Petition for Writ of Certiorari — Luis Alberto Ruiz-Dominguez, Petitioner v. United States

NO.

IN THE SUPREME COURT OF THE UNITED STATES

LUIS ALBERTO RUIZ-DOMINGUEZ,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

MARJORIE A. MEYERS

Federal Public Defender

Southern District of Texas

MICHAEL HERMAN

Assistant Federal Public Defender

Attorneys for Petitioner

440 Louisiana Street, Suite 1350

Houston, Texas 77002-1669

Telephone: (713) 718-4600

QUESTIONS PRESENTED

In United States v. Olano, 507 U.S. 725 (1993), the Court construed

Federal Rule of Criminal Procedure 52(b) as setting out a four-part test for

appellate correction of errors to which no timely objection was made.

Particularly, the Court held that, under Rule 52(b), if a defendant met his

burden of showing (1) an “error” (2) that was “plain” and (3) “affect[ed]

substantial rights,” then (4) the appellate court “should correct [the] plain

forfeited error affecting substantial rights if the error seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.” Olano, 507

USS. at 732-36 (internal quotation marks and citation omitted).

In this case, petitioner raised for the first time on appeal a plain

sentencing error that violated the Ex Post Facto Clause of the Constitution

and lengthened the term of imprisonment imposed. But the United States

Court of Appeals for the Fifth Circuit found that the fourth prong of plainerror review was not satisfied, i.e., that the error did not seriously affect the

fairness, integrity, or public reputation of judicial proceedings, based

principally on its own assessment of petitioner’s criminal record. The court

of appeals did not presume that the fourth prong of plain-error review was

satisfied under these circumstances.

In light of the foregoing, the questions presented are:

I. Where an unpreserved error in the application of the United

States Sentencing Guidelines results in the application of the

wrong Guideline range to a criminal defendant, does that error

usually, or presumptively, meet the fourth prong of plain-error

review, as the First, Ninth, and Tenth Circuits have held, or

should it be presumed to meet that standard, particularly when

the error is constitutional in nature?

Il. Even apart from the first question presented, does the Fifth

Circuit’s unforgiving application of the fourth prong in

Guideline-error cases conflict with 18 U.S.C. § 3742(f)(1), as

well as the decisions of this Court and other circuits?

PARTIES TO THE PROCEEDINGS

The parties to the proceedings are named in the caption of the case before this Court.

ii

TABLE OF CONTENTS

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QUESTIONS PRESENTED 000... cceceeseescsecseeseeeseesesseseesseeseeeseesseasesscseeeenscsessesesaceessasees i

PARTIES TO THE PROCEEDINGS 0.0... ccccccccsessesesseseeseeeeseesecsseaeseseecsecsessesscsesssseeseseceess ii

TABLE OF CONTENTS ..0...ccccccscsssssesessssscecessesessescesseseaesecsecscsecsessscsessecsecaeeeeseceesussceesees ili

TABLE OF CITATIONS 0000. ceeeccseeseeseeseeessesseeecseeseeseessesseeassacsecsecsecnesseeeesessceesstsaseees Vv

PRAYER ooo. cecescscesesseessecseceeeeeseeeseeseesessessecseesessesseesseessssecsessucsesaecaeesasenscaeesscatcateaesesess 1

OPINION BELOW... ccecccsessesesseessscesesseesceceseesesecsesseesesessesaessesseacsecsecseesesesseesestsates 1

JURISDICTION 0.00... eeseseesecsecseeseeseeeeeeesesseeecseeseescsessenseeesseesessessseesessessesaeseeseestentansets 1

FEDERAL RULE OF CRIMINAL PROCEDURE AND

STATUTORY PROVISION INVOLVED ........ccccccessesessesscsesecceesecsesecsecsesessessecsesecseseesases 2

STATEMENT OF THE CASE o0o.ccccccccccccsssssssesseseeseeseesessesecaccecsecsecsssseeaeeeesassnsatescsssesseees 3

A. Course of proceedings. .........cccccscssssssessessessessessessceseesesesessccsscsscsssesessesessutenees 3

B. Statement of the relevant facts. 2.0... eceeceesceseeseeseessesscsseeseesseeateeseseeseeecsesess 3

1. SOMCCNCING. 00... eeeescessesseseeseeseessessesscseeeceaeesecsesseceseceessessecsscsutssssesees 3

2. Va 9) oz: | Cee 4

BASIS OF FEDERAL JURISDICTION IN THE

UNITED STATES DISTRICT COURT 0.00... ecccscessesesseesesseseesecsceseseceecsecseeaeeeesesecsesecses 7

REASONS FOR GRANTING THE WRIT 0... ccecssscssseseneesecseeseessesessessesecsececsessseesseeees 8

The federal circuits are divided respecting the proper application of the

fourth prong of plain-error review to plain errors resulting in the application

of the wrong Sentencing Guideline range to a criminal defendant. Unlike

the Fifth Circuit, the First, Ninth, and Tenth Circuits hold that such errors

usually, or presumptively, meet the fourth prong of plain-error review. The

Fifth Circuit’s application of the fourth prong to Guideline errors is more

demanding than that of other circuits, even in cases involving sentencing

ill

TABLE OF CONTENTS

Page

errors of constitutional importance. It is also in tension with 18 U.S.C. §

3742(f)(1). Because the application of the fourth prong of plain-error review

to Guideline calculation errors is an important and frequently recurring

question in the federal courts of appeals, the Court should grant certiorari in

this case to address these matters. ........ccccceesessssseseesceccssesecseesesscseseesssseseesscatesecesseees 8

