Petition for Writ of Certiorari — Hugo Monroy, Petitioner v. United States

NO:

IN THE

SUPREME COURT OF THE UNITED STATES

HUGO MONROY,

Petitioner,

‘

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

MICHAEL CARUSO

Federal Public Defender

Tracy Dreispul

Assistant Federal Public Defender

Counsel for Petitioner

150 West Flagler Street, Suite 1500

Miami, Florida 33130-1555

Telephone (305) 536-6900

QUESTION PRESENTED FOR REVIEW

In reviewing sentences for reasonableness, the courts of appeals “must first

ensure that the district court committed no significant procedural error, such as

failing to calculate (or improperly calculating) the Guidelines range.” Gall v. United

States, 562 U.S. 38, 51 (2007). The court should then consider whether the sentence

is substantively reasonable, “tak[ing] into account the totality of the circumstances,

including the extent of any variance from the Guidelines range. “ Id.

In this case, the district court circumvented Gall’s two-step approach. “In an

effort to moot” a dispute about the calculation of the Guidelines range, the court

stated that it would have imposed the same sentence even if Petitioner’s position

was correct. That “alternative” sentence, however, was substantially higher than

what the Guidelines range would have been under Petitioner’s view. The court did

not calculate the alternative Guidelines range or supply any reason why an upward

variance therefrom was warranted. On appeal, the Eleventh Circuit declined to

resolve the underlying Guidelines disputes, instead deeming any miscalculation

harmless error in light of the court’s alternative sentence.

The question presented is:

Whether (as in the Fourth and Eleventh Circuits) a miscalculation of the

Guidelines range is automatically harmless where the court baldly states, without

more, that it would impose the same sentence, or whether (as in the Third, Eighth,

and Tenth Circuits) a miscalculation of the Guidelines is harmless only where the

court calculates an alternative range and properly justifies any variance therefrom.

INTERESTED PARTIES

There are no parties to the proceeding other than those named in the caption

of the case.

li

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW. ...0.0... cc ccccssceceeseeeeeeeeeeeeseeeeenecserscateenenecese i

INTERESTED PARTIES 0.000... cece eee eeceseceeeeseeseeeesenseeereeneneeeesesasssassueseeseseneenseeses ii

TABLE OF AUTHORITIES... cect ccsesccseeeeseseeeeeseeeeseaseesevacaeneeseseenereeeeeveeeseses v

PETITION 00... eee eeeeceseseneeerseeeeeesececeesecseeerevesesesetesesersesesseeeeseaseessesseesseasneesseseenese 1

OPINION BELOW 000.0... eeccceeeeeceeeeeceeeeeeeeceeeneeeseneesseanseceesereeeeseresdessseensssasessensseesenes 2

STATEMENT OF JURISDICTION... ecccsceescsesesesseeseseeeseseeesseseeasseeeeseeaeseeesaeiees 2

STATUTES AND RULES INVOLVED ....00.0 0... cece eects eietesereessseseeeeeeseaeneneseeaeees 3

STATEMENT OF THE CASE uo. cecsceseeteeessessesssseesosecenseseneracaecerseneneverseressesseeeera 4

REASONS FOR GRANTING THE WRIT... ccccssccsssesseeseseseeneeseeeseeesseneeeenseneeeees 8

I. This Court’s certiorari review is needed to resolve a split of authority

regarding the proper application of reasonableness review. ............::cceceeeeeeee 8

A. The Eleventh and Fourth Circuits have eliminated the “first”

step of reasonableness review. ........:.:cscceereeneeeneeee prrvonenieeeeeecceeneenssnnnannes 8

B. The Third, Eighth, and Tenth Circuits have rejected the “simple

statement” approach. .........c.ccccccesscssescceccessecsscecencenseesseeceesseneensecenseensenaes 14

Il. This is an important and recurring issue of law upon which this

Court’s guidance is needed. ...........cccccsseesscesssecenseeecteeeeeetecnsceneerseneeaseceeensareatenee 16

Ill. The Eleventh Circuit's approach is wrong because it violates Gall and

undermines core functions of the Guidelines. .............:cccccsscsessceseeeteeeeneeeeneees 18

IV. This case presents an excellent vehicle for review.............ccsccessscesseeseesseenaseaee 21

CONCLUSION .....oc ce ecccccecceeseceersnsccnscseesecsssacereseassesseseeeeeeeneessnesesescecaeeaseeesassentesanes 23

ili

APPENDIX

Decision of the Court of Appeals for the Eleventh Circuit,

United States v. Monroy, No. 16-12304,

698 F. App’x 1015 (11th Cir. June 29, 2017) ...cceccccccessssecsscsseencsecseeesscenees

Order Denying Rehearing (11th Cir. Sept. 06, 2017) .........cccccescescessseeesseesters

