Petition for Writ of Certiorari — Marcus D. Thompson, Petitioner v. United States

NO. _________

IN THE SUPREME COURT OF THE UNITED STATES

____________

MARCUS THOMPSON,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________

On Petition For a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

Submitted in Behalf of

Petitioner, MARCUS THOMPSON

___________

PETITION FOR WRIT OF CERTIORARI

____________

G. ETHAN SKAGGS

Assistant Federal Public Defender

650 Missouri Avenue, Rm. G10-A

East St. Louis, Illinois 62201

(618) 482-9050

(618) 482-9057 (fax)

Ethan_Skaggs@fd.org

Counsel for Petitioner

QUESTIONS PRESENTED

1. 18 U.S.C. § 3553(a)(6) requires sentencing courts to consider sentencing disparity. At

Petitioner’s sentencing hearing, the District Court refused his information supporting that the 360

months to life guideline range was unreasonable in that it promoted sentencing disparity; the District

Court reasoned he did not have time to research case law Defense Counsel submitted for the first

time at sentencing. Where the Seventh Circuit affirmed the exclusion of Petitioner’s information by

relying on an appellate presumption of reasonableness, applicable to within-guideline sentences,

does the holding conflict with Rita v. United States, 551 U.S. 338, 346–47 (2007), which holds that

such presumption must be genuinely rebuttable to comply with the Sixth Amendment, where

Petitioner’s excluded information was aimed at showing the guideline range was unreasonable?

2. Where a fair hearing is essential for Due Process, did the Seventh Circuit’s approval of the

exclusion of Petitioner’s disparity information, based on the fact that it was first introduced at the

sentencing hearing, violate Petitioner’s Due Process rights, where Petitioner had no notice the

information would be excluded if it was not provided to the District Court in advance of the

sentencing hearing, and Petitioner was sentenced to a within-guideline term of life imprisonment?

3. In rejecting Petitioner’s contention his guilty plea lacked a factual basis, and rejecting his

contention the District Court erred in finding, for purposes of sentencing, he used threats of force

in committing his offense, the Seventh Circuit relied on Petitioner’s admission that the victim

accused him of threatening such force, despite that Petitioner never admitted to the accuracy of the

victim’s accusation, and despite that it was undisputed that the victim had credibility problems. Does

the Seventh Circuit’s failure to recognize a distinction between the act of agreeing an accusation was

made, and agreeing the accusation was true, violate Petitioner’s Due Process right to be sentenced

and imprisoned only on the basis of reliable information?

i

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......................................................................................................................... i

LIST OF PARTIES........................................................................................................................................... ii

TABLE OF CONTENTS .............................................................................................................................. iii

TABLE OF AUTHORITIES ......................................................................................................................... v

PETITION FOR WRIT OF CERTIORARI ............................................................................................... 1

OPINIONS BELOW ....................................................................................................................................... 1

JURISDICTION ............................................................................................................................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........................................... 3

STATEMENT OF THE CASE ..................................................................................................................... 3

REASONS FOR GRANTING THE WRIT

1. The District Court’s decision degrades this Court’s precedent requiring that an appellate

presumption of reasonableness must be genuinely rebuttable to comply with the Sixth Amendment,

and allows sentencing courts to bypass the directive of 18 U.S.C. § 3553(a) ........................................... 8

2. The Seventh Circuit’s approval of the exclusion of disparity information because it was first

introduced at the sentencing hearing violates Due Process, and is likely to result in other defendants

suffering similar violations, particularly before the same judge .................................................................. 9

3. The issue is of great importance to Petitioner Thompson, who has been locked up since age 28

and will spend the remainder of his life in prison, because the District Court could not have

adequately justified a life sentence, had he considered the sentencing disparity resulting from such

sentence ............................................................................................................................................................. 11

4. A practice of construing a defendant’s admission that a victim made an accusation as the same as

his admission that the substance of the accusation is true will result in sentencing and imprisoning

individuals on the basis of ambiguous information, in violation of the Due Process Clause, and the

matter needs to be addressed because a pattern of glossing over and misstating facts has been

identified in the Seventh Circuit .................................................................................................................... 14

CONCLUSION ............................................................................................................................................... 17

iii

APPENDIX

Seventh Circuit Order Affirming District Court .......................................................... Appendix 1

Seventh Circuit Order denying Petition for Rehearing ............................................... Appendix 8

