Petition for Writ of Certiorari — Michael Ferguson, Petitioner v. United States

No. A._____

________________________________________________________________________

In the Supreme Court of the United States

MICHAEL FERGUSON,

Applicant,

v.

UNITED STATES of AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

FEDERAL DEFENDER OFFICE

Colleen P. Fitzharris

Brandy Y. Robinson

Counsel for Petitioner

613 Abbott St., 5th Floor

Detroit, Michigan 48226

Telephone No. (313) 967-5542

colleen_fitzharris@fd.org

QUESTIONS PRESENTED FOR REVIEW

The district court sentenced Michael Ferguson to serve nearly eleven

years in prison based on double hearsay, bare arrest records, and dismissed

charges. The Sixth Circuit held that, even if the evidence was unreliable, no

Due Process violation occurred because the district court relied on that

evidence only to reject a request for a variance. The Sixth Circuit also held that

the evidence was sufficiently reliable.

(1) What standard of scrutiny does Due Process require courts

to use when evaluating the reliability of evidence courts rely

on to impose a sentence?

(2) Is there a different standard of scrutiny for evaluating the

reliability of evidence relied on to impose a sentence within

the advisory Guidelines range?

ii

PARTIES TO THE PROCEEDINGS

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

of the case.

iii

TABLE OF CONTENTS

PARTIES TO THE PROCEEDINGS ........................................................................... iii

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

PETITION FOR WRIT OF CERTIORARI ................................................................... 1

OPINIONS BELOW ...................................................................................................... 1

STATEMENT OF JURISDICTION .............................................................................. 2

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

STATUTORY PROVISIONS INVOLVED .................................................................... 3

INTRODUCTION .......................................................................................................... 6

REASONS FOR GRANTING THE WRIT .................................................................. 13

A. Reliance on Dismissed Charges to Increase Sentences Presents

Serious Sixth Amendment Problems. ....................................................... 13

B. Federal Courts Apply Inconsistent Standards to Determine Whether

Hearsay is Sufficiently Reliable to Use at Sentencing. ......................... 16

C. Sentencing Courts Continue to Rely on Bare Arrest Records to Select

Sentences. ........................................................................................................ 19

D. The Sixth Circuit Created a New Rule, Applying a Less Rigorous

Standard for Reliability to Evidence Used to Impose a Sentence

Within the Advisory Guidelines. ................................................................ 21

E. This Petition Presents a Clean Vehicle. .................................................... 22

CONCLUSION............................................................................................................. 24

CERTIFICATE OF COMPLIANCE WITH WORD COUNT LIMITATIONS ........... 25

CERTIFICATE OF SERVICE ..................................................................................... 26

DECLARATION VERIFYING TIMELY FILING ...................................................... 27

iv

TABLE OF AUTHORITIES

Cases

Alleyne v. United States, 570 U.S. 99 (2013) .............................................................. 13

Apprendi v. New Jersey, 530 U.S. 466 (2000) ............................................................. 13

Beckles v. United States, 137 S. Ct. 886 (2017) .......................................................... 21

Crawford v. Washington, 541 U.S. 36 (2004).............................................................. 16

Cunningham v. California, 549 U.S. 270 (2007) ........................................................ 13

Gall v. United States, 552 U.S. 38 (2007) ................................................................... 22

Hughes v. United States, 138 S. Ct. 1765 (2018) ........................................................ 21

Jones v. United States, 547 U.S. ---, 135 S. Ct. 8 (2014) ............................................ 14

Missouri v. Frye, 566 U.S. 134 (2012) ........................................................................... 6

Ohio v. Roberts, 448 U.S. 56 (1980)............................................................................. 16

Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018) ........................................... 21

Townsend v. Burke, 334 U.S. 736 (1948) ................................................................ 7, 21

United States v. Bell, 808 F.3d 926 (D.C. Cir. 2015) .................................................. 14

United States v. Berry, 553 F.3d 273, 282 (3d Cir. 2009) ........................................... 20

United States v. Brothers, 75 F.3d 845 (3d Cir. 1996) ................................................ 17

United States v. Carmona, 873 F.2d 569 (2d Cir. 1989)............................................. 16

United States v. Corbin, 998 F.2d 1377 (7th Cir. 1993) ............................................. 17

United States v. Edwards, 994 F. Supp. 2d 11, 15–21 (D.D.C. 2014) ........................ 18

United States v. Faust, 456 F.3d 1342 (11th Cir. 2006) ............................................. 14

v

United States v. Fennell, 65 F.3d 812, 813 (10th Cir. 1995) ...................................... 18

United States v. Ferguson, 720 F. App’x 745 (6th Cir. 2018) ......................... 12, 18, 20

United States v. Fisher, 502 F.3d 293 (3d Cir. 2007) ................................................. 15

United States v. Fitch, 659 F.3d 788 (9th Cir. 2011) .................................................. 15

United States v. Grier, 475 F.3d 556 (3d Cir. 2007) (en banc) ................................... 15

United States v. Huckins, 53 F.3d 276 (9th Cir. 1995) ............................................... 18