CONCLUSION ooo. ceccccccssssesccesceecesessecsessesseeseensessessssesenenseesesseessesecssseessasssssseeseresssenases 21

APPENDIX A: Westlaw version of the opinion of the Court of Appeals in

United States v. Luis Alberto Ruiz-Dominguez, 2017 WL 5479582

(Sth Cir. Nov. 14, 2017) (unpublished) 00.0.0... ccccecceecesscesceecssessessesssescsscssssssssscaseasens 22

APPENDIX B: Michael H. Graham, Abuse of Discretion, Reversible Error,

Harmless Error, Plain Error, Structural Error[:] A New Paradigm for

Criminal Cases, 43 No. 6 Crim. Law Bulletin Art. 6 (2007) ......ccccccceeccesessesseeseeeeeees 24

iv

TABLE OF CITATIONS

Page

CASES

Beckles v. United States, 137 S. Ct. 886 (2017) wo.ccccecccccsecsscessccsscssscsscessesseeesseneesssens 11

Glover v. United States, 531 U.S. 198 (2001) ooo. cc cessesseceseesssesseessceseecsesseeaeenseees 16

Henderson v. United States, 133 S. Ct. 1121 (2013) oo. ececcsecssccseceseesseesseseeseens 14

Hicks v. United States, 137 S. Ct. 2000 (2017) ooo eccccccsecssecsseesseesessecseecsseeseesasenees 13

In re Sealed Case, 573 F.3d 844

(D.C. Cir. 2009) ee ccccccccsccsccessccssessecssessecececsesssessecseesseenseesscessseseseseseeeesesseessecsssenseneees 10

Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) oo... eeeeeeees 5, 11-12, 18

Peugh v. United States, 569 U.S. 530 wo... cccscssseccesceccsseeeesssscesscecssssessrasess 4-5, 17-18

Puckett v. United States, 556 U.S. 129 (2009) ooo. ecccccsceseeesecessceseesseeseeensessees 8-9, 11

United States v. Atkinson, 297 U.S. 157 (1936) ......ccecccsccccssccsscesseesecssecssscssscsssssesseesenes 8

United States v. Barnett, 398 F.3d 516

(6th Cir, 2005) oo. ee eececccesseseesecseeessesseeessessessessesseesseceseeseescecessenseesaeesseeaeeesacesseeeeessenses 15

United States v. Castillo-Casiano, 198 F.3d 787

(Oth Cir, 1999) oe cecccsscesccesseessecseeesecsseessceeeeseseessesesssscesessseseseecsessesesseessessseseesaeeaes 10

United States v. Cotton, 535 U.S. 625 (2002) ooo ecsescesscceseessessseesseesssesseeseeseseasenees 11

United States v. Figueroa-Ocasio, 805 F.3d 360

(Ust Cir. 2015) occ ccccccseecsecessesseesscessecessesecseessesseesnessaeessecseceseeesssesecseecaeserecestensesssenees 12

United States v. Jenkins, 854 F.3d 181

(2d Cir, 2017) ocececccccssscsssesecsseceseesseenseescsssesecseessesssessuecsscsaseeaeceaeesssesssessessecenscnessaeents 16

United States v. Joseph, 716 F.3d 1273

(Oth Cir, 2013) oe ccccccccsscssscessssseseseeessceseesseesessecesesssesseeseecsessasesseceaseseccseeeseeesessesentes 9-10

United States v. Olano, 507 U.S. 725 (1993) vo.eecccsessssesesssessenscesssssesscsseeseesneeeenes passim

TABLE OF CITATIONS — (Cont’d)

Page

CASES — (Cont’d)

United States v. Patifio-Almendariz, 664 Fed. Appx. 399

(Sth Cir. 2016) (unpublished), cert. denied,

No. 16-7920 (U.S. May 15, 2017)... ccc ccccccsccesccsssseeseecssscesssssseesseseseeseeeeseeesaes 13, 15-16

United States v. Plaza-Garcia, 914 F.2d 345

(1st Cir, 1990) ooo. eccecsccscsssscssesssessssessecessecssasessscessecssecesseesssenseesseecessessssseeeeneess 14-15

United States v. Renteria-Martinez, 847 F.3d 297

(Sth Cir. 2017), petition for cert. filed,

No. 16-9608 (U.S. Jun. 15, 2017) ooo ccc cccccesseesscccssccsseeesscessececesseseseecseteesseceeseesens 14

United States v. Rosales-Mireles, 850 F.3d 246

(5th Cir. 2017), cert. granted,

No. 16-9608 (U.S. Jun. 15, 2017) occ ce cccccccssesssessecsceeececssccsscesecsssesceasessecssecseecssecssesseens 14

United States v. Ross, 77 F.3d 1525

(7th Cir, 1996) oc cccccccsscccssccceseesssseceseecesssesesseeecssstsseesseesesessesssesssescusceseseeesneeceseass 14

United States v. Ruiz-Dominguez, — Fed. Appx. —, 2017 WL 5479582

(Sth Cir. Nov. 14, 2017) (unpublished) oo... ccc ceccsecescesscesseseceseeeseesseeasenseeaeenes passim

United States v. Sabillon-Umana, 772 F.3d 1328

(LOth Cir. 2014) ooo ecccccsssscssseccesececaeeccesseeessseeeesssecesasasssseccsuscesreeerssscnsnase 12-13, 16

United States v. Sarabia-Martinez, 779 F.3d 274

(Sth Cir, 2015) oo. cccccccssccsscsssccseecsecessecssescessceesscsseecssecessessseecseeeseessssssessessssessecsesecses 13