Judgment in a Criminal Case ........................................................................................... Appendix 9

Proffered Exhibit regarding disparity ........................................................................... Appendix 14

TABLE OF AUTHORITIES

Constitutional Provisions

Page

Fifth Amendment, U.S. Constitution.............................................................................................................. 3

Sixth Amendment, U.S. Constitution ....................................................................................................... 3,8,9

Cases

Arrcik v. United States, 2016 WL 3880899 (SD Ohio 2016) ...................................................................... 12

Gall v. United States, 552 U.S. 38 (2007) ......................................................................................................... 9

Hamling v. United States, 418 U.S. 87 (1974) ................................................................................................. 10

Hurtado v. People of State of Cal., 110 U.S. 516 (1884) .................................................................................. 15

Rita v. United States, 551 U.S. 338 (2007) .................................................................................................... i, 8

Roberts v. United States, 445 U.S. 552 (1980) ................................................................................................. 15

United States v. Alvarez, 601 Fed.Appx. 116 (2nd Cir. 2015) ....................................................................... 12

United States v. Backman 817 F.3d 662 (9th Cir. 2016) ................................................................................. 12

United States v. Bason, 818 F.3d 651 (11th Cir. 2016) ................................................................................... 12

United States v. Blagojevich, 854 F.3d 918 (7th Cir. 2017) ............................................................................... 9

United States v. Bryant, 2016 WL 3597621 (6th Cir. 2016) ........................................................................... 13

United States v. Canty, 617 Fed.Appx. 630 (8th Cir. 2015) ........................................................................... 12

United States v. Hayes, 628 Fed.Appx 735 (11th Cir. 2016) ......................................................................... 13

United States v. Hisle, 2015 WL 4162934 (W.D. Ky 2016) ......................................................................... 12

iv

United States v. Jimenez-Calderon, 183 Fed.Appx 274 (3rd Cir. 2006) ............................................................ 12

United States v. Smith, 606 Fed.Appx. 307 (7th Cir. 2015) ........................................................................... 13

United States v. Swinney, 2016 WL 4527494 (E.D. Va. 2016) ..................................................................... 12

United States v. Thompson, 864 F.3d 837 (7th Cir. 2017)....................................................................... in passim

United States v. Thompson, No. 15-cr-30146-MJR (S.D.IL Oct. 12, 2016)................................................. 1,3

United States v. Wallace, 605 F.3d 477 (8th Cir. 2010) .................................................................................. 12

United States v. Walls, 784 F.3d 543 (9th Cir. 2015) ..................................................................................... 12

United States v. Willoughby, 742 F.3d 229 (6th Cir. 2014) ............................................................................. 13

Statutes

18 U.S.C. § 1591 ................................................................................................................................... 3,4,5,14

18 U.S.C. §1594 ................................................................................................................................................ 3

18 U.S.C. § 3553 .............................................................................................................................. 3,7,9,10,13

28 U.C.S. § 1254 ............................................................................................................................................... 2

Rules

Fed. R. Crim. P. 32 ...................................................................................................................................... 9,10

Other

E. Hoerner and R. Tulsky, “Pattern of Misstated Facts Found in Opinions of Renowned U.S. Judge

Easterbrook,” Injustice Watch, Apr. 4, 2017 ............................................................................................. 16

v

NO. ________

IN THE SUPREME COURT OF THE UNITED STATES

____________

MARCUS THOMPSON,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________

On Petition For a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

____________

PETITION FOR WRIT OF CERTIORARI

Petitioner Marcus Thompson, by his court-appointed counsel G. Ethan Skaggs, Assistant

Federal Public Defender, petitions this Court for a writ of certiorari to review the final judgment of

the United States Court of Appeals for the Seventh Circuit, issued on July 28, 2017.

OPINIONS BELOW

The District Court entered its Judgment in a Criminal Case on October 12, 2016. United

States v. Thompson, No. 15-cr-30146-MJR (S.D.IL Oct. 12, 2016). (Appendix 9). On July 28, 2017, the

Seventh Circuit Court of Appeals issued a written opinion affirming the District Court’s judgment.

United States v. Thompson, 864 F.3d 837 (7th Cir. 2017), reh’g and reh’g en banc denied Aug. 28, 2017.

(Appendix 1, 2).