United States v. Mateo-Medina, 845 F.3d 546 (3d Cir. 2017) .................................... 20

United States v. Paulino, 996 F.3d 1541 (3d Cir. 1993) ............................................. 16

United States v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir. 2016) ................... 16, 18, 19

United States v. Ramírez-Negrón, 751 F.3d 42 (1st Cir. 2014) .................................. 17

United States v. Reme, 738 F.2d 1156 (11th Cir. 1984) ............................................. 16

United States v. Robinson, 164 F.3d 1068 (7th Cir. 1999) ......................................... 17

United States v. Sabillon-Umana, 772 F.3d 1328 (10th Cir. 2014) ........................... 13

United States v. Silverman, 976 F.2d 1502 (6th Cir. 1992) ....................................... 16

United States v. Tucker, 404 U.S. 443 (1972) ............................................................... 7

United States v. Walker, 98 F.3d 944, 948 (7th Cir. 1996) ......................................... 20

United States v. Wilkinson, 590 F.3d 259 (4th Cir. 2010) .......................................... 16

United States v. Williams, 827 F.3d 1134 (D.C. Cir. 2016) ........................................ 18

United States v. Zapete-Garcia, 447 F.3d 57 (1st Cir. 2006)...................................... 19

Statutes

18 U.S.C. § 3553 (2012) ............................................................................................... 22

vi

18 U.S.C. § 3742(e) (2012) ............................................................................................. 5

18 U.S.C. § 922 (2012) ......................................................................................... 6, 8, 10

28 U.S.C. § 1254(1) (2012) ............................................................................................. 2

vii

PETITION FOR WRIT OF CERTIORARI

Michael Howard Ferguson respectfully petitions this Court for a writ of

certiorari to review the judgment of the United States Court of Appeals for the Sixth

Circuit.

OPINIONS BELOW

The Sixth Circuit’s unpublished opinion affirming Ferguson’s sentence is

reported at 720 F. App’x 745 (6th Cir. 2018), and included in the Appendix at A-1.

The Sixth Circuit’s unreported order denying Ferguson’s petition for rehearing en

banc is included in the Appendix at A-2. Ferguson’s appellate brief is included in the

Appendix at A-3. Ferguson’s reply appellate brief is included in the Appendix at A-4.

The transcript of the sentencing hearing is included in the Appendix at A-5. The

judgment is included in the Appendix at A-6. Ferguson’s sentencing memorandum

and supporting exhibits are included in the Appendix at A-7. The government’s

sentencing memorandum and supporting exhibits are included in the Appendix at A8.

1

STATEMENT OF JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1) (2012) and Part

III of the Rules of the Supreme Court of the United States. The court of appeals

denied Mr. Ferguson’s petition for rehearing en banc on February 13, 2018.

Mr. Ferguson sought and received an extension to file up to and including July 13,

2018. This petition is therefore timely.

2

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment of the United States Constitution provides in

pertinent part:

No person shall . . . be deprived of life, liberty, or property, without due

process of law.

The Sixth Amendment of the United States Constitution provides in

pertinent part:

In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury . . . .

STATUTORY PROVISIONS INVOLVED

In pertinent part, 18 U.S.C. § 3553(a) (2012) provides:

(a)

Factors to be considered in imposing a sentence.--The court shall impose

a sentence sufficient, but not greater than necessary, to comply with the

purposes set forth in paragraph (2) of this subsection. The court, in

determining the particular sentence to be imposed, shall consider-(1)

the nature and circumstances of the offense and the history and

characteristics of the defendant;

(2)

the need for the sentence imposed-(A) to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational

training, medical care, or other correctional treatment in the most

effective manner;

(3)

the kinds of sentences available;

(4)

the kinds of sentence and the sentencing range established for-(A) the applicable category of offense committed by the applicable

category of defendant as set forth in the guidelines-(i)

issued by the Sentencing Commission pursuant to section

994(a)(1) of title 28, United States Code, subject to any

amendments made to such guidelines by act of Congress

(regardless of whether such amendments have yet to be

3

(5)

(6)

(7)

incorporated by the Sentencing Commission into

amendments issued under section 994(p) of title 28); and

(ii) that, except as provided in section 3742(g), are in effect on

the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the

applicable guidelines or policy statements issued by the

Sentencing Commission pursuant to section 994(a)(3) of title 28,

United States Code, taking into account any amendments made

to such guidelines or policy statements by act of Congress

(regardless of whether such amendments have yet to be

incorporated by the Sentencing Commission into amendments

issued under section 994(p) of title 28);

any pertinent policy statement-(A) issued by the Sentencing Commission pursuant to section

994(a)(2) of title 28, United States Code, subject to any

amendments made to such policy statement by act of Congress

(regardless of whether such amendments have yet to be

incorporated by the Sentencing Commission into amendments

issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on the date

the defendant is sentenced.1

the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct; and

the need to provide restitution to any victims of the offense.

Section 3742 of Title 18 states, in pertinent part:

§ 3742. Review of a sentence.

