Petition for Writ of Certiorari — Magic C. Norman, Petitioner v. United States

NO. 17IN THE

SUPREME COURT OF THE UNITED STATES

October Term 2017

_____________________________________

MAGIC C. NORMAN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_______________________________________________

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

______________________________________________

STEPHEN C. GORDON*

Assistant Federal Public Defender

150 Fayetteville Street Mall, Suite 450

Raleigh, North Carolina 27601

(919) 856-4236

*Counsel for Petitioner

QUESTION PRESENTED

Whether the writ should issue so that this Court may resolve the circuit split regarding the

standard of review that applies to appeals of supervised release revocation sentences.

LIST OF PARTIES TO PROCEEDING BELOW

United States of America

Magic C. Norman

ii

TABLE OF CONTENTS

QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES TO PROCEEDING BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CASES, STATUTES, AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

OPINION BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTIONAL GROUNDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

MANNER IN WHICH THE FEDERAL QUESTION WAS

RAISED AND DECIDED BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

REASONS FOR GRANTING THE WRIT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

THIS COURT SHOULD GRANT THE PETITION TO RESOLVE THE

CIRCUIT SPLIT CONCERNING THE PROPER STANDARD OF REVIEW

FOR SENTENCES IMPOSED UPON REVOCATION OF SUPERVISED

RELEASE.

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

APPENDIX:

Appendix 1: United States v. Magic C. Norman, 710 Fed. Appx. 121 (4th Cir. Jan. 30,

2018) (unpublished).

iii

TABLE OF CASES, STATUTES AND OTHER AUTHORITIES

CASES

In re Sealed Case,

527 F.3d 188 (D.C. Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13

Mullaney v. Wilbur,

421 U.S. 684 (1975).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Bolds,

511 F.3d 568 (6th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13

United States v. Bungar,

478 F.3d 540 (3d Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13

United States v. Crudup,

461 F.3d 433 (4th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Daniels,

541 F.3d 915 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13

United States v. Kizeart,

505 F.3d 672 (7th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. McInnis,

429 F.3d 1 (1st Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13

United States v. Merrival,

521 F.3d 889 (8th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13

United States v. Miller,

634 F.3d 841 (5th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Simmons,

649 F.3d. 237 (4th Cir. 2011)(en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Sweeting,

437 F.3d 1105 (11th Cir. 2006) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13

United States v. Verkhoglyad,

516 F.3d 122 (2d Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13

iv

United States v. Vigil,

696 F.3d 997 (10th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13

STATUTES AND AUTHORITIES

18 U.S.C. § 922(g)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

18 U.S.C. § 924(c)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

18 U.S.C. § 3553(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

18 U.S.C. § 3582(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

18 U.S.C. § 3583(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

18 U.S.C. § 3742(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

21 U.S.C. § 841(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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

U.S.S.G. § 1B1.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

v

No. 17IN THE

SUPREME COURT OF THE UNITED STATES

October Term 2017

_____________________________________________

MAGIC C. NORMAN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_______________________________________________________

PETITION FOR WRIT OF CERTIORARI

________________________________________________________

Petitioner respectfully prays that a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Fourth Circuit rendered in this case on January 30, 2018.

OPINION BELOW

The opinion of the United States Court of Appeals for the Fourth Circuit affirming

Petitioner’s sentence is found at 710 Fed. Appx. 121(4th Cir. Jan. 30, 2014)(Appendix 1, infra),

and is unpublished.

1

JURISDICTIONAL GROUNDS

The opinion of the United States Court of Appeals for the Fourth Circuit affirming

Petitioner’s sentence issued on January 30, 2018. (Appendix 1, infra). The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. § 1254(1).

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 3583(e) provides in pertinent part that:

(e) Modification of Conditions or Revocation.— The court may, after considering the

factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and

(a)(7)—

***

(3) revoke a term of supervised release, and require the defendant to serve in prison all or

part of the term of supervised release authorized by statute for the offense[.]

3

STATEMENT OF THE CASE

In 2010, in the Eastern District of North Carolina, Petitioner pled guilty to being a felon

in possession of a firearm, to possession with intent to distribute cocaine, and to possession of a

firearm in furtherance of a drug trafficking conspiracy. 18 U.S.C. § 922(g)(1), 21 U.S.C.