1

JURISDICTION

On July 28, 2017, the Seventh Circuit Court of Appeals issued a written opinion affirming

the District Court’s judgment and conviction in a criminal case. United States v. Thompson, 864 F.3d

837 (7th Cir. 2017). On August 8, 2017, Petitioner filed a Petition for Rehearing and Rehearing En

Banc with the Seventh Circuit, which the Seventh Circuit denied on August 28, 2017. Id. (Appendix

2). This Petition is timely filed within 90 days of that date. Review by certiorari is sought pursuant to

Title 28, United States Code, Section 1254(1).

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution provides, in pertinent part, ANo

person shall . . . be deprived of life, liberty, or property, without due process of law.@ The Sixth

Amendment to the United States Constitution provides, in pertinent part, “In all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial.”

18 U.S.C. § 3553(a) provides, in pertinent part, “The court, in determining the particular

sentence to be imposed, shall consider . . . the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct.”

STATEMENT OF THE CASE

I. Procedural History

On August 21, 2015, a complaint was filed, in the United States District Court for the

Southern District of Illinois, charging Petitioner and his wife with one count of conspiracy to engage

in sex trafficking of children and by force, fraud, or coercion, 18 U.S.C. § 1591(a)(1)-(2), (b)(1)- (2),

18 U.S.C. §1594(c), and also charging Petitioner with one count of sex trafficking of a child and by

force, fraud or coercion, 18 U.S.C. § 1591(a)(1)-(2) and (b)(1)-(2). On May 13, 2016, Petitioner

pleaded guilty to the indictment, without a plea agreement.

On October 12, 2016, the District Court sentenced Petitioner to concurrent terms of life

imprisonment on each count. (Appendix 3). On October 21, 2016, Petitioner filed a notice of appeal

from the District Court’s October 12, 2016 judgment. On July 28, 2017, the Seventh Circuit Court

of Appeals affirmed the District Court’s judgment. United States v. Thompson, 864 F.3d 837 (7th Cir.

2017). (Appendix 1). On August 8, 2017, Petitioner filed a Petition for Rehearing and Rehearing En

Banc, which the Seventh Circuit denied on August 28, 2017. Id. (Appendix 2).

3

II. Factual Statement

After Petitioner pleaded guilty to one count of conspiracy to engage in sex trafficking of

a minor and by force, fraud, or coercion, and one count of sex trafficking of a minor and by

force, fraud or coercion, the District Court sentenced him to life imprisonment, the top of the

guideline range. Petitioner was 28 years old at the time of his offense, which lasted about six weeks,

and involved one fifteen-year old victim. Petitioner had a history of serious lead poisoning as a child,

a history of being assessed to be a cognitively disabled child, warranting an individualized education

plan in school, and no prior criminal history involving offenses against minors.

In his appeal brief, Defense Counsel argued Petitioner’s plea was not knowing and

voluntary, inter alia, because the elements of the offense and factual basis were not recited at the

plea hearing, and the written factual basis was insufficient to establish the enhanced offense for

which he was convicted. Petitioner pleaded guilty to 18 U.S.C. § 1591(a), a convoluted statute,

which reads, in pertinent part:

(a) Whoever knowingly--(1) in or affecting interstate or foreign commerce, or within

the special maritime and territorial jurisdiction of the United States, recruits, entices,

harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by

any means a person; or (2) benefits, financially or by receiving anything of value,

from participation in a venture which has engaged in an act described in violation of

paragraph (1), knowing, or, except where the act constituting the violation of

paragraph (1) is advertising, in reckless disregard of the fact, that means of force,

threats of force, fraud, coercion described in subsection (e)(2), or any combination of

such means will be used to cause the person to engage in a commercial sex act, or

that the person has not attained the age of 18 years and will be caused to engage in a

commercial sex act, shall be punished as provided in subsection (b).

18 U.S.C.A. § 1591(a).

Petitioner’s plea was specifically to the penalty provision in 18 U.S.C. § 1591(b)(1), which

increased Petitioner’s mandatory minimum term from ten to fifteen years. The provision

applies, “if the offense was effected by means of force, threats of force, fraud, or coercion,”

4

which is a reference to one of the alternative means of committing the offense, listed in

paragraph (a) of § 1951, “knowing, or . . . in reckless disregard of the fact, that means of force,

threats of force, fraud, coercion . . . will be used to cause the person to engage in a commercial

sex act.” 18 U.S.C. § 1951(a) and (b).

