Petition for Writ of Certiorari — Jacqueline Bustamante, Petitioner v. United States

No. ____________

IN THE

SUPREME COURT OF THE UNITED STATES

___________________

JACQUELINE BUSTAMANTE ,

Petitioner,

v.

UNITED STATES OF AMERICA

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

For the Eleventh Circuit

___________________________________________

PETITION FOR WRIT OF CERTIORARI

Robert A. Ratliff, Esq.

Robert A Ratliff, PC

713 Dauphin Street

Mobile, Alabama 36602

(251) 438-2250

May 26, 2018

I.

QUESTIONS PRESENTED FOR REVIEW

I.

Whether Petitioner’s Contractual Appeal Waiver Should Be

Void Under Contract Law and Thus Inapplicable to the

Serious, Constitutional Fourth Amendment Concern Raised

on Appeal?

II.

Whether the Fourth Amendment Guarantees the Petitioner

the Right to Be Free from Any Warrantless Investigatory

Stop by Armed, Law Enforcement Authorities Absent Any

Reasonable, Articulable Suspicion, Based on Objective

Facts, That the Person Has Engaged in Criminal Activity?

i

II.

LIST OF PARTIES AND RULE 29.6 STATEMENT

Other than Petitioner’s co-defendant, the caption of the case

contains the names of all of the parties to the proceedings before the

court of appeals.

The Petitioner is an individual and thus no parent corporations or

publicly held corporations are involved in this matter.

ii

III. TABLE OF CONTENTS

Pages

I.

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

II.

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

III.

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

IV.

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

V.

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

VI.

STATEMENT OF THE BASIS FOR JURISDICTION. . . . . . . . . . 2

VII. CONSTITUTIONAL PROVISION INVOLVED. . . . . . . . . . . . . . . 3

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

IX.

STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

X.

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

XI.

1.

Whether Petitioner’s Contractual Appeal Waiver Should Be

Void under Contract Law and Thus Inapplicable to the

Serious, Constitutional Fourth Amendment Concern Raised

on Appeal?

II.

Whether the Fourth Amendment Guarantees the Petitioner

the Right to Be Free from Any Warrantless Investigatory

Stop by Armed, Law Enforcement Authorities Absent Any

Reasonable, Articulable Suspicion, Based on Objective

Facts, That the Person Has Engaged in Criminal Activity?

REASONS FOR GRANTING THE WRIT. . . . . . . . . . . . . . . . . . . . 6

XII. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

iii

XIII. CERTIFICATE OF WORD LIMITATIONS. . . . . . . . . . . . . . . . . 24

XIV. CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

XV. APPENDIX:

Exhibit 1 (Court of Appeals Opinion)

Exhibit 2 (District Court Opinion)

Exhibit 3 (Plea Agreement)

Exhibit 4 (Judgment and Commitment)

iv

IV.

TABLE OF AUTHORITIES

Pages

Cases

Alabama v. White, 496 U.S. 325 (1990). . . . . . . . . . . . . . . . . . . . . . 19,20

Blackledge v. Allison, 431 U.S. 63 (1977). . . . . . . . . . . . . . . . . . . . . . . . 10

Boles v. United States, 2016 U.S. App. LEXIS 20583

(11th Cir. November 17, 2016).. . . . . . . . . . . . . . . . . . . . . . . . . . . 10

California v. Ciraolo, 476 U.S. 207 (1986). . . . . . . . . . . . . . . . . . . . . . . 18

Coppedge v. United States, 369 U.S. 438 (1962). . . . . . . . . . . . . . . . . . 22

Hull v. Norcom, Inc., 750 F.2d 1547 (11th Cir. 1985). . . . . . . . . . . . . . 11

INS v. Delgado, 466 U.S. 210 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Katz v. United States, 389 U.S. 347 (1967). . . . . . . . . . . . . . . . . . . . . . 18

Kernan v. Cuero, 138 S. Ct. 4 (2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Schneckloth v. Bustamonte, 412 U.S. 218 (1973). . . . . . . . . . . . . . . . . 21

Tollett v. Henderson, 411 U.S. 258 (1973). . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Andis, 333 F.3d 886 (8th Cir. 2003). . . . . . . . . . . . 8,12

United States v. Arnett, 628 F.2d 1162 (9th Cir. 1979).. . . . . . . . . . . . 11