Judgment imposing Sentence .........ceccescesscssccscsseessseeceecessseecseeeesnaeeseeeeeeeeess

iv

TABLE OF AUTHORITIES

CASES

Beckles v. United States,

187 S. Ct. 886 (2017)... eee ecesccesssececssscseccessessesessnsceseasesecseeneneessesenerseaecsavensseearensenss 17

Kimbrough v. United States,

552 U.S. 85, 128 S. Ct. 558 (2007)... ccccccccescsscscesecsesssscscesecscsessesssseaeeeeseserssseeevsueanes 20

Molina—Martinez v. United States,

136 S. Ct. 1838 (2017)... cecceccccssesescesessessssesecseessesssssaessessesseseesceseeeseeseseresenseete 17, 18

Peugh v. United States,

569 U.S. 2072 (2018)... ee ceesenscsssecsceseesescsceseencesesaeeneseasseeaecsecaeeassseenseeensaeeasieeaes 17, 18

Rita v. United States,

551 U.S. 838, 127 S. Ct. 2456 (2007)... ce eecsessesseseseesessesseeseseceesessescesseeaeeeeteeseaesses 20

United States v. Adeneye,

618 F. App’x 561 (11th Cir. 2015) oo... ccccccscssscesessseesececcsssessesseeneeseeeeeesseseensasece 16

United States v. Bah,

439 F.3d 423 (8th Cir. 2006)... cc ccccccceessessccessceescecsceseeeessecescecesesseesscesaneesseesees 14, 15

United States v. Booker,

543 U.S. 220 (2005)... cccccecsscscesseescencssecsesseeesscseecseseessesseceseecseesnessesseesesereessenseacssansas 8

United States v. Dotson,

660 F. App’x 757 (11th Cir, 2016) .oscscccccsssssssessssssssssssessssssvessssssseseseessssevesssssesssssnnee 12

United States v. Gall,

552 U.S. 38 (2007)... .ceeccsseesessescssesessssscssssscsecsusceesecaeseaecsesssesesssassesssecaeeseresssenses passim

United States v. Gomez-Jimenez,

750 F.8d 370 (4th Cir, 2014)... ccceesesessssssessessssssesesscsseeerseesseseasenaees 18, 19, 20, 21

United States v. Guerra,

307 F. App’x 283 (11th Cir. 2009) cccccccccsssssssccsseccssssecesssssseessssssusesssesssssecesssscsessnseeee 11

United States v. Icaza,

492 F.3d 967 (8th Cir, 2007)... cc ccscssssesecsessscesssessesssesseeseceeseseesesseseeecsesaesescessenaseees 15

United States v. Ingram,

721 F.8d 85 (2d Cir, 2018) cee sesssesscssetssecenseseescsecseesecsesesessessesessesesasenessensesesseas 18

United States v. Keene,

470 F.8d 1847 (11th Cir, 2006)... cccccccsccsssecseeesssseesseessesecsecssesesneecsesenssentes passim

United States v. Lampley,

620 F. App’x 801 (11th Cir, 2015) ....sscccecscccsseesccssescsssssecesssseccesssssssessessssvecesseseesssnssees 16

United States v. Leon-Ramos, .

619 F.App’x 889 (11th Cir, 2015) oo. cccccscesecsscesessencessescsecsessseeiecsesessessesesseeas 11, 16

United States v. Lopez,

A79 F, App’x 217 (11th Cir, 2012) o...ccccecccccscssscesssesseesensesseecscesesssecseesesseessnesseeees 16

United States v. Monroy,

No. 16-12304, 698 F. App’x 1015 (11th Cir. June 29, 2017),

rehearing denied, (11th Cir. Sept. 06, 2017)..........:ccesccsscsseeessesesssesseseseeesseesees passim

vi

United States v. Pena-Hermosillo,

522 F.3d 1108 (LOth Cir. 2008)... ccseseesececetssceseeeneesensensnevecaseanesaseaseesseoaeeetes 14, 16

United States v. Savillon-Matute,

636 F.3d 119 (4th Cir, 201D).. cece cesscscessecesevensencersetsceccceseeseesersersesssseceneeseses 12

United States v. Smalley,

517 F.8d 208 (8d Cir, 2008) oe ceseecenseneeseeeeeesactecetsecerseeeseseeseesseseenesssesssssese 14, 15

United States v. St. Fleurose,

645 F. App’x 860 (11th Cir. 2016) oo. cceeencceneeereceecessesevssssseesesssnsssaseenacssesesens 16

United States v. Webb,

386 F. App’x 914 (11th Cir, 2010) oc. cececsssecssessesessenessesseeseceseeseeaecenseteneeveseenenenes 17

United States v. Weeks, .

375 F. App’x 989 (11th Cir. 2010) oo ee eesereeeerstseeecsessseenssnsrersasscneeneeneceeses 11,17

United States v. Williams,

431 F.8d 767 (11th Cir. 2005)... cece seenecceeeceesseenereneeseeecnecaereseresseseneseesea 8, 9, 10

STATUTES

18 U.S.C. § 2252(a)(4)(B).... se eeeescsseceeeeeenscserenseesseererssssensesasevseesensnssassseressssnecsereseatavens 4

18 U.S.C. § 2252(D)(2)..cccessccssesctsssessessscsescnensssessscsnsosssseassessccsnsnsceseaescosesersegsseacensscscase 4

18 U.S.C. § 8558 oc ceccsscccescccensesseceseeseesssecsesecesscensenseceeseessssceoseseeeserereeteeneesee passim

18 U.S.C. § 3742 cceecccssssssscssssssueessesessssssssssssssseeseesssssssssssvessssesssssuesestseesiiiseessanesseees passim

28 U.S.C. § 1297 ooo lee eeseescescnssseeesseesenssesesenssccasseneccuaesasscensseearsesevaeseesseeseossneaeassees 2

2B U.S.C. § 994 (p) ccrecccccccccsssescscsssuessesssssssssecessssssscesessssssssnecesuseseseeessnssssuesssasunecseseeeseseees 20

28 U.S.C. § 1254 (1) oo eeeceseescseresesenenensscserseerscrssesessssessussesesssesesseceesaceesneetecseeseateseones 2

vii

OTHER AUTHORITIES

James W. Harlow, Comment, Does the Calculation Matter?