§ 841(a)(1), and 18 U.S.C. § 924(c)(1)(A). (J.A. 7 #41, 16). For those crimes, he received a total

sentence of imprisonment term of 262 months, (202 months for the drug count, a concurrent 120

months for the felon-in-possession-conviction, and a consecutive 60 months for the 924(c)

conviction), coupled with six years of supervised release. (J.A. 7 #47, 17-18).

In 2012, the United States Court of Appeals, following its decision in United States v.

Simmons, 649 F.3d. 237 (4th Cir. 2011)(en banc), vacated Petitioner’s sentence and remanded

the case. (J.A. 9 #58, 22-23). The district court resentenced Petitioner to imprisonment for 90

months and to a five-year period of supervised release. (J.A. 10 #65, 23-24).

In 2014, Petitioner moved for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c),

U.S.S.G. § 1B1.10, and Amendment 782 of the sentencing guidelines. (J.A. 11 #76, 29). In 2016,

the district court denied the motion. (J.A. 12 #83, 28).

Petitioner began his supervised release in August 2016 and, some five months later, the

probation office moved to revoke it. (J.A. 12 #85, 31). Following a hearing on the motion on

May 25, 2017, the Court revoked Petitioner’s release and sentenced him to imprisonment for a

term of 24 months. (J.A. 13 #95, 34, 70, 74). Petitioner appealed on June 2, 2017. (J.A. 14 #97,

75).

The revocation motion alleged four violations. First, it said Petitioner had absconded

from supervision. (J.A. 31). “[Petitioner] has refused to respond to numerous home visit attempts

4

and letters trying to contact him,” the motion elaborated. (J.A. 31). Violation 2 alleged he had

missed five drug tests over a three-month period. (J.A. 31). In the third violation, the probation

officer wrote that Petitioner did not keep an appointment for mental health treatment and that he

had not participated in any treatment since then. (J.A. 31). Last, the motion alleged Petitioner had

pending a charge of resisting a police officer. (J.A. 31).

A supervised release violation worksheet attached to the motion classified all four of the

charged offenses as Grade C violations. (J.A. 33). The worksheet calculated Petitioner’s

guideline imprisonment range at 5-11 months and gave 60 months as his statutory maximum

term. (J.A. 33). The district court held a hearing on the motion on May 25, 2017. (J.A. 34).

At the outset of the hearing, Petitioner admitted to missing his mental-health appointment

and to not participating in mental-health treatment (Violation 3), and he pled no contest to the

three remaining charges. (J.A. 38). To address those alleged violations, the government presented

two witnesses. The first, Jeffrey Vucich, a police officer in Wake County, North Carolina,

testified with respect to Violation 4, the charge that Petitioner had resisted a public official. (J.A.

31, 39).

Officer Vucich told the court that on November 30, 2016, he went to a hotel after its night

manager had called 911 about a “drug violation” (something “very common” at that hotel,

Officer Vucich noted). (J.A. 39). After the officer knocked on a door to one of the rooms, he

heard “some rummaging going around” inside. (J.A. 39). Eventually, a man opened the door (and

then immediately tried to shut it), and Officer Vucich smelled marijuana. (J.A. 39-40). He and

his supervisor then “began to pull people out of the room” to search them. (J.A. 40).

5

Officer Vucich said that when he searched Petitioner, he felt “bullets” in Petitioner’s

pocket. (J.A. 41). At that point, Petitioner tried to “pull[] away.” (J.A. 40). The officer then

“slam[med] [Petitioner] to the ground,” and arrested him. (J.A. 40). Officer Vucich found bullets

in Petitioner’s pocket. (J.A. 41).

Inside the hotel room, under the lid of the toilet, Officer Vucich found “a pistol, cocaine,

and some marijuana.” (J.A. 41). He took those items, but without obtaining a search warrant first,

something he later believed to have been “an error[.]” (J.A. 41). For that reason, he said, he

charged Petitioner only with resisting an officer. (J.A. 42).

Probation Officer Erica W. Foy testified to the two remaining alleged violations: that

Petitioner had absconded from supervision and that he had missed a number of drug screenings.

