Opposition Brief — Daniel Montez, Petitioner v. United States

No. 17-7137

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

DANIEL MONTEZ, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOHN P. CRONAN

Acting Assistant Attorney General

WILLIAM A. GLASER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether the district court plainly erred in relying on the

Probation Office’s uncontested determination that petitioner’s

prior conviction for aggravated battery of a police officer, in

violation of 720 Ill. Comp. Stat. Ann. § 5/12-4(b)(18) (West Supp.

2005),

qualified

as

a

“crime

of

Guidelines § 4B1.2(a) (2013).

(I)

violence”

under

Sentencing

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 17-7137

DANIEL MONTEZ, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-13a) is

reported at 858 F.3d 1085.

JURISDICTION

The judgment of the court of appeals was entered on June 5,

2017.

A petition for rehearing was denied on July 18, 2017 (Pet.

App. 14a-15a).

On September 25, 2017, Justice Kagan extended the

time within which to file a petition for a writ of certiorari to

and including November 17, 2017.

On October 27, 2017, Justice

Kagan further extended the time to December 15, 2017, and the

2

petition was filed on that date.

The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Northern District of Illinois, petitioner was convicted of

possession

of

cocaine

with

the

intent

violation of 21 U.S.C. 841(a)(1).

to

distribute

it,

in

The district court sentenced

petitioner to 210 months of imprisonment, to be followed by three

years of supervised release.

The court of appeals affirmed.

Pet.

App. 1a-13a.

1.

Petitioner was a drug distributor for a large cocaine

trafficking

organization

in

Illinois.

Pet.

Presentence Investigation Report (PSR) ¶¶ 9-17.

App.

2a-3a;

see

A federal grand

jury indicted petitioner on three counts of possession of cocaine

with the intent to distribute it, in violation of 21 U.S.C.

841(a)(1).

Pet. App. 2a.

of those counts.

2.

In

A jury found petitioner guilty on one

Id. at 3a; see Judgment 1.

its

presentence

report,

the

Probation

Office

determined that petitioner had at least two prior convictions for

“crime[s] of violence” under Sentencing Guidelines § 4B1.2(a)

(2013), and that he therefore qualified as a “career offender”

subject

to

Guidelines

an

enhanced

§ 4B1.1

(2013).

sentencing

Pet.

range

App.

10a;

under

see

Sentencing

PSR

¶

29.

Specifically, the Probation Office counted as crimes of violence

petitioner’s prior convictions in Illinois for murder and for

3

aggravated battery of a police officer.

¶¶ 29, 41, 48.

Pet. App. 10a; see PSR

With the career-offender enhancement, petitioner’s

Guidelines offense level was 32 and his criminal history category

was VI, resulting in an advisory sentencing range of 210 to 240

months of imprisonment.

Pet. App. 3a; see PSR ¶¶ 29, 53, 91.1

Petitioner committed his aggravated battery offense in 2006.

PSR ¶ 48.

At that time, Illinois defined “aggravated battery” to

include any “battery” knowingly committed against “an officer or

employee of the State of Illinois [or] a unit of local government”

while the victim was “engaged in the performance of his or her

authorized duties.”

720 Ill. Comp. Stat. Ann. § 5/12-4(b)(18)

(West Supp. 2005); see Pet. App. 11a.2

Illinois defined “battery”

as knowingly or intentionally “(1) caus[ing] bodily harm to an

individual or (2) mak[ing] physical contact of an insulting or

provoking nature with an individual” without legal justification.

720 Ill. Comp. Stat. Ann. § 5/12-3(a) (West Supp. 2005); see Pet.

App. 11a.

Although the Probation Office did not obtain court

documents

indicating

which

type

of

battery

petitioner

had

committed, it noted in the PSR that the arrest report indicated

Without the career-offender enhancement, petitioner’s

offense level would have been 26 and his criminal history category

would have been VI, see PSR ¶¶ 28, 52, resulting in an advisory

sentencing range of 120 to 150 months of imprisonment, see

Sentencing Guidelines Ch. 5, Pt. A (2013).

