall:

Can one party stipulate?

Stephen J. Marzen:

–No.

In this case, though–

Thurgood Marshall:

But in this case, yes.

Well–

[Laughter]

Stephen J. Marzen:

–Well, in… for purposes of the proviso, the stipulation has benefits for the Government and benefits for the defendant.

Thurgood Marshall:

For purposes of conviction, it’s okay.

Stephen J. Marzen:

Well, if you want to view it in contractual terms, it’s sort of like a… the… there’s sort of a unilateral contract where you… where you specifically give out an offer without anyone specific–

Thurgood Marshall:

I can’t help it.

It sounds to me like a trap.

Stephen J. Marzen:

–Well, I don’t think it’s a trap, because the defendant knows that if he provides a factual basis for the plea that establishes a more serious offense that certain sentencing consequences will attach.

He also, by doing so gets the benefit of other sentencing consequences, namely the two-level reduction for acceptance of responsibility.

So it’s not… it’s not really a… a trap in general.

And it wasn’t a trap in this case.

Petitioner’s counsel knew that there was lurking in the background an attempted murder and knew that those facts might well be used to choose the attempted murder guideline.

That’s in fact what happened.

It may have been his worst fear, but he did get some benefits from that.

He got a two-level reduction on remand.

Thurgood Marshall:

Well, why didn’t he stipulate if he knew all of this?

Stephen J. Marzen:

Two reasons… to achieve a two-level reduction for acceptance of responsibility.

That’s equivalent to a 20 to 30 percent decrease in his sentence.

Second, it allowed him to limit his statutory exposure, the maximum offense to which he would… could be sentenced, to 10 years rather than 20 years.

Those were the… those were the benefits he got.

Thurgood Marshall:

But this didn’t come up then.

It came up way at the sentencing hearing.

Stephen J. Marzen:

Well–

Thurgood Marshall:

It didn’t come up when he, quote, “stipulated”, end quote.

Stephen J. Marzen:

–That’s true, and as my answer to that, Justice–

Thurgood Marshall:

It came up later on.

Stephen J. Marzen:

–Yes, that’s… that’s true.

Thurgood Marshall:

And I’d be awful wary about this now.

Mr. Marzen, can I ask you–

–The defense counsel has to really be wary.

Can I ask you a question about the facts.

Did… I take it the presentence report was prepared after the plea was entered–

Stephen J. Marzen:

Yes, it was, Justice Stevens.

John Paul Stevens:

–after the colloquy.

And I notice the presentence report, the author of that recommended that he be sentenced on the basis of the attempted murder.

Had that recommendation been made by the prosecutor or anyone else before the… before it was filed in the pre-sentence report?

Stephen J. Marzen:

Had the recommendation of using the attempted murder guideline?

John Paul Stevens:

Yes.

Stephen J. Marzen:

Yes.

The answer is yes, and it appears in two ways.

First, the prosecutor suggested that… that there was a tacit plea bargain, and that if the attempted murder or… if petitioner was sentenced based on the attempted murder, they would be induced to drop the charge.

Second, and perhaps since it’s arisen so much, I’d just quote briefly the language on page 22, where petitioner’s counsel states,

“Nevertheless, we’ve explained to Mr. Braxton that you’re going to consider all these facts in determining a sentence, both considering them under the guideline to determine the guideline. “

–i.e., the facts… whether they established attempted murder to determine whether to use the attempted murder guideline.

John Paul Stevens:

This i.e. is what he said or what you’re saying?

Stephen J. Marzen:

I’m sorry, the alienation is mine.

John Paul Stevens:

I see.

Stephen J. Marzen:

Everything up to the i.e.–

John Paul Stevens:

Okay.

Stephen J. Marzen:

–Comma–

John Paul Stevens:

It’s rather an important i.e.–

[Laughter]

Stephen J. Marzen:

–Yes, it would make my job a lot easier if it were in there.