United States v. Blake, 888 F.2d 795 (11th Cir. 1989). . . . . . . . . . . . . 20

United States v. Bolinger, 940 F.2d 478 (9th Cir. 1991). . . . . . . . . . 9,14

United States v. Brown, 232 F.3d 399 (4th Cir. 2000).. . . . . . . . . . . . . . 9

v

United States v. Bushert, 997 F.2d 1343 (11th Cir. 1993). . . . . . . . . 10

United States v. Bustamante, 714 Fed. Appx. 965,

2018 U.S. App. LEXIS 5458 (11th Cir. Ala. February 28, 2018). . . . . . 2

United States v. Chandler, 534 F.3d 45 (1st Cir. 2008).. . . . . . . . . . . . . 8

United States v. Feichtinger, 105 F.3d 1188 (7th Cir. 1997).. . . . . . . . . 9

United States v. Garcia, 178 F.Supp.3d 1250 (S.D. Ala. 2016). . . . . . . . 2

United States v. Garcia, 890 F.2d 355 (11th Cir. 1989).. . . . . . . . . . . . 18

United States v. Guevara, 941 F.2d 1299 (4th Cir. 1991). . . . . . . . . . . 16

United States v. Guillen, 561 F.3d 527 (D.C. Cir. 2009). . . . . . . . . . . . 19

United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004). . . . . . . . . . . . . 8

United States v. Johnson, 992 F. Supp. 437 (D.D.C. 1997). . . . . . . . . . 13

United States v. Khattak, 273 F.3d 557 (3d Cir. 2001). . . . . . . . . . . 8,12

United States v. Krasn, 614 F.2d 1229 (9th Cir. 1980). . . . . . . . . . . . . 11

United States v. Mathews, 534 Fed. App'x 418 (6th Cir. 2013).. . . . . . . 8

United States v. Medina-Carrasco, 806 F.3d 1205 (9th Cir. 2015). . . . 13

United States v. Melancon, 972 F.2d 566 (5th Cir. 1992). . . . . . . . . . . 12

United States v. Mezzanatto, 513 U.S. 1965 (1995). . . . . . . . . . . . . 9,11

United States v. Nguyen, 235 F.3d 1179 (9th Cir. 2000). . . . . . . . . . . . 12

United States v. Perez, 46 F. Supp. 2d 59 (D. Mass. 1999). . . . . . . 15,16

vi

United States v. Powell, 222 F. 3d 913 (11th Cir. 2000). . . . . . . . . . . 18

United States v. Raynor, 989 F. Supp. 43 (D.D.C. 1997). . . . . . . 13,15,16

United States v. Teeter, 257 F.3d 14( 1st Cir. 2001). . . . . . . . . . . . . . . 11

Whren v. United States, 517 U.S. 806 (1996). . . . . . . . . . . . . . . . . . . . 18

Statutes; Rules; Guidelines

18 U.S.C. §3742(c)(1)-(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

21 U.S.C. §841(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

21 U.S.C.§846. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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

Fed. R. Civ. Proc. 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

U.S.S.G.§6B1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

U.S.S.G §6B1.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

U.S. Attorneys Manual, Criminal Resource Manual (“CRM”)

Section 626. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Law Review and Journal Articles

Kevin Bennardo,

Post-Sentencing Appellate Waivers,

48 U. Mich. J. L. Reform 347 (2015). . . . . . . . . . . . . . . . . . . . . . . . 8

Robert K. Calhoun,

Waiver of the Right to Appeal,

23 Hastings Const. L. Q. 127 (1995). . . . . . . . . . . . . . . . . . . . . . . . 8

vii

Kristine Cordier Karnezis, Annotation,

Validity and Effect of Criminal Defendant's Express

Waiver of Right to Appeal as Part of Negotiated

Plea Agreement, 89 A.L.R.3d 864 (1979). . . . . . . . . . . 8

Andrew Dean, Comment,

Challenging Appeal Waivers,

61 Buff. L. Rev. 1191 (2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Robert E. Scott & William J. Stuntz,

Plea Bargaining as Contract,

101 YALE L. J. 1909, 1911 (1992). . . . . . . . . . . . . . . . . . . . . . . . . 10

viii

No. ________________

IN THE

SUPREME COURT OF THE UNITED STATES

___________________

JACQUELINE BUSTAMANTE,

Petitioner,

v.