1

The current version

substantially similar provision.

§ 5/12-3.05 (West 2016).

2

of the statute contains a

See 720 Ill. Comp. Stat. Ann.

4

that petitioner led police on a vehicle chase, “refused to exit

his vehicle” once he was finally stopped, and resisted officers’

attempts to remove him by “kick[ing] an officer in the chest

several times and once in the face, causing bruising and swelling.”

PSR ¶ 48.

In an interview with the Probation Office, petitioner

denied having committed the offense, ibid., but he did not object

to the presentence report’s description of the offense or to the

Probation Office’s determination that he was convicted of a version

of aggravated battery that qualified as a “crime of violence” under

Sentencing Guidelines § 4B1.2(a) (2013).

Pet. App. 12a; see D.

Ct. Doc. 938, at 1-3, 7 (Sept. 26, 2014) (Sent. Mem.).

Petitioner represented himself at sentencing and objected to

treating his murder conviction as a predicate offense for purposes

of the career-offender enhancement.

Pet. App. 47a-48a.

district court overruled that objection.

did

not

offender.

otherwise

After

object

Id. at 49a.

to

his

classification

considering

the

presentence

The

Petitioner

as

report

a

career

and

the

parties’ arguments, the court adopted the presentence report’s

proposed Guidelines calculations.

Id. at 61a.

The district court then considered the relevant statutory

sentencing factors in order to determine the appropriate sentence.

Pet. App. 61a-64a.

The court noted that petitioner had a long

history of drug trafficking and had committed “some of the most

serious

offenses

a

person

can

commit,”

including

“murder,

attempted murder, possession of controlled substances, battery,

5

aggravated

battery

of

a

police

officer[,]

and

threatening a witness in a legal proceeding.”

even

* * *

Id. at 62a.

The

court observed that, despite having served “substantial periods of

incarceration” in the past, petitioner had continued to commit

serious crimes and had demonstrated a persistent “lack of concern

for

the

harm

and

violence

associated”

with

his

activities,

including by “totally refus[ing] to accept any responsibility” for

his conduct in this case.

Id. at 62a-63a.

The court deemed it

“clear” from the record that “deterrence is the most important

factor in this case,” and concluded that, given the “very small

likelihood

of

any

future

rehabilitation,”

a

lengthy

prison

sentence was needed to prevent petitioner from committing further

crimes.

Id. at 62a.

The court therefore sentenced petitioner to

210 months of imprisonment.

3.

The

court

of

Id. at 64a.

appeals

affirmed.

Pet.

App.

1a-13a.

Petitioner argued for the first time on appeal that his conviction

for aggravated battery was not a “crime of violence” for purposes

of the career-offender guideline because it did not categorically

have “as an element the use, attempted use, or threatened use of

physical

force

Guidelines

§

against

the

4B1.2(a)(1)

person

(2013);

of

see

another.”

Sentencing

Pet.

Br.

C.A.

25-33.

Petitioner asserted that the Illinois aggravated-battery statute

in force at the time of his offense was categorically overbroad

because it incorporated the definition of simple battery, which

covered both physical contact causing bodily harm and physical

6

contact that was merely insulting or provocative.

32-33.

Petitioner

further

argued

that

the

Pet. C.A. Br.

statute

was

not

divisible into separate offenses under the principles of Mathis v.

United

States,

136

S.

Ct.

2243

(2016),

and

even

if

it

was

divisible, the Probation Office had improperly relied on an arrest

report to conclude that he was convicted of a qualifying version

of the offense.

Pet. C.A. Br. 29-32.

The court of appeals rejected petitioner’s arguments.

App.

11a-12a.

The

court

noted

that,

under

its

Pet.

precedent,

Illinois’s battery statute “is divisible” and a “violation of the

first clause (the bodily harm clause) is a crime of violence.”