United States v. Segura, 747 F.3d 323

(5th Cir. 2014), petition for cert. filed,

No. 16-9187 (U.S. May 1, 2017) ...ccccccccccccccsscssscesseccsseccssccsseesseersscsseenssesssessseeesseeeneees 14

United States v. Solano-Hernandez, 847 F.3d 170

(Sth Cir. 2017) wo.ccccccccccccccssccsscecseccsecessecssscessesesseceseecsseeesseceseecessesesseasseesessssessscseesensoras 14

United States v. Tapia, 665 F.3d 1059

(Oth Cir, 2011) oc cece lecscccssseecsscecesseeseesseseesseecessesssesseccseesessesessseseseueseseesesseesens 9-10

vi

TABLE OF CITATIONS — (Cont'd)

Page

CASES -— (Cont’d)

United States v. Uribe-Quintero, 520 Fed. Appx. 299°

(Sth Cir. 2013) (unpublished) oo... ccc ccccsscssesecseessesscssessecsessessesssessucsussesseessenesssenes 15

Williams v. United States, 503 U.S. 193 (1992) wocecccccccscccsecseescssenecseeseesessessssesnesees 15

CONSTITUTIONAL PROVISION

U.S. Constitution, Art. 1, § 9, cl. 3 ieee ccscscccsssccssescssecsssecsssessesaasecsaeecesteecetaeeeeasees 2

STATUTES AND RULES

8 U.S.C. § 132608) cee ececsccseeseseeeeeseesessecseecesessesessessesecseeceeeesessecssesscsesecaecseeeeessecsesecanes 3

8 ULS.C. § 1326(D)D) eee eeecsccseeseeseeeeseeseesesesseeeesessesessesseesssaessesecsecsessesecseeaeeessessseess 3

18 U.S.C. § 3231 i eeeseeeesceeesecaeeseesessesesseeseseeeeeecseesesessessssassassscsaesecaesscsecsesseeeesesstees 7

18 U.S.C. § 3742 (D1) nee cceeecseeseeseeeeeeeeeeseeseecseesesseseeeesessesaeessssesecsecsecseeaseeentenees passim

28 U.S.C. § 12541) oe eeeccecnseseesseseesesseeecsessessesecsesecsesseeesessessessesecssesscsecseesesecsnessesceeses 1

Sup. Ct R. LBD eee csecseeseesesseeseeeeeesneeaeseeeeeesessseceseesessenseeassessesseeecsecsecsesaeeecseenens 1

Fed. R. Crim. P. 52(0) occ cccccsccsccssecssecsscssecsseessceseeseessecsecsescsesssscssresssssessssscsusenseeseeas i, 2,8

Tex. Penal Code § 30.02(a)(3) ..eccececccscssccsscsssessceseesscesecssecsscssscesesssecssssssscssssesscsecscensvase 5

Tex. Penal Code § 30.02(a)(3) (2010) ooo ccesssessessssessessesesseescsecsecsessceseecessessecessesecens 4

SENTENCING GUIDELINES

USSG § 201.2(D)(L)(A)G1) (2015) one cc ccceeeesseseeseeseseeseeeesesseeseesessesecsesaseaesaceceessesneaees 5

USSG § 2L1.2(B)CL)(C) (2015) eee ce ccccessesesscseeseesessesssseeeseesecsessssaesacsecaeesecsesneasesssnees 5

TABLE OF CITATIONS — (Cont’d)

Page

MISCELLANEOUS

Brief for the United States in Opposition, Alanis v. United States,

No. 01-904, 2002 WL 32136086 (U.S. April 2002) oo... ccc cccesecsscsecssessecsseeseseseees 15

Michael H. Graham, Abuse of Discretion, Reversible Error,

Harmless Error, Plain Error, Structural Error[:] A New Paradigm for

Criminal Cases, 43 No. 6 Crim. Law Bulletin Art. 6 (2007) oo... eeceeeseeseeeseeeseee iv, 9

Petition for Writ of Certiorari, United States v. Marcus,

No. 08-1341 (May 1, 2009), cert. granted,

558 U.S. 945 (2009) cece cccccscsseesscssseeseeseesseesseceseceseesecessesseeesseessessecseceesaesecsseesasesees 19

viii

PRAYER

Petitioner Luis Alberto Ruiz-Dominguez respectfully prays that a writ of certiorari

be granted to review the judgment of the United States Court of Appeals for the Fifth

Circuit issued on November 14, 2017.

OPINION BELOW

On November 14, 2017, the United States Court of Appeals for the Fifth Circuit

entered its judgment and opinion affirming the judgment of conviction and sentence. The

Westlaw version of the Fifth Circuit’s opinion is reproduced in the appendix to this petition.

JURISDICTION

On November 14, 2017, the United States Court of Appeals for the Fifth Circuit

entered its judgment and opinion affirming the judgment of conviction and sentence. This

petition is filed within 90 days of that date and therefore is timely. See Sup. Ct. R. 13.1.

The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

FEDERAL RULE OF CRIMINAL PROCEDURE

AND STATUTORY PROVISION INVOLVED

The questions presented involve the Ex Post Facto Clause of the United States

Constitution, which states “No . . . ex post facto Law shall be passed.” U.S. Constitution,

Art. 1, § 9, cl. 3.

The questions presented involve Federal Rule of Criminal Procedure 52(b), which

provides: “A plain error that affects substantial rights may be considered even though it

was not brought to the court’s attention.” Fed. R. Crim. P. 52(b).