At Petitioner’s plea hearing, the parties’ written stipulation was the only source of the

factual basis for the plea. That stipulation first repeated the language of the statute, then recited

facts meant to satisfy the statutory elements. It read, in pertinent part: “In early June 2015,

Defendant enticed MV-1, a minor, to enter into his vehicle in Madison, Illinois, with the promise of

helping her attain modeling work. Defendant then transported MV-1 to Farmington, Missouri,

where Defendant picked up [wife] at a residence there. After picking up [wife], Defendant informed

[wife] that he intended to ‘make money’ by ‘posting’ MV-1, a minor, on Backpage.com, a website

used to offer commercial sex acts.” (Doc. 49). The stipulation contained no other assertions of

fraud, and no assertions of threats or force.

The Panel found the solitary line in the stipulation, that Petitioner initially enticed the minor

to get into his vehicle with the promise of modeling work, sufficient to establish that fraud was used

“to cause [the minor] to engage in a commercial sex act,” as required to trigger the enhanced

penalty. The Panel said, “Because modeling work was never in the cards, the ‘the offense was

effected by means of . . . Fraud.’ 18 U.S.C. § 1591(b).” United States v. Thompson, 864 F.3d at 841 (7th

Cir. 2017). The Panel shored up its holding by citing an allegation from the victim, recited in the

Presentence Investigation Report, issued after the plea hearing. As stated by the Panel,

At any rate, aside from sex trafficking by fraud, the facts in [Petitioner’s]

presentence report show sex trafficking by force. See United States v. Arenal, 500

F.3d 634, 638 (7th Cir. 2007) (noting that a district court may consider “information

contained in the [presentence report] to establish a factual basis before entry of

judgment and imposition of sentence”). The report notes that Thompson twice

5

threatened Victim–once when she denied a customer anal sex and once when she

tried to escape from her sexual enslavement. During sentencing, Thompson certified

that the facts contained in the report are true. Thereafter, the court adopted the

report’s factual findings. Accordingly, there is a sufficient basis for [Petitioner’s]

convictions.

United States v. Thompson, 864 F.3d at 841.

The single sentence in the PSR that was the basis for the Panel’s conclusion that Petitioner

threatened Victim twice actually reads: “The minor victim indicated she was threatened by Marcus

Thompson after she declined to have anal sex with a male subject and following an escape attempt.”

(Doc. 60, ¶ 15).

In relying on Victim’s assertion, the Panel did not comment on the fact that, twice during

the criminal proceedings, Defense Counsel informed the District Court, with no objection from

Government Counsel, that Victim had credibility problems, which was the reason certain assertions

were not part of the stipulation. First, in his sentencing memorandum, Defense Counsel stated the

complaint and discovery contained additional assertions of aggravating conduct, not part of the

stipulation, and “based on conversations with Government Counsel, Defense Counsel does not

believe there is any dispute that these particular details are not credible, and are not part of the

offense conduct.” (Petitioner’s appeal brief pp. 5, 26 referencing Doc. 76, n. 1).

Again, at the sentencing hearing, Defense Counsel alerted the District Court to the fact that

Victim’s assertions could not be assumed to be true. The District Court, on his own initiative, had

read the discovery, and questioned Government Counsel on the accuracy of particular assertions by

Victim contained therein. The District Court indicated he read that Petitioner injected prostitutes

with drugs and caused Victim to be prostituted to up to twenty individuals per day. Government

Counsel told the District Court these assertions were not true. Defense Counsel added, “You having

read the discovery on this, you got to see a lot of things in it that, yes, didn’t make the Presentence

6

Report. That was probably part and parcel to a meeting between Probation and the Government

and myself trying to avoid me having to file objection after objection where we kind of sat down

with [the Probation Officer] and said there are several points there is no corroborating evidence.”

Petitioner’s appeal brief pp. 7, 26, referencing Sent. Tr. p. 9.