***

Consideration.--Upon review of the record, the court of appeals shall determine

whether the sentence-(1)

was imposed in violation of law;

(2)

was imposed as a result of an incorrect application of the sentencing

guidelines;

(3)

is outside the applicable guideline range, and

(A)

the district court failed to provide the written statement of

reasons required by section 3553(c);

4

(B)

(C)

(4)

the sentence departs from the applicable guideline range based

on a factor that—

(i)

does not advance the objectives set forth in section

3553(a)(2); or

(ii)

is not authorized under section 3553(b); or

(iii)

is not justified by the facts of the case; or

the sentence departs to an unreasonable degree from the

applicable guidelines range, having regard for the factors to be

considered in imposing a sentence, as set forth in section 3553(a)

of this title and the reasons for the imposition of the particular

sentence, as stated by the district court pursuant to the

provisions of section 3553(c); or

was imposed for an offense for which there is no applicable sentencing

guideline and is plainly unreasonable.

The court of appeals shall give due regard to the opportunity of the district court to

judge the credibility of the witnesses, and shall accept the findings of fact of the

district court unless they are clearly erroneous and, except with respect to

determinations under subsection (3)(A) or (3)(B), shall give due deference to the

district court's application of the guidelines to the facts. With respect to

determinations under subsection (3)(A) or (3)(B), the court of appeals shall review

de novo the district court's application of the guidelines to the facts.

18 U.S.C. § 3742(e) (2012).

5

INTRODUCTION

This petition presents important questions about how sentencing courts should

evaluate evidence relied upon to impose a sentence. Nowadays, plea bargaining “is

the criminal justice system.” Missouri v. Frye, 566 U.S. 134, 144 (2012) (internal

quotation marks omitted). Once a defendant decides to plead guilty, the sentencing

hearing is the most important part of the criminal proceeding. Consequently,

sentencing proceedings can transform into mini-trials about ancillary issues, such as

about the defendant’s prior criminal conduct.

Such was the case in Michael Ferguson’s sentencing hearing. Ferguson is a

felon who possessed a firearm in violation of 18 U.S.C. § 922(g). Ferguson’s sentence,

however, reflects the beliefs of a federal court and a federal prosecutor that he

committed serious violent offenses in the past, but escaped punishment.

When selecting the sentence to impose, the district court adopted the federal

prosecutor’s suggestion that Ferguson was involved in a murder and that his arrest

record suggested a troubling pattern of recidivism. To reach that conclusion, the

district judge found facts based on an unsworn, out-of-court statement by a potential

suspect that was included in a police report. In other words, double hearsay. Without

live testimony, the district court made a credibility determination—that the witness’s

statement to police was more reliable than his sworn testimony at the preliminary

examination. And the district court looked at arrests and dismissed conduct without

6

any underlying details to conclude Ferguson had been involved in violent encounters

before.

This Court’s precedent is clear: Due Process demands that sentencing

decisions not be based on materially false or unreliable information. United States v.

Tucker, 404 U.S. 443, 447 (1972); Townsend v. Burke, 334 U.S. 736, 741 (1948). But

the circuit courts have divided on the question of what type of information district

courts may rely upon to impose sentences within or above the sentencing guidelines

range. This case presents a clean vehicle for this Court to address an important

question that affects criminal defendants in every district: How district courts must

determine whether evidence is sufficiently reliable to rely upon when imposing a

sentence?

In addition, the Sixth Circuit held that Ferguson’s Due Process rights were not

violated because, even if the evidence was unreliable or inaccurate, the district court

used it only to select a sentence within the advisory Guidelines range. Does that

distinction matter? This is an issue that is bound to reoccur, as district courts

sentence defendants every day in the United States. Resolution of this question will

bring greater clarity about the limits of judicial factfinding at sentence as they relate

to the advisory Guidelines.

BACKGROUND

1.

Michael Ferguson’s federal conviction stems from a series of

transactions with an undercover officer in 2015. An undercover officer initiated

7

contact with Ferguson and requested multiple firearms. Ferguson was charged with

being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and pleaded guilty

to that charge.

2.

In November 2012, Mr. Ferguson was charged with five counts

seemingly arising out of a single incident. Assault with a dangerous weapon and

assaulting, resisting, or obstructing a police officer were among the charges filed.

(Id.) In the end, Ferguson pleaded guilty to only one count of felony firearms

possession, and the remaining four charges were dismissed. The presentence

investigation report did not contain any facts about why the other four charges were

filed or dismissed.

3.

In 2015, the Detroit Police Department investigated the murder of a

man named Osean Lockett. After the body was found, William McKithen spoke to

Detroit police about the events leading up to the time when Lockett may have been

murdered.

4.

According to McKithen, Lockett had broken into McKithen’s house.