(J.A. 32, 45). With respect to the absconding charge, Officer Foy testified that after an arrest

warrant had issued on the revocation motion, it took “[a]pproximately two months” for law

enforcement to find Petitioner. (J.A. 45).

Regarding the missed drug tests, Officer Foy said that after Petitioner failed to appear for

screens in November, December, and January, he did show up for testing in March and April of

2017. (J.A. 46). During that time, however, he did not make contact with Officer Foy, but instead

provided his samples at “[the] vendor’s location.” (J.A. 46). Because he took his tests there,

Officer Foy learned he had given specimens “only after the fact.” (J.A. 46).

Following Officer Foy’s testimony, the district court found Petitioner had violated the

terms of his supervised release as to all four of the charged violations. (J.A. 48). The court found

his guideline imprisonment range to be five to eleven months. (J.A. 49). It told the parties the

focus for the remainder of the earing would be Petitioner’s breach of the court’s trust. (J.A. 49).

6

Defense counsel said that Petitioner wished to remain on supervision. (J.A. 49). To that

end, counsel proposed Petitioner be confined by house arrest for 90 days, “the most restrictive

condition one could have.” (J.A. 50). Counsel asked, in the alternative, that the court impose the

low end of the guideline range, i.e., five months in prison. (J.A. 50). Counsel said that

Petitioner’s absconding behavior may have made it appear her client would never cooperate with

supervision. (J.A. 50). However, Petitioner was participating in drug treatment, and he was

employed during the supervision period, helping his mother clean houses--a job he could return

to were he continued on release. (J.A. 50). While in prison, moreover, Petitioner had studied

programming and yoga, he had attended boot camp, and he had taught personal training. (J.A.

51). He also had advanced skills in electrical wiring and plumbing, two areas in which he hoped

to become licensed. (J.A. 51). Petitioner, counsel said, in fact was “motivated to do the right

thing.” (J.A. 51).

Petitioner himself addressed the court, first apologizing to his probation officer “for the

disappointment ” he had caused. (J.A. 51). He said he made no excuses for what he had done

wrong, but he told the court he had done “some right as well.” (J.A. 51). Petitioner explained he

had been “so focused on the pending charge [of resisting an officer] and [on] attorneys’ fees and

oncoming bills” that he was “really blind by society” and not attentive to his supervision. (J.A.

52). In other words, he was “just trying to get the stuff that was ahead of [him] out of the way

first and foremost.” (J.A. 52). The previous week, Petitioner’s child was born, and he “really was

trying to be a regular citizen in the community[.]” (J.A. 52).

At this juncture, the court interjected and told Petitioner, “[Y]ou’re not a regular citizen.”

(J.A. 52). “You’re on supervised release and you can’t blow off your probation officer,” the court

7

continued. (J.A. 52). When Petitioner replied, “That’s understood,” the court answered that it

did not think he did understand. (J.A. 52). The question, the court said, was what the

consequences were going to be for his conduct. (J.A. 52).

The court told Petitioner that it remembered both sentencing and resentencing him, and

that he simply did not appear to be “getting it.” (J.A. 53). “It doesn’t seem like you care,” the

court told him, adding, “It doesn’t seem like you have any respect for the trust this Court placed

in you.” (J.A. 53). The court asked Petitioner why it “shouldn’t just send [him] to prison. . .for

longer than what [was] advised” by the sentencing guidelines,” viewing, as it did, all four of the

violations “to be serious” ones. (J.A. -53-54).

Petitioner then spoke to each of the violations. Regarding the first, “the absconding part,”

he said that whenever he was not at his house, he was at the home of his sister “trying to be

convenient” for his mother and father. (J.A. 54). “I wasn’t running,” Petitioner told the court.

(J.A. 54).

With respect to the missed drug tests, Petitioner said he was not sure if all of the missed

dates alleged in the revocation motion were accurate. (J.A. 56). He then re-emphasized that

during his supervision period he had “focused on” his pending charges, on “oncoming bills,” and

on providing for his new baby. (J.A. 57). Petitioner asked that the court take into account the

“positive [things]” he had done while on release. (J.A. 57). “It’s about priorities,” the court

replied, telling Petitioner he had not given priority to his federal supervision. (J.A. 57).

