Petition for Writ of Certiorari — Feliciano Villa-Sariana, aka Feliciano Villa, Petitioner v. United States

No. 17-_________

IN THE SUPREME COURT OF THE UNITED STATES

___________

FELICIANO VILLA-SARIANA,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

___________

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

JASON D. HAWKINS

Federal Public Defender

NORTHERN DISTRICT OF TEXAS

PETER FLEURY

Counsel of Record

ASSISTANT FEDERAL PUBLIC

DEFENDER

819 TAYLOR ST., RM 9A10

FORT WORTH, TX. 76102

(817) 978-2753

QUESTIONS PRESENTED

I.

Whether all facts B including the fact of a prior conviction B that increase

a defendant=s statutory maximum must be pleaded in the indictment

and either admitted by the defendant or proven to a jury beyond a

reasonable doubt?

Subsidiary questions:

a. Did the district court err in sentencing Villa-Sariana to a term of

imprisonment greater than two years for a violation of 18 U.S.C. '

1326?

b. Are the statutory enhancement provisions in 8 U.S.C. ' 1326(b)

unconstitutional because Congress unequivocally intended the

enhancements to be sentencing factors, not elements of separate

offenses; but under this Court=s decision in Apprendi v. New Jersey,

530 U.S. 466 (2000), such a scheme is unconstitutional?

c. Whether Villa-Sariana=s guilty plea was involuntary and taken in

violation of Fed. R. Crim. P. 11 because Villa-Sariana was not

admonished that the prior felony provision of 8 U.S.C. ' 1326(b)(1)

stated an essential offense element that Villa-Sariana had the right

to have the government prove, and a jury find, beyond a reasonable

doubt?

ii

PARTIES

Feliciano Villa-Sariana is the Petitioner; he was the defendant-appellant

below.

The United States of America is the Respondent; it was the plaintiff-appellee

below.

iii

TABLE OF CONTENTS

Question Presented........................................................................................................ ii

Parties ........................................................................................................................... iii

Table of Contents .......................................................................................................... iv

Index to Appendices ....................................................................................................... v

Table of Authorities ...................................................................................................... vi

Opinions Below .............................................................................................................. 1

Jurisdictional Statement. .............................................................................................. 1

Constitutional and Statutory Provisions Involved ....................................................... 1

Statement of the Case ................................................................................................... 4

Reasons for Granting the Writ. ..................................................................................... 5

Conclusion .................................................................................................................... 12

iv

INDEX TO APPENDICES

Appendix A Judgment and Opinion of Fifth Circuit

Appendix B Judgment and Sentence of the United States District Court

for the Northern District of Texas

v

TABLE OF AUTHORITIES

Cases

Alleyne v. United States, 133 S. Ct. 2151 (2013) ............................................ 5, 7, 8, 9

Almendarez-Torres v. United States, 523 U.S. 224 (1998) ............................... passim

Apprendi v. New Jersey, 530 U.S. 466 (2000) ................................................ 4, 7, 8, 9

Blakely v. Washington, 542 U.S. 296 (2004) .............................................................. 7

Booth v. Maryland, 482 U.S. 496 (1987) .................................................................. 10

Descamps v. United States, 133 S. Ct. 2276 (2013) ................................................... 6

Dretke v. Haley, 541 U.S. 386 (2004) .......................................................................... 6

Grady v. Corbin, 495 U.S. 508 (1990) ...................................................................... 10

James v. United States, 550 U.S. 192 (2007) .......................................................... 6-7

Nijhawan v. Holder, 129 S. Ct. 2294 (2009) .............................................................. 6

Payne v. Tennessee, 501 U.S. 808 (1991) .................................................................. 10

Rangel-Reyes v. United States, 547 U.S. 1200 (2006) ................................................ 6

Shepard v. United States, 544 U.S. 13 (2005) .................................................... 4, 6, 8

South Carolina v. Gathers, 490 U.S. 805 (1989) ...................................................... 10

United States v. Dixon, 509 U.S. 688 (1993) ............................................................ 10

Statutes

8 U.S.C. § 1326 .............................................................................................. 1, 4, 5, 11

8 U.S.C. § 1326(a) ..................................................................................................... 11

8 U.S.C. § 1326(b) ........................................................................................... 4, 5, 6, 9

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

Rules

Sup. Ct. R. 13.1 ........................................................................................................... 1

Miscellaneous

1 J. Bishop, Criminal Procedure ' 87, p 55 (2d ed. 1872) ......................................... 7

4 W. Blackstone, Commentaries on the Laws of England 343 (1769) ....................... 7

vi

J. Archbold, Pleading and Evidence in Criminal Cases 44 (15th ed. 1862) ............. 7

United States Constitution

U.S. Const. amend. V .................................................................................................. 2

U.S. Const. amend. VI ................................................................................................ 3

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PETITION FOR A WRIT OF CERTIORARI

Petitioner Feliciano Villa-Sariana respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The unpublished opinion of the United States Court of Appeals for the Fifth

Circuit is captioned as United States v. Feliciano Villa-Sariana, No. 17-11044 and is

provided in the Appendix to the Petition. [Appx. A]. The district court entered

judgment on September 6, 2017, which judgment is attached as an Appendix. [Appx.