Defense Counsel also argued in his brief that the District Court’s life sentence was

procedurally and substantively unreasonable, because, inter alia, the District Court relied on

information outside the record, refused to consider his information that the guideline range was out

of line with the sentences of similarly situated defendants, and failed to consider sentencing

disparity. At the sentencing hearing, Defense Counsel attempted to provide the District Court with a

list of cases and factual summaries in support of his request for a 25-year sentence, rather than a

guideline term of 30 years to life. Defense Counsel proffered that, if the District Court would look at

the cases, he would see that “the guys that did get the 360 or more we would submit are a whole lot

worse in what their conduct was compared to [Petitioner.]” (Sent. Tr. p. 30). Government Counsel

had no objection to Defense Counsel’s exhibit, but the District Court refused to consider it, stating

that he did not have time: “the Court is going to refuse to consider something just presented to me.

It is a two page document, appears to be other cases involving sex trafficking, perhaps

transportation cases, that type of thing, from all over the country. I am not going to consider it

because I don’t have the time to read this to determine whether or not these are, in fact, similar,

dissimilar, or appropriate for me to consider under the unwarranted disparity prong of 18 U.S.C.

Section 3553.” (Sent. Tr. p. 30; Petitioner’s appeal brief p. 10, 27-28).

In rejecting Defense Counsel’s contention that the District Court erred in refusing to

consider Petitioner’s disparity argument and his summary of case law, the Panel stated,“Thompson

gave that summary to the court halfway through his sentencing hearing. As the court explained, it

7

had not time to research the summary’s underlying cases or even give the summary itself any sort of

thoughtful review. In any event, the court imposed a within-guidelines sentence, thereby neutralizing

the risk of unwarranted sentencing disparities.” United States v.Thompson, 864 F.3d at 841.

REASONS FOR GRANTING THE WRIT

1. The District Court’s decision degrades this Court’s precedent requiring that an appellate

presumption of reasonableness must be genuinely rebuttable to comply with the Sixth Amendment,

and allows sentencing courts to bypass the directive of 18 U.S.C. § 3553(a). In Rita v. United States,

551 U.S. 338, 346–47 (2007), this Court found a reviewing court’s application of a rebuttable

presumption of reasonableness on appeal to a sentence within the advisory United States Guideline

range did not violate the Sixth Amendment: “A nonbinding appellate presumption that a Guidelines

sentence is reasonable does not require the sentencing judge to impose that sentence .Thus, our

Sixth Amendment cases do not forbid appellate court use of the presumption.” Rita, 551 U.S. at 353.

As emphasized in the concurring opinion, the presumption must be genuinely rebuttable: “As the

Court acknowledges, moreover, presumptively reasonable does not mean always reasonable; the

presumption, of course, must be genuinely rebuttable.” Rita, 551 U.S. at 366, Stevens, concurring.

The Seventh Circuit used the appellate presumption of reasonableness to support its finding

that any error in excluding evidence at sentencing regarding sentencing disparity was harmless, a

practice which renders the presumption irrebuttable with regard to sentences that are unreasonable

because they promote sentencing disparity. Defense Counsel proffered to the District Court that his

research revealed most similarly situated defendants receiving sentences of thirty years or more

committed more egregious acts than Petitioner, and he asked that the District Court consider his

two-page written summary of these cases; Government Counsel had no objection to the submission.

The District Court refused to consider the information because of his view that it should have been

8

submitted well before the sentencing hearing.

The Seventh Circuit relied on the presumption of reasonableness to support its finding that

the District Court committed no error in refusing this information. As stated by the court, “In any

event, the court imposed a within-guidelines sentence, thereby neutralizing the risk of unwarranted

sentencing disparities.” United States v. Thompson, 864 F.3d 837, 841 (7th Cir. 2017). The Thompson

Court then cited United States v. Blagojevich, 854 F.3d 918, 921 (7th Cir. 2017), which cited Gall v.

United States, 552 U.S. 38 (2007), for the principle that “the Sentencing Guidelines are themselves an

anti-disparity formula,” and “to base a sentence on a properly determined Guidelines range is to give

adequate consideration to the relation between the defendant's sentence and those of other

persons.” Blagojevich, 854 F.3d 918, 921 (7th Cir. 2017).

It is important for this Court to correct the Seventh Circuit’s misuse of the appellate

presumption of reasonableness. Use of the presumption to affirm the exclusion of rebuttal evidence

blocks defendants from remedying a sentencing court’s erroneous exclusion of evidence supporting

that the guideline range is unreasonable, rendering the presumption irrebuttable, and violating the

Sixth Amendment. It is also important for this Court to redress the matter because the Seventh

Circuit’s reliance on the presumption sets a precedent for allowing sentencing courts to bypass the

mandate of 18 U.S.C. § 3553(a), which requires courts to consider certain information, other than

the guideline range, including sentencing disparity, in making their sentencing determinations.