The questions presented also involve 18 U.S.C. § 3742(f)(1), which dictates that a

court of appeals “shall remand the case for further sentencing proceedings” if it determines

that “the sentence... was imposed as a result of an incorrect application of the sentencing

guidelines|.]”

STATEMENT OF THE CASE

A. Course of proceedings.

On August 23, 2016, petitioner Luis Alberto Ruiz-Dominguez (“Mr. Ruiz-

Dominguez”) pleaded guilty to an indictment charging him with illegally reentering the

United States in violation of 8 U.S.C. § 1326(a) and (b)(1). On January 24, 2017, the

district court sentenced him to 63 months’ imprisonment followed by a three-year term of

supervised release.

Mr. Ruiz-Dominguez filed a timely notice of appeal to the United States Court of

Appeals for the Fifth Circuit on January 30, 2017. And, on November 14, 2017, the Fifth

Circuit affirmed the judgment of conviction sentence. See United States v. Ruiz-

Dominguez, — Fed. Appx. —, 2017 WL 5479582 (Sth Cir. Nov. 14, 2017) (unpublished)

(Appendix A).

B. Statement of the relevant facts.

1. Sentencing.

The district court ordered the probation officer to prepare a Presentence Report

(“PSR”) to assist the court in sentencing Mr. Ruiz-Dominguez. The PSR summarized the

offense conduct as establishing that Mr. Ruiz-Dominguez was found within the United

States on June 22, 2016, and that same date was reflected in the indictment. Although the

PSR reflected that Mr. Ruiz-Dominguez was found prior to November 1, 2016, the PSR

nevertheless used the 2016 edition of the United States Sentencing Guidelines (“USSG”),

3

applicable after November 1, 2016, and thus calculated a total offense level of 17. Attached

to the PSR were conviction documents for prior convictions used in calculating the offense

level. Those documents included an indictment charging Mr. Ruiz-Dominguez with

burglary of a habitation by entering a habitation without consent and attempting to commit |

assault therein, a crime under Tex. Penal Code § 30.02(a)(3) (2010), and a judgment

confirming his conviction for the crime as charged in the indictment.

With a total of 17 criminal history points, Mr. Ruiz-Dominguez was placed in

criminal history category VI. A total offense level of 17 and a criminal history category of

VI resulted in an advisory Guideline imprisonment range of 51 to 63 months. Mr. Ruiz-

Dominguez did not object to the PSR’s use of the 2016 edition of the Guidelines to

calculate his offense level.

At sentencing on January 24, 2017, the government offered as evidence in support

of the sentence, among other documents, the same conviction documents for burglary of a

habitation as attached to the PSR. The district court then sentenced Mr. Ruiz-Dominguez

to a within-Guidelines sentence of 63 months’ imprisonment and a three-year term of

supervised release, with the fine waived and the $100 special assessment remitted on the

government’s motion.

2. Appeal.

Mr. Ruiz-Dominguez raised for the first time on appeal a plain sentencing error. He

argued that the district court plainly erred by using the 2016 version of the Guidelines,

violating the Ex Post Facto Clause of the Constitution and this Court’s decision in Peugh

v. United States, 569 U.S. 530, because the 2015 version of the Guidelines applicable at

the time that he committed his offense of illegal reentry in June 2016 would have a resulted

in a lower Guideline sentencing range. In particular, he argued further that the conviction

documents attached to the PSR and submitted at sentencing by the government established

that Mr. Ruiz-Dominguez’s prior burglary conviction was entered under Tex. Penal Code

§ 30.02(a)(3), an offense that the Fifth Circuit had already determined did not qualify for

the 16-level “crime of violence” applicable under USSG § 2L1.2(b)(1)(A)(ii) (2015). He

further argued that the 2015 Guideline range would have been at most 33 to 41 months,

based on classification of that burglary of a habitation conviction as an “aggravated felony”

under USSG § 2L1.2(b)(1)(C) (2015). Mr. Ruiz-Dominguez argued that this error — a

violation of the Ex Post Facto Clause under Peugh —affected his substantial rights by

increasing the Guideline range, in accordance with Molina-Martinez v. United States, 136

S. Ct. 1338 (2016). Finally he argued that the Fifth Circuit should exercise its discretion

under the fourth prong of plain-error review because the degree of disparity in sentencing

ranges outweighed his criminal history and recidivism and that the constitutional nature of

the error should tip the balance in favor of exercising its discretion.

The government conceded that the district court committed a clear and obvious

violation of the Ex Post Facto Clause by using the 2016 Guidelines and that the error

affected Mr. Ruiz-Dominguez’s substantial rights. The government argued, however, that

the Fifth Circuit should not exercise its discretion to correct the error under the fourth prong

of plain error review because of Mr. Ruiz-Dominguez’s recidivist behavior.

The Fifth Circuit affirmed the sentence on the ground that Mr. Ruiz-Dominguez had

not satisfied the fourth prong of plain-error review, relying on his “significant criminal

history reflecting recidivistic behavior.” See Ruiz-Dominguez, 2017 WL 5479582, at * 2.

In pertinent part, the Fifth Circuit stated: “Ruiz-Dominguez’s record of past criminal

conduct persuades us against exercising our discretion to correct the forfeited error.” Ruiz-

Dominguez, 2017 WL 5479582, at * 2. The Fifth Circuit did not account for the

constitutional nature of the error in its fourth-prong analysis.

BASIS OF FEDERAL JURISDICTION IN THE

UNITED STATES DISTRICT COURT

The district court had jurisdiction pursuant to 18 U.S.C. § 3231.