Id. at 11a (citing cases).

The court therefore determined that,

“if [petitioner] was convicted under the statute’s first clause,”

his classification as a career offender under Section § 4B1.1 “was

proper.”

Id. at 11a-12a.

The court of appeals also rejected petitioner’s assertion

that the district court committed reversible error by adopting the

presentence report’s determination that his aggravated-battery

conviction was based on the statute’s “bodily harm” provision

without requiring the government to introduce judicial documents,

such

as

the

conclusion.

indictment

or

Pet. App. 12a.

plea

colloquy,

to

support

that

The court of appeals acknowledged

that, under Shepard v. United States, 544 U.S. 13 (2005), a court’s

inquiry into whether a defendant committed a qualifying offense

under a divisible statute is generally limited to “(1) admissions

7

made

by

the

defendant,

and

(2)

the

charging

document,

plea

agreement, plea colloquy, and comparable judicial records from the

conviction.”

Pet. App. 12a (quoting United States v. Rodriguez-

Gomez, 608 F.3d 969, 973 (7th Cir. 2010)).

The court explained,

however, that the government has “‘no reason to go digging for a

state-court indictment’” or comparable judicial record “‘if the

parties agree on what it says.’”

Ibid. (quoting United States v.

Aviles-Solarzano, 623 F.3d 470, 475 (7th Cir. 2010)).

In that

circumstance, the court reasoned, it “isn’t error” for a district

court to rely on “uncontested findings in the presentence report”

that a prior offense qualified as a crime of violence.

Ibid.

The court of appeals noted that, in this case, petitioner

“did not contest the facts contained in the presentence report” or

the Probation Office’s determination that he “was indeed convicted

under the

* * *

battery statute.

bodily harm clause” of Illinois’s aggravatedPet. App. 12a.

In light of petitioner’s failure

to contest the presentence report’s findings, the court determined

that the district court was not obligated to require the government

to

supplement

those

findings

with

Shepard

“applying the career-offender enhancement.”

documents

before

Ibid.

ARGUMENT

Petitioner contends (Pet. 15-17) that the district court

erred in relying on the presentence report’s uncontested finding

that his aggravated-battery offense qualified as a “crime of

violence” under Sentencing Guidelines § 4B1.2(a) (2013), without

8

requiring

the

government

to

produce

documents

identified

in

Shepard v. United States, 544 U.S. 13 (2005), to support that

finding.

Although he acknowledges (Pet. 18) that he did not

preserve that claim at sentencing, and thus review is limited to

plain

error,

he

argues

(Pet.

15)

that

the

court

of

appeals

“effectively eliminat[ed] plain error review” of his claim by

holding that the district court’s reliance on the presentence

report in this context was not erroneous.

not warranted.

Review of his claim is

Petitioner cannot satisfy any prong of the plain-

error standard, and contrary to his assertion (Pet. 8-15), no other

court

of

appeals

circumstances here.

reviewing

the

would

necessarily

afford

relief

in

the

Moreover, this case is a poor vehicle for

question

presented

because

it

involves

the

application of a provision of the advisory Sentencing Guidelines

that can be (and recently has been) revised by the United States

Sentencing Commission (Commission).

The petition for a writ of

certiorari should be denied.

1.

To establish reversible plain error, a defendant must

demonstrate that (1) the district court committed an “error”; (2)

the error was “plain,” meaning “clear” or “obvious”; (3) the error

“affect[ed]

[his]

substantial

rights”;

and

(4)

the

error

“seriously affect[ed] the fairness, integrity or public reputation

of judicial proceedings.”

United States v. Olano, 507 U.S. 725,

732-736 (1993) (citations omitted).

Petitioner cannot satisfy any

of those requirements on the facts of this case.

9

a.

As the court of appeals correctly determined (Pet. App.

12a), the district court did not err in relying on the Probation

Office’s undisputed finding that petitioner was convicted of a

version of aggravated battery that qualified as a “crime of

violence” under the Guidelines.