The Federal Sentencing Guidelines and the Doctrine

of Alternate Variance Sentences, 66 S.C. L. REV. 987, 990 (Summer 2015)............ 17

U.S.S.G. § TB1.B(A)(2) .ccccccccccseesssresereresssssssnserscseecsessensersesnancacecssassosenesssasenssessarseeseeaes 7

U.S.S.G. § 2G2.2(D)(8) (FP... eseeseeseescesseseseesecnearecseacseseserenseevsnsnsasseavenseasserseseaseaserseasasnes 7

ULS.S.G. § 2G2.2(D)(T)(A) .. eee eeesceectstesneneeeenenenseneseesteeseesens vsessussecesnsesssnecessuneceessvecsnses 4

RULES

Fed. R. Crim, P. 52(8)......cccccscccssccenscssecsscesseecssscssesesscsceeeseusssecseceseeeesdeceaeesseseeenesssseses 3

Sup. Ct. Ro 18.1 ec cccccceccsecesscesscscseesseenssecesscseseesecseececsscesscseccaeeseceseeeeasassessecsseeeaseess 2

vill

IN THE

SUPREME COURT OF THE UNITED STATES

No:

HUGO MONROY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Hugo Monroy respectfully petitions the Supreme Court of the United States

for a writ of certiorari to review the judgment of the United States Court of Appeals

for the Eleventh Circuit, rendered and entered in case number No. 16-12304 in that

court on June 29, 2017, United States v. Monroy, No. 16-12804, 698 F. App’x 1015

(11th Cir. June 29, 2017), rehearing denied, (11th Cir. Sept. 06, 2017), which

affirmed the judgment and commitment of the United States District Court for the

Southern District of Florida.

OPINION BELOW

A copy of the decision of the United States Court of Appeals for the Eleventh

Circuit, which affirmed the judgment and commitment of the United States District

Court for the Southern District of Florida, is contained in the appendix (A-1).

STATEMENT OF JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1) and Part III of

the Rules of the Supreme Court of the United States. The decision of the court of

appeals was entered on June 29, 2017. Mr. Monroy’s timely petition for rehearing

was denied on September 6, 2017. This petition is timely filed pursuant to Sup. Ct.

R. 13.1 and 13.3. The district court had jurisdiction because petitioner was charged

with violating federal criminal laws. The court of appeals had jurisdiction pursuant

to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, which provide that courts of appeals shall

have jurisdiction for all final decisions of United States district courts.

)

STATUTES AND RULES INVOLVED

18 U.S.C. § 3742(a), (f)

(a) Appeal by a defendant. - A defendant may file a notice of appeal

in the district court for review of an otherwise final sentence if the

sentence —

(2) was imposed as a result of an incorrect application of the sentencing

guidelines...

(f) Decision and Disposition. - If the court of appeals determines

that —

(1) the sentence was imposed in violation of law or imposed as a result

of an incorrect application of the sentencing guidelines, the court shall

remand the case for further sentencing proceedings with such

instructions as the court considers appropriate . . .

Fed. R. Crim. P. 52(a)

(a) Harmless Error. Any error, defect, irregularity, or variance that

does not affect substantial rights must be disregarded.

STATEMENT OF THE CASE

Petitioner Hugo Monroy pled guilty to a single-count indictment alleging that

or about November 13, 2015, he knowingly possessed and accessed with intent to

view a laptop computer containing visual depictions of child pornography, in

violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). (DE 9). The indictment alleged “that

such visual depiction involved a prepubescent minor and a minor who had not

attained twelve years of age” (DE 9), and the computer was found to contain

“approximately 75 still images of suspected child pornography.” (Presentence

Investigation Report (“PSI”) 4 19).

During the change of plea hearing, defense counsel noted that the parties

disagreed about whether videos which had previously been downloaded by law

enforcement officers from Mr. Monroy’s computer via a peer-to-peer file sharing

service on March 1, 2014 and November 1, 2014 should be considered relevant

conduct under the United States Sentencing Guidelines (hereafter the “Guidelines”).

(See DE 30). The PSI did include those videos as relevant conduct. This had the

effect of increasing Mr. Monroy’s Guidelines range by eight levels, from a calculated

sentencing range of 37-46 months (DE 30), to a calculated range of 87-108 months.

(PSI § 75).1

1 Specifically, the PSI added two levels based on the allegation that the offense

involved distribution (PSI { 26), four levels for the portrayal of sadistic or

masochistic conduct or other depictions of violence (PSI 4 27), and four levels

because 300 or more images were involved. (PSI { 29). Only two levels would have

applied had the offense involved 75 images. See U.S.S.G. § 2G2.2(b)(7)(A).

4

Mr. Monroy objected to the inclusion of the videos as relevant conduct because

they were downloaded by law enforcement over a year prior to the charged offense,

and because they were not found to be the same as the still images on his computer.

(DE 30). At the sentencing hearing, the court tacitly overruled the objections, and

determined that the Guidelines range was 87 to 108 months. (DE 63:9).