(APP 0264) McKithen left to get materials to board up the broken window and saw

Lockett arguing with two people, Chaka Franklin and “Frazo.” (APP 267–68) He left

and returned again and saw that a masked man had joined Franklin. (APP 270)

McKithen told police that he believed the man was Ferguson based on his build. (APP

268, 302) The masked man had something “shiny and silver” in his hand, which

McKithen believed to be brass knuckles. (APP 270) McKithen told police that he saw

8

the masked man punch Lockett. (APP 276–77) At the preliminary examination,

however, when McKithen was under oath, he denied seeing the masked man punch

Lockett. (APP 269) McKithen saw Franklin and the masked man carry Lockett away

from the driveway into an alley. (APP 270–71) After that, McKithen went back into

his home and went to sleep. Later that evening, he heard gunshots. (APP 275–76)

5.

Based on McKithen’s statements alone, DPD officers obtained a search

warrant for Ferguson’s home, finding a black ski mask, brass knuckles, and firearms.

(APP 329) Although no forensic evidence or other evidence connecting Ferguson to

Lockett’s murder exists, the Wayne County Prosecutor’s Office charged Ferguson

with first degree murder, among other charges. (APP 339) During the preliminary

examination, McKithen testified under oath and denied the substance of the

statements the police attributed to him in their report. (APP 264) McKithen

explained that he never actually saw Ferguson hit Lockett. (APP 276–77)

6.

Ultimately, the Wayne County prosecutor concluded there was

insufficient evidence of Ferguson’s involvement in the murder to support a conviction

and dismissed the murder and assault charges. (APP 349–50) In March 2016,

Ferguson pleaded guilty to a state firearms charge stemming from the search of his

home and received a two-year state sentence. (APP 350)

7.

In July 2016, a grand jury issued a one-count indictment accusing

Ferguson of being a felon in possession of a firearm in violation of 18 U.S.C.

9

§ 922(g)(1). He accepted responsibility for his actions and pleaded guilty without a

plea agreement.

8.

In February 2017, Ferguson was sentenced for his federal offense. The

presentence investigation report recommended a Guidelines range of 84 to 105

months. At the sentencing hearing, the government contended the allegations of

Ferguson’s involvement in the Lockett assault and murder and his prior arrest

records suggested Ferguson had a history of violent conduct. (APP 147) The federal

prosecutor made the Lockett murder the centerpiece of her sentencing argument.

(APP 132, 147, 163) She argued that there was sufficient evidence to corroborate

McKithin’s statements contained in the police report.

9.

Only two pieces of evidence corroborated McKithen’s initial statements

to police. The first is that McKithen claimed he saw Ferguson wearing a black ski

mask on the night Lockett disappeared, and the police found a black mask in

Ferguson’s home. But the mask found did not have any blood, fibers, gunpowder

residue, or any other forensic evidence linking it to Lockett’s murder. The second was

McKithen’s statement to police, alleging the masked man had brass knuckles, and

the police found two pairs of brass knuckles in Ferguson’s home. No forensic evidence

tied the brass knuckles found to the Lockett murder. The district court assumed the

brass knuckles found in Ferguson’s home matched McKithen’s description of those

carried by the masked man. But the government’s evidence showed that the brass

knuckles in Ferguson’s home were neither chrome nor shiny, as McKithen stated.

10

10.

Ferguson challenged the reliability of McKithen’s statements and the

appropriateness of using the dismissed charges to impose sentence. (APP 124–30,

135–41, 151) Defense counsel objected to the inclusion of the details about the murder

investigation in the PSR and raised the concern that relying on the hearsay

statements, the dismissed charges, and the prior arrests violated Due Process. (See

APP 151)

11.

The district court accepted the government’s arguments that Ferguson’s

arrest and alleged involvement with the murder warranted a stiff sentence; it

concluded Ferguson’s criminal history presented a “disturbing” trajectory. (APP 150)

With respect to this point, the district court said the following:

The homicide investigation and the statements of witnesses and

so forth indicate a resort to violence, but I am not going to rely upon the

statement of a witness in Mr. McKithen’s position to make formal

determinations of variance.

What I will rely upon is information provided to the police by

McKithen before he testified, indicating that he saw a man he

recognized to be the defendant with brass knuckles, or what he believed

to be brass knuckles used in this attack on the decedent. A mask, he

said, was worn. The house was searched. It was the defendant’s house.

A mask is found. Brass knuckles are found. I mean, the convergence is

undeniably relevant. That’s not the same as providing information that

is sufficient to charge nor convict an individual of homicide, but it’s —

but they are certainly relevant and potentially powerfully relevant items

of evidence that were located.

(APP 177–78)

13.

The district court imposed a sentence of 105 months’ incarceration—the

top of the advisory guideline range. (APP 179) Without explanation the court ordered

the federal sentence to run consecutively to the state sentence.

11

14.

Ferguson appealed and argued, inter alia, that the district court violated

Ferguson’s Due Process rights by relying on inaccurate and unreliable information at

the sentencing. (APP 059–67) The Sixth Circuit held that “the district court did not

abuse its discretion” even if it relied on McKithen’s uncorroborated hearsay

statements in the sentencing; the district court did not improperly rely on inaccurate

information in sentencing; and the district court’s reliance on erroneous information

was harmless. See United States v. Ferguson, 720 F. App’x 745, 750–52 (6th Cir.