REASONS FOR GRANTING THE WRIT

The federal circuits are divided respecting the proper application of the fourth

prong of plain-error review to plain errors resulting in the application of the

wrong Sentencing Guideline range to a criminal defendant. Unlike the Fifth

Circuit, the First, Ninth, and Tenth Circuits hold that such errors usually, or

presumptively, meet the fourth prong of plain-error review. The Fifth

Circuit’s application of the fourth prong to Guideline errors is more

demanding than that of other circuits, even in cases involving sentencing

errors of constitutional importance. It is also in tension with 18 U.S.C. §

3742(f)(1). Because the application of the fourth prong of plain-error review

to Guideline calculation errors is an important and frequently recurring

question in the federal courts of appeals, the Court should grant certiorari in

this case to address these matters.

1. Federal Rule of Criminal Procedure 52(b) provides: “A plain error that affects

substantial rights may be considered even though it was not brought to the court’s

attention.” Fed. R. Crim. P. 52(b). In United States v. Olano, 507 U.S. 725 (1993), this

Court held that, in order to secure relief under plain-error review pursuant to Rule 52(b), a

defendant must show — in addition to an “error” that is “plain” and that affects substantial

rights — that “the error ‘seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.” Olano, 507 U.S. at 736 (quoting United States v. Atkinson, 297 U.S.

157, 160 (1936); brackets in Olano). (This requirement will be referred to as the “fourth

prong” of plain-error review throughout this petition.)

This Court has given very little guidance with respect to how the fourth prong should

be applied in practice, and none with respect to how the fourth prong should be applied in

the context of pure sentencing errors.'! As a practical matter, however, it is difficult to see

'Tn Puckett v. United States, 556 U.S. 129 (2009), the Court considered the application of

plain-error review to an alleged breach of a plea agreement in which the government promised to

8

how an error giving rise to a reasonable probability of a longer custodial sentence (i.e., a

sentencing error that affects substantial rights) does not also affect the fairness, integrity,

or public reputation of judicial proceedings, at least in the usual case. Indeed, one

commentator expressed a similar sentiment when he pronounced that “[s]entencing errors,

[which are a] special category of error, satisfy the fourth prong of Olano when the actual

sentence imposed was affected.” Michael H. Graham, Abuse of Discretion, Reversible

Error, Harmless Error, Plain Error, Structural Error[:] A New Paradigm for Criminal

Cases, 43 No. 6 Crim. Law Bulletin Art. 6, at 19 n.11 (2007).?

The Ninth Circuit agrees; it has “‘regularly deemed the fourth prong of the plain

error standard to have been satisfied where, as here, the sentencing court committed a legal

error that may have increased the length of a defendant’s sentence.’” United States v.

Joseph, 716 F.3d 1273, 1281 (9th Cir. 2013) (quoting United States v. Tapia, 665 F.3d

1059, 1063 (9th Cir. 2011) (listing cases)). In so holding, the Ninth Circuit has noted that

the possible injustice of excess imprisonment can be easily remedied by the relatively

“simple task” of resentencing, which has the added virtue of properly allowing the district

make certain nonbinding sentencing recommendations. The Court ultimately held, however, that

the government’s breach did not have an effect on the defendant’s sentence, thus failing the third

prong of plain-error review. See Puckett, 556 U.S. at 142. As a result, although the Court did

reach the fourth prong in Puckett, that case does not provide guidance with respect to application

of the fourth prong to a pure sentencing error that (at least reasonably probably) resulted in a

greater sentence of imprisonment.

? The Westlaw version of this article, which was consulted for purposes of this petition,

does not have internal pagination. Undersigned counsel refers to the page number that appears at

the lower right-hand corner of a copy printed from Westlaw. That copy is attached as Appendix

B to this petition.

9

court to exercise the sentencing function in the first instance:

It is easy to see why prejudicial sentencing errors undermine the “fairness,

integrity, and public reputation of judicial proceedings;” such errors impose

a longer sentence than might have been imposed had the court not plainly

erred. Defendants ... may be kept in jail for a number of years on account

of a plain error by a court, rather than because their wrongful conduct

warranted that period of incarceration. Moreover, there is little reason not to

correct plain sentencing errors when doing so is so simple a task. In the

context of convictions, it is the potential costs of error correction — undoing

a jury verdict or an entire trial, or letting a guilty defendant go free — that

have led courts on occasion to decline to “notice” plain errors where the

evidence of guilt was overwhelming. In the sentencing context, however,

these costs are not present. Reversing a sentence does not require that a

defendant be released or retried, but simply allows a district court to exercise

properly its authority to impose a legally appropriate sentence. Nor does

reversing a sentence require a district court to revisit an issue the outcome of

which is abundantly clear. Rather, it allows a sentencing court to make, for

the first time, a discretionary determination necessary to arrive at an

appropriate sentence. Under these circumstances a failure to exercise our

discretion in order to allow a district court to correct an obvious sentencing

error that satisfies the three prongs of the plain error test would in itself

undermine the “fairness, integrity, and public reputation of judicial

proceedings.”

United States v. Castillo-Casiano, 198 F.3d 787, 792 (9th Cir. 1999) (internal citations

omitted), amended, 204 F.3d 1267 (9th Cir. 2000); see also Joseph, 716 F.3d at 1281

(quoting Tapia, 665 F.3d at 1063); Tapia, 665 F.3d at 1063 (quoting Castillo-Casiano, 198

F.3d at 792); cf. In re Sealed Case, 573 F.3d 844, 853 (D.C. Cir. 2009) (“We have

repeatedly opted to correct plain sentencing errors that, if left uncorrected, would result in

a defendant serving a longer sentence.”) (citation omitted).