Thereafter, defense counsel asked the court to impose a sentence below the

calculated Guidelines range, based on the fact that Mr. Monroy was a very low-level

offender compared to similarly situated defendants. Mr. Monroy was not a collector

of child pornography. There were significant periods of time when Mr. Monroy was

not utilizing the peer-to-peer network, and nothing in Mr. Monroy’s background

suggested that he was any type of “predatory danger,” or had inappropriate contact

with children. (See DE 63:10-11). Finally, counsel addressed a report from the

United States. Sentencing Commission presenting significant criticisms of the

Guidelines for child pornography offenses. (DE 33:7,11). (See also DE 32)

The district court denied Mr. Monroy’s request for a variance, stating that it

was “not satisfied that counsel has demonstrated a sufficient basis to grant a

variance or warrant a variance.” (DE 63:17). The court then stated it intended to

“moot” any appellate issue regarding the calculation of the Guidelines:

Secondly, with respect to the guidelines calculations that we've

addressed, the guidelines calculations and the objections, in an effort

to moot that issue, I’m going to sentence within the guideline range,

but I will in the alternative impose a reasonable sentence independent

of the guidelines post Booker after consideration of the Title 18, United

States Code, Section 3553 factors. So if for any reason the defendant

appeals the sentencing guideline calculation, I would state for the

record that the sentence would be imposed similarly after consideration

of the 3553 factors independent of the guidelines.

(DE 63:17) (emphasis added).

The court sentenced Mr. Monroy to 108 months’ imprisonment, the high-end

of the disputed Guidelines range. (DE 63:21). The court did not state any reason

why it would have varied from the lower range if Mr. Monroy’s objections to the

Guidelines calculations were correct. .

The Eleventh Circuit’s Opinion

Mr. Monroy appealed his sentence to the United States Court of Appeals for

the Eleventh Circuit. The first two claims in Mr. Monroy’s brief challenged the

district court’s calculation of the Guidelines. First, Mr. Monroy argued that the

district court erred by sentencing him based on the alleged relevant occurred, which

occurred over a year prior to the charged offense and was not part of a common plan

or scheme. Second, Mr. Monroy argued that the court plainly erred by failing to

apply a 2016 amendment to the Guidelines, which would have had the effect of

lowering his Guidelines range, relying on Eleventh Circuit precedent holding that

clarifying amendments apply retroactively on direct appeal.

The Eleventh Circuit affirmed Mr. Monroy’s sentence, without oral argument

in an unpublished decision issued June 29, 2017. United States v. Monroy, 698 F.

App’x 1015, 1018 (11th Cir. June 29, 2017), reh’g denied, (11th Cir. Sept. 6, 2017).

The court declined to review either of Mr. Monroy’s challenges to the calculation of

his Guidelines range, based on the district court’s express “effort to moot” them. Id.

at 1018. The Eleventh Circuit wrote:

A. Guidelines Claims

Monroy argues that the district court: (1) clearly erred when it

considered the five videos of child pornography that investigators

downloaded from his computer in March and November 2014 as

relevant conduct under U.S.S.G. § 1B1.8(a)(2); and (2) plainly erred

when it applied a 2-level distribution enhancement under U.S.S.G. §

2G2.2(b)(3)(F). Monroy maintains that, without the challenged

guidelines enhancements, his properly calculated advisory guidelines

range is 37 to 46 months, rather than the 87 to 108 months the district

court calculated.

We need not address the merits of these guidelines issues, however,

because any error in calculating Monroy’s advisory guidelines

range was harmless and did not affect his substantial rights.

Under our precedent, a guidelines calculation error is harmless if: (1)

the district court stated it would impose the same sentence even if it

decided the guidelines issue in the defendant’s favor; and (2) assuming

an error occurred and the lower guidelines range applied, the sentence

resulting from consideration of § 3553(a) factors would still be

reasonable....

Here, the district court, in imposing the 108-month sentence, noted the

objections to the its guidelines [sic] calculations and, “in an effort to

moot” them, made an alternate ruling on the record that, independent

of the advisory guidelines, it would impose the same sentence based on

its consideration of the 18 U.S.C. § 35538(a) factors. Further, for the

reasons discussed below, the district court's 108-month sentence is

substantively reasonable in light of the circumstances and the § 3553(a)

factors. Accordingly, any error in calculating Monroy’s advisory

guidelines range did not affect his ultimate sentence and does

not require a remand for resentencing.

id. (internal citations omitted) (emphasis added).

This petition follows.

REASONS FOR GRANTING THE WRIT

I,

This Court’s certiorari review is needed to resolve a split of

authority regarding the proper application of reasonableness

review.

A. The Eleventh and Fourth Circuits have eliminated the first

step of reasonableness review.

In United States v. Booker, 548 U.S. 220 (2005), this Court invalidated those

provisions of law which made the United States Sentencing Guidelines mandatory.

“As a result ... the Guidelines are now advisory, and appellate review of sentencing

decisions is limited to determining whether they are ‘reasonable.” United States v.

Gall, 552 U.S. 38, 46 (2007). In Gall the Court gave explicit instructions as to what

this reasonableness review must entail. “Regardless of whether the sentence

imposed is inside our outside the Guidelines range, the appellate court must review

the sentence under an abuse-of-discretion standard.” Jd. Moreover, the court of

appeals “must first ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly. calculating) the

Guidelines range ...”. 552 U.S. at 51 (emphasis added).