UNITED STATES OF AMERICA

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

For the Eleventh Circuit

___________________

PETITION OF WRIT OF CERTIORARI

1

The Petitioner, by and through her undersigned counsel, hereby

respectfully petitions for a writ of certiorari to review the judgment of

the Eleventh Circuit Court of Appeals in the herein-referenced matter.

V.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 2a), dismissing

the appeal before it, is found at United States v. Bustamante, 714 Fed.

Appx. 965, 2018 U.S. App. LEXIS 5458 (11th Cir. Ala. February 28,

2018) . The judgment and commitment order of the district court

convicting and sentencing Petitioner is also attached hereto (App.,

infra, 28 a) The district court’s opinion regarding Petitioner’s original

Motion to Suppress is published at United States v. Garcia, 178

F.Supp.3d 1250 (S.D. Ala. 2016)( App., infra, 4a)

VI.

STATEMENT OF THE BASIS FOR JURISDICTION

The judgment of the district court was entered on May 12, 2017.

(App., infra 28a) A timely notice of appeal was filed on May 18, 2017

and the case was docketed in the court of appeals (Eleventh Cir., No.

17-12250). The court of appeals filed its opinion on February 28, 2018.

(App., infra, 2a)

Petitioner hereby files this petition for a writ of certiorari and

2

invokes the jurisdiction of this Court under 28 U.S.C. §1254(1).

VII. CONSTITUTIONAL PROVISION INVOLVED

The relevant constitutional provision is the Fourth Amendment to

the Constitution of the United States:

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

VIII.

STATEMENT OF THE CASE

Petitioner Jacqueline Bustamante (hereinafter referred to as

“Petitioner” or “Ms. Bustamante”) and one co-defendant were named in

a two-count indictment by the January 2016 Federal Grand Jury for

the Southern District of Alabama, Mobile, Alabama. Count one charged

that on or about December 1, 2015, and continuing through December

15, 2015, the two defendants did knowingly conspire with each other to

distribute and possess with the intent to distribute methamphetamine,

contrary to 21 U.S.C. §841(a)(1), in violation of 21 U.S.C.§846. Count

two charged that on December 15, 2015, both defendants did knowingly

3

and intentionally unlawfully possess with the intent to distribute a

Schedule II controlled substance. Specifically, the substance was

approximately three kilograms of methamphetamine in violation of 21

U.S.C. §841(a)(1).

The two defendants were subsequently named in a superseding

indictment by the February 2016 Federal Grand Jury for the Southern

District of Alabama, Mobile, Alabama. The superseding indictment

added a count directed only to Petitioner’s co-defendant, charging

illegal entry into the United States by an alien previously removed.

(Counts one and two of the original indictment correspond to counts

two and three of the superseding indictment.)

On January 20, 2017, Petitioner pled guilty to Count One of the

original indictment pursuant to a written plea agreement (App., infra.,

11a) with the Government and was subsequently sentenced on May 12,

2017 to a term of incarceration of 188 months and a subsequent term of

supervised release of five years. (See, App., infra, 28a)

A timely notice of appeal was filed by Petitioner on May 18, 2017.

The Government moved to dismiss the appeal pursuant to the

Petitioner’s Plea Agreement (App., infra., 11a), which motion was

4

granted.

Petitioner is currently in the care and custody of the United

States Attorney General through the Federal Bureau of Prisons at the

Federal Correction Institution at FCI Aliceville, Aliceville, Alabama.

IX.

STATEMENT OF FACTS

The instant case arises out of a pretextual traffic stop. At

approximately 9:30 in the morning of December 15, 2015, Petitioner,

together with her co-defendant and an infant child, were traveling

eastbound on Interstate 10 near the Alabama/Mississippi state line.

Posted and parked on the same Interstate was a Mobile County

Sheriff’s Office (“MCSO”) officer who noticed the Petitioner’s vehicle

and began to follow it for no articulable illegal activity. After following

the vehicle for a short time, Petitioner’s vehicle was stopped by the

MCSO officer under the pretext that it had allegedly changed lanes

without signaling. (Petitioner contends that no violation occurred, and

that the officers were not in a position to observe whether the vehicle

had signaled. No ticket for a violation was ever given, only a

“warning.”)

The vehicle was driven by Petitioner’s co-defendant, however

5

Petitioner informed the officers that the vehicle was hers.

Subsequently, the Petitioner’s vehicle was searched and

methamphetamines were discovered.

Petitioner was subsequently indicted in the Southern District of

Alabama.