2018).

15.

Without reference to any binding authority, the Sixth Circuit drew a

distinction between the use of unreliable information to vary upward from the

Guidelines range from the reliance on such information to reject a request for a

variance. Id. at 751. The court reasoned that no constitutional error occurred because

the district court relied on the double hearsay statements and the arrest records to

reject the variance request. Id. at 750–51. In addition, the panel believed the pair of

(black, non-shiny) brass knuckles and ski mask were sufficient evidence to

corroborate the hearsay statements. Id. at 751. Finally, the court said that Due

Process permits district courts to rely on arrest records and hearsay to select a

sentence within the guidelines. See id. (saying that the district court referenced

arrest records in the context of considering whether to grant a variance, and therefore

the due-process argument must fail).

12

REASONS FOR GRANTING THE WRIT

A. Reliance on Dismissed Charges to Increase Sentences Presents

Serious Sixth Amendment Problems.

In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), this Court held that “any

fact that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.” In Cunningham

v. California, 549 U.S. 270 (2007), this Court clarified that a law which placed

“sentence-elevating factfinding within the judge’s province [violated] a defendant’s

right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” Id. at

274. More recently, this Court held that “[a]ny fact that, by law, increases the penalty

for a crime is an ‘element’ that must be submitted to the jury and found beyond a

reasonable doubt.” Alleyne v. United States, 570 U.S. 99, 103 (2013).

These cases clarified important sentencing principles: juries—not judges—

must find facts that increase defendants’ sentences. But crucial questions about

constitutional limits at sentencing hearings remain unanswered, particularly about

the use of uncharged, dismissed, and acquitted charges in final sentencing decisions.

Several circuit courts of appeals have expressed concern about the

constitutional basis for allowing uncharged or acquitted conduct to influence

sentencing. See, e.g., United States v. Sabillon-Umana, 772 F.3d 1328, 1331 (10th

Cir. 2014) (Gorsuch, J.) (“[I]t is far from certain whether the Constitution allows [a

district court to] either decrease or increase defendant’s sentence (within the

statutorily authorized range) based on facts the judge finds without the aid of a jury

13

or the defendant’s consent.”); United States v. Faust, 456 F.3d 1342, 1349 (11th Cir.

2006) (Barkett, J., specially concurring) (“[S]entencing enhancements based on

acquitted conduct are unconstitutional under the Sixth Amendment as well as the

Due Process Clause of the Fifth Amendment.”). This Court has yet to put this

Constitutional anxiety at ease.

When this Court denied certiorari in Jones v. United States, 547 U.S. ---, 135

S. Ct. 8 (2014), it left untouched the question of the permissibility of sentencing based

on uncharged or acquitted conduct; three Justices dissented. Id. at 8–9 (Scalia, J.

dissenting, joined by Thomas, J. and Ginsburg, J.) (“Petitioners present a strong case

that, but for the judge’s finding of fact, their sentences would have been ‘substantively

unreasonable’ and therefore illegal. If so, their constitutional rights were violated.”)

(citation omitted). Since then, the use of uncharged conduct to enhance sentences has

continued unchecked in most Circuits, thereby violating the original intent of the

Fifth and Sixth Amendments.

The Court should neutralize this constitutional threat by addressing whether

judges may base sentencing decisions on uncharged conduct. The immediate case

presents an excellent opportunity to put this open question to rest.

Although the courts of appeals have generally allowed sentencing judges to

enhance sentences based on consideration of uncharged conduct, individual judges

have criticized the practice. See United States v. Bell, 808 F.3d 926, 928 (D.C. Cir.

2015) (Kavanaugh, J., concurring in denial of rehearing en banc) (“Allowing judges

14

to rely on acquitted or uncharged conduct to impose higher sentences than they

otherwise would impose seems a dubious infringement of the rights to due process

and to a jury trial.”); United States v. Fitch, 659 F.3d 788, 800 (9th Cir. 2011)

(Goodwin, J., dissenting) (criticizing the affirmance of a sentence for fraud convictions

that was significantly increased for an uncharged murder because the sentencing

judge enhanced the sentence without “clear and convincing evidence” that the

uncharged crime was attributable to the defendant); United States v. Fisher, 502 F.3d

293, 311 (3d Cir. 2007) (Rendell, J., concurring) (“A defendant’s due process rights

are implicated when facts found by a judge under a preponderance standard

concerning a separate, uncharged crime result in a dramatic increase in the sentence

actually imposed on the defendant for the crime of conviction, so as to suggest that

the defendant is really being sentenced for the uncharged crime rather than the crime

of conviction.”); United States v. Grier, 475 F.3d 556, 574 (3d Cir. 2007) (en banc)

(Ambro, J., concurring) (“[A]llow[ing] sentencing judges, once a jury has found beyond

a reasonable doubt that a defendant has committed one crime, then to find him guilty

by a preponderance of evidence of other crimes for which he was not tried . . . and to

sentence him as if he had been convicted of them as well” constitutes “a shadow

criminal code under which . . . a defendant receives few of the trial protections

mandated by the Constitution” (emphasis in original)).