Whereas the appellate courts had long been required to review Guidelines

determinations, see 18 U.S.C. 3742(a)(2), the Booker decision added reasonableness

review to the workload of the appellate courts. See United States v. Williams, 431

F.3d 767, 773 (11th Cir. 2005) (E. Carnes, J., concurring). Yet, the decision “did not

free [the courts] from the task of applying the Sentencing Guidelines, some

provisions of which are mind-numbingly complex, and others of which are just mindnumbing.” Jd. In his concurring opinion in Williams, Judge Carnes commented: “If

the federal court system had endless resources or light dockets, the post-Booker

system of sentence review would make more sense, but the judicial world we inhabit

is one of scarce resources burdened by heavy demands.” Id. at 775. Thus, Judge

Carnes “offer[ed] a suggestion to the district courts which may help avoid

unnecessary resentence proceedings.” Id. at 771.

In the Williams case, Judge Carnes lamented that a seemingly reasonable

sentence had to be remanded based on the district court's application of the

Guidelines, whereas the court would still be free to impose the same sentence on

remand after consideration of the 18 U.S.C. § 3553(a) factors. Id. at 773.

Therein runs a thread of madness through the method now in place. We

review and decide close, hair-splitting interpretive issues arising from

guidelines that are only advisory, and we set aside sentences even

though the district court, once its ‘misunderstanding’ of the guidelines

is corrected, is free to impose the same sentence, and usually will do so.

If the federal court system had endless resources or light dockets, the

post-Booker system of sentence review would make more sense, but the

judicial world we inhabit is one of scarce resources burdened by heavy

demands. Of course, neither this Court nor the district courts can

change the Booker guidelines sentencing regime and the appellate

review system that applies to it.

There is, however, something that district courts can do to minimize

pointless reversals and unnecessary do-overs of sentencing proceedings.

Id. at 775.

Judge Carnes suggested that “[i]f a sentencing court is faced with a guidelines

question that may become an issue on appeal, the court can indicate whether the

advice that results from its resolution of that question makes a difference in the

sentence.” Jd. In Mr. Williams’ case, for example, “[t]he sentencing court might

have stated that ... if it were wrong about [the guidelines range], the sentence

would still have been 96 months based on the § 3553(a) factors.” Id. at 775. “On

that basis we could and would have affirmed. Id.

Judge Carnes’ advice was formally incorporated into Circuit law the following

year, in United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006). In that case,

the district court “essentially accepted the invitation extended by the concurring

opinion in [Williams],” and stated that “its resolution of the [Guidelines dispute] did

not matter because it would have imposed the same sentence, using its § 3353(a)

authority, even without the enhancement. That is all we need to know, except for

one thing.” Jd. at 1349.

The one thing we add to the approach suggested in the Williams

concurring opinion is that the sentence imposed through the alternative

or fallback reasoning of § 3553(a) must be reasonable. In determining

whether it is reasonable we must assume that there was a guidelines

error - that the guidelines issue should have been decided in the way

the defendant argued and the advisory range reduced accordingly - and

then ask whether the final sentence resulting from consideration of the

§ 3553(a) factors would still be reasonable. Otherwise, we will not know

whether any error in deciding the guidelines issue, in arriving at the

advisory guidelines sentence, was truly harmless. The Williams

concurring opinion approach is, after all, an assumed error

harmlessness inquiry.

Id. at 1349.

10

Following Keene, if a district court states that it would impose the same

sentence regardless of a disputed Guidelines calculation, the Eleventh Circuit will

pretermit resolving the Guidelines dispute, and simply declare any such error

harmless, provided that the resulting sentence is not substantively unreasonable.

See United States v. Leon-Ramos, 619 F.App’x 889, 891 (11th Cir. July 31, 2015) (“In

this case, we need not reach the question of whether the Guidelines were properly

applied because any error in the application of the Guidelines was harmless.”).

Whether the guidelines were correctly calculated is “immaterial.” United States v.

Weeks, 375 F. App’x 989, 990 (11th Cir. 2010) (Whether or not the court erred in

finding that the government had sufficiently proved the gun was stolen is

immaterial as ‘it is not necessary to decide guidelines issues or remand cases for new

sentence proceedings where the guidelines error, if any, did not affect the sentence”)

(quoting Keene, 470 F.3d at 1349 (further quotation omitted)). The sentence will be

reviewed only for substantive reasonableness. This ig so even where the sentence

imposed reflects a substantial variance form the correctly calculated Guidelines

range. See United States v. Guerra, 307 F. App’x 283 (11th Cir. 2009) “Given these

factors, the upward variance imposed from the correct guideline imprisonment

range, though large, was not unreasonable”).