X.

XI.

ISSUES PRESENTED

I.

Whether Petitioner’s Contractual Appeal Waiver Should Be

Void Under Contract Law and Thus Inapplicable to the

Serious, Constitutional Fourth Amendment Concern Raised

on Appeal?

II.

Whether the Fourth Amendment Guarantees the Petitioner

the Right to Be Free from Any Warrantless Investigatory

Stop by Armed, Law Enforcement Authorities Absent Any

Reasonable, Articulable Suspicion, Based on Objective

Facts, That the Person Has Engaged in Criminal Activity?

REASONS FOR GRANTING THE WRIT

Whether Petitioner’s contractual appeal waiver should be void

under contract law and thus inapplicable to the serious, constitutional

Fourth Amendment concern raised on appeal?

The Government moved to dismiss Petitioner’s appeal based upon

a limited appeal waiver contained in the Petitioner’s plea agreement. It

was the Government’s argument that as part of the broad and

6

unilateral representations represented in this Plea Agreement (App.,

infra. 11a), the Petitioner waived the right to file any direct appeal.

However, it is fundamentally important to society in general and

judicially in particular to be consistent in interpreting agreements.

Throughout the circuits, although the appellate courts have been

consistent in their micro-review of appeal waivers contained in plea

agreements, courts have been inconsistent in any macro-interpretation,

claiming on one hand that plea agreements should be interpreted under

contract law, yet then misapplying contractual rules of construction.

See, Kernan v. Cuero, 138 S. Ct. 4, 199 L. Ed. 2d 236, 2017 U.S. LEXIS

6631, (2017)(Plea agreements amount to, and should be interpreted as,

contracts under contract law.)

As part of Petitioner’s Plea Agreement, she was required to assent

to an appeal waiver. (Plea Agreement, App., infra.,11a) The appeal

waiver was, in essence, a unilateral waiver with no mutuality

balancing the covenants of both the Petitioner and the Government.

Since plea agreements, and the appeal waivers contained therein, are

contractual in nature, they must be viewed as contracts of adhesion,

prospective, asymmetric, unfair, and held to be unenforceable.

7

When reviewing the concept of appeal waivers, a concept

unexamined for many years by this Court, it is posited that the legal

existence of an appeal waiver is ethically and constitutionally suspect

as it is grounded purely in resource conservation considerations

advocated by prosecutors and judges. See, e.g., Kevin Bennardo,

Post-Sentencing Appellate Waivers, 48 U. Mich. J. L. Reform 347

(2015); Robert K. Calhoun, Waiver of the Right to Appeal, 23 Hastings

Const. L. Q. 127 (1995); Kristine Cordier Karnezis, Annotation, Validity

and Effect of Criminal Defendant's Express Waiver of Right to Appeal

as Part of Negotiated Plea Agreement, 89 A.L.R.3d 864 (1979); see also

Andrew Dean, Comment, Challenging Appeal Waivers, 61 Buff. L. Rev.

1191 (2013).

Almost all of the circuits have concluded that, absent some

egregious circumstance or a miscarriage of justice, a unilateral waiver

of the right to appeal is enforceable, despite its contractual foundation.

See, United States v. Mathews, 534 Fed. App'x 418 (6th Cir. 2013);

United States v. Chandler, 534 F.3d 45 (1st Cir. 2008); United States v.

Hahn, 359 F.3d 1315 (10th Cir. 2004); United States v. Andis, 333 F.3d

886 (8th Cir. 2003); United States v. Khattak, 273 F.3d 557 (3d Cir.

8

2001); United States v. Brown, 232 F.3d 399 (4th Cir. 2000); United

States v. Feichtinger, 105 F.3d 1188 (7th Cir. 1997); United States v.

Bolinger, 940 F.2d 478 (9th Cir. 1991).

The right to appeal one's sentence in plea agreements derives

from federal statute, which permits filing an appeal by a defendant if

the sentenced imposed by the judge was greater than the sentence set

forth in the plea agreement, or by the government if the sentence

imposed was less. 18 U.S.C. §3742(c)(1)-(2). Appeal waivers are

implicitly authorized by Federal Rule of Civil Procedure 11 that

acknowledges the existence of the waiver of the right to appeal by

requiring the court to discuss any such terms in a plea agreement

explicitly with defendants. Fed. R. Civ. Proc. 11.