Petitioner next addressed his failure to participate in mental health treatment (Violation

3). He said had stopped going to counseling because his therapist had continually asked if he

planned to harm himself. (J.A. 57). “It just didn’t feel right” to be asked those questions,

8

Petitioner said, because he had never contemplated suicide. (J.A. 57). He felt, also, that there was

nothing “wrong with [him].” (J.A. 58).

As to Violation 4, the criminal conduct charge, Petitioner said the account the court had

heard from Officer Vucich involved “a lot of missing stuff.” (J.A. 59). As Petitioner had $500 or

$600 in his pocket, he questioned how anyone could identify items in the same pocket as being

“bullets.” (J.A. 59). The items could have been candy or “anything,” he said. (J.A. 59). Petitioner

asked, rhetorically, why he would try to flee, given that Officer Vucich never took shells out of

the pocket. (J.A. 61).Petitioner said he had picked the bullets “up off the floor” as he was

grabbing his personal property when the police came to the room. (J.A. 61). He said he really

didn’t know “what [he had] picked up” at the time. (J.A. 61). The bullets, he said later, were not

“loose” on the floor but were under a pile of money or else “balled up” in money. (J.A. 63). He

told the court that he thought he had taken only “straight money.” (J.A. 63).

The court asked Petitioner about his reason for going to the hotel in the first place. (J.A.

59). He answered that he had met a woman on social media and had gone to the hotel for a

“sexual encounter with her.”(J.A. 59). “While someone else [was] pregnant with your child,” the

court asked. (J.A. 59-60). It elaborated, saying, “You were going to meet her and [lo] and behold

you walk in and there just happens to be a woman and three other guys in the room and you were

surprised?” (J.A. 60). The court continued, “You go in and you think you’re going for a sexual

encounter and then you sit on the bed and [lo] and behold there’s a knock on the door?” (J.A.

60). Petitioner insisted he never tried to flee from Officer Vucich, telling the court that he had

“no reason to run” at the time the officer searched him. (J.A. 63).

9

The government told the court that the “incident at the hotel” had occurred three months

after Petitioner’s supervised release had begun and after he had failed to report for at least one

drug test. (J.A. 64). The government cited Officer Vucich’s belief that Petitioner had tried to

escape from him, and it noted that the police report stated that Petitioner had .22 caliber bullets in

his pocket, ammunition that fit the .22 caliber pistol that had been hidden under the toilet lid.

(J.A. 64).

The government said that because Officer Vucich concluded his seizure of evidence from

the hotel room violated the Fourth Amendment, “those instances weren’t charged.” (J.A. 64).

Had they been, the government told the court, Petitioner would have faced either a Grade B or a

Grade A violation. Had it been the latter, the government said, Petitioner’s guideline

imprisonment range would have been 18 to 24 months. (J.A. 65).

The probation officer told the court Petitioner had “initially showed interest in trying to

be successful on supervision,” although she was not certain he had ever lived at the address he

had provided to her. (J.A. 65- 66). For example, numerous letters she had sent to that address,

and cards she had left at there, “were never received by Petitioner.” (J.A. 66). The officer said

that in her opinion, after “a couple of months of trying [Petitioner went] back to the lifestyle that

[he had] been used to for so long and . . . just gave up [on successfully completing supervision].”

(J.A. 66).

Defense counsel said that her client’s allocution, “while disjointed,” was a “plea to the

Court for some mercy and maybe even some grace.” (J.A. 66). Because five people had been in

the hotel room at the time Officer Vucich entered, and because “there were all these moving

parts,” she asked that the court not vary to the imprisonment range for either a Grade A or a

10

Grade B violation. (J.A. 66). The court replied that it was “not looking at an A or a B violation,”

but it said there were four Grade C violations that each was serious. (J.A. 67). It said in the

“multiplicity of the four violations and . . . in the four violations” there had been a “very, very,

very serious breach of trust.” (J.A. 67).