Under the “categorical approach,” a court determines whether

the statutory definition of a defendant’s prior offense satisfies

the requirements for a sentencing enhancement, without regard to

the facts underlying the conviction.

495 U.S. 575, 600-602 (1990).

See Taylor v. United States,

When the statute of conviction is

“divisible” -- that is, when it “sets out one or more elements of

the offense in the alternative,” and “one alternative” qualifies

for an enhancement “but the other

* * *

does not,” Descamps v.

United States, 570 U.S. 254, 257 (2013) -- the sentencing court

may apply the “modified categorical approach.”

See Mathis v.

United States, 136 S. Ct. 2243, 2249 (2016).

That “approach

permits sentencing courts to consult a limited class of documents,

such as indictments and jury instructions, to determine which

alternative formed the basis of the defendant’s prior conviction.”

Descamps, 570 U.S. at 257; see Shepard, 544 U.S. at 26 (listing

acceptable documents).

Petitioner

does

not

dispute

the

court

of

appeals’

determination that the Illinois aggravated-battery statute at

issue here was divisible into two offenses.

Pet. App. 11a.

That

statute required proof that the defendant knowingly committed a

10

“battery” against a state or local “officer” who was “engaged in

the performance of his or her authorized duties.”

720 Ill. Comp.

Stat. Ann. § 5/12-4(b)(18) (West Supp. 2005). Illinois law defined

“battery”

to

include

two

alternative

offenses

with

different

elements:

“(1) caus[ing] bodily harm to an individual or (2)

mak[ing] physical contact of an insulting or provoking nature with

an individual.”

Id. § 5/12-3(a) (West Supp. 2005).

The court of

appeals found, and petitioner does not contest, that the “bodily

harm”

provision

is

divisible

from

the

“physical

contact”

provision, and that the former qualifies as a “crime of violence”

under the Guidelines because it “has as an element the use,

attempted use, or threatened use of physical force against the

person of another.”

Sentencing Guidelines § 4B1.2(a)(1) (2013);

see Pet. App. 10a-11a.

The court of appeals acknowledged that, “[g]enerally,” the

determination of whether a defendant was convicted of a qualifying

version of a divisible offense requires a court to consult the

indictment, plea agreement, or other judicial documents identified

in Shepard.

Pet. App. 12a.

Here, however, petitioner “did not

contest” that he was convicted of committing the violent version

of aggravated battery and that his offense therefore qualified as

a “crime of violence” under the Guidelines.

Ibid.

In light of

“the parties[’] agree[ment]” on that point, the court of appeals

concluded that neither the district court nor the government had

11

any “reason to go digging for a state-court indictment” or other

Shepard documents.

Ibid. (citation omitted).

That conclusion is correct. When a defendant does not contest

the presentence report’s determination that a prior conviction

supports a sentencing enhancement, “neither the probation officer,

the government, nor the district court ha[s] occasion to seek

production of the necessary documents.”

United States v. Zubia-

Torres, 550 F.3d 1202, 1209 (10th Cir. 2008), cert. denied, 556

U.S. 1201 (2009).

That rule is consistent with the “adversarial

testing contemplated by federal sentencing procedure,” Rita v.

United States, 551 U.S. 338, 351 (2007), which focuses judicial

resources on the issues that are in dispute while permitting the

efficient resolution of those that are not.

The Federal Rules of

Criminal Procedure require defendants to object to aspects of the

presentence report with which they disagree, Fed. R. Crim. P.

32(f), and provide that a sentencing court must resolve “any

disputed portion of the presentence report or other controverted

matter” at sentencing, Fed. R. Crim. P. 32(i)(3)(B).

The court

may, however, “accept any undisputed portion of the presentence

report as a finding of fact,” without requiring further evidence

or justification.

Fed. R. Crim. P. 32(i)(3)(A) (emphasis added).

Shepard is not an exception to that general rule.