Appeal waivers, the unilateral prospective waiver of the

constitutional right of appellate review, is unfortunately now a

recognized national practice. With roughly 97% of all federal

convictions resulting from guilty pleas, and the majority of guilty pleas

including appeal waivers, the enforceability of these provisions is quite

fundamental especially in light of the context of such waivers involving

unequal bargaining positions. Recognizing this unilateral leverage,

federal prosecutors have outlined the parameters and the legality in

their U.S. Attorneys Manual, Criminal Resource Manual (“CRM”),

Section 626.

In the CRM, the legality of these provisions generally is

confirmed. See United States v. Mezzanatto, 513 U.S. 1965 (1995);

9

Tollett v. Henderson, 411 U.S. 258 (1973); Blackledge v. Allison, 431

U.S. 63 (1977), cert. denied, 116 S. Ct. 548 (1995).

Consistent with that principle, most appellate courts have upheld

the general validity of a sentencing appeal waiver in a plea agreement.

See, e.g., United States v. Bushert, 997 F.2d 1343 (11th Cir. 1993), cert.

denied, 115 S. Ct. 652 (1994); however, see Boles v. United States, 2016

U.S. App. LEXIS 20583 (11th Cir. November 17, 2016) (double jeopardy

claim is not barred by a knowing and voluntary waiver). However, it is

important to note that the United States Sentencing Commission's

policy statements allow judges to accept plea agreements as long as the

agreements do not undermine the statutory purposes of sentencing or

the Sentencing Guidelines. U.S.S.G. §§6B1.2 and 6B1.4 (Nov. 1994).

A plea bargain is a contract between the prosecutor and a

defendant, and an appeal waiver is part of that contract. Plea

agreements must be construed in light of, and subject to, the rights and

obligations created by the Constitution. Guilty pleas are generally

negotiated outside the courtroom, between just the lawyers, without

the defendant, and in the absence of any witness or recording

mechanism. See, Robert E. Scott & William J. Stuntz, Plea Bargaining

10

as Contract, 101 YALE L. J. 1909, 1911 (1992). This “scandalously

casual” process of “horse trading,” which determines who goes to prison

and for how long, is “not some adjunct to the criminal justice system; it

is the criminal justice system.” Id. at 1911-12.

“Although plea bargaining is a matter of criminal jurisprudence, a

plea bargain itself is contractual in nature and ‘subject to

contract-law standards.’” United States v. Krasn, 614 F.2d 1229,

1233 (9th Cir. 1980) (quoting United States v. Arnett, 628 F.2d

1162, 1164 (9th Cir. 1979)). The terms of a plea agreement are

interpreted according to “objective standards” and, in the event of

a dispute, the “dispositive question” is what the parties

“reasonably understood.” Arnett, 628 F.2d at 1164. However,

given their context, plea agreements are contracts of adhesion,

and must be strictly construed against the Government. See,

United States v. Mezzanatto, Id.

Notwithstanding the utilitarian acceptance of appeal waiver

provisions in plea agreements, there are major issues of fairness and

equity impacted by requiring a defendant to enter into an asymmetric

provision, requiring a defendant to waive appellate rights, but leaving

the Government fully able to seek review for any reason. See,

Paragraph 24, Plea Agreement, App., infra, __a. Under the

well-established provisions of contract law, this lack of mutuality

directly impacts the enforceability of the contractual plea agreement.

See, Hull v. Norcom, Inc., 750 F.2d 1547 (11th Cir. 1985)

11

In enforcing unilateral waivers of appellate rights, the various

circuits have reasoned that, because a defendant may waive

constitutional rights, he or she may also waive the statutory right to

appeal a sentence. See, United States v. Andis, 333 F.3d at 889 ("the

right to appeal is not a constitutional right but rather 'purely a

creature of statute'"); United States v. Khattak, 273 F.3d at 561 ("The

ability to waive statutory rights, like those provided in 18 U.S.C. §3742,

logically flows from the ability to waive constitutional rights."); United

States v. Teeter, 257 F.3d 14 at 21-22( 1st Cir. 2001) ("the idea of

permitting presentence waivers of appellate rights seems relatively

tame because the right to appeal in a criminal case is not of

constitutional magnitude"); United States v. Nguyen, 235 F.3d 1179,at

1182 (9th Cir. 2000)(noting that the right to appeal "is statutory, rather

than constitutional, in nature"). This analysis, which focuses solely on

the sources of the rights being relinquished, ignores the important

distinction between contemporaneous and prospective waivers.