[Laughter]

Stephen J. Marzen:

And–

Antonin Scalia:

Maybe I’d better follow along in the text here.

[Laughter]

Stephen J. Marzen:

–Well, Justice Scalia, if you want to follow me, it’s at page 22 of the joint appendix… the first sentence in the second paragraph beginning on that page.

“Nevertheless, we’ve explained to Mr. Braxton that you’re going to consider all these facts in determining the sentence, both considering them under the guideline to determine the guideline, and considering them for any departures under the guideline. “

John Paul Stevens:

And then what’s the next sentence?

That you could depart upward if you think he tried to murder the marshals?

Stephen J. Marzen:

Yes.

It–

John Paul Stevens:

Which hardly suggests that he thought you didn’t have to depart upward if you thought he tried to murder the marshals.

Stephen J. Marzen:

–I read that sentence as expanding on the subordinate clause in the second part of the first sentence.

John Paul Stevens:

I see.

Stephen J. Marzen:

No, he’s… petitioner certainly would have like getting a sentence based on the assault guideline and not having a departure.

But given the facts of the offense and how grave they were, that just wasn’t the likely possibility.

And in fact in this case, the district court said that he would in fact depart upward… not might, but would… up to the exact same level that was dictated by the attempted murder guideline.

Byron R. White:

Do you think the court could have said, well, with these facts… you’ve plead… you’ve now plead guilty to attempted murder.

I hereby find you guilty of attempted murder.

Stephen J. Marzen:

No.

William H. Rehnquist:

Thank you, Mr. Marzen.

Mr. Cribari, you have 1 minute remaining.

Don’t waste it.

[Laughter]

Stephen J. Cribari:

I think it is the Government who is trying to have it both ways, and I think that’s clear from this case.

Unable to extract a stipulation to greater offense conduct, the Government essentially says, well, we don’t have to, we can get it anyway.

Because once you acknowledge a factual proffer, not that compels a finding of attempted murder, but in the words of the Fourth Circuit, that could support a finding of attempted murder–

Antonin Scalia:

You… have you preserved that point or did you first raise it in your reply brief… namely that this stipulation did not specifically establish a more serious offense.

Have you preserved that?

Stephen J. Cribari:

–Well, I think that’s preserved from the beginning.

I… reading on page 22 before where Mr. Marzen started,

“On behalf of Mr. Braxton, I state he is not admitting he attempted to specifically murder anyone. “

Stephen J. Cribari:

How you can say that and then in the same breath say, but I’m going to stipulate to attempted murder is not something that’s fair.

xxx preserved on appeal.

Antonin Scalia:

Mr. Cribari, I have no doubt that you did not stipulate to the intent, but have you preserved on appeal the fact that this sentence was invalid because the stipulation did not specifically establish the more serious offense?

Stephen J. Cribari:

Yes, Your Honor, because… if I may answer the question.

The trial court never engaged in any stipulation inquiry like the Fifth Circuit in Morton to determine the factual basis for the elements of the stipulation.

Because you must remember the trial court found there was no stipulation.

On page 77, the court’s crystal clear.

There is no stipulation.

Anthony M. Kennedy:

Mr. Cribari, are there instances other than for raising the base offense level in which a client would want to stipulate that he committed a greater offense?

Does this come up just in the context of the sentencing for the purposes of applying the guidelines or would there be other plea agreements whereby he would stipulate that he committed an offense?

Stephen J. Cribari:

He might stipulate he committed an offense if he were sure he were not going to have a sentencing damage for it for purposes of acknowledging full criminal conduct.

I mean, there’s no argument here that Mr. Braxton could not be sentenced for what he did.

The argument is he a right to have the sentence calculation start at the lower level.

William H. Rehnquist:

I understand.

Thank you, Mr. Cribari.

Stephen J. Cribari:

Thank you very much, Your Honor.

William H. Rehnquist:

The case is submitted.