That

decision addressed only contested district court determinations

that a prior conviction qualified as a particular type of offense,

and placed limits on “the scope of judicial factfinding on the

12

disputed generic character of a prior plea.”

544 U.S. at 26

(emphasis

to

added).

Shepard

did

not

purport

require

the

government to find and introduce record documents to support a

judicial determination as to the nature of a defendant’s conviction

when a defendant acknowledges that the conviction qualifies him

for a sentencing enhancement.

b.

Even if the district court erred in not requiring the

production of Shepard documents in this case, the error would not

be reversible under the other prongs of the plain-error standard.

The court’s approach was supported by Seventh Circuit precedent.

Pet. App. 12a (citing United States v. Aviles-Solarzano, 623 F.3d

470, 475 (7th Cir. 2010)).

that

the

law

in

other

Petitioner acknowledges (Pet. 11-14)

circuits

is

in

accord.

Under

those

circumstances, petitioner cannot establish that any error was so

clear and obvious at the time of his sentencing or on appeal that

the courts below “were derelict in countenancing it, even absent

the defendant’s timely assistance in detecting it,” as would be

necessary to satisfy the second prong of plain-error analysis.

United States v. Frady, 456 U.S. 152, 163 (1982).

Petitioner

also

has

not

demonstrated

an

effect

substantial rights under the third plain-error prong.

on

substantial

rights

usually

requires

“that

the

on

his

An effect

error

[be]

prejudicial,” meaning that “[i]t must have affected the outcome of

the district court proceedings.”

Olano, 507 U.S. at 734.

“It is

the defendant rather than the Government who bears the burden of

13

persuasion

with

respect

to

prejudice”

on

plain-error

review,

ibid., and “[w]hen the rights acquired by the defendant relate to

sentencing, the outcome he must show to have been affected is his

sentence,” Puckett v. United States, 556 U.S. 129, 142 n.4 (2009)

(internal quotation marks omitted).

Petitioner has not produced any Shepard documents related to

his prior conviction, nor has he asserted that those documents

would show that his classification as a career offender was

erroneous.

Because

petitioner

has

failed

to

show

that

his

Guidelines calculation was actually wrong, he has failed to “make

[the] specific showing of prejudice” necessary to obtain relief on

plain-error review.

Puckett, 556 U.S. at 142 (citation omitted);

see Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016)

(holding that a Guidelines error presumptively satisfies the third

prong only if the defendant shows that he was “sentenced under an

incorrect Guidelines range”).

At most, a “silent record” on what

Shepard documents would show “leaves up in the air whether an error

has occurred,” and “the allocation to [the] defendant of the

burdens

of

production

and

persuasion”

under

the

plain-error

standard means that a claim of plain error must fail in that

circumstance.

United States v. Ramirez, 606 F.3d 396, 399 (7th

Cir. 2010).

That result makes particular sense in a case, like

this one, where the evidentiary gap that causes the uncertainty is

directly attributable to the appealing party’s failure to object.

14

Finally, petitioner cannot show that any error “seriously

affect[ed]

the

fairness,

judicial proceedings.”

integrity

or

public

reputation

of

Olano, 507 U.S. at 736 (citation omitted).

That prong of the plain-error standard authorizes a reviewing court

to exercise its discretion to correct only “egregious errors,”

United States v. Young, 470 U.S. 1, 15 (1985) (citation omitted),

and must be applied on “a case-specific and fact-intensive basis,”

Puckett, 556 U.S. at 142.

The district court explained that a

210-month sentence was warranted for a number of reasons unrelated

to the Guidelines calculation, including petitioner’s long and

serious criminal history (including incidents where petitioner

used a shotgun to murder a man in a drive-by shooting, kidnapped

a man at gunpoint and punched him in the face with brass knuckles,

kicked a police officer in the chest and face while resisting

arrest, and told a witness that he would “kill [her] or get someone

to kill [her] and [her] family,” PSR ¶¶ 41, 46, 48, 50); his

failure

to

be

rehabilitated

despite

“substantial

periods

of

incarceration” in the past; his “total[] refus[al] to accept any

responsibility”

deterrence,

for

which

his

the

actions;

court

viewed

[sentencing] factor in this case.”