15

B. Federal Courts Apply Inconsistent Standards to Determine

Whether Hearsay is Sufficiently Reliable to Use at Sentencing.

Most courts require hearsay statements to bear some indicia of reliability.

See, e.g., United States v. Pimentel-Lopez, 859 F.3d 1134, 1144 (9th Cir. 2016); United

States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010); United States v. Silverman,

976 F.2d 1502, 1512 (6th Cir. 1992). But the level of scrutiny required varies

dramatically from circuit to circuit. In short, the courts of appeals apply different

degrees of scrutiny to out-of-court statements offered for their truth in sentencing

hearings.

Most courts seem to follow the reliability test of Ohio v. Roberts, 448 U.S. 56,

66 (1980), even if the Eleventh Circuit is the only circuit to do so explicitly. United

States v. Reme, 738 F.2d 1156, 1168 (11th Cir. 1984) (quoting Roberts, 448 U.S. at

66). This Court has already rightfully acknowledged that the Roberts “framework is

so unpredictable that it fails to provide any meaningful protection.” Crawford v.

Washington, 541 U.S. 36, 63 (2004). Some courts have said that any independent

accounts of the information included in the hearsay statements are sufficient to

render hearsay statements reliable enough to use at sentencing. See United States v.

Carmona, 873 F.2d 569, 575 (2d Cir. 1989); United States v. Paulino, 996 F.3d 1541,

1547 (3d Cir. 1993) (affirming the use of hearsay statements by drug buyers and

informants because there was evidence from other unrelated witnesses to corroborate

those statements). Others have said that officers’ surveillance and contemporaneous

observations sufficiently corroborate hearsay for district courts to rely on it at

16

sentencing. See United States v. Ramírez-Negrón, 751 F.3d 42, 46–47 (1st Cir. 2014)

(affirming sentence based on hearsay corroborated by an agent’s personal knowledge

and surveillance). The Seventh Circuit has allowed the use of hearsay at sentencing

when the totality of circumstances indicated the statements were given in a state of

great excitement shortly after the crime was committed. See United States v. Corbin,

998 F.2d 1377, 1387 (7th Cir. 1993) (finding no abuse of discretion when the district

court relied on hearsay excited statements of victims, which would likely qualify as

excited utterances).

When the government offers out-of-court statements to prove facts that

significantly increase sentences, some courts apply a more rigorous degree of

scrutiny. The Third Circuit requires sentencing courts to “exercise particular scrutiny

of factual findings relating to amounts of drugs involved in illegal operations.” United

States v. Brothers, 75 F.3d 845, 848–49 (3d Cir. 1996). The Seventh Circuit has

suggested a similar form of “particular review” is necessary to determine whether

hearsay may be used to calculate drug quantities. See United States v. Robinson, 164

F.3d 1068, 1070–71 (7th Cir. 1999) (commenting that the non-testifying witness’s

statements “skyrocketed [the defendant] into level 38” and “her statements,

considering the gravity of their consequences, give us pause”). The Seventh Circuit

ultimately vacated the sentence based on drug quantities calculated using

summaries of the witness’s statements contained in a police report as relayed by a

presentence report. Id. In the District of Columbia, courts apply this same “particular

17

review” to hearsay testimony offered to prove the defendant was involved in an

uncharged murder. United States v. Edwards, 994 F. Supp. 2d 11, 15–21 (D.D.C.

2014), aff’d sub nom., United States v. Williams, 827 F.3d 1134 (D.C. Cir. 2016) (when

considering whether the defendant participated in a murder when the only evidence

proffered was hearsay statements containing “layers of hearsay”). The Tenth Circuit

admonished a district judge for relying on uncorroborated hearsay to conclude that

the defendant engaged in felonious conduct even though he was convicted for only a

misdemeanor. See United States v. Fennell, 65 F.3d 812, 813 (10th Cir. 1995).

The Sixth Circuit’s approach in this case differs significantly from that of these

other circuits. Even though the conduct alleged (an assault and murder) was serious

and impacted the overall sentence, the Sixth Circuit did not demand a similar degree

of rigor when it came to analyzing the corroborating evidence. See Ferguson, 720 F.

App’x at 750–51.

Some circuit courts apply a heightened standard of review to hearsay

statements by certain declarants. The Ninth Circuit has held that a sentencing court

violates due process when it relies on the post-arrest hearsay statements of an

accomplice, when the statements are not given under oath or subject to crossexamination, and the witness has a motive to be untruthful. United States v. Huckins,

53 F.3d 276, 279 (9th Cir. 1995). It reiterated that point recently, acknowledging that

“‘a codefendant’s confession inculpating the accused is inherently unreliable.” United

States v. Pimentel-Lopez, 859 F.3d 1134, 1144 (9th Cir. 2017), amending and

18

superseding, 828 F.3d 1173 (9th Cir. 2016) (quoting Lee v. Illinois, 476 U.S. 530, 546

(1986)). The court held that a codefendant’s hearsay statements did not bear

sufficient indicia of reliability where the only external corroboration was the out-ofcourt statement of the fiancée. Id. But the Sixth Circuit required no such heightened

scrutiny to McKithen’s statements even though he was a potential suspect.

