Opposition Brief — Jorge Avila Torrez, Petitioner v. United States
Supreme Court briefMay 8, 2019
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No. 17-1189
In the Supreme Court of the United States
JORGE AVILA TORREZ, PETITIONER
v.
UNITED STATES OF AMERICA
(CAPITAL CASE)
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
BRIAN A. BENCZKOWSKI
Assistant Attorney General
STRATTON C. STRAND
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
CAPITAL CASE
QUESTIONS PRESENTED
1. Whether a jury’s determination in capital sentencing proceedings that a previous conviction qualifies
as a statutory aggravating factor under 18 U.S.C.
3592(c)(2), requires a categorical approach that looks
only to the legal definition of the prior crime.
2. Whether a conviction can qualify as a statutory
aggravating factor under 18 U.S.C. 3592(c)(2) and (4) in
capital sentencing proceedings where it predates the
capital sentencing proceedings but postdates the underlying murder.
3. Whether this case should be remanded to allow
the court of appeals to consider, on plain-error review,
petitioner’s forfeited claim that the district court was
required to apply the exclusionary rule to historical cellsite location information that the government obtained
pursuant to a court order issued under 18 U.S.C.
2703(d) and Va. Code Ann. 19.2-70.3 (Supp. 2010).
(I)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statement ...................................................................................... 2
Argument..................................................................................... 12
Conclusion ................................................................................... 32
TABLE OF AUTHORITIES
Cases:
Almendarez-Torres v. United States, 523 U.S. 224
(1998) .................................................................................... 20
Barrett v. United States, 423 U.S. 212 (1976) ..................... 24
Carpenter v. United States, 138 S. Ct. 2206 (2018) ...... 28, 30
Davis v. United States, 411 U.S. 233 (1973) ....................... 28
Davis v. United States, 564 U.S. 229 (2011) ................. 29, 31
Descamps v. United States, 570 U.S. 254 (2013) .......... 14, 21
Herring v. United States, 555 U.S. 135 (2009) ................... 30
Illinois v. Krull, 480 U.S. 340 (1987) ............................. 30, 31
Kawashima v. Holder, 565 U.S. 478 (2012) ........................ 16
Leocal v. Ashcroft, 543 U.S. 1 (2004) ................................... 14
Miller v. Alabama, 567 U.S. 460 (2012) .............................. 20
Moncrieffe v. Holder, 569 U.S. 184 (2013) .................... 14, 20
Nijhawan v. Holder, 557 U.S. 29 (2009)............ 13, 16, 18, 20
Robers v. United States, 572 U.S. 639 (2014) ...................... 26
Sessions v. Dimaya, 138 S. Ct. 1204 (2018) ........................ 15
Taylor v. United States, 495 U.S. 575
(1990) ......................................................... 9, 12, 14, 15, 20, 21
Tuilaepa v. California, 512 U.S. 967 (1994) ....................... 25
United States v. Battle, 173 F.3d 1343
(11th Cir. 1999), cert. denied, 529 U.S. 1022 (2000) ......... 26
(III)
IV
Cases—Continued:
Page
United States v. Burke, 633 F.3d 984 (10th Cir.),
cert. denied, 563 U.S. 951 (2011) ....................................... 28
United States v. Dominguez Benitez, 542 U.S. 74
(2004) .................................................................................... 28
United States v. Graham, 824 F.3d 421
(4th Cir. 2016), cert. denied, 138 S. Ct. 2700 (2018)......... 31
United States v. Hayes, 555 U.S. 415 (2009) ................ 16, 19
United States v. Higgs, 353 F.3d 281
(4th Cir. 2003), cert. denied, 543 U.S. 999 (2004) ............. 10
United States v. Leon, 468 U.S. 897 (1984) ......................... 30
United States v. Marcus, 560 U.S. 258 (2010) ........ 23, 28, 31
United States v. Rodriguez, 581 F.3d 775
(8th Cir. 2009), cert. denied, 562 U.S. 981 (2010) ............. 22
United States v. Simms, 914 F.3d 229 (4th Cir. 2019),
petition for cert. pending, No. 18-1338
(filed Apr. 24, 2019) ............................................................. 23
Zant v. Stephens, 462 U.S. 862 (1983) ..................... 21, 25, 26
Constitution, statutes, guidelines, and rules:
U.S. Const.:
Amend. IV ............................................................ 10, 27, 30
Amend. VI .................................................................. 12, 21
Amend. VIII............................................................... 20, 27
Armed Career Criminal Act of 1984,
Pub. L. No. 98-473, Tit. II, ch. XVIII, 98 Stat. 2185:
18 U.S.C. 924(e) ............................................................... 14
18 U.S.C. 924(e)(2)(B)(i) ................................................. 15
Federal Death Penalty Act of 1994,
18 U.S.C. 3591 et seq. ............................................................ 7
18 U.S.C. 3591(a)(2) ........................................................... 7
18 U.S.C. 3592(c) .................................................... passim
18 U.S.C. 3592(c)(1) ......................................................... 25
V
Statutes, guidelines, and rules—Continued:
Page
18 U.S.C. 3592(c)(2) ................................................ passim
18 U.S.C. 3592(c)(2)-(4) ................................................... 25
18 U.S.C. 3592(c)(4) ................................................ passim
18 U.S.C. 3592(c)(5)-(9) ................................................... 25
18 U.S.C. 3592(c)(10) ....................................................... 25
18 U.S.C. 3592(c)(12) ....................................................... 25
18 U.S.C. 3592(c)(13)-(14) ............................................... 25
18 U.S.C. 3592(c)(15) ....................................................... 25
18 U.S.C. 3592(c)(16) ....................................................... 25
18 U.S.C. 3593(a) ............................................................. 26
18 U.S.C. 3593(c) ....................................7, 8, 14, 19, 21, 22
18 U.S.C. 3593(d) ..........................................7, 8, 14, 19, 21
18 U.S.C. 3593(e) ......................................................... 8, 19
18 U.S.C. 3593(e)(2) ........................................................... 7
Immigration and Nationality Act,
8 U.S.C. 1101 et seq. ............................................................ 14
Stored Communications Act, 18 U.S.C. 2701 et seq. .......... 29
18 U.S.C. 2703(c)(1)(B) ................................................... 29
18 U.S.C. 2703(d) ............................................................. 29
18 U.S.C. 7(3) ........................................................................... 2
18 U.S.C. 16(b) ....................................................................... 14
18 U.S.C. 36(b) ....................................................................... 17
18 U.S.C. 111(b) ..................................................................... 17
18 U.S.C. 112(a) ..................................................................... 17
18 U.S.C. 113(a)(3) ................................................................. 17
18 U.S.C. 242 .......................................................................... 17
18 U.S.C. 249(a)(1) ................................................................. 17
18 U.S.C. 249(2)(A) ................................................................ 17
18 U.S.C. 921-931 ................................................................... 18
18 U.S.C. 921 .......................................................................... 18
18 U.S.C. 921(a) ..................................................................... 18
VI
Statutes, guidelines, and rules—Continued:
Page
18 U.S.C. 921(a)(3) ................................................................. 18
18 U.S.C. 921(a)(16) ............................................................... 18
18 U.S.C. 922(g)(9) ................................................................. 16
18 U.S.C. 924(c) ...................................................................... 17
18 U.S.C. 924(c)(1)(A) ............................................................ 17
18 U.S.C. 924(c)(3)(A) ............................................................ 17
18 U.S.C. 924(c)(3)(B) ............................................................ 23
18 U.S.C. 924( j) ...................................................................... 17
18 U.S.C. 930(c) ...................................................................... 17
18 U.S.C. 930(g)(2) ................................................................. 17