2.

and

the

as

“clear”

“the

most

need

for

important

Pet. App. 62a-63a.

Petitioner does not assert in his petition that he could

satisfy the plain-error standard.

Instead, he contends (Pet. 15)

that, by permitting the district court to accept the Probation

Office’s uncontested finding that his prior conviction was a crime

15

of violence without requiring the production of Shepard documents,

the court of appeals “pervert[ed] traditional waiver doctrine and

effectively

eliminat[ed]

plain

constitutional protections.”

error

review

of

Shepard’s

That contention lacks merit.

As petitioner acknowledges (Pet. 16), the court of appeals

“did not explicitly rule that [he] ‘waived’ his right to challenge

the district court’s [alleged] Shepard violation.”

court

reasoned

that

district

courts

are

Rather, the

entitled

to

treat

uncontested issues at sentencing differently from contested ones,

and it “isn’t error” for a court to adopt an uncontested finding

in the presentence report without requiring the government to

submit the type of proof that would be necessary if the matter

were contested.

Pet. App. 12a.

The determination that no error

occurs in those circumstances is entirely consistent with the

plain-error standard, which requires a defendant to establish at

the threshold “that there indeed [was] an ‘error’” under the

applicable standard of review.

Olano, 507 U.S. at 732.

The court

of appeals’ decision no more “eliminat[es] plain error review,”

Pet. 15, than any other decision that rejects a claim of plain

error under the first prong of that standard.

See, e.g., United

States v. Wesley, 81 F.3d 482, 483 (4th Cir. 1996) (explaining

that, where a sentencing determination is “not error at all,” it

is “a fortiori not plain error”).

Petitioner further contends (Pet. 5, 17) that he gave the

Probation Office a different account of the events underlying his

16

aggravated-battery conviction.

See PSR ¶ 48 (noting petitioner’s

unsupported claim that he was framed for aggravated battery by a

corrupt police officer and that he pleaded guilty to that offense

because the judge “offered him leniency”).

He argues (Pet. 18)

that a remand for further “consideration of the plain error

standard” would be “likely to lead to proper consideration of

whether”

those

statements

constituted

“a

reasonably

understood objection in the first instance.”

well-

That factbound

contention does not warrant review.

To

the

extent

petitioner

is

suggesting

that

his

prior

statements to the Probation Office should have been construed as

an objection to classifying his aggravated-battery offense as a

crime of violence, he is incorrect.

(Pet.

17),

he

made

those

statements

As petitioner acknowledges

in

an

interview

with

a

probation officer “before the Probation Office completed the PSR,”

and they were incorporated in the presentence report.

Petitioner,

in both his counseled and pro se submissions after reviewing the

report, never objected to the Probation Office’s description of

his offense or, more importantly, its determination that the

offense qualified as a crime of violence.

statements

to

the

Probation

Office

would

And petitioner’s

not

undermine

determination even if they were taken into account.

that

Petitioner

did not deny the nature of the charges or the conviction itself;

instead, he simply denied culpability and suggested that his guilty

plea had been strategic.

PSR ¶ 48.

17

In any event, petitioner did not make this argument in the

district court or in the court of appeals.

presented for review.

41

(1992)

(noting

It is not, therefore,

See United States v. Williams, 504 U.S. 36,

this

Court’s

“traditional

rule”

precluding

review of issues that were “not pressed or passed upon below”)

(citation omitted); see also Cutter v. Wilkinson, 544 U.S. 709,

718 n.7 (2005) (“[W]e are a court of review, not of first view.”).

3.

Petitioner

contends

(Pet.