Moreover, when the sentencing error in question is a misapplication of the United

States Sentencing Guidelines, resulting in the use of an incorrectly high Guideline range in

sentencing a defendant, there is a heightened risk of the unfairness and injustice of excess

10

imprisonment. This is so because of the unique role of the Sentencing Guidelines in the

federal sentencing system. As the Court has said:

. . . [T]he Guidelines are not only the starting point for most federal

sentencing proceedings but also the lodestar. The Guidelines inform and

instruct the district court’s determination of an appropriate sentence. In the

usual case, then, the systemic function of the selected Guidelines range will

affect the sentence. This fact is essential to the application of Rule 52(b) to

a Guidelines error.

Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016). And, because of “the

centrality of the Guidelines in the sentencing process,” id., the Court in Molina-Martinez

ultimately held that “[i]n most cases a defendant who has shown that the district court

mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a

reasonable probability of a different outcome,” id., i.e., a lower sentence, without the need

for any additional evidence. See also id. at 1345-49.

A case involving a breach of a plea agreement (e.g., Puckett) or a trial error (e.g.,

United States v. Cotton, 535 U.S. 625 (2002)) is simply not comparable to a case where

the wrong Sentencing Guideline range was applied to a criminal defendant. Plea deals and

trials have many moving parts, and so in many cases it may be difficult to know how the

error affected the outcome. In contrast, when the wrong Sentencing Guideline range is

applied to a criminal defendant, one can know that the error likely impacted the sentence.

See Molina-Martinez, 136 S. Ct. at 1346; see also Beckles v. United States, 137 S. Ct. 886,

900 (2017) (Sotomayor, J., concurring in judgment) (“And when Guidelines ranges

change—because the Guidelines themselves change, or because the court is informed of

an error it made in applying them—sentences change, too.”).

11

2. The upshot is that Guideline-range errors — the subject of Molina-Martinez — are

uniquely, and extraordinarily, likely to produce the quintessential injustice of excess

imprisonment. This is why the federal circuits have, by and large, “recognized that an

obvious misapplication of the sentencing guidelines will usually satisfy the [ ] fourth

elemen|[t] of the plain error test,” United States v. Sabillon-Umana, 772 F.3d 1328, 1333

(10th Cir. 2014) (citations omitted), “or even adopted an explicit presumption that a clear

guidelines error will satisfy the [fourth] ste[p] of plain error review.” Id.; see also, e.g.,

United States v. Figueroa-Ocasio, 805 F.3d 360, 273 (1st Cir. 2015) (“‘Where correction

of a guidelines calculation error would lead to a lower sentence, remand for resentencing

is ordinarily warranted under the third and fourth prongs of [the plain error] standard.””)

(citation omitted; brackets in Figueroa-Ocasio).

As then-Judge Gorsuch wrote for the Tenth Circuit, “[t]his presumption is sound,”

Sabillon-Umana, 772 F.3d at 1333, because

what reasonable citizen wouldn’t bear a rightly diminished view of the

judicial process and its integrity if courts refused to correct obvious errors of

their own devise that threaten to require individuals to linger longer in federal

prison than the law demands? Especially when the cost of correction is so

small? A remand for resentencing, after all, doesn’t require that a defendant

be released or retried but simply allows the court to exercise its authority to

impose a legally permissible sentence.

Sabillon-Umana, 772 F.3d at 1333-34. Then-Judge Gorsuch “c[ould] think of few things

that affect an individual’s substantial rights or the public’s perception of the fairness and

integrity of the judicial process more than a reasonable probability an individual will linger

longer in prison than the law demands only because of an obvious judicial mistake.” Id. at

12

1335; see _also Hicks v. United States, 137 S. Ct. 2000, 2001 (2017) (Gorsuch, J.,

concurring) (“For who wouldn’t hold a rightly diminished view of our courts if we allowed

individuals to linger longer in prison than the law requires only because we were unwilling

to correct our own obvious mistakes?”) (citing Sabillon-Umana).

Importantly, the First, Ninth, and Tenth Circuits do not apply a detailed parsing of

a defendant’s criminal history when conducting their fourth-prong analyses. Nor do they

seek to minimize the degree of the disparity between the sentence imposed and the top of

the correct Guideline range.

The Fifth Circuit, however, unlike those other circuits, does not hold that prejudicial

plain Guideline errors usually, or presumptively, seriously affect the fairness, integrity, or

public reputation of judicial proceedings. To the contrary, the Fifth Circuit has said that

“(t]he fourth prong of plain error review is not satisfied simply because the ‘plainly’

erroneous sentencing guideline range yields a longer sentence than the range that, on

appeal, we perceive as correct.” United States v. Sarabia-Martinez, 779 F.3d 274, 278 (5th

Cir. 2015). In cases involving such errors, the Fifth Circuit frequently has sought to

minimize the degree of the disparity between the sentence imposed and the top of the

correct Guideline range. See, e.g., United States v. Patifio-Almendariz, 664 Fed. Appx.

399, 402 (Sth Cir. 2016) (unpublished) (citing the “relatively small discrepancy between

his sentence and the correct Guidelines range”), cert. denied, No. 16-7920 (U.S. May 15,

2017). And in some cases it has even gone so far as to insist that, to warrant correction

under the fourth prong of plain-error review, an error must “shock the conscience of the

13

common man, serve as a powerful indictment against our system of justice, or seriously

call into question the competence or integrity of the district judge.” United States v.