The court reiterated its comment from earlier in the hearing that the “breach of trust” was

the relevant inquiry at the revocation hearing. (J.A. 68; see J.A. 49). “The Court put trust in you

in connection with your supervision,” it told Petitioner, “[and the court] expected you to abide by

the terms of [that] supervision.” (J.A. 68). The hearing itself showed “fundamentally a failure”

on Petitioner’s part, the court said. (J.A. 68).

The court then discussed each of the violations. (J.A. 68-69). With respect to the criminal

conduct charge (Violation 4), the court said it was only considering Petitioner’s resistance of

Officer Vucich and not anything else that occurred at the hotel. (J.A. 69). The court called the

incident ”one of “a multiplicity of breaches of trust.” (J.A. 70).

The court said the broken trust merited a sentence above the range recommended by the

guidelines. (J.A 70). “I don’t think you really took this [supervision] seriously,” the court told

Petitioner. (J.A. 69). It varied upward and sentenced him to imprisonment for 24 months. (J.A.

70-71, 74). The court concluded by saying it would impose the same sentence were it determined

the court had miscalculated the guideline range. (J.A. 71).

Petitioner appealed his sentence to the United States Court of Appeals for the Fourth

Circuit. (J.A. 75). In that forum, Petitioner argued that the district court’s use of “breach of trust”

as the primary ground for departing upward was plainly unreasonable, as the record did not show

the court had invested any trust in him. In an opinion issued on January 30, 2018, the Fourth

11

Circuit, reviewing the sentence under a “plainly unreasonable” standard, affirmed Petitioner’s

sentence.

MANNER IN WHICH THE FEDERAL QUESTION

WAS RAISED AND DECIDED BELOW

The question whether the district court imposed a plainly unreasonable sentence was

presented to the Fourth Circuit. The Court of Appeals affirmed Petitioner’s sentence. Thus, the

federal claim was properly presented and reviewed below and is appropriate for this Court’s

consideration. See generally, Mullaney v. Wilbur, 421 U.S. 684 (1975).

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD GRANT THE PETITION TO RESOLVE THE

CIRCUIT SPLIT CONCERNING THE PROPER STANDARD OF REVIEW

FOR SENTENCES IMPOSED UPON REVOCATION OF SUPERVISED

RELEASE.

In 2006, the Fourth Circuit held that a “plainly unreasonable” standard for review applies

to supervised release sentences. United States v. Crudup, 461 F.3d 433 (4th Cir. 2006). The Fifth

and Seventh Circuits join the Fourth Circuit in applying that standard. United States v. Miller,

634 F.3d 841, 843 (5th Cir. 2011); United States v. Kizeart, 505 F.3d 672, 674-75 (7th Cir.

2007). See 18 U.S.C. § 3742(a). In the Fourth Circuit, plain-error review has two steps. First,

the Court of Appeals decides whether the sentence is unreasonable. Crudup, 461 F.3d at 439.

Only if the court determines the sentence to be unreasonable does it proceed to whether the

sentence is “plainly unreasonable,” “relying on the definition of ‘plain’ . . . [used] in . . . ‘plain’

error analysis,” meaning “clear” or “obvious.” Id.

In contrast, the remaining circuit courts of appeals review supervised release sentences

for reasonableness/abuse of discretion. United States v. McInnis, 429 F.3d 1, 4 (1st Cir. 2005);

12

United States v. Verkhoglyad, 516 F.3d 122, 127, 130 (2d Cir. 2008); United States v. Bungar,

478 F.3d 540, 542 (3d Cir. 2007); United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007);

United States v. Merrival, 521 F.3d 889, 890 (8th Cir. 2008); United States v. Daniels, 541 F.3d

915, 921 (9th Cir. 2008); United States v. Vigil, 696 F.3d 997, 1001 (10th Cir. 2012); United

States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006) (per curiam); In re Sealed Case, 527

F.3d 188, 194 (D.C. Cir. 2008). The circuits are thus split on the standard of review to apply to

sentences such as Petitioner’s.

This issue cries out for clarification that only this Court can provide. Petitioner believes

the proper appellate standard of review is for reasonableness, and he believes the Fourth Circuit

incorrectly applied a “plainly unreasonable” standard to his sentence. Thus, Petitioner

respectfully asks this Court to grant this petition to settle this question.

13