Unlike a contemporaneous waiver (for example, the waiver of the

right to remain silent that occurs when a defendant speaks, or the

waiver of the right to have a jury determine guilt that occurs when a

12

defendant admits guilt), a prospective waiver raises concerns about the

facts known to the defendant at the time the waiver is executed. United

States v. Melancon, 972 F.2d 566, 571-72 (5th Cir. 1992) (Parker, D.J.,

concurring specially); see United States v. Medina-Carrasco, 806 F.3d

1205, 1212 (9th Cir. 2015) (Friedman, D.J., dissenting) ("Sentencing . . .

does not occur contemporaneously with the plea and waiver. It is a

future event, and the mistakes from which one might have reason to

appeal have not yet occurred at the time a defendant waives the right

to appeal . . . ."). Generally, when a guilty plea is entered and the right

to appeal the ensuing sentence is waived, the scope of the record that

will be considered at sentencing has not yet been defined, the

presentence report has not yet been prepared, the applicable U.S.S.G.

range has not yet been calculated, and the sentence has not yet been

imposed. Given the quantum of information usually unavailable at the

time of the plea, a prospective waiver of appellate rights might often be

"unknowing and unintelligent." United States v. Medina-Carrasco, 806

F.3d 1205, 1212 (Friedman, D.J., dissenting); see, United States v.

Johnson, 992 F. Supp. 437, 439 (D.D.C. 1997)(refusing to accept a plea

containing a waiver of the right to appeal); United States v. Raynor,

13

989 F. Supp. 43, 48 (D.D.C. 1997) (same).

Recognizing the dichotomy between contemporaneous and

prospective waivers, the District of Columbia Circuit has held that a

defendant who waives the right to appeal a sentence does not thereby

agree "to accept any defect or error that may be thrust upon him by

either an ineffective attorney or an errant sentencing court." United

States v. Guillen, 561 F.3d 527, 530 (D.C. Cir. 2009). According to

Guillen, an appellate waiver "relieves neither [the defendant's]

attorney nor the district court of their obligations to satisfy applicable

constitutional requirements." Id. The District of Columbia Circuit has

indicated that it will not enforce a waiver of the right to appeal "if the

sentencing court's failure in some material way to follow a prescribed

sentencing procedure results in a miscarriage of justice." Id. at 531.

This pronouncement resonates with the view that the provisions of 18

U.S.C. § 3742 do not merely confer a right to appeal, but rather impose

limitations on judicial authority, which cannot be "waived" by the

parties. See, United States v. Bolinger, 940 F.2d 478, 483 (9th Cir.

1991) (D.W. Nelson, C.J., dissenting in part) (observing that, because "a

salient purpose of the Guidelines is to reduce sentencing disparity and

14

to create uniformity," an appeal asserting that the district court

"misapplied the Guidelines . . . should not be barred by waiver").

Although courts would not intentionally impose an improper

sentence, a sentencing court is not infallible and, in the course of

formulating a sentence, it is often faced with issues on which

reasonable minds can differ. The criminal justice system is not

improved by insulating from review either simple miscalculations or

novel questions of law. Moreover, in the wake of Booker, which

rendered the sentencing guidelines merely advisory, see 543 U.S. at

245, we have returned to a sentencing regime with the potential to

generate the types of unwarranted disparities that Congress attempted

to eradicate in enacting the Sentencing Reform Act of 1984.

Only appellate courts have the vantage necessary to assess

whether sentences are being imposed in a uniform manner within a

circuit or across the country; however, the habitual acceptance and

enforcement of unilateral waivers of appellate rights precludes such

analysis, and is likely to lead to a wide range of sentences, despite

similarities in offense levels and criminal histories. This "systemic

distortion" is further intensified by the "asymmetry" in appellate

15

rights, which allows the Government to seek harsher sentences on

review, and results in jurisprudence necessarily "skewed" toward

restricting the ways in which district courts may show leniency. See,

United States v. Perez, 46 F. Supp. 2d 59, 69 (D. Mass. 1999); United

States v. Raynor, 989 F. Supp. 43, 46 (D.D.C. 1997).

One of the major arguments in favor of prospective appellate

waives is that unilateral waivers of the right to appeal promote finality.