As this case shows, a bald statement alone suffices to show harmlessness. No

further inquiry is required. See United States v. Monroy, 698 F. App’x 1015, 1018

(11th Cir. June 29, 2017) (Here, the district court, in imposing the 108-month

sentence, noted the objections to the its guidelines [sic] calculations and, ‘in an effort

‘

11

to moot’ them, made an alternate ruling on the record that, independent of the

advisory guidelines, it would impose the same sentence based on its consideration of

the 18 U.S.C. § 3553(a) factors. ... Accordingly, any error in calculating Monroy’s

advisory guidelines range did not affect his ultimate sentence and does not require a

remand for resentencing.”), reh’g denied, (11th Cir, Sept. 6, 2017). See also United

States v. Dotson, 660 F. App’x 757, 763 (11th Cir. 2016) (“Even if Dotson is correct

_that she was not a manager or supervisor at all, the district court’s Keene statement

is sufficient to justify the sentence imposed.”),

The Fourth Circuit followed Keene and adopted the Eleventh Circuit’s

“assumed error harmless inquiry” in United States v. Savillon-Matute, 636 F.3d 119,

123 (4th Cir. 2011). “Applying this ‘assumed error harmlessness inquiry’ requires (1)

‘knowledge that the district court would have reached the same result even if it had

decided the guidelines issue the other way,’ and (2) ‘a determination that the

sentence would be reasonable even if the guidelines issue had been decided in the

defendant’s favor.” Id. (quoting Keene, 470 F.3d at 1349). In Savillon-Matute, the

Court found the sentence would have been the same, even absent an express

statement from the district court. 636 F.3d at 123. Following Keene, the court gave

the defendant “the benefit of the doubt,” assumed that the lower Guidelines range

applied, and “proceed[ed] to decide the question of whether a variance from that

yange” to the sentence imposed, was reasonable. See id. (quotation omitted). The

court affirmed the sentence “without reaching the merits of the claimed guideline

error.” Id. at 120.

12

Like the Eleventh, the Fourth Circuit does not require a statement from the

district court justifying the sentence as a variance from properly calculated

Guidelines range. See United States v. Gomez-Jimenez, 750 F.8d 870, 388, 385-86

(4th Cir. 2014) (‘And also, like Keene, if the Guidelines issue asserted by the

defendants on appeal had been decided in their favor, their sentences would be

above-Guidelines sentences. Because the district court has expressly stated that it

would have imposed the same sentence regardless of the advice of the Guidelines,

however, we can affirm as long as those sentences are reasonable.”).

In a separate opinion, Judge Gregory of the Fourth Circuit disputed the idea

that a “simple statement that the court would have imposed the same sentence is

sufficient, at least where the imposed sentence exceeds what would have been the

Guidelines range absent the procedural error.” Gomez-dimenez, 750 F.8d at 389

(Gregory, J., concurring in part and dissenting in part) (footnote omitted). As he

pointed out, such a ruling was inconsistent with the Fourth Circuit’s usual practice

of requiring an explanation for a non-Guidelines sentence:

In reviewing above-Guidelines sentences, without the harmless error

analysis, we would require the district court to ‘explain his conclusion

that an unusually lenient or unusually harsh sentence is appropriate.’

Gall v. United States, 552 U.S. 38, 46, 128 S. Ct. 586, 169 L.Ed.2d 445

(2007). The majority is content with considering harmless what would

otherwise require a separate and particular explanation for a variance.

To allow what is, as a matter of analytical fiction, an above-Guidelines

sentence without the explanation normally required for such sentences

fails to comport with the need ‘to allow for meaningful appellate review

and to promote the fair perception of justice.’ Id. at 50, 128 S. Ct. 586.

Nothing could be less meaningful than labeling an error harmless so

long as the district court states it would impose the same sentence in

the event it erred, without ‘thoroughfly] expla[ining] why it would do

so. ... The exception has now swallowed the rule.

13

id. Gnternal citation omitted).

B. The Third, Eighth, and Tenth Circuits have rejected the

“simple statement” approach.

Judge Gregory’s concerns find support in the law of the Third, Eighth, and

Tenth Circuits. These Circuits have held that a district court’s perfunctory

statement that it would impose the same sentence regardless of an asserted error in

the calculation of the Guidelines is insufficient to establishes harmlessness. See

United States v. Smalley, 517 F.3d 208, 214 (8d Cir. 2008) (“The District Court’s bald

statement that it would have given Smalley a 71-month sentence even if it had

applied the three-level enhancement is not sufficiently detailed to comply with the

[requirement that courts calculate the Guidelines]”); United States v. Bah, 489 F.3d

423, 431 (8th Cir. 2006) (“[W]here, as here, the sentencing court pronounces an

identical alternative sentence, not based on any alternative guidelines calculations,

but instead intended to cover any and all potential guideline calculation errors, the

sentencing court effectively has ignored the requirement . . to ‘first determine the

appropriate guidelines sentencing range’ for the alternative sentence.”); United

States v. Pena-Hermosillo, 522 F.3d 1108, 1109 (10th Cir. 2008) (‘We also find that

the court’s alternative holding that the 121-months sentence ‘would be imposed even

if the advisory guideline range was determined to be improperly calculated’ was

likewise procedurally unreasonable.”).

In the Third Circuit, “if a district court wishes to provide for the possibility

that a different Guidelines calculation applies by handing down an alternative

14

sentence, it must still begin by determining the correct alternative Guidelines range

and properly justify the chosen sentence.” Smalley, 517 F.3d at 214 n.6. A sentencing

court must “explicitly set forth” the alternative Guidelines calculation on the record,

prior to justifying the sentence imposed under the alternative range. See id. at 215.

And, the alternative sentence must be supported by a justification for deviating from

the properly calculated Guidelines range. Id. at 215 (“Here, the District Court

committed procedural error because the alternative sentence is a bare statement

devoid of any justification for deviating eight months above the upper-end of the

properly calculated Guidelines range.”) (footnote omitted).