18 U.S.C. 1111(a) ............................................................... 2, 17
18 U.S.C. 1752(a)(4) ............................................................... 17
18 U.S.C. 1752(b)(1)(A) ......................................................... 17
18 U.S.C. 1959(a)(3) ............................................................... 17
18 U.S.C. 1959(a)(6) ............................................................... 17
18 U.S.C. 2113(d) ................................................................... 17
18 U.S.C. 2114(a) ................................................................... 17
18 U.S.C. 2118(c)(1) ............................................................... 17
18 U.S.C. 2231(b) ................................................................... 17
18 U.S.C. 2261(b)(3) ............................................................... 17
18 U.S.C. 2262(b)(3) ............................................................... 17
21 U.S.C. 851(b)-(d) ............................................................... 20
26 U.S.C. 5685(a) ................................................................... 17
26 U.S.C. 5685(b) ................................................................... 17
40 U.S.C. 5104(e)(1)(A) ......................................................... 17
40 U.S.C. 5109 (a) .................................................................. 17
40 U.S.C. 6134 ........................................................................ 17
49 U.S.C. 46503 ...................................................................... 17
49 U.S.C. 46504 ...................................................................... 17
VII
Statutes, guidelines, and rules—Continued:
Page
Va. Code Ann. (Supp. 2010):
§ 19.2-70.3 ................................................................... 29, 31
§ 19.2-70.3(A)(3) ............................................................... 29
§ 19.2-70.3(B) ................................................................... 29
United States Sentencing Guidelines:
§ 4A1.1 .............................................................................. 27
§ 4A1.2(a)(1) ..................................................................... 27
§ 4A1.2 comment. (n.1) .................................................... 27
Fed. R. Crim. P.:
Rule 12 .............................................................................. 28
Rule 12(b)(3)(C) ............................................................... 28
Rule 12(e) ......................................................................... 28
Miscellaneous:
Amendments to Federal Rules of Criminal
Procedure, 535 U.S. 1157 (2002) ........................................ 28
Gregory Harutunian, Zion double murder still
resonates for prosecutors, Lake County Chronicle,
Jan. 2, 2019, http://chronicleillinois.com/news/
lake-county-news/zion-double-murder-stillresonates-for-prosecutors/................................................... 7
In the Supreme Court of the United States
No. 17-1189
JORGE AVILA TORREZ, PETITIONER
v.
UNITED STATES OF AMERICA
(CAPITAL CASE)
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-93a)
is reported at 869 F.3d 291. Relevant orders of the district court (Pet. App. 95a-100a, 101a-111a) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on
August 28, 2017. A petition for rehearing was denied on
September 25, 2017 (Pet. App. 113a). On November 30,
2017, the Chief Justice extended the time within which
to file a petition for a writ of certiorari to and including
February 22, 2018, and the petition was filed on that
date. The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).
(1)
2
STATEMENT
Following a jury trial in the United States District
Court for the Eastern District of Virginia, petitioner
was convicted of first-degree murder, in violation of
18 U.S.C. 1111(a) and 7(3). The district court, following
the jury’s unanimous penalty-phase recommendation,
imposed a capital sentence. C.A. App. 5258. The court
of appeals affirmed. Pet. App. 1a-93a.
1. Petitioner is a serial murderer and rapist who, in
May 2005, murdered two young girls aged eight and
nine and sexually assaulted the younger child; in July
2009, murdered Petty Officer Amanda Snell in her bedroom on a military base after which his semen was found
on her bedsheet (the murder in this case); and in February 2010, kidnaped, raped, and repeatedly sodomized
a female graduate student (J.T.), and then attempted to
murder her. C.A. App. 4602, 5235-5237 ( jury findings);
see Pet. App. 3a-9a. Petitioner’s role in the murders remained unknown until his final victim, J.T., survived
and provided information leading to his arrest. That arrest led to investigatory efforts that resulted in petitioner’s recorded jailhouse confessions and DNA testing linking him to the murders.
a. On the morning of July 13, 2009, military personnel found Snell, a 20-year-old Navy Intelligence Specialist, dead in her bedroom at Joint Base Meyer in Arlington, Virginia. Snell had been pushed inside a closed,
narrow wall locker in her room in an unnatural position
with her knees pressed into her torso, her feet pushed
against a drawer, and her head covered by a pillow case
and pushed down to her chest. Shoeprints were discovered in front of the locker, but the room was otherwise
clean: a vacuum cleaner was sitting out, and Snell’s bed
was made with only a fitted sheet and comforter, with
3
her flat sheet and pillow cases missing. Snell’s cause
of death was suffocation. Pet. App. 3a-4a; Gov’t C.A. Br.
4-9.
Petitioner was a corporal in the Marine Corps at the
time and lived a few doors down from Snell. Gov’t C.A.
Br. 9. He twice told military investigators that he did
not know Snell; completed a questionnaire stating that
he had never been in her room; provided a DNA sample;
and consented to a search of his room, which was exceptionally clean. Pet. App. 4a-5a; Gov’t C.A. Br. 9-10. But
after petitioner was arrested and held in pretrial detention for his later February 2010 offenses, petitioner told
an incarcerated confidential informant, Osama El-Atari,
in recorded conversations that he had murdered Snell
by suffocating her in her room. Pet. App. 8a-9a.
Petitioner told El-Atari that he had put Snell’s body
in the wall locker, explaining “[s]he wouldn’t fit lying
flat” and “I had to bend her f ***ing knees and make her
like she’s sitting down, ‘cause it’s a small closet.” Pet.
App. 9a (citation omitted). Petitioner also bragged to
El-Atari that it was the “ ‘perfect crime’ ”: petitioner
said that he had left no visible wounds on Snell; had put
into a pillowcase, and had then disposed of, everything
that might link him to her murder (including a flat bedsheet, a pillowcase with blood from her nose, and everything else he had touched); and had “left the fitted
sheet,” “made the bed,” and “thoroughly cleaned the
room” for two hours. Id. at 8a-9a (citation omitted); see
Gov’t C.A. Br. 14. As it turned out, however, petitioner
had left a semen stain on the fitted sheet matching his
DNA profile with a random-match probability of only
one in 590 quadrillion in the Hispanic population. C.A.
App. 3468-3469. Petitioner’s shoes were also consistent
with the impressions in front of Snell’s locker. Pet. App.
4
9a-10a. By trial, the evidence of petitioner’s guilt was
so powerful that the court of appeals determined that,
even if the shoeprint analysis testimony had been erroneously admitted, any error would have been harmless.
Id. at 18a. Petitioner nonetheless never “displayed
[any] remorse” for Snell’s murder. C.A. App. 5238.
b. Investigators were able to link petitioner to
Snell’s murder, and the May 2005 murders of two young
girls, when petitioner was apprehended for other
crimes in February 2010.
i. On the night of February 4 to 5, 2010, petitioner
drove his Dodge Durango around Arlington “stalk[ing]
females for sexual assault.” C.A. App. 5235 ( jury finding). The following day, petitioner purchased a Glock
semiautomatic pistol “to use in abducting, robbing and
sexually assaulting” women, and he returned to stalking
women by vehicle that night (February 5 to 6). Ibid.
Arlington officers observed on those days someone
matching petitioner’s description stalking women from
a Durango. Pet. App. 6a n.2.
On February 10, 2010, petitioner attempted to abduct and assault a 26-year-old woman (M.N.). Petitioner grabbed M.N.’s jacket from behind while she was
walking in Arlington, brandished his gun, told her to
keep quiet and keep walking, and pushed her toward his
Durango. When petitioner pulled a knife and urged
M.N. to enter the Durango, she dropped her bag and
fled. Police responded but did not find petitioner. Pet.
App. 5a.
Just over two weeks later, on February 27, 2010, petitioner accosted two female graduate students—J.T.
and K.M.—in front of K.M.’s house, brandished his gun,
demanded their wallets, and forced them inside the
house, where he bound their hands and moved them to
5
a bedroom. J.T. managed to grab her cell phone and
call 911 when petitioner left the room, but he returned
and threw her phone against the wall. Petitioner then
grabbed J.T., forced her into his Durango, and drove
away. Pet. App. 5a-6a.
After driving for some time, petitioner pulled over,
got in the back seat with J.T., and forced her to perform
fellatio on him. Pet. App. 6a. Petitioner then put on a
condom to avoid leaving semen (telling her, “I’m not an
idiot”) before raping J.T. Ibid. (citation omitted). Petitioner then forced J.T. to perform fellatio again, covered her face with packing tape, and drove to a secluded
wooded area near a highway. Ibid. After forcing J.T.
to perform fellatio a third time, ibid., petitioner “attempted to kill J.T. by strangulation” by wrapping and
tightening her scarf around her neck. C.A. App. 5237
( jury finding). When J.T. blacked out, petitioner “discarded her body in the woods,” “[t]hinking that she was
dead.” Ibid. Fortunately, J.T. survived, later awoke
face down in the snow, and crawled to a nearby road to
obtain the help of a passerby. Gov’t C.A. Br. 20.
ii. Based on J.T’s description of petitioner’s vehicle,
which an Arlington officer recognized as matching the
women-stalking Durango, police located the Durango at
Joint Base Meyer and promptly arrested petitioner as
he was driving out of a parking garage. Gov’t C.A. Br.
20-21. In the Durango, officers found J.T.’s university
identification and earring, packing tape, and a stun gun.
Pet. App. 6a. In petitioner’s barracks room, they recovered a loaded Glock semiautomatic pistol and petitioner’s laptop, which contained dozens of videos and
images depicting rapes and sexual assaults, many of
which were “sleeping rape” videos in which a sleeping
victim is attacked or raped. Id. at 6a-7a.
6
While detained pending trial on state charges for his
February 2010 offenses, petitioner “plotted to have the
victim witnesses against him killed” and “drew a map to
one of the victim’s homes for the person who was to kill
[her].” C.A. App. 5237 ( jury finding). Officers who suspected that petitioner was attempting to intimidate witnesses arranged for El-Atari to act as a confidential informant and to record his conversations with petitioner
over six days, yielding petitioner’s confession about
Snell’s murder. Pet. App. 8a-9a; Gov’t C.A. Br. 10-11.
In December 2010, petitioner was convicted in Virginia state court on 14 felony counts for his offense conduct on February 10 (abduction with intent to defile,
robbery, and use of a firearm in a felony) and February
27 (abduction, abduction with intent to defile, rape,
three counts of forcible sodomy, three counts of use of a
firearm in a felony, robbery, and breaking and entering
while armed). Pet. App. 7a; C.A. App. 4541-4568. The
state court sentenced petitioner to five life sentences to
be followed by 168 years of consecutive imprisonment.
Pet. App. 7a. The Virginia convictions would later form
the basis for the statutory aggravating factors found by
the sentencing jury beyond a reasonable doubt in this
case. C.A. App. 4604-4607.
c. Petitioner also confided to El-Atari that, four
years before he murdered Snell, he had murdered
Laura Hobbs and Krystal Tobias in Zion, Illinois, when
he was 16 years old. Pet. App. 7a, 9a n.4. On May 8,
2005, petitioner had sexually assaulted eight-year-old
Laura and had murdered Laura and her nine-year-old
friend, Krystal, in a park near their homes, stabbing
Laura about 20 times, including in both eyes, and stabbing Krystal 11 times, causing significant hemorrhaging in her neck. C.A. App. 5235 ( jury findings); Pet.
7
App. 7a. Petitioner recounted the murders to El-Atari
in “excruciating detail,” providing facts matching the
information from the girls’ autopsies. Pet. App. 9a n.4;
see Gov’t C.A. Br. 29-31. Semen inside Laura’s vagina
and on her clothing was later matched to petitioner’s
DNA with a one in 985 quadrillion random-match probability. Pet. App. 8a. Petitioner told El-Atari that he
felt no emotion or remorse after killing the girls. Gov’t
C.A. Br. 31. Petitioner’s sexual assault of Laura and his
murders of the girls were later found by the sentencing
jury in this case as non-statutory aggravators supporting a capital sentence. C.A. App. 5235. 1
2. In May 2011, a federal grand jury indicted petitioner for Snell’s murder. Pet. App. 10a. The government noticed its intent to seek a capital sentence. Ibid.
Under the Federal Death Penalty Act of 1994 (FDPA),
18 U.S.C. 3591 et seq., a jury may recommend a capital
sentence for most capital offenses—including murder
under Section 1111(a)—only if it finds beyond a reasonable doubt one of the intent factors in Section 3591(a)(2)
and at least one of the statutory aggravating factors in
Section 3592(c). 18 U.S.C. 3593(c), (d), and (e)(2). If the
jury makes both findings, it may consider non-statutory
aggravating factors that it unanimously finds beyond
a reasonable doubt, and each individual juror must
weigh all aggravating factors found by the jury against
the mitigating factors that the juror finds to exist by a
Before sentencing in this case, petitioner was indicted in Illinois
state court for murdering the eight- and nine-year-old girls. Pet.
App. 8a n.3. In September 2018, petitioner pleaded guilty and was
sentenced to 100 years of imprisonment. See Gregory Harutunian,
Zion double murder still resonates for prosecutors, Lake County
Chronicle, Jan. 2, 2019, http://chronicleillinois.com/news/lake-countynews/zion-double-murder-still-resonates-for-prosecutors/.
1
8
preponderance of the information. 18 U.S.C. 3593(c)
and (d). The jury may then recommend a capital sentence if it unanimously concludes that the aggravating
factors sufficiently outweigh all mitigating factors to
justify a capital sentence. 18 U.S.C. 3593(e).
Section 3592(c) defines the FDPA’s statutory aggravating factors by providing, as relevant here:
In determining whether a sentence of death is justified for an offense * * * , the jury * * * shall consider each of the following aggravating factors for
which notice has been given and determine which, if
any, exist:
* * * * *
(2) PREVIOUS CONVICTION OF VIOLENT FELONY
INVOLVING FIREARM .—For any offense, other
than an offense for which a sentence of death is
sought on the basis of section 924(c), the defendant has previously been convicted of a Federal or
State offense punishable by a term of imprisonment of more than 1 year, involving the use or attempted or threatened use of a firearm (as defined in section 921) against another person.
* * * * *
(4) PREVIOUS CONVICTION OF OTHER SERIOUS
OFFENSES .—The defendant has previously been
convicted of 2 or more Federal or State offenses,
punishable by a term of imprisonment of more
than 1 year, committed on different occasions, involving the infliction of, or attempted infliction of,
serious bodily injury or death upon another person.
18 U.S.C. 3592(c).
9
The jury found petitioner guilty of first-degree murder and, after a bifurcated penalty-phase hearing in
which petitioner presented no mitigating evidence,
found petitioner eligible for a capital sentence and recommended that a capital sentence be imposed. Pet.
App. 11a. The district court sentenced petitioner accordingly. Id. at 11a-12a.
The government had relied on petitioner’s statecourt convictions for his February 2010 offenses to satisfy the statutory aggravators in Section 3592(c)(2) and
(4). Pet. App. 10a-11a, 24a. Petitioner moved to strike
both statutory aggravators on the ground that the Virginia convictions do not qualify as “previous[]” convictions referenced by Section 3592(c)(2) and (4), because
his conduct underlying those convictions occurred after
Snell’s July 2009 murder for which he was charged. The
district court denied the motion. Id. at 104a-110a. The
court explained that Section 3592(c) “speaks in terms of
those things that must be considered [by the jury] when
the death sentencing hearing is conducted” and that
Section 3592(c)(2) and (4)’s aggravating factors are
“concerned with the characteristics of the offender as of
the time that he is sentenced,” such that their reference
to “previous[]” convictions refers to “all predicate convictions occurring prior to sentencing.” Id. at 105a-106a
(citation omitted).
Petitioner also filed a supplemental motion (C.A.
App. 2937-2940) to strike the Section 3592(c)(4)—but
not the Section 3592(c)(2)—aggravating factor on the
ground that his Virginia convictions do not satisfy
Section 3592(c)(4) under the “categorical approach” in
Taylor v. United States, 495 U.S. 575 (1990). The district court denied the motion, reasoning that the Section 3592(c)(2) aggravator requires an “individualized
10
assessment” of petitioner’s actual conduct, not a categorical-approach analysis of the statute of conviction.
Pet. App. 98a-99a.
3. The court of appeals affirmed. Pet. App. 1a-93a.
a. The court of appeals first rejected petitioner’s
challenges to his conviction. Pet. App. 12a-21a. As relevant here, the court determined that it would “not address” petitioner’s Fourth Amendment challenge to the
government’s use of cell-site location information—
which petitioner acknowledged was subject to only
plain-error review because he had raised it for the first
time on appeal (Pet. C.A. Br. 168)—because petitioner
recognized that it was foreclosed by circuit precedent.
Id. at 12a & n.5.
The court of appeals then rejected petitioner’s challenges to his sentencing. Pet. App. 21a-61a. First, as
relevant here, the court agreed with the district court
that petitioner’s post-offense conduct can satisfy the
statutory aggravators in Section 3592(c)(2) and (4). Id.
at 22a-40a. Citing precedent, the court explained that
“convictions occurring after the murder but before capital sentencing” satisfy those aggravators because they
“qualify as ‘previous[]’ convictions.” Id. at 29a (brackets in original) (following United States v. Higgs,
353 F.3d 281, 318 (4th Cir. 2003), cert. denied, 543 U.S.
999 (2004)); see id. at 27a-34a. The court reasoned that
Congress’s reference to “previous[]” convictions that
can constitute statutory aggravators if the “defendant
has previously been convicted” of certain offenses,
18 U.S.C. 3592(c)(2) and (4), must be read in light of Section 3592(c)’s prefatory text, which specifies the relevant timing by “speak[ing] in terms of those things that
must be considered when the death sentencing hearing
is conducted.” Pet. App. 28a (citation omitted). The
11
court also observed that such aggravating factors are
designed not to focus on the specific offense giving rise
to the capital case but “on the defendant” in order to
“justify the imposition of a more severe sentence on
[him] compared to others found guilty of murder.” Id.
at 36a (citation omitted). In a footnote, the authoring
judge alone stated that petitioner’s contrary arguments
had some merit because “one could read” the text as
ambiguous and invoke the rule of lenity. Id. at 39a n.10;
see id. at 63a (concurring opinion disagreeing with footnote 10).
Second, the court of appeals determined that a finding by the jury of the statutory aggravator in Section
3592(c)(2) does not require a categorical approach. Pet.
App. 40a-55a. The court noted that petitioner on appeal
had argued that the categorical approach applied to
both Section 3592(c)(2) and (4), but “[b]ecause only one
statutory aggravator is necessary to render [petitioner]
death eligible,” the court “focus[ed] on (c)(2),” id. at 40a,
55a, the construction of which petitioner had not challenged in district court. See pp. 9-10, supra (district
court argument).
The court of appeals found that Section 3592(c)(2)’s
text—which references a defendant who has been “ ‘convicted’ ” of an “ ‘offense * * * involving the use or attempted or threatened use of a firearm (as defined in
[18 U.S.C. § 921]) against another person,’ ” Pet. App.
40a (brackets in original)—and the FDPA’s context
show that Section 3592(c)(2) requires consideration of
the circumstances surrounding the offense, not a categorical analysis of the offense elements. Id. at 46a-55a.
Section 3592(c)(2)’s “use of the word ‘involves,’ ” the
court stated, is “a signal that a fact-based approach [i]s
warranted,” because Congress passed the FDPA just
12
after Taylor and “Taylor itself distinguished” provisions that refer to an offense “using the word ‘involves’ ”
as “likely refer[ring] to ‘the facts of each defendant’s
conduct.’ ” Id. at 48a (citation and brackets omitted).
The court also explained that, unlike the Armed Career
Criminal Act of 1984 (ACCA), where a categorical approach prevails, the “key” in the FDPA “is facts, not elements,” as reflected in statutory “procedures aimed at
[producing] a specific, individualized, fact-based conclusion” about a “particular defendant[’s]” appropriate
sentence. Id. at 47a-48a. The court additionally observed that the Sixth Amendment concerns that animate the Taylor approach are absent under the FDPA,
where “Congress intended that the jury not only do the
weighing process, but also initially find which statutory
aggravating factors apply.” Id. at 49a-50a. And the
court reasoned that the categorical approach, which requires a judge to “ ‘presume’ that the prior conviction
‘rested upon nothing more than the least of the acts
criminalized’ under the criminal statute at issue,” is out
of step with the FDPA process, which must ensure that
the “death penalty is reserved ‘for the must culpable defendants committing the most serious offenses.” Id. at
52a (citations omitted).
b. Judge Floyd dissented in relevant part. Pet. App.
64a-93a. In his view, Section 3592(c)(2) and (4) require
application of a categorical approach, id. at 65a-86a, and
the statutory elements of the Virginia offenses for
which petitioner was convicted do not match the requirements of those provisions, id. at 86a-92a.
ARGUMENT
Petitioner contends (Pet. 11-22) that, under 18 U.S.C.
3592(c)(2), courts must use the categorical approach
in Taylor v. United States, 495 U.S. 575 (1990), to
13
determine whether a previous conviction qualifies as a
statutory aggravating factor supporting a capital sentence. Petitioner further contends (Pet. 23-31) that, to
constitute statutory aggravators under 18 U.S.C.
3592(c)(2) and (4), prior convictions must predate the
capital offense in question. Finally, petitioner seeks
(Pet. 33-35) a remand to the court of appeals on his contention, subject to plain-error review, that evidence reflecting historical cell-site location information should
have been suppressed at trial. The court of appeals correctly rejected those contentions, and its judgment does
not conflict with any decision of this Court or any other
court of appeals or state court of last resort. No further
review is warranted.
1. Petitioner contends (Pet. 11-22) that finding an
aggravating factor under Section 3592(c)(2) requires a
categorical approach that would consider only the legal
elements of a defendant’s prior offense to determine if
it qualifies as an aggravating factor. The court of appeals correctly rejected that contention, which petitioner raised for the first time on appeal, determining
instead that Section 3592(c)(2) requires the jury to look
at the actual factual circumstances of the defendant’s
prior offense that are proven beyond a reasonable
doubt. That decision implicates no division of authority,
would be subject only to plain-error review, and does
not warrant certiorari.
a. Whether Congress’s use of “words such as ‘crime,’
‘felony,’ ‘offense,’ and the like” in a statutory provision
“refer[s] to a generic crime” or “to the specific acts in
which an offender engaged on a specific occasion” is a
question of statutory interpretation that turns on the
statutory text and surrounding context. See Nijhawan
v. Holder, 557 U.S. 29, 33-34 (2009). In Taylor, for
14
instance, the Court held that a sentencing enhancement
in Section 924(e) of the ACCA “mandates a formal categorical approach” for determining whether prior convictions constitute qualifying offenses, “looking only to
the statutory definitions of the prior offenses, and not
to the particular facts underlying those convictions.”
495 U.S. at 600. Taylor rested that determination on
textual and contextual grounds: (1) “it comport[ed] with
ACCA’s text and history”; (2) “it avoid[ed] the Sixth
Amendment concerns that would arise from sentencing
courts’ making findings of fact that properly belong to
juries”; and (3) “it avert[ed] ‘the practical difficulties
and potential unfairness of a factual approach.’ ”
Descamps v. United States, 570 U.S. 254, 267 (2013)
(quoting Taylor, 495 U.S. at 601). Similar considerations have formed the basis for the Court’s categoricalapproach interpretation of certain provisions in the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et
seq., and 18 U.S.C. 16(b) as incorporated into that Act.
See, e.g., Moncrieffe v. Holder, 569 U.S. 184, 188, 200201 (2013); Leocal v. Ashcroft, 543 U.S. 1, 7 (2004). But
unlike those provisions, Section 3592(c)(2)’s text and
statutory context show Congress’s intent that Section
3592(c)(2)’s aggravating factor be determined based on
the actual factual circumstances of a defendant’s prior
offense.
i. Under Section 3592(c)(2), a jury establishes the
provision’s statutory aggravator at the penalty phase of
a capital case if it unanimously finds beyond a reasonable doubt (see 18 U.S.C. 3593(c) and (d)) that “the defendant has previously been convicted of a Federal or
State [felony] offense * * * involving the use or attempted or threated use of a firearm (as defined in section 921) against another person.” 18 U.S.C. 3592(c)(2).
15
In that context, Congress’s textual focus on a defendant
who has previously been convicted of an offense “involving” specified conduct indicates that the jury is charged
with determining whether the factual circumstances of
the offense satisfy Section 3592(c)(2)’s criteria. In Taylor, this Court specifically contrasted an ACCA provision that defined the term “ ‘violent felony’ ” as a crime
“that ‘has as an element’ * * * the use or threat of
force”—which warranted a categorical (elementsfocused) inquiry—from a “crime that, in a particular
case, involves” such circumstances. 495 U.S. at 600
(quoting 18 U.S.C. 924(e)(2)(B)(i)) (emphasis added);
see Sessions v. Dimaya, 138 S. Ct. 1204, 1255-1256
(2018) (Thomas, J., dissenting) (listing examples of
criminal and immigration provisions in which word “involves” reflects a circumstance-specific approach).
Congress enacted the FDPA just four years after Taylor, and its requirement that the sentencing jury find an
offense “involving the use or attempted or threatened
use of a firearm (as defined in section 921) against another person,” 18 U.S.C. 3592(c)(2) (emphasis added),
reflects Congress’s intent that, unlike the ACCA in
Taylor, the jury determine the circumstances of a defendant’s prior offense when determining if it qualifies
as an aggravating factor.
Petitioner contends (Pet. 11-15) that Section
3592(c)’s reference to a “defendant [who] has previously
been convicted of a Federal or State offense,” 18 U.S.C.
3592(c)(2), signals an intent to use Taylor’s categorical
approach because, petitioner argues, this Court has
construed statutes using the term “conviction” in that
manner. But this Court’s decisions show that reference
to a “defendant” who has been “convicted” does not in
itself require application of the categorical approach. In
16
Nijhawan, for instance, the Court held that an immigration statute that, like Section 3592(c)(2), turned on
whether an individual has been “ ‘convicted of ’ ” an “ ‘offense that . . . involves’ ” a specified type of conduct,
557 U.S. at 32 (quoting statute) (emphasis added), called
for a circumstance-specific, not a categorical, approach
with respect to a particular feature of the prior offense
of “conviction.” Id. at 42 (citation omitted); see also Kawashima v. Holder, 565 U.S. 478, 483-485 (2012) (applying a categorical approach to evaluate a different aspect
of such an offense). The Court similarly held in United
States v. Hayes, 555 U.S. 415 (2009), that the criminal
prohibition against a person possessing a firearm if he
“ ‘has been convicted * * * of a misdemeanor crime of
domestic violence’ ” required that the government prove
the defendant’s “domestic relationship” to the victim of
the prior offense beyond a reasonable doubt, but that
that relationship need not be a “defining element of the
predicate offense.” Id. at 418, 420 (quoting 18 U.S.C.
922(g)(9)) (emphasis added). 2
Congress’s use of similar language in Section
3592(c)(2) likewise does not require application of a categorical approach particularly because, under such an
approach, no federal offense would appear to qualify as
such an aggravator, and it similarly appears doubtful
that any (or any significant number of ) state offenses
Petitioner relatedly contends (Pet. 16-17) that Congress’s use of
the word “involving” does not foreclose application of the categorical approach. The government does not disagree, and the court of
appeals did not hold otherwise. The court of appeals here correctly
recognized that Congress’s use of the word “involving” does not
alone “resolve the issue,” Pet. App. 55a (citation omitted), resting
its decision instead on Section 3592(c)(2)’s overall text and context,
id. at 42a-52a.
2
17
would either. To qualify as an aggravator under Section
3592(c)(2) using petitioner’s categorical approach, the
statute underlying a defendant’s prior conviction would
be required to have as elements (1) the “use of a firearm
(as defined in [18 U.S.C.] 921)” and (2) the use of the
firearm “against another person.” 18 U.S.C. 3592(c)(2).
But federal criminal statutes that involve the use of a
firearm generally apply to broader categories of “weapon[s]” and are not textually limited just to firearms.
See, e.g., 18 U.S.C. 36(b), 111(b), 112(a), 113(a)(3), 242,
249(a)(1) and (2)(A), 930(c) and (g)(2), 1959(a)(3) and
(6), 2113(d), 2114(a), 2118(c)(1), 2231(b), 2261(b)(3),
2262(b)(3); 49 U.S.C. 46503, 46504. Furthermore, the
federal criminal provisions that prohibit use or possession of a firearm (or weapon) do not require that a firearm actually be used “against another person,” even in
contexts in which such a person is injured or killed, but
instead simply require some unspecified type of “use”
of a firearm.3 And any statute satisfying those two
See, e.g., 18 U.S.C. 249(a)(1) and (2)(A) (hate crime of “attempt[]
to cause bodily injury” “through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device”), 924(c)(1)(A) and
(3)(A) (“us[ing] or carr[ying]” a firearm “during and in relation to”
a “crime of violence” or drug trafficking crime, where a “crime of
violence” includes an offense having as an element the use, or attempted or threated use, of “physical force”), 924( j) (“caus[ing]” the
death of a person “through the use of a firearm” in the course of
Section 924(c) offense), 930(c) (killing a person in the course of “an
attack on a Federal facility involving the use of,” or in the course of
possessing or causing to be present in a Federal facility, “a firearm
or other dangerous weapon”), 1752(a)(4) and (b)(1)(A) (using or carrying “a deadly or dangerous weapon or firearm” “during and in relation to” an “act of physical violence against any person” in the
White House or its grounds, the Vice President’s residence or
grounds, or some other restricted building or grounds). Cf., e.g.,
26 U.S.C. 5685(a) and (b); 40 U.S.C. 5104(e)(1)(A), 5109(a), 6134.
3
18
requirements would not necessarily incorporate the definition of “firearm” in Section 921, see 18 U.S.C. 3592(c)(2),
which applies by its own terms only to 18 U.S.C. 921931. See 18 U.S.C. 921(a). We have found no federal
statute that would satisfy Section 3592(c)(2) under a
categorical approach.
Section 3592(c)(2)’s requirement that the firearm be
a firearm “as defined in [18 U.S.C.] 921” also would be
inapplicable for many state offenses. That federal definition expressly excludes from the term “firearm” any
“antique firearm,” i.e., a firearm “manufactured in or
before 1898,” certain “replica[s]” thereof, and “muzzle
loading” firearms “designed to use black powder.”
18 U.S.C. 921(a)(3) and (16). Even if a state criminal
statute were to include as elements the “use of a firearm” “against another person,” 18 U.S.C. 3592(c)(2),
petitioner’s position would call into question whether
the state statute would also need to apply only to firearms as defined in Section 921, by excluding all federally defined “antique” firearms. We have found no state
criminal provision with the requisite elements that appears to qualify as a Section 3592(c)(2) aggravator under petitioner’s approach. And petitioner’s failure to
identify any “Federal or State offense,” 18 U.S.C.
3592(c)(2), that would qualify as a Section 3592(c)(2) aggravating factor under the categorical approach underscores the textual error of his position.
This Court has previously declined to apply a categorical approach when doing so would substantially
curtail a statute’s applicability. See Nijhawan, 557 U.S.
at 39-40 (concluding that the categorical approach is
inapplicable where no “widely applicable federal,” or
relevant “major” state, statute apparently satisfied that
approach and only “three federal statutes” appeared to
19
apply); Hayes, 555 U.S. at 427 (concluding that, based
on the “paucity of state and federal statutes” that would
satisfy the categorical approach, it is “highly improbable that Congress meant to extend [Section] 922(g)(9)’s
firearm-possession ban only to the relatively few domestic abusers prosecuted under laws rendering a domestic relationship an element of the offense”). The
same result follows here, where petitioner’s interpretation would exclude most, if not all, of the “Federal or
State offense[s],” 18 U.S.C. 3592(c)(2), referenced in the
statutory text.
ii. The statutory death-penalty context and the role
of the sentencing jury under the FDPA reinforce in multiple ways that Section 3592(c) requires a circumstancespecific approach to evaluating a prior offense as a statutory aggravator under Section 3592(c)(2).
The FDPA makes clear that, in a case tried before a
jury, “the jury”—not a judge—“shall consider * * * and
determine which, if any, [statutory aggravating factors]
exist.” 18 U.S.C. 3592(c) (emphases added). That jury
determination must be made “beyond a reasonable
doubt” by unanimous vote and be memorialized in “special findings identifying any [statutory] aggravating
factor or factors set forth in section 3592 found to exist.”
18 U.S.C. 3593(c) and (d). It is that jury determination
on the existence of one or more statutory aggravators
that makes the defendant eligible for a capital sentence,
18 U.S.C. 3593(d), and only after the jury has found that
at least one statutory aggravator exists can the jury
proceed to determine whether to recommend a capital
sentence by considering whether all (statutory and nonstatutory) aggravators “sufficiently outweigh” the mitigating factors, 18 U.S.C. 3593(e).
20
That FDPA framework makes sound sense when the
jury itself considers the factual circumstances of each
offense to determine if it qualifies as a statutory aggravator. But under the categorical approach that petitioner advocates, a defendant’s prior offense will qualify
as a statutory aggravator only if the elements of the
statutory offense satisfy the statutory language in Section 3592(c)(2), a purely legal determination inappropriate for a jury. See Pet. 20. Under that approach, the
only question reserved for the sentencing jury discharging its statutory duty under 18 U.S.C. 3592(c)
would be the mere fact of a prior conviction, a task that
does not require a jury and is regularly assigned to a
judge. See, e.g., 21 U.S.C. 851(b)-(d); Taylor, 495 U.S.
at 600-601; see also Almendarez-Torres v. United
States, 523 U.S. 224 (1998). That result would effectively “usurp[]” the jury’s “statutorily mandatory function” of determining under Section 3592(c) “which statutory aggravating factors apply.” Pet. App. 50a.
Applying the categorical approach would also require the judge to “presume that [a defendant’s prior]
conviction rested upon nothing more than the least of
the acts criminalized ” by the statute of conviction and
ignore the actual “facts underlying the case” when determining whether the prior offense constitutes a statutory aggravator. Moncrieffe, 569 U.S. at 190-191 (emphasis added; citation, internal quotation marks, and
brackets omitted). That approach is fundamentally at
odds with the FDPA’s core function, which is to ensure,
as the Eighth Amendment requires, that the federal
“death penalty is reserved only for the most culpable
defendants committing the most serious offenses.” Miller v. Alabama, 567 U.S. 460, 476 (2012) (emphasis
added). This Court has made clear that each statutory
21
aggravating factor “must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of [the capital offense].”
Zant v. Stephens, 462 U.S. 862, 877 (1983). But if the
Section 3592(c)(2) aggravating factor turned only on the
statutorily defined elements of the relevant federal or
state offense, as petitioner argues, the result would be
that defendants who had previously been convicted for
the same conduct would be treated differently for capital sentencing purposes based on happenstance surrounding how, for example, the prosecuting jurisdiction
defined the statute of conviction.
The central role of the sentencing jury under the
FDPA also eliminates two central justifications for
Taylor’s categorical approach: “avoid[ing] the Sixth
Amendment concerns that would arise from sentencing
courts’ making findings of fact that properly belong to
juries” and “avert[ing] ‘the practical difficulties and potential unfairness of a factual approach.’ ” Descamps,
570 U.S. at 267 (quoting Taylor, 495 U.S. at 601). No
Sixth Amendment concerns exist because, under a
circumstance-specific approach, the sentencing jury—
not a sentencing judge—must “unanimous[ly]” find the
relevant factual circumstances of a prior offense “beyond a reasonable doubt.” 18 U.S.C. 3593(c) and (d).
Nor does the circumstance-specific approach pose the
“practical difficulties” of sentencing courts having to
“determine what [the defendant’s actual] conduct was.”
Taylor, 495 U.S. at 601. The FDPA specifically requires
fact-intensive penalty-phase hearings to determine all
“matter[s] relevant to the sentence,” 18 U.S.C. 3593(c),
in order to ensure that the sentence is appropriate to
the specific circumstances of the particular defendant.
22
A circumstance-specific approach would not unfairly
subject a defendant to punishment based on statements
in records of prior convictions concerning facts that are
prone to error, as petitioner suggests (Pet. 18). The
FDPA is designed to bring to the jury all information
about such prior offenses, not merely information in paper records, and to test the reliability of that information in the adversarial process. See 18 U.S.C.
3593(c). The very point of the penalty-phase hearing is
put before the jury all relevant information about the
defendant and his offense so as to permit an accurate
sentencing determination. And because the government has the burden of establishing the facts relevant
to all aggravating factors “beyond a reasonable doubt,”
ibid., any uncertainty about the factual context of a
prior offense would simply redound to the defendant’s
benefit.
b. Petitioner ultimately acknowledges (Pet. 33) that
the “courts of appeals have not reached disparate answers” on the application of the categorical approach to
Section 3592(c)(2). The only other court of appeals to
have addressed a similar FDPA question likewise recognized that Section 3592(c)(4) requires a circumstancespecific (not categorical) approach, and this Court denied certiorari in that case on that question. United
States v. Rodriguez, 581 F.3d 775, 804-807 (8th Cir.
2009), cert. denied, 562 U.S. 981 (2010); see Pet. at i, 9-23,
Rodriguez, supra (No. 09-11360). And decisions concerning other statutes in other contexts do not suggest
that those courts would reach a different result here. 4
It is thus unnecessary to hold the petition in this case pending
the disposition of United States v. Davis, No. 18-431 (argued Apr.
17, 2019), which concerns the application of a categorical approach
4
23
This case would also be a poor vehicle for the Court
to consider petitioner’s categorical-approach contentions regarding Section 3592(c)(2), because that contention would be subject to review only for plain error. In
district court, petitioner argued that the aggravating
factor in Section 3592(c)(4) required a categorical approach, but he did not raise any categorical-approach
argument with respect to the Section 3592(c)(2) aggravator. See pp. 9-10, supra. Given the absence of any
precedent suggesting that Section 3592(c)(2)’s aggravator
—or any similar Section 3592(c) aggravator—demands
application of Taylor’s categorical approach, petitioner
cannot carry his burden of showing that any purported
error in this regard was “plain,” i.e., “clear or obvious,
rather than subject to reasonable dispute.” United
States v. Marcus, 560 U.S. 258, 262 (2010) (citation omitted). Accordingly, even if the categorical-approach
question that petitioner presents might warrant review
in some case, the Court should await a case in which the
issue is properly preserved.
2. Petitioner separately contends (Pet. 23-31) that to
constitute a statutory aggravator under 18 U.S.C.
3592(c)(2) and (4), a prior conviction must predate the
capital offense in question. The court of appeals correctly rejected that contention because those provisions
direct the jury to account for the defendant’s prior convictions up to the time of the jury’s sentencing determination. Pet. App. 28a. That decision does not conflict
in 18 U.S.C. 924(c)(3)(B). Indeed, the court below has held that Section 924(c)(3)(B) requires a categorical approach, see United States
v. Simms, 914 F.3d 229 (4th Cir. 2019) (en banc), petition for cert.
pending, No. 18-1338 (filed Apr. 24, 2019), even though Section
3592(c)(2) does not.
24
with any decision of this Court or any other court of appeals and warrants no further review.
Section 3592(c) itself makes clear that a prior conviction can qualify as an aggravating factor so long as it
predates the capital sentencing proceeding. The provision’s prefatory text instructs that the sentencing jury’s
role is to consider whether any aggravating factors
“exist” (present tense) “[i]n determining whether a sentence of death is justified.” 18 U.S.C. 3592(c). An aggravator that “exists” at the time of the sentencing proceeding is thus properly considered, even if it came into
existence after the defendant’s commission of the capital offense. That conclusion is reinforced by the verb
tense within the aggravating-factor provisions at issue
here, which ask whether the “defendant has previously
been convicted ” of relevant offenses. 18 U.S.C. 3592(c)(2)
and (4) (emphases added). Congress’s use of the present perfect tense (“has been convicted”) reflects that
the qualifying action (the defendant’s conviction) need
simply have occurred before the (present) sentencing
proceeding at which the jury determines whether any
aggravators “exist.” See Barrett v. United States,
423 U.S. 212, 216-217 (1976) (explaining that Congress’s
use of “present tense” in conjunction with “the present
perfect tense” shows that the latter “denot[es] an act
that has been completed” before the former). And contrary to petitioner’s suggestion (Pet. 23-24) that such a
construction would render the word “previously” redundant, “previously” in fact clarifies that the relevant aggravating convictions include convictions distinct from
those in the capital prosecution that itself triggers the
FDPA sentencing proceedings. Pet. App. 106a-108a.
Section 3592(c)’s text accordingly “speaks in terms of
those things that must be considered when the death
25
sentencing hearing is conducted” and thereby encompasses “all predicate convictions occurring prior to sentencing.” Pet. App. 28a (citation omitted; first emphasis
added).
Section 3592(c)’s context confirms that its aggravating factors account for convictions resulting until the
capital sentencing proceeding. As previously noted,
statutory aggravating factors “must reasonably justify
the imposition of a more severe sentence on the defendant compared to others found guilty of [the capital
offense].” Zant, 462 U.S. at 877. Although some focus
on the “characteristics of the capital offense” (Pet. 24),
see 18 U.S.C. 3592(c)(1), (5)-(9), (13)-(14), and (16), petitioner is wrong in his view (Pet. 24) that their focus cannot be “the offender.” Statutory aggravators may address either characteristics of the capital “crime or the
defendant.” Tuilaepa v. California, 512 U.S. 967, 973
(1994) (emphasis added). Several provisions of Section
3592(c) thus properly focus on the defendant by addressing his criminal history independently from the
capital offense. See, e.g., 18 U.S.C. 3592(c)(2)-(4), (10),
(12), and (15). As the court of appeals explained, the
aggravators here “do[] not concern matters directly related to the death penalty offense”; they instead are
“concerned with the characteristics of the offender as of
the time that he is sentenced.” Pet. App. 37a (citation
omitted; brackets in original).
It makes good sense for Congress to define eligibility
for a capital sentence in part on the nature of other offenses for which the defendant has been convicted, because those offenses speak to the defendant’s relevant
characteristics. A defendant who had been convicted of
an entirely unrelated felony offense involving the use of a
firearm against another one month before he committed
26
a capital murder is a defendant for whom more serious
punishment may be warranted. But the same holds true
where the defendant is convicted for such an unrelated
offense one month after he has committed a capital murder. The relative timing of the court convictions does
not in itself suggest that the latter defendant has a better character or is less deserving serious punishment.
The FDPA accordingly authorizes the government to
amend its notice of intent to seek a capital sentence for
“good cause,” 18 U.S.C. 3593(a), a mechanism consistent with incorporating new information to support
an aggravating factor. See, e.g., United States v. Battle,
173 F.3d 1343, 1347 (11th Cir. 1999) (holding that government showed good cause to amend notice, where, inter alia, “[a]t least one of the instances of violence added
to the notice occurred after the filing of the original notice and certainly had a bearing on the factor of [the defendant’s] future dangerousness”), cert. denied, 529 U.S.
1022 (2000).
Petitioner’s reliance (Pet. 24, 29-31) on decisions interpreting the ACCA and state recidivist provisions is
misplaced. The text and context of those distinct statutory provisions are materially different from Section
3592(c)’s. Petitioner’s reliance (Pet. 25-29) on the rule
of lenity, constitutional avoidance, and the remarks of a
single Senator in a prior Congress is equally unavailing.
The rule of lenity “applies only if, after using the usual
tools of statutory construction,” “ ‘a grievous ambiguity
or uncertainty [exists] in the statute.’ ” Robers v.
United States, 572 U.S. 639, 646 (2014) (citation omitted). Petitioner does not analyze Section 3592(c)’s relevant text defining the timing of the aggravating-factor
inquiry, let alone identify ambiguity, much less grievous
ambiguity. The constitutional-avoidance canon is also
27
inapplicable. No significant Eighth Amendment question is presented by linking a murderer’s eligibility for
a more severe sentence to his full criminal history as
evidenced by convictions incurred by the time of sentencing. See Zant, 462 U.S. at 877 (concluding that statutory aggravators must “reasonably justify” a more serious sentence “compared to others found guilty of murder”). Sentencing is routinely conducted in that manner, see Sentencing Guidelines §§ 4A1.1, 4A1.2(a)(1) &
comment. (n.1) (calculating criminal history based on
each “prior sentence,” i.e., each sentence “imposed
prior to sentencing on the instant offense”), and petitioner identifies (Pet. 27-28) no case involving an aggravator even arguably resulting from prosecutorial manipulation. Finally, petitioner’s reliance (Pet. 28-29) on
the isolated 1991 remarks of single Senator who sponsored an earlier bill in an earlier Congress provides no
sound basis for disregarding Section 3592(c)’s 1994 text
and context.
Petitioner acknowledges (Pet. 33) that the “courts of
appeals have not reached disparate answers to the
[FDPA] questions presented” in his petition. Although
petitioner asserts (Pet. 32) that similar issues can arise
in other capital cases, his inability to identify any
FDPA decision supporting his interpretation of Section
3592(c)(2) and (4) confirms that no further review is
warranted.
3. Petitioner lastly challenges (Pet. 33-35) his conviction in this case on the ground that the government’s
acquisition of cell-site location information (CSLI) during its investigation violated the Fourth Amendment.
Petitioner acknowledges (Pet. 34) that he did not raise
this issue in district court and that it is subject to plainerror review. Petitioner nevertheless asks the Court to
28
grant certiorari, vacate the judgment of the court of appeals, and remand (GVR) in light of the Court’s decision
Carpenter v. United States, 138 S. Ct. 2206 (2018). No
such action is warranted.
As an initial matter, petitioner relinquished this suppression claim by failing timely to seek suppression of
CSLI records in district court. At the time of trial, Rule
12(b)(3)(C) of the Federal Rules of Criminal Procedure
provided that “a motion to suppress evidence” “must be
raised before trial.” Amendments to Federal Rules of
Criminal Procedure, 535 U.S. 1157, 1197 (2002). Rule
12(e) further provided that a party “waives any Rule
12(b)(3) defense, objection, or request” that he does not
timely raise, but that “the court may grant relief from
the waiver” for “good cause.” Id. at 1198. Under this
Court’s interpretation of an earlier version of Rule 12(e)
(then Rule 12(b)(2)), “a claim once waived pursuant to
that Rule may not later be resurrected * * * in the absence of the showing of ‘cause’ which that Rule requires.” Davis v. United States, 411 U.S. 233, 242
(1973). Because petitioner has never claimed—much
less shown—good cause for his omission, Pet. C.A. Br.
167-177; Pet. C.A. Reply Br. 85, his Rule 12 waiver prohibits even plain-error review of his suppression claim.
See United States v. Burke, 633 F.3d 984, 988 (10th Cir.),
cert. denied, 563 U.S. 951 (2011).
In any event, “the burden of establishing entitlement
to relief for plain error is on the defendant,” United
States v. Dominguez Benitez, 542 U.S. 74, 82 (2004), and
petitioner cannot carry it here. To do so, he must establish that, inter alia, (1) the district court erred in admitting CSLI evidence, (2) the error was “plain,” and
(3) it “affected the outcome of the district court proceedings.” Marcus, 560 U.S. at 262 (citation omitted). In
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this case, it was not error to admit CSLI evidence because suppression was unwarranted under the goodfaith exception to the exclusionary rule; any suppression error would not have constituted “plain” error; and
the admission of CSLI evidence was harmless.
First, the district court did not err in admitting the
CSLI in this case into evidence. The Arlington police
acquired over 300 days of historical CSLI for petitioner’s cell phone after obtaining a July 2010 statecourt order that directed petitioner’s cellular carrier to
furnish that information pursuant to Section 2703(d) of
the Stored Communications Act (SCA), 18 U.S.C. 2701
et seq., and Va. Code Ann. § 19.2-70.3. See C.A. Doc. 71,
at JN20-JN21 (Apr. 25, 2016) (court order). The SCA
authorized state (and federal) governmental entities to
compel an electronic-communication-service provider
to “disclose a record or other information pertaining to
a subscriber to or customer of such service (not including the contents of communications)” by “obtain[ing] a
court order for such disclosure under [Section
2703](d).” 18 U.S.C. 2703(c)(1)(B). Section 2703(d), in
turn, provided that the order “shall issue only if the governmental entity offers specific and articulable facts
showing that there are reasonable grounds to believe
that * * * the records or other information sought[] are
relevant and material to an ongoing criminal investigation,” 18 U.S.C. 2703(d). Virginia law similarly authorized the Arlington police to obtain non-content records
of electronic communications by court order issued
upon a “show[ing] that there is reason to believe the records or other information sought are relevant and material to an ongoing criminal investigation.” Va. Code
Ann. § 19.2-70.3(A)(3) and (B) (Supp. 2010). The police
complied with those statutory requirements. C.A. Doc.
30
71, at JN22-JN23. And although this Court’s subsequent June 2018 decision in Carpenter, 138 S. Ct. at
2221-2223, now shows that the relevant CSLI was obtained in violation of the Fourth Amendment notwithstanding such statutory authorization, it does not call
into question the admission of the CSLI into evidence.
Suppression would have been unwarranted because the
police acted in objectively reasonable reliance on the
SCA and Virginia statutory law.
The exclusionary rule is a “ ‘judicially created remedy’ ” designed for the sole purpose of “deter[ing] police
misconduct” that violates the Fourth Amendment.
United States v. Leon, 468 U.S. 897, 906, 916 (1984) (citation omitted); see Davis v. United States, 564 U.S.
229, 236-237 (2011). The exclusionary rule “applies only
where it ‘result[s] in appreciable deterrence,’ ” Herring
v. United States, 555 U.S. 135, 141 (2009) (quoting Leon,
468 U.S. at 909) (brackets in original), and therefore
permits “the harsh sanction of exclusion only when [police practices] are deliberate enough to yield ‘meaningful’ deterrence, and culpable enough to be ‘worth the
price paid by the justice system.’ ” Davis, 564 U.S. at
240 (citation and brackets omitted). Thus, in Illinois v.
Krull, 480 U.S. 340 (1987), this Court held that the
good-faith exception to suppression applies where “officers act in objectively reasonable reliance upon a statute authorizing warrantless administrative searches,”
even though that statute was later held to violate the
Fourth Amendment. Id. at 342, 349.
It necessarily follows that the officers here acted
reasonably in relying on multiple statutes that authorized the acquisition of records pursuant to an order issued by a neutral judge, and that the good-faith exception to the exclusionary rule therefore applies. See
31
Krull, 480 U.S. at 342, 349; see also Davis, 564 U.S. at
246, 239, 241 (suppression is not warranted to “punish
the errors of judges”) (citation omitted). At the time the
CSLI records were obtained, no decision of any court of
appeals had suggested, much less held, that the SCA (or
Va. Code Ann. § 19.2-70.3) was unconstitutional as applied to CSLI records. See United States v. Graham,
824 F.3d 421, 428 (4th Cir. 2016) (en banc) (discussing
prior decisions), cert. denied, 138 S. Ct. 2700 (2018).
Second, even if the exclusionary rule were deemed to
apply, any evidentiary error would not be plain. A plain
error is “clear or obvious, rather than subject to reasonable dispute.” Marcus, 560 U.S. at 262 (citation omitted). In light of Krull, Davis, and the absence of any
contemporaneous precedent calling into question the
ability to obtain CSLI under the SCA and Virginia law,
any evidentiary error would be, at the very least, subject to reasonable dispute.
Third, petitioner fails to carry his burden of showing
that the CSLI evidence altered the outcome at trial.
The government adduced overwhelming evidence of petitioner’s guilt, including petitioner’s detailed confessions to El-Atari, the undisputed presence of his semen
on Snell’s bedsheet, see pp. 2-4, supra, and testimony
from a witness that petitioner returned with him to the
barracks around 1 a.m. on the night of Snell’s murder,
C.A. App. 3747-3749. Petitioner’s own counsel told the
jury that petitioner himself admitted that “he went in
the room” and that “[petitioner’s] DNA on the bed sheet
clearly indicates something sexual in nature happened”
“in that room.” Id. at 3996-3997. Although CSLI evidence also put petitioner in the general vicinity of the
barracks where petitioner himself was quartered, no
32
reasonable probability exists that its admission affected
the jury’s verdict.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
BRIAN A. BENCZKOWSKI
Assistant Attorney General
STRATTON C. STRAND
Attorney
MAY 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.