8-15)

that

the

courts

of

appeals have adopted varying approaches to the question of whether

sentencing courts may rely on a presentence report’s uncontested

determination

enhancement

that

a

without

prior

requiring

conviction

sua

warrants

sponte

that

a

sentencing

the

government

produce Shepard documents to support that determination.

This

Court has previously denied review in cases presenting similar

questions and asserting a similar circuit conflict.

See, e.g.,

Serrano-Mercado v. United States, 137 S. Ct. 812 (2017) (No. 16237); Castellanos-Barba v. United States, 565 U.S. 1263 (2012)

(No. 11-7103); Barrett v. United States, 558 U.S. 992 (2009) (No.

09-5016).

The same result is appropriate here.

Some courts of appeals, like the court below, have held that

a district court may appropriately rely on a presentence report’s

uncontested classification of a prior conviction for sentenceenhancement purposes.

See, e.g., United States v. Siegel, 477

F.3d 87, 93-94 (3d Cir.) (crime of violence under Guidelines),

cert. denied, 550 U.S. 951 (2007); United States v. Bennett, 472

18

F.3d 825, 833-834 (11th Cir. 2006) (per curiam) (violent felony

under Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. 924(e)).

Other courts, addressing the issue in the context of plain-error

review, have concluded that a district court’s failure to consult

Shepard documents in that circumstance is not reversible error

where, as here, the defendant does not demonstrate that those

documents would support a finding that the conviction was not for

a qualifying offense. See, e.g., United States v. Serrano-Mercado,

784 F.3d 838, 847-848 (1st Cir. 2015), cert. denied, 137 S. Ct.

812 (2017); Zubia-Torres, 550 F.3d at 1209-1210 (10th Cir.); United

States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006) (per

curiam); United States v. Williams, 358 F.3d 956, 966-967 (D.C.

Cir. 2004).

those

Far from “turn[ing] [Shepard] on its head,” Pet. 12,

decisions

appropriately

recognize

that

the

plain-error

standard -- which petitioner acknowledges is applicable here, Pet.

18 -- places the burden on the defendant to show that a sentencing

enhancement was actually erroneous and prejudicial.

Although decisions of some other courts of appeals are in

tension with the reasoning of the court below, none would require

relief on the facts of this case.

In United States v. McCann, 613

F.3d 486 (2010), for example, the Fifth Circuit held that the

district court erred by relying on an uncontested factual summary

in the presentence report to support a Guidelines sentencing

enhancement, id. at 502, and it granted relief under the plainerror standard based on the government’s acknowledgment that all

19

of the relevant Shepard documents had been destroyed before the

defendant’s sentencing, which the court viewed as effectively a

concession that his prior offense could not support the enhancement

as a categorical matter, id. at 503.

In the absence of such a

concession in this case, however, the Fifth Circuit would likely

deny relief in light of petitioner’s failure to establish “that

the crime of violence enhancement was ultimately wrong.”

Ochoa-

Cruz, 442 F.3d at 867.

The Ninth Circuit’s decision in United States v. CastilloMarin,

684

F.3d

914

(2012),

different from those here.

likewise

presented

circumstances

In that case, the government did not

dispute that the district court had enhanced the defendant’s

sentence based on a conviction that did not categorically qualify

as a crime of violence, and in fact asked the court of appeals to

take judicial notice of conviction records so that it could analyze

the conviction under the modified categorical approach in the first

instance.

Id. at 922, 925.

The court of appeals concluded,

however, that one of the documents the government submitted was

not properly subject to judicial notice and that the other was

insufficient to establish the basis for the defendant’s prior

conviction. Id. at 927. Unlike in this case, therefore, the court

in Castillo-Martin found that the defendant was entitled to relief

on plain-error review where the government’s own factual proffer

called into question whether the conviction could qualify for

enhancement under the modified categorical approach.

20

The

other

decisions

on

which

petitioner

relies

likewise

present no conflict that might warrant this Court’s review.

The

decisions in United States v. Dantzler, 771 F.3d 137 (2d Cir.