To be sure, defendants may not have the full protection of the Confrontation

Clause at sentencing hearings, but there must be some meaningful guidance for

district courts to understand when evidence—particularly hearsay evidence—is too

unreliable to serve as a basis for a sentence. This Court should grant this petition to

provide some much needed clarity.

C. Sentencing Courts Continue to Rely on Bare Arrest Records to

Select Sentences.

The Sixth Circuit’s decision to sanction use of arrest records to select a

sentence within the Guidelines range creates a circuit split as well.

The First Circuit has explained that district courts should not rely on arrest

records to impose sentences because “an arrest . . . is not evidence that the person

arrested actually committed any criminal conduct.” United States v. Zapete-Garcia,

447 F.3d 57, 61 (1st Cir. 2006). This is so because “arrest[s] ‘happen[] to the innocent

as well as the guilty.’” Id. (quoting Michelson v. United States, 335 U.S. 469, 482

(1948)). The Third and Fifth Circuits have also taken appropriately strong stances

against the use of arrest records for any purpose because an “arrest happens to the

innocent as well as the guilty.” United States v. Berry, 553 F.3d 273, 282 (3d Cir.

19

2009) (internal quotation marks omitted); United States v. Johnson, 648 F.3d 273,

277–78 (5th Cir. 2011). The Seventh Circuit has said judges should ignore arrests at

sentencing hearings. United States v. Walker, 98 F.3d 944, 948 (7th Cir. 1996).

The Third Circuit offered an additional compelling reason to eschew any

consideration of a person’s arrest record: the need to avoid unwarranted sentencing

disparities. In particular, numerous studies, research, and commentary have noted

that police are more likely to arrest people of color and those who live in impoverished

neighborhoods than white people and those who live in affluent ones. See generally

United States v. Mateo-Medina, 845 F.3d 546, 552–53 (3d Cir. 2017); Berry, 553 F.3d

at 285. Thus, “[a] record of a prior arrest may . . . be as suggestive of a defendant’s

demographics as his/her potential for recidivism or his/her past criminality.” MateoMedina, 845 F.3d at 552–53.

The Sixth Circuit did not address whether the arrest record used in this case

was sufficiently reliable, however, because it believed reliance on unreliable evidence

is permissible to select a sentence within the advisory guidelines range. See Ferguson,

720 F. App’x at 751 (rejecting Ferguson’s Due Process claim because the district court

relied on the arrests “only in the context of considering and rejecting Ferguson’s

request for a downward departure” and “made no mention of these four dismissed

charges” when explaining the reasons for the sentence). Nonetheless, the court

suggested that use of arrest records was permissible because “district courts may

consider unconvicted conduct at sentencing.” Id.

20

D. The Sixth Circuit Created a New Rule, Applying a Less Rigorous Standard for

Reliability to Evidence Used to Impose a Sentence Within the Advisory

Guidelines.

District courts possess tremendous discretion in sentencing. See Beckles v.

United States, 137 S. Ct. 886, 893 (2017) (“[T]his Court has never doubted the

authority of a judge to exercise broad discretion in imposing a sentence within a

statutory range.” (internal quotation marks omitted)). But that discretion is not

completely unfettered; a sentence based on materially untrue assumptions “is

inconsistent with due process of law.” Burke, 334 U.S. at 741. Nothing about that

requirement changed when Congress adopted the Sentencing Guidelines or when this

Court held that the Guidelines are merely advisory. Accordingly, any sentence—

regardless of whether it is within the advisory Guidelines range—that is based on

unreliable or inaccurate information violates Due Process.

A sentence is based on unreliable evidence if such evidence is “‘[a] point, part,

line, or quantity from which a [sentence] proceeds.’” Hughes v. United States, 138 S.

Ct. 1765, 1775 (2018) (quoting Black’s Law Dictionary 180 (10th ed. 2014)). That is

just as true when the unreliable evidence is used to accept the Guidelines’

recommendation as it is when used to vary upwards.

To be sure, the Guidelines are one crucially important factor district courts

must consider. Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904 (2018) (“Courts

are not bound by the Guidelines, but even in an advisory capacity the Guidelines

serve as a meaningful benchmark in the initial determination of a sentence and

21

“through the process of appellate review.” (internal quotation marks omitted)).

District courts may not, however, stop at the Guidelines calculation; they must

consider the other 18 U.S.C. § 3553(a) factors to settle on a reasonable sentence. See

Gall v. United States, 552 U.S. 38, 49–50 (2007). Indeed, district courts “may not

presume that the Guidelines range is reasonable,” id. at 50, and must look at all the

evidence presented to decide whether a sentence within the Guidelines range is

reasonable. Regardless of whether the sentence is within or outside the range

recommended by the Guidelines, the district court must give reasons for the

sentences, and the final sentence must still be reasonable. See id.