2. The Seventh Circuit’s approval of the exclusion of disparity information because it was

first introduced at the sentencing hearing violates Due Process, and is likely to result in other

defendants suffering similar violations, particularly before the same judge. Fed. R. Crim. P.

32(i)(1)(C) provides, “At sentencing, the court . . . must allow the parties’ attorneys to comment on

the probation officer’s determinations and other matters related to an appropriate sentence.” “[T]he

9

need to avoid unwarranted sentencing disparities among defendants with similar records who have

been found guilty of similar conduct” is one such matter that must be considered in fashioning an

appropriate sentence.18 U.S.C. § 3553(a)(6). Also, every judge in the Southern District of Illinois,

save one, sets a deadline for sentencing memoranda prior to the sentencing hearing, some of which

are set out in the case management procedures for a given judge on the district court’s website. See

e.g. www.ilsd.uscourts.gov/documents/Reagan.pdf , p. 15 (Judge Reagan’s case management

procedures). But, none of these written procedures give notice that any information not included in

the sentencing memoranda will be excluded.

Based on 18 U.S.C. § 3553(a)(6) and Fed. R. Crim. P. 32(i)(1)(C), Petitioner had a right to

introduce information for the first time at the sentencing hearing, and had every reason to expect

that his proffer of information regarding sentencing disparity would be considered. “The right to

present evidence is, of course, essential to the fair hearing required by the Due Process Clause . . ..”

Hamling v. United States, 418 U.S. 87, 150 (1974) (citation omitted). However, when Defense Counsel

offered the information at the sentencing hearing, the District Court said,

Okay, it will be marked. No objection by the Government, but the Court is

going to refuse to consider something just presented to me. It is a two page

document, appears to be other cases involving sex trafficking, perhaps transportation

cases, that type of thing, from all over the country. I am not going to consider it

because I don=t have time to read this to determine whether or not these are, in fact,

similar, dissimilar, or appropriate for me to consider under the unwarranted disparity

prong of 18 U.S.C. ' 3553.

(Sent. Tr. p. 29-30).

The Seventh Circuit sanctioned the exclusion of relevant information on this basis:

there was no error in refusing to consider Thompson's two-page summary of

case law addressing the § 3553 sentencing-disparity factor. Thompson gave that

summary to the court halfway through his sentencing hearing. As the court

explained, it had no time to research the summary's underlying cases or even give the

summary itself any sort of thoughtful review. In any event, the court imposed a

10

within-guidelines sentence, thereby neutralizing the risk of unwarranted sentencing

disparities.

United States v. Thompson, 864 F.3d 837, 841 (7th Cir. 2017).

Defense Counsel found no Circuit split on this practice, although it is conceivable that other

judges will be influenced by the Seventh Circuit’s opinion. It is even more likely, however, that the

practice of arbitrarily excluding evidence introduced for the first time at a sentencing hearing in

particular cases will continue, thereby violating the Due Process rights of other defendants. This may

be particularly true in cases involving highly emotional facts, such as those in the instant case, which

involved the prostitution of, and sexual conduct with, a fifteen-year-old victim. In addition, it is

almost certain that defendants in the Seventh Circuit whose Due Process rights are violated in this

way will be discouraged from objecting or appealing, because of the Seventh Circuit’s precedent

sanctioning of this practice. For this reason, correction of the Seventh Circuit’s decision is

important, and warrants this Court’s attention.

3. The issue is of great importance to Petitioner Thompson, who has been locked up since

age 28 and will spend the remainder of his life in prison, because the District Court could not have

adequately justified a life sentence, had he considered the sentencing disparity resulting from such

sentence. The District Court sentenced Petitioner to life imprisonment, which was the top of the

advisory guideline range. However, Defense Counsel’s proffer and the summary of cases he

submitted in support, demonstrate the 360 month to life guideline range was out of line with the

sentences of similarly situated defendants.