2014), and United States v. Boykin, 669 F.3d 467 (4th Cir. 2012),

address whether a defendant’s prior offenses were “committed on

occasions different from one another,” as required by the sentenceenhancement provisions of the ACCA, 18 U.S.C. 924(e)(1).

involves

a

claim

of

plain

error

in

applying

a

Neither

recidivist

enhancement under the modified categorical approach, and a court

would not be obligated to handle the two situations in identical

ways.3

And to the extent intracircuit disagreements exist in the

Sixth Circuit and Eighth Circuit about the correct approach to

district courts’ reliance on uncontested findings in presentence

reports, see Pet. 14-15, those courts are better positioned to

resolve any inconsistency.

See Wisniewski v. United States, 353

U.S. 901, 902 (1957) (per curiam) (“It is primarily the task of a

Court of Appeals to reconcile its internal difficulties.”).

The Second Circuit has held, in a case petitioner does

not cite, that a district court may not rely on uncontested

findings in a presentence report to support a career-offender

enhancement under the Guidelines. See United States v. Reyes, 691

F.3d 453, 458-459 (2012) (per curiam).

The court in Reyes,

however, granted relief based on a summary finding, without further

analysis, that the error it identified “resulted in an elevated

offense level under the Guidelines.” Id. at 460. Accordingly,

Reyes did not address the prejudice analysis conducted by other

courts of appeals in the plain-error context, much less

authoritatively determine that a defendant like petitioner would

be entitled to relief in such circumstances.

3

21

Given the plain-error posture of petitioner’s case, and his

failure to demonstrate that his classification as a career offender

was actually incorrect, petitioner cannot show that he would be

afforded relief by any other court of appeals.

His claim of a

circuit conflict therefore does not warrant review.

4.

Even if this Court were inclined to review the question

presented, it should not do so in the context of this case, which

involves only a claimed error in applying the advisory Sentencing

Guidelines.

This Court ordinarily does not review decisions

interpreting the Guidelines because the Commission can amend the

Guidelines and accompanying commentary to eliminate a conflict or

correct an error.

See Braxton v. United States, 500 U.S. 344,

347-349 (1991).

Although the courts of appeals have generally

applied the categorical and modified categorical approaches in

analyzing

whether

enhancements,

practice.

and

the

prior

convictions

Commission

is

not

warrant

bound

to

Guidelines

continue

that

Taylor and Shepard are decisions interpreting the ACCA,

Taylor

relies

in

significant

part

on

evaluations

of

congressional intent concerning the sentencing process in that

context.

495 U.S. at 600-602.

The Commission remains free to

adopt a different approach under the Guidelines.

Indeed, the Commission recently amended the heavily litigated

illegal-entry guideline -- which was at issue in one of the cases

petitioner cites as evidence of a conflict, see Castillo-Marin,

684 F.3d at 919-920 -- in a manner that substantially reduces the

22

need for courts to apply the categorical and modified categorical

approaches.

2016)

See Sentencing Guidelines App. C, Amend. 802 (Nov. 1,

(amending

Section

§ 2L1.2).

The

Commission

has

also

significantly revised the crime-of-violence definition in Section

4B1.2(a), deleting the “residual clause” of that definition and

the reference to “burglary of a dwelling” in the list of enumerated

offenses and moving the list of enumerated offenses from the

commentary to the text.

See id. Amend. 798 (Aug. 1, 2016).

This Court has never granted plenary review of a question

involving the modified categorical approach in a Guidelines case.

See, e.g., Mathis, 136 S. Ct. at 2250 (ACCA); Descamps, 570 U.S.

at 258 (ACCA); Shepard, 544 U.S. at 16 (ACCA); cf. United States

v. Castleman, 134 S. Ct. 1405, 1414 (2014) (conducting modified

categorical analysis under a different federal statute). No reason

exists for the Court to deviate from that practice here.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JOHN P. CRONAN

Acting Assistant Attorney General

WILLIAM A. GLASER

Attorney

APRIL 2018