The Sixth Circuit’s holding that use of unreliable information to adopt the

Guidelines’ recommendation is inconsistent with this Court’s instructions. Nor does

the Sixth Circuit’s approach comport with Due Process. Under the Sixth Circuit’s

rule, seemingly anything goes as long as the sentence is within the Guidelines range.

This case is but one of the many cases presenting important questions about

how district courts continue to grapple with the impact of the Guidelines. This Court

should therefore clarify whether Due Process tolerates the use of inaccurate or

unreliable information to impose a sentence within the Guidelines.

E. This Petition Presents a Clean Vehicle.

This petition presents a clean vehicle for this Court to clarify how the lower

courts should assess the reliability of information used to inform the final sentencing

decision. Ferguson objected in the district court to the use of uncorroborated hearsay,

22

the use of dismissed charges, and the use of arrest records. On appeal, he argued that

the district court abused its discretion by imposing a sentence based on this shaky

evidence. There can be no doubt that the questions presented in this petition have

been preserved.

In addition, unlike cases where the basis for the district judge’s decisions is

murky, here there are clear statements from the district court that it used the

unreliable information as a basis for the final sentence. At the sentencing hearing

the district court said, “[t]he homicide investigation and the statements of witnesses

and so forth indicate a resort to violence” by Ferguson. (APP 177–78) The district

court also expressly rejected McKithen’s sworn preliminary examination testimony

and relied on his statement to police: “What I will rely upon is information provided

to the police by McKithen before he testified, indicating that he saw a man he

recognized to be the defendant with brass knuckles, or what he believed to be brass

knuckles used in this attack on the decedent.” (APP 179) This petition therefore

presents the ideal vehicle to address the questions presented.

23

CONCLUSION

The petition for certiorari should be granted.

July 13, 2018

Respectfully submitted,

s/Colleen P. Fitzharris

s/Brandy Y. Robinson

FEDERAL DEFENDER OFFICE

613 Abbott St., 5th Floor

Detroit, Michigan 48226

Telephone No. (313) 967-5542

24

No. _______

IN THE

SUPREME COURT OF THE UNITED STATES

MICHAEL FERGUSON,

Petitioner,

v.

UNITED STATE of AMERICA,

Respondent.

CERTIFICATE OF COMPLIANCE WITH WORD COUNT LIMITATIONS

_________________

Petitioner Michael Ferguson, through undersigned counsel, and pursuant to

Sup. Ct. R. 29.2 and 28 U.S.C. § 1746, declares that the Petition for Writ of

Certiorari filed in the above-styled matter complies with the type-volume limitation

of Sup. Ct. R. 33.2(b). It contains 4,493 words. Certification is based on the word count

of the word-processing program used in preparing the petition, Microsoft Word 2013.

FEDERAL DEFENDER OFFICE

By:

s/Colleen P. Fitzharris

Colleen P. Fitzharris

613 Abbott St., 5th Floor

Detroit, Michigan 48226

Telephone No. (313) 967-5542

25

No:

IN THE

SUPREME COURT OF THE UNITED STATES

MICHAEL FERGUSON,

Petitioner,

v.

UNITED STATES of AMERICA,

Respondent.

CERTIFICATE OF SERVICE

_________________

I certify that on July 13, 2018, in accordance with Sup. Ct. R. 29, copies of the

(1) Petition for Writ of Certiorari, (2) Motion for Leave to Proceed In Forma Pauperis,

(3) Certificate of Compliance with Word Count Limitations, (4) Declaration Verifying

Timely Filing, and (5) Certificate of Service were served by mail within three days

upon the United States Attorney for the Eastern District of Michigan, 211 W. Fort

Street, Suite 2001, Detroit, MI 48226, and upon the Solicitor General of the United

States, Room 5614, Department of Justice, 950 Pennsylvania Avenue, N.W.,

Washington, D.C. 20530-0001.

FEDERAL DEFENDER OFFICE

By:

s/Colleen P. Fitzharris

Colleen P. Fitzharris

613 Abbott St., 5th Floor

Detroit, Michigan 48226

Telephone No. (313) 967-5542

26

No:

IN THE

SUPREME COURT OF THE UNITED STATES

MICHAEL FERGUSON,

Petitioner,

v.

UNITED STATES of AMERICA,

Respondent.

DECLARATION VERIFYING TIMELY FILING

_________________

Petitioner Michael Ferguson, through undersigned counsel, and pursuant to

SUP. CT. R. 29.2 and 28 U.S.C. § 1746, declares that the Petition for Writ of

Certiorari filed in the above-styled matter was sent through the United States

Postal Service by first-class mail, postage prepaid, and bears a postmark showing

that the document was mailed on or before the last day for filing, addressed to the

Clerk of the Supreme Court of the United States, on July 13, 2018, which is timely

pursuant to the rules of this Court.

FEDERAL DEFENDER OFFICE

By:

s/Colleen P. Fitzharris

Colleen P. Fitzharris

613 Abbott St., 5th Floor

Detroit, Michigan 48226

Telephone No. (313) 967-5542

27