Segura, 747 F.3d 323, 331 (5th Cir. 2014) (internal quotation marks and citation omitted);

see also, e.g., United States v. Rosales-Mireles, 850 F.3d 246, 249-50 (Sth Cir. 2017), cert.

granted, No. 16-9493 (U.S. Sept. 28, 2017); United States v. Renteria-Martinez, 847 F.3d

297, 302 (Sth Cir. 2017), petition for cert. filed, No. 16-9608 (U.S. Jun. 15, 2017); United

States v. Solano-Hernandez, 847 F.3d 170, 178-79 (Sth Cir. 2017), petition for cert. filed,

No. 16-9187 (U.S. May 1, 2017).3 No other circuit has taken such an unforgiving

approach.

3. This circuit split alone would justify this Court’s intervention; but there is more.

As an initial matter, the Fifth Circuit’s unforgiving approach cannot be squared with 18

U.S.C. § 3742(f)(1), which dictates that a court of appeals “shall remand the case for further

sentencing proceedings” if it determines that “the sentence . .. was imposed as a result of

an incorrect application of the sentencing guidelines[.]” This statute is evidence that, in

Congress’ view, an error in the application of the Guidelines is one that falls within a

special category of errors that are most worthy of a remand for resentencing. The Fifth

Circuit’s unforgiving application of the fourth prong of plain-error review ignores that

plain-error review is informed by § 3742(f)(1). See, e.g., United States v. Plaza-Garcia,

3 This “shocks the conscience” standard is unsupported by this Court’s precedent. The

Court has made clear that plain-error review is not about “the competence or integrity of the district

judge.” See Henderson v. United States, 133 S. Ct. 1121, 1129 (2013) (“plain-error review is not

a grading system for trial judges”). The focus of plain-error review thus is not “whether the district

court’s action simply deserves rebuke,” United States v. Ross, 77 F.3d 1525, 1539 (7th Cir. 1996),

but rather “whether the severity of the error’s harm demands reversal.” Id.

14

914 F.2d 345, 347 (1st Cir. 1990) (Breyer, J.) (citing § 3742(f)(1) in support of decision to

remand case for resentencing on plain-error review); United States v. Barnett, 398 F.3d

516, 531-32 (6th Cir. 2005) (Gwin, J., concurring) (same).*

What is more, to the extent that the Fifth Circuit has relied upon a defendant’s

criminal history and recidivism to decline to find the fourth prong satisfied — which it did

in this case, see Ruiz-Dominguez, 2017 WL 5479582, at * 2, and which it has done in other

cases* — that analysis is flawed because it effectively substitutes the appellate court’s own

judgment about the sentence that a defendant “deserves” — a judgment that, under our

system, is reserved to the district-court judge. Twenty-five years ago, in Williams v.

United States, 503 U.S. 193 (1992), this Court considered whether it was proper for an

appellate court to decline to reverse an acknowledged Guideline error (departure on an

improper basis) based upon the appellate court’s own assessment of the reasonableness of

the sentence; and the Court held that it was not proper. See Williams, 503 U.S. at 201. Of

relevance to the argument made in this petition, the Court underscored that “it is the

prerogative of the district court, not the court of appeals, to determine, in the first instance,

the sentence that should be imposed in light of certain factors properly considered under

“Tn a 2002 brief filed in this Court, the United States argued: “Section 3742(f)(1) and Rule

52 [of the Federal Rules of Criminal Procedure] can, and should, be read together to require a

remand only when a sentencing error has prejudiced the defendant.” Brief for the United States in

Opposition, Alanis v. United States, No. 01-904, 2002 WL 32136086, at *2 (U.S. April 2002).

Under this reading of the law, which is not unreasonable, Mr. Ruiz-Dominguez would be entitled

to a remand for resentencing because the sentencing error in his case was both plain and

prejudicial.

> See, e.g., Patifio-Almendariz, 664 Fed. Appx. at 402; United States v. Uribe-Quintero,

520 Fed. Appx. 299, 303 (5th Cir. 2013) (unpublished).

15

the Guidelines.” Id.

The Fifth Circuit’s fourth-prong practice allows the Fifth Circuit to affirm a

sentence that is the product of a Guideline error, on the ground that the Fifth Circuit’s own

assessment of the defendant’s criminal history convinces that court that the erroneous

sentence is not unreasonable. But, to the extent that is true, the Fifth Circuit’s fourth-prong

practice usurps the district court’s function of determining the sentence.

Finally, to the extent that the Fifth Circuit also finds relevant to the fourth-prong

analysis the fact of a “relatively small discrepancy between [the defendant’s] sentence and

the correct Guidelines range,” Patifio-Almendariz, 664 Fed. Appx. at 402, this notion is in

considerable tension with this Court’s recognition that even “a minimal amount of

additional time in prison” constitutes sufficient prejudice for purposes of an ineffective-

assistance-of-counsel claim. Glover v. United States, 531 U.S. 198, 203 (2001). It is also

in direct conflict with the Tenth Circuit’s recognition that “a strong possibility of a

significantly lower sentence is sufficient, not necessary, to meet plain error’s fourth test.”

Sabillon-Umana, 772 F.3d at 1334 n.1, as well as the Second Circuit’s more general

observation that

[a]dditional months in prison are not simply numbers. Those months have

exceptionally severe consequences for the incarcerated individual. They also

have consequences both for society which bears the direct and indirect costs

of incarceration and for the administration of justice[.]

United States v. Jenkins, 854 F.3d 181, 192 (2d Cir. 2017).