In the Eighth Circuit, “to support a finding of harmless error, the record

clearly must show that the district court intended to provide an alternative sentence,

but also that the alternative sentence is based on an identifiable, correctly calculated

guidelines range.” United States v. Icaza, 492 F.3d 967, 971 (8th Cir. 2007). That

court “cannot make a finding of harmless error where the identical alternative

sentence was not based on a correctly calculated advisory guidelines range.” Bah,

439 F.3d at 431. See also id. (“We have yet to apply such a harmless error rule

where the sentencing court pronounced a blanket identical alternative sentence to

cover any potential guidelines calculation error asserted on appeal without also

basing that sentence on an alternative guidelines calculation.”).

The Tenth Circuit has similarly held that “where the district court offers no

more than a perfunctory explanation for its alternative holding, it does not satisfy

the requirement of procedural reasonableness” Pena-Hermosillo, 522 F.3d at 1118.

15

That Court wrote that it would be “hard . .. to imagine a case where it would be

procedurally reasonable for a district court to announce that the same sentence

would apply even if correct guidelines are so substantially different, without cogent

explanation.” Jd. at 1117. But that is precisely what happened in Mr. Monroy’s case.

I. This is an important and recurring issue of law upon which

this Court’s guidance is needed.

These precedents establish a clearly defined and longstanding division among

the Courts of Appeals, resulting in the disparate treatment of countless criminal

defendants. The disparity affects not only the defendants’ appellate rights, but the

fairness of the sentencing procedures themselves.

District courts in the Eleventh Circuit commonly declare that their sentencing

decisions would be unaffected by any change in the Guidelines range. See, e.g.,

United States v. St. Fleurose, 645 F. App’x 860, 863 (11th Cir. 2016) (“[t]he sentence

that I’ve imposed is a sentence independent of the guideline calculation in the event

that you prevail on that point on appeal”); United States v. Lampley, 620 F. App’x

801, 802 (11th Cir. 2015) (“The district court stated it would have imposed the same

sentence based on the § 3553(a) factors”); United States v. Leon-Ramos, 619 F. App’x

889, 891 (11th Cir. 2015) (“t]he district court expressly said that it would have

imposed the same sentence absent the enhancements.”); United States v. Adeneye,

618 F. App’x 561, 563 (11th Cir. 2015); United States v. Lopez, 479 F. App’x 217,

218-19 (11th Cir. 2012) (on remand, the district court “clarified that it would have

sentenced Adeneye to the same total sentence of 13 months even if the counts were

16

grouped”); United States v. Weeks, 375 F. Appx 989, 990 (11th Cir. 2010) (“[TThe

district. court explicitly and unambiguously stated that it would have imposed the

same sentence regardless of how it decided the guidelines issue.”); United States v.

Webb, 386 F. App’x 914, 917 (11th Ciy. 2010) (‘The court indicated that Webb’s

sentence would have been the same regardless of its loss amount rulings.”). Such

statements are becoming “increasingly frequent” in the Fourth Circuit as well. See

James W. Harlow, Comment, Does the Calculation Matter? The Federal Sentencing

Guidelines and the Doctrine of Alternate Variance Sentences, 66 S.C. L. REV. 987, 990

(Summer 2015).

But such rote statements ignore the central role that the Guidelines play in

sentencing. “The federal system adopts procedural measures intended to make the

Guidelines the lodestone of sentencing.” Peugh v. United States, 569 U.S. 2072, 2084

(2013) (holding that “[a] retrospective increase in the Guidelines range applicable to

a defendant creates a sufficient risk of a higher sentence to constitute an ex post

facto violation.”). Considerable empirical data shows that district courts sentence

within the guidelines in the overwhelming majority of cases (absent a government

motion). See Molina—Martinez v. United States, 136 S. Ct. 1338, 1346 (2017) (“In less

than 20% of cases since 2007 have district courts ‘imposed above- or below-

Guidelines sentences absent a Government motion.”) (citing Peugh, 133 S. Ct. at

2084). “And when Guidelines ranges change . . . sentences change, too.” Beckles v.

United States, 137 S. Ct. 886, 900 (2017) (Sotomayor, J., concurring in judgment)

(citing Molina-Martinez, 136 S. Ct. at 1846, Peugh, 133 S. Ct. at 2084-85). Thus,

17

“filn the usual case, ... the systemic function of the selected Guidelines range will

affect the sentence.” Molina-Martinez, 186 S. Ct. at 1346.

The assumption that a district court was not influenced by an erroneous

Guidelines calculation similarly belies human experience, by ignoring the “so-called

‘anchoring effects’ long described by scientists and behavioral economists.” See

United States v. Ingram, 721 F.8d 35 (2d Cir. 2018) (Calebresi, J., concurring)

(citation omitted). “When people are given an initial numerical reference, even one

they know is random, they tend (perhaps unwittingly) to ‘anchor’ their subsequent

judgments — as to someone’s age, a house’s worth, how many cans of soup to buy, or

even what sentence a defendant deserves — to the initial number given.” Id.

(footnote omitted). But, when a district court miscalculates a defendant’s Guidelines

range, this perceived “anchor” is wrong. By requiring the district court to identify

the alternative guidelines range, and justify the sentence as a variance from it, the

Third, Eighth, and Tenth Circuits at least minimize the danger that the court is

unwittingly influenced by the wrong lodestone. .