B].

JURISDICTIONAL STATEMENT

The instant Petition is filed within 90 days of an opinion affirming the

judgment, which was entered on May 17, 2018. See SUP. CT. R. 13.1. This Court’s

jurisdiction to grant certiorari is invoked under 28 U.S.C. ' 1254(1).

CONSTITUTIONAL PROVISIONS, RULES, AND STATUTES INVOLVED

8 U.S.C. ' 1326 provides in part:

(a) In general. Subject to subsection (b), any alien who-(1) has been denied admission, excluded, deported, or removed or has

departed the United States while an order of exclusion, deportation, or

removal is outstanding, and thereafter

(2) enters, attempts to enter, or is at any time found in, the United

States, unless (A) prior to his reembarkation at a place outside the

United States or his application for admission from foreign contiguous

territory, the Attorney General has expressly consented to such alien's

reapplying for admission; or (B) with respect to an alien previously

denied admission and removed, unless such alien shall establish that he

was not required to obtain such advance consent under this or any prior

Act,

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shall be fined under title 18, United States Code, or imprisoned not more

than 2 years or both.

(b) Criminal penalties for reentry of certain removed aliens.

Notwithstanding subsection (a), in the case of any alien described in

such subsection-(1) whose removal was subsequent to a conviction for commission of

three or more misdemeanors involving drugs, crimes against the person,

or both, or a felony (other than an aggravated felony), such alien shall

be fined under title 18, United States Code, imprisoned not more than

10 years, or both;

(2) whose removal was subsequent to a conviction for commission of an

aggravated felony, such alien shall be fined under such

title,

imprisoned not more than 20 years, or both;

(3) who has been excluded from the United States pursuant to section

235(c) [8 USCS ' 1225(c)] because the alien was excludable under

section 212(a)(3)(B) [8 USCS ' 1182(a)(3)(B)] or who has been removed

from the United States pursuant to the provisions of title V [8 USCS ''

1531 et seq.], and who thereafter, without the permission of the

Attorney General, enters the United States, or attempts to do so, shall

be fined under title 18, United States Code, and imprisoned for a period

of 10 years, which sentence shall not run concurrently with any other

sentence.[;] or

(4) who was removed from the United States pursuant to section

241(a)(4)(B) [8 USCS ' 1231(a)(4)(B)] who thereafter, without the

permission of the Attorney General, enters, attempts to enter, or is at

any time found in, the United States (unless the Attorney General has

expressly consented to such alien's reentry) shall be fined under title 18,

United States Code, imprisoned for not more than 10 years, or both. For

the purposes of this subsection, the term "removal" includes any

agreement in which an alien stipulates to removal during (or not during)

a criminal trial under either Federal or State law.

The Fifth Amendment to the United States Constitution provides:

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any person be subject

for the same offence to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness against himself, nor

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be deprived of life, liberty, or property, without due process of law; nor

shall private property be taken for public use, without just

compensation.

The Sixth Amendment to the United States Constitution provides:

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

and public trial, by an impartial jury of the State and district wherein

the crime shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defense.

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STATEMENT OF THE CASE

A.

Trial Court Proceedings

This is a criminal case on direct appeal. The indictment was filed on February

19, 2015. It alleged that the Petitioner Villa-Sariana was an alien who was found in

the United States of America after having been deported and removed and without

having received permission to reapply or readmission, in violation of 8 U.S.C. ' 1326.

There were no allegations of any of the enhancement provisions under the statute

that would raise the statutory maximum above 2 years. See 8 U.S.C. ' 1326.

Petitioner pleaded guilty to this indictment and did so without a plea agreement. The

factual resume and the admonishments at the re-arraignment noted that the

maximum sentence was 20 years. The district court did not advise Petitioner that the

enhancement provisions of 8 U.S.C. ' 1326(b) stated essential elements of the offense

to which he was pleading guilty.

The district court then sentenced Mr. Villa-Sariana to 70 months.

B.

Circuit Court Proceedings

Petitioner appealed his sentence arguing that this Court’s decisions in

Apprendi, (2000) and Shepard v. United States, 544 U.S. 13 (2005), call into question

the validity of this Court’s decision in Almendarez-Torres v. United States, 523 U.S.

224 (1998).

The court of appeals summarily reviewed and affirmed. See Appx. A.

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REASONS FOR GRANTING THE WRIT

This Court should use this case to answer the

reoccurring, important

question whether all facts

B including the fact of a prior conviction B that

increase a defendant=s statutory maximum must be

pleaded in the indictment and either admitted by

the defendant or proven to a jury beyond a

reasonable doubt?

Introduction.

Petitioner was subjected to an enhanced statutory maximum under 8 U.S.C.

'1326(b) because the removal charged in the indictment followed a prior felony or

aggravated felony conviction. Petitioner=s