Defense Counsel’s summary included 23 cases from around the country, mostly from 2015

and 2016. (Appendix 14). In ten of these cases, the defendants were sentenced to less than 360

months imprisonment, and each of them involved conduct equally or more egregious than

11

Petitioner’s conduct: United States v. Jimenez-Calderon, 183 Fed.Appx 274 (3rd Cir. 2006) (210 monthsmultiple girls beaten and coerced into prostitution for several years); Arrcik v. United States, 2016 WL

3880899 (SD Ohio 2016) (162 months: prostituted two adults by threatening them with physical

violence and supplying them with drugs, also prostituted a minor he transported from Lima); United

States v. Backman 817 F.3d 662 (9th Cir. 2016) (235 months-tricked adult Chinese women, who spoke

no English, to come to the United States for legitimate work, then imprisoned them and forced into

prostitution); United States v. Bason, 818 F.3d 651 (11th Cir. 2016) (324 months-lured three young

women into prostitution with false promises, and beat and threatened to kill them on multiple

occasions); United States v. Swinney, 2016 WL 4527494 (E.D. Va. 2016) (294 months-operated

prostitution venture where he used threats, force, and violence against a total of nine women and

girls; forced minor to have an abortion); United States v. Canty, 617 Fed.Appx. 630 (8th Cir. 2015) (300

months--sex trafficking children and receipt of child pornography, but defendant grew up poor

without a father, attended special school classes, and was harassed by other students to the point of

dropping out of school); United States v. Hisle, 2015 WL 4162934 (W.D. Ky 2016) (180 monthsvarious child sex trafficking counts, including by force, where victims were assaulted and locked up

to prevent escape); United States v. Walls, 784 F.3d 543 (9th Cir. 2015) (23 years-various offenses

related to child sex trafficking by force, with seven victims); United States v. Alvarez, 601 Fed.Appx.

116 (2nd Cir. 2015) (235 months-coercion of individuals into prostitution, sex trafficking, failure to

update sex offender registration, defendant also went to trial); United States v. Wallace, 605 F.3d 477

(8th Cir. 2010) (240 months-sex trafficking by fraud, force, or coercion involving imprisoning an 18

year-old mentally disabled woman, torturing her, and prostituting her).

The remaining cases involved defendants sentenced to 360 months or above, and these

generally involved conduct more egregious than that committed by Petitioner. This conduct

12

included: prostituting two 17 year-old girls and one 21 year-old, with one of the girls prostituted up

to fifteen times per day, and controlling them with physical violence, for which the defendant

received life (United States v. Smith, 606 Fed.Appx. 307 (7th Cir. 2015)); having forced sex with a

sixteen-year-old runaway, coercing her into prostitution, and beating and threatening her regularly,

for which the defendant received 360 months (United States v. Willoughby, 742 F.3d 229 (6th Cir.

2014)); forcing one adult and three minors into sex trafficking, using violence and threats of violence

and exposing minors online, for which the defendant received 480 months (United States v. Bryant,

2016 WL 3597621 (6th Cir. 2016)); and forcing two fourteen-year-olds into prostitution with threats

of harm and subjecting one of the teens to such physical trauma that she required hospitalization,

for which the defendant received 360 months (United States v. Hayes, 628 Fed.Appx 735 (11th Cir.

2016). Appendix 14 sets out additional cases involving sentences of 360 months and above and

summarizing the more egregious conduct involved.

Even if the District Court had a policy of not trusting a party’s proffer regarding case law

without performing his own survey of case law (despite no evidence to the contrary and no

objection from the Government), Defense Counsel’s information at least should have called into

question the reasonableness of the guideline range, and warranted the District Court’s addressing the

substance of the issue. Instead, the District Court simply ignored the goal of avoiding unwarranted

sentencing disparity, leaving him free to impose a within-guideline, life sentence, without addressing

sentencing disparity.

Petitioner Thompson was just 28 years old when he committed the instant offense, and will

spend the rest of his life in prison. Had the District Court followed the directive of 18 U.S.C. §

3553(a) and given true consideration to the goal of avoiding unwarranted sentencing disparity, there

is a significant probability he would have received a shorter sentence, which would have been more

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in line with similarly situated defendants, as contemplated by Congress in mandating consideration

of sentencing disparity in sentencing. Therefore, the issue is of extreme important to Petitioner.

4. A practice of construing a defendant’s admission that a victim made an accusation as the

same as his admission that the substance of the accusation is true will result in sentencing and

imprisoning individuals on the basis of ambiguous information, in violation of the Due Process

Clause, and the matter needs to be addressed because a pattern of glossing over and misstating facts

has been identified in the Seventh Circuit.