Such a position is disingenuous. United States v. Perez, Id., at 69;

United States v. Raynor, Id. at 48 ("If the purpose of the waiver . . . is

to eliminate frivolous appeals, . . . the government is engaging in

overkill."). Finality is not secured simply because only the Government,

and not the defendant, is entitled to appeal. United States v. Guevara,

941 F.2d 1299 (4th Cir. 1991).

Moreover, to the extent the Government's motive is merely to

reduce the burden of appellate and collateral litigation on sentencing

issues, the avenue for achieving such finality is explicitly contemplated

in Rule 11(c)(1)(C), pursuant to which the Government may agree to a

specific U.S.S.G. range and bind both the defendant and the court. See

Fed. R. Crim. P. 11(c)(1)(C); Raynor, Id. at 48 (citing 18 U.S.C. §3742(c)

16

and former Rule 11(e)(1)(C) [now Rule 11(c)(1)(C)]). Because a

defendant's ability to appeal from a sentence imposed pursuant to a

Rule 11(c)(1)(C) plea agreement is statutorily restricted, an appellate

waiver is simply cumulative and unnecessary.

In this matter, the trial court erred in denying the Petitioner’s

motion to suppress, allowing the court to consider evidence that was

obtained without a warrant and contrary to the Fourth Amendment.

Unfortunately, Petitioner was denied the right of appellate review due

to an unenforceable contract term, specifically an appeal waiver.

Whether the Fourth Amendment guarantees the Petitioner the

right to be free from any warrantless investigatory stop by armed, law

enforcement authorities absent any reasonable, articulable suspicion,

based on objective facts, that the person has engaged in criminal

activity?

Whether an individual has the right, under the Fourth

Amendment, to be free from any warrantless investigatory stop by

armed, law enforcement authorities absent any reasonable, articulable

suspicion, based on objective facts, that the person has engaged in

criminal activity?

17

The Fourth Amendment of the United States Constitution

protects individuals from unreasonable searches and seizures by law

enforcement authorities of the United States government. United

States v. Garcia, 890 F.2d 355 (11th Cir. 1989). It is the entire scope of

such seizures and searches that is implicated by the Government’s

stopping Petitioner Bustamante’s vehicle, searching the vehicle, and

ultimately seeking statements regarding criminal activity from the

Petitioner.

Under the Fourth Amendment, Ms. Bustamante should maintain

an initial right to be free from any investigatory stop by armed, law

enforcement authorities. The threshold question of whether the Fourth

Amendment applies is whether "a person has a 'constitutionally

protected reasonable expectation of privacy'" under the circumstances.

California v. Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 90 L. Ed. 2d

210 (1986) (quoting Katz v. United States, 389 U.S. 347, 360, 88 S. Ct.

507, 516, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring)).

Pursuant

to the cases providing guidance for the Fourth Amendment, agents of

the Government may only stop a vehicle if police have probable cause to

believe that a traffic violation has occurred (Whren v. United States,

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517 U.S. 806, 116 S.Ct. 1769, 1772, 135 L. Ed. 2d 89 (1996)) or when

officers have a reasonable, articulable suspicion, based on objective

facts, that the person has engaged in criminal activity (United States

v. Powell, 222 F. 3d 913 (11th Cir. 2000).

In the case at bar, law enforcement did not have a reasonable,

articulable suspicion, based on objective facts, that the Petitioner had

engaged in criminal activity. The facts are that the MCSO stopped the

subject vehicle claiming, pretextually, that a traffic infraction occurred.

None did.

As indicated above, Petitioner concedes that the Fourth

Amendment permits law enforcement to stop vehicles briefly for further

investigation when there is reasonable suspicion that criminal activity

may be afoot. See Alabama v. White, 496 U.S. 325, 328-30 (1990).

Reasonable suspicion requires "'some minimal level of objective

justification' for making the stop." INS v. Delgado, 466 U.S. 210, 217

(1984). This is a lower hurdle than the probable cause necessary to

obtain a search warrant, given the lesser infringement on an

individual's liberty. "[P]robable cause means 'a fair probability that

contraband or evidence of a crime will be found,' and the level of

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suspicion required for a Terry stop is obviously less demanding than for

probable cause." Alabama v. White, Id. at 330 (quoting Illinois v. Gates,

462 U.S. 213, 238 (1983)).

Further, the stop, even if allowed, must be brief. Though the

Government implies that the stop was for minutes, logic dictates

longer. Petitioner was ordered out of the vehicle and patted down. She

waited and waited. Clearly, this brief investigative stop was beyond its

own allowable definition.