4, The foregoing considerations by themselves should justify granting Mr. Ruiz-

Dominguez’s petition, but in his case there is yet an additional factor — an error of

16

constitutional proportions that the Fifth Circuit did not factor into its analysis at all in

considering the exercise of discretion under the fourth prong. The government conceded

that the violation of the Ex Post Facto Clause was both clear and obvious, and the Fifth

Circuit accepted that concession. Ruiz-Dominguez, 2017 WL 5419582 at *1. Yet in its

fourth-prong analysis, the Fifth Circuit considered only the factors applicable to a run-ofthe-mill Guideline error: the degree of the error and the particular facts of the case,

including recidivism. Id. The Fifth Circuit never acknowledged that the error in this case

implicated important constitutional principles and never took those constitutional

considerations into account in determining whether to exercise its discretion.

This Court should grant the petition in this case to clarify for the federal courts that

a sentencing error that violates constitutional principles such as the Ex Post Facto Clause

will, absent extraordinary circumstances, satisfy the fourth prong standard of Olano. This

Court in Peugh emphasized the gravity of the constitutional principles at stake when a more

punitive version of the Guidelines is used to sentence a defendant:

Our holding today is consistent with basic principles of fairness that animate

the Ex Post Facto Clause. The Framers consider ex post facto laws to be

“contrary to the first principles of the social contract and to every principle

of sound legislation.” The Federalist No. 44, p. 282 (C. Rossiter ed. 1961) (J.

Madison). The Clause ensures that individuals have fair warning of

applicable laws and guards against vindictive legislative action. .. . Even

where these concerns are not directly implicated, however, the Clause also

safeguards “a fundamental fairness interest . . . in having the government

abide by the rules of law it establishes to govern the circumstances under

which it can deprive a person of his or her liberty or life.”

Peugh, 569 U.S. at 544 (case citations omitted). In holding that application of an amended

Sentencing Guideline provision increasing the range of imprisonment recommended

17

violated the Ex Post Facto Clause, the Court reminded courts that the clause “does not

merely protect reliance interests. It also reflects principles of ‘fundamental justice.’” Id., at

545-46 (citation omitted).

With the broad principles of justice that this Court emphasized in Peugh, it should

be beyond question that an error in application of the Sentencing Guidelines that violates

the core constitutional principles of the Ex Post Facto Clause will affect the fairness,

integrity or public perception of judicial proceedings. That conclusion follows ineluctably

from Peugh’s reasoning that these principles protect the same interests of “fundamental

fairness” and justice in the context of the Sentencing Guidelines as in the context of

legislation. And that conclusion follows as well from the Peugh Court’s reasoning that

“altering the substantive formula used to calculate the applicable sentencing range” by

applying an amended Sentencing Guideline “create[s] a significant risk of a higher

sentence” and thereby “offend[s] one of the principal interests that the Ex Post Facto Clause

was designed to serve, fundamental justice.” Peugh, 569 U.S. at 550. An error of such

importance cannot — absent extraordinary circumstances — fail to satisfy the standard of

affecting the fairness, integrity of public reputation of judicial proceedings.

In this case, however, the Fifth Circuit’s opinion gives no weight to the importance

of the constitutional nature of the violation at issue. This Court should grant the petition

in this case to make clear that such errors will generally merit correction under Olano.

5. In sum, the above-discussed features of the Fifth Circuit’s fourth-prong practice

make the Fifth Circuit an outlier among the federal circuits. See Molina-Martinez, 136 S.

18

Ct. at 1345 (“The Court of Appeals for the Fifth Circuit stands generally apart from other

Courts of Appeals with respect to its consideration of unpreserved Guidelines errors.”).

Consequently, in the Fifth Circuit, unpreserved Guideline errors that would lead to relief

in other circuits go uncorrected, leaving in place erroneously long sentences.

The Fifth Circuit’s divergence from other circuits in the respects outlined above and

the importance of the constitutional nature of the error in this case would themselves be

sufficient reason for the Court to grant certiorari in this case. Additionally, the question of

the proper application of the fourth prong of plain-error review to Guideline application

errors is an important question that arises daily in the federal courts of appeals. Moreover,

the proper interpretation and administration of the plain-error rule generally is

unquestionably of exceptional importance to the administration of justice in federal

criminal cases. That is why, as the United States stated in one successful attempt to

persuade the Court to grant certiorari, “this Court frequently has been required to explicate

plain-error analysis in criminal cases.” Petition for Writ of Certiorari, United States v.

Marcus, No. 08-1341 (May 1, 2009), at 19 (citations omitted), cert. granted, 558 U.S. 945

(2009), decision below reversed, 560 U.S. 258 (2010).

6. For the foregoing reasons, this Court should grant certiorari in this case.

Alternatively, this Court should hold this petition pending its decision in Rosales-Mireles

v. United States (No. 16-9493), which presents a related question concerning the standard

applicable to the fourth prong of plain-error review,° and then dispose of the petition as

© In Rosales-Mireles, the question presented is whether, to meet the fourth prong of plain

error review, it is “necessary, as the Fifth Circuit required in [Rosales-Mireles] that the error be

19

appropriate in light of that decision.

one that ‘would shock the conscience of the common man, serve as a powerful indictment against

our system of Justice, or seriously call into question the competence or integrity of the district

judge|.]”

20

CONCLUSION

For the foregoing reasons, petitioner Luis Alberto Ruiz-Dominguez prays that this

Court grant certiorari to review the judgment of the Fifth Circuit in this case.

Date: January 2, 2018 Respectfully submitted,

MARJORIE A. MEYERS

Federal Public Defender

Southern District of Texas

By: MICHAEL HERMAN

Assistant Federal Public Defender

Attorneys for Petitioner

440 Louisiana Street, Suite 1350

Houston, Texas 77002-1669

Telephone: (713) 718-4600

ZI,

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