TI. The Eleventh Circuit’s approach is wrong because it

violates Gall and undermines core functions of the Guidelines.

The Eleventh Circuit's abbreviated review procedure violates unambiguous

direction from the Court regarding reasonableness review. In Gall, the Court held

that when conducting reasonableness review, the Courts of Appeals must “first”

“ensure that the district court committed no significant procedural error, such as

failing to calculated (or improperly calculating) the Guidelines range ...”). Gall, 552

18

‘US. at 51. Although the Court’s language was not precatory, this step is now

optional in the Fourth and Eleventh Circuits.

Gall further instructed appellate courts to ensure that the sentencing court

justified any variance from the Guidelines with a sufficient statement of reasons.

See Gall, 552 U.S. at 51 “When conducting this review, the court will, of course, take

into account the totality of the circumstances, including the extent of any variance

from the Guidelines range.”); id. at 50 (“We find it uncontroversial that a major

departure should be supported by a more significant justification than a minor one”).

The Eleventh Circuit, however, imposes no such requirement on the district courts

when considering “alternative” sentencing.

In his Gomez-Jimenez opinion, Judge Gregory observed:

To accept the perfunctory reasoning offered here for an alternative,

variant sentence essentially values form over the substance Gall

requires.

The evolution of our harmless error jurisprudence has reached the point

where any procedural error may be ignored simply because the district

court has asked us to ignore it. In other words, so long as the court

announces, without any explanation as to why, that it would impose the

same sentence, the court may err with respect to any number of

enhancements or calculations. More to the point, a defendant may be

forced to suffer the court's errors without a chance at meaningful

review. Gall is essentially an academic exercise in this circuit now,

never to be put to practical use if district courts follow our

encouragement to announce alternative, variant sentences.... If the

majority wishes to abdicate its responsibility to meaningfully review

sentences for procedural error, the least it can do is acknowledge that it

has placed Gall in mothballs, available only to review those sentences

where a district court fails to cover its mistakes with a few magic

words.

19

Gomez-Jimenez, 750 F.3d at 391-92 (footnote omitted) (Gregory, J., concurring in

part and dissenting in part).

The Eleventh Circuit’s abbreviated review procedure further undermines core

functions of the Sentencing Guidelines. Title 18 U.S.C. § 3742(a)(2) expressly

provides that a criminal defendant may appeal a sentence that “was imposed as a

result of an incorrect application of the sentencing guidelines.” Such review is

essential to Sentencing Commission’s ongoing duty to “constantly refine national

sentencing standards.” Kimbrough v. United States, 552 U.S. 85, 108, 128 S. Ct. 558,

574 (2007) (citing Rita v. United States, 551 U. S. 338, 347-50, 127 S. Ct. 2456, 2456

(2007)). As the Court explained:

The Commission's work is ongoing. The statutes and the Guidelines

themselves foresee continuous evolution helped by the sentencing

courts and courts of appeals in that process. The sentencing courts,

applying the Guidelines in individual cases, may depart (either

pursuant to the Guidelines or, since Booker, by imposing a non-

Guidelines sentence). The judges will set forth their reasons. The courts

of appeals will determine the reasonableness of the resulting sentence.

The Commission will collect and examine the results... . . And it can

revise the Guidelines accordingly. See generally 28 U.S.C. § 994(p) and

note following § 994 (Commission should review and amend Guidelines

as necessary, and Congress has power to revoke or amend Guidelines). .

Rita v. United States, 551 U.S. 338, 350, (2006). The Commission cannot carry out

this important work if sentencing courts do not clearly identify the Guidelines

ranges they are applying, and if calculation errors are shielded from review.

Lastly, eliminating appellate review of Guidelines disputes undermines the

core concern of the Guidelines -- reducing unwarranted sentencing disparity. “The

notion of consistent sentences for similarly situated defendants disappears where

20

errors regarding conduct and enhancements—errors which would make defendants

dissimilar—are swept under the rug of harmlessness.” Gomez-Jimenez, 750 F.3d at

392, (Gregory, J., dissenting in part and concurring in part).

IV. This case presents an excellent vehicle for review.

As the above precedents show, there is a clearly defined split among the

Circuits on this issue, resulting in disparate treatment of countless criminal

defendants. This split is longstanding, and is not likely to resolve itself absent

intervention by this Court.

This case is an ideal vehicle for resolving the dispute, because it is hard to

imagine more blunt statement of the district court’s desire to “moot” the defendant’s

right to appeal its Guidelines calculations:

[W]ith respect to the guidelines calculations that we’ve addressed, the

guidelines calculations and the objections, in an effort to moot that

issue, I'm going to sentence within the guideline range, but I will in the

alternative impose a reasonable sentence independent of the guidelines

post Booker after consideration of the Title 18, United States Code,

Section 3553 factors. So if for any reason the defendant appeals the

sentencing guideline calculation, I would state for the record that the

sentence would be imposed similarly after consideration of the 3553

factors independent of the guidelines.

DE (63:17) (emphasis added).

Yet, there was nothing in the record -- aside form the Court’s perfunctory

Keene statement -- reflecting an independent reason for the court’s selection of the

108-month sentence. The court did not expressly calculate the alternative range of

37-46 months, nor explain why an upward variance would have been warranted had

that Guidelines range been correct.

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