It is well settled under the Fourth and Fourteenth Amendments

that a search conducted without a warrant issued upon probable cause

is per se unreasonable . . . subject only to a few specifically established

and well-delineated exceptions. "One of the well-established exceptions

to the probable cause and warrant requirements is a search which is

conducted pursuant to voluntary consent." United States v. Blake, 888

F.2d 795, 798 (11th Cir. 1989) "The government bears the burden of

proving . . . that the consent was not a function of acquiescence to a

claim of lawful authority but rather was given freely and voluntarily.

Id.

"'[V]oluntariness is a question of fact to be determined from all

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the circumstances' when evaluating the validity of a consent to search."

Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S. Ct. 2041,

2058-59, 36 L. Ed. 2d 854 (1973)). In evaluating the totality of the

circumstances underlying consent, the court is required to review

several indicators, including the presence of coercive police procedures,

the extent of the defendant's cooperation with the officer, the

defendant's awareness of his right to refuse consent, the defendant's

education and intelligence, and the defendant's belief that no

incriminating evidence will be found.

The trial court found that, as a matter of law, Petitioner’s consent

to the search was proper. This determination was incorrect. Any clear

review of the totality of circumstances would reach just the opposite

factual conclusion. Schneckcloth v. Bustamonte, 412 U.S. 218 (1973)

First of all, it us uncontroverted that the vehicle was stopped and

approached by armed, law enforcement officers. Petitioner was patted

down. Coupled with these typical, traffic-stop procedures, and ignored

completely by the lower court, is the fact that Petitioner has a limited

education, with no high school or equivalent education coming from

Guatemala. Her familiarity with law enforcement is based in that

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foreign country and not the due process rights of our Constitution. That

familiarity taught Petitioner that (1) real superiority lies with the

officers, (2) refusing to comply with a request usually brings

punishment, and (3) a request from an armed officer is akin to a

demand. While these statements may not sustain an objective review

in the world of the judiciary, these are principles of truth and reality in

the world of the Petitioner.

In sum, Petitioner did not think she could refuse the request for a

search. She was not free to make up her own mind and to arrive with

an “unconstrained choice”, as the prior decisions require. Therefore, she

did not. Her consent was not voluntary and the search should have

been suppressed together with all evidence flowing therefrom. This

Court is now requested to provide the clear guidance to the circuits as

to the application of the Fourth Amendment to such a circumstance.

XII. CONCLUSION

As this Court noted in Coppedge v. United States, 369 U.S. 438,

449 (1962), “when society acts to deprive one of its members of his life,

liberty, or property, it takes its most awesome steps. No general respect

for, nor adherence to, the law as a whole can well be expected without

22

judicial recognition of the paramount need for prompt, eminently fair

and sober criminal law procedures. The methods we employ in the

enforcement of our criminal law have aptly been called the measures by

which the quality of our civilization may be judged.”

The global and unrestricted use of appeal waivers deserve to be

brought within some constitutional dimensions.

The Petitioner respectfully requests that this Honorable Court

issue the requested writ of certiorari.

Respectfully Submitted,

/s/Robert A. Ratliff

Robert A. Ratliff, Esq.

Robert A. Ratliff, PC

713 Dauphin Street

Mobile, Alabama 36602

(251) 438-2250

rar@ratlifflegalgroup.com

Counsel For Petitioner

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XIII. CERTIFICATE OF WORD LIMITATIONS

I hereby certify that the foregoing Petition, exclusive of mandated

information under S.Ct.R. 33, is 25 pages in length and 5344 in word

count, utilizing the word count of the word processing program used to

prepare this document.

/s/Robert A. Ratliff

Robert A. Ratliff

Attorney for Petitioner

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XIV. CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing was

served upon the following via regular U.S. Mail, with sufficient postage

to ensure delivery, this 26 day of May, 2018, and that all parties

required to be served have been served:

Solicitor General of the United States

Room 5614, Department of Justice

950 Pennsylvania Avenue, NW

Washington, D.C. 20530-0001

/s/Robert A. Ratliff

Robert A. Ratliff, Esq.

Robert A. Ratliff, PC

713 Dauphin Street

Mobile, Alabama 36602

(251) 438-2250

rar@ratlifflegalgroup.com

Counsel For Petitioner

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