On appeal, Petitioner challenged the voluntariness of his plea because the factual basis was

inadequate. Petitioner stipulated only that he initially enticed the Victim “to enter into his vehicle . . .

with the promise of helping her attain modeling work,” a false promise. (Doc. 49). Defense Counsel

argued that this false promise when he initially encountered the victim in order to entice her into his

truck, without any information regarding events leading up to her working for him as a prostitute,

fell short of establishing Petitioner knew that “threats of force, fraud, coercion” would be used to

cause the victim “to engage in a commercial sex act,” as required for 18 U.S.C. § 1591(b)(1)

(increasing the mandatory minimum term from ten to fifteen years.). Defense Counsel also

challenged the District Court’s finding, for purposes of sentencing, that Petitioner threatened force

against the victim.

In finding no error on both points, the Panel relied on a single line in the PSR repeating an

accusation by the victim: “The minor victim indicated she was threatened by Marcus Thompson

after she declined to have anal sex with a male subject and following an escape attempt.” (Doc. 60, ¶

15). Petitioner did not contest the fact that Victim made this accusation, which is not the same as

agreeing that the substance of the accusation was true, and never agreed the substance was true.

The distinction may not matter in a case where there is no question as to the credibility of a

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victim’s uncorroborated accusation. However, Victim’s credibility problems were patent in the

record. Defense Counsel twice alerting the District Court to the victim’s credibility problems, with

no disagreement from Government Counsel. Even the District Court questioned Government

Counsel about other accusations from Victim in the discovery, which Government Counsel

admitted were not true.

The Panel’s finding that, because Petitioner admitted the victim made the accusation, the

accusation was sufficient to support Petitioner’s plea (along with his initial promise of modeling

work), and was sufficient to support a finding, for purposes of sentencing, that Petitioner did

threaten the victim with force, conflicts with the notion that a defendant may not be deprived of

liberty based on speculation or unfounded accusations. “As a matter of due process, an offender

may not be sentenced on the basis of mistaken facts or unfounded assumptions.” Roberts v. United

States, 445 U.S. 552, 563 (1980) (Brennan, J. concurring) (citation omitted); see also Hurtado v. People of

State of Cal., 110 U.S. 516, 537 (1884) (“No individual or body of men has a discretionary or arbitrary

power to commit any person to prison.”).

The issue is important to Petitioner because the Panel’s treatment of his admission that the

accusation was made as tantamount to an admission the accusation was true violated his Due

Process rights by allowing him to be sentenced and imprisoned based on ambiguous facts. The issue

is further important for all defendants because allowing this type of loose construction of the record

by a reviewing Court facilitates glossing over difficult facts to reach a desired result in cases

involving unsympathetic defendants, such as the instant case, because it involves a sex offense

against a minor.

This is precisely what happened in the Seventh Circuit. As stated above, Petitioner only

agreed to the truth of what was stated in the Presentence Investigation Report, that the victim made

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a particular accusation: “The minor victim indicated she was threatened by Marcus Thompson after

she declined to have anal sex with a male subject and following an escape attempt.”(Doc. 60, ¶ 15).

However, the Panel inaccurately stated the facts in the Presentence Report as follows: “The report

notes that Thompson twice threatened the victim—once when she denied a customer anal sex and

once when she tried to escape from her sexual enslavement. During sentencing, Thompson certified

that the facts contained in the report are true.” United States v. Thompson, 864 F.3d 837, 841 (7th Cir.

2017).

Thus, this Court’s attention is important to Petitioner Thompson and all other defendants

whose cases are appealed in the Seventh Circuit.

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CONCLUSION

For the foregoing reasons, Petitioner suggests that his case warrants this Court=s grant of

certiorari.

Respectfully Submitted,

/s/ G. Ethan Skaggs

G. Ethan Skaggs, Assistant Federal Public Defender

650 Missouri Avenue

East St. Louis, Illinois 62201

(618) 482-9050

(618) 482-9057 (fax)

Ethan_Skaggs@fd.org

ATTORNEY FOR PETITIONER

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APPENDIX

Seventh Circuit Opinion Affirming District Court.................................................................... Appendix 1

Seventh Circuit Order Denying Petition for Rehearing ............................................................ Appendix 8

Judgment in a Criminal Case ......................................................................................................... Appendix 9

Petitioner’s Excluded Summary of Case law ............................................................................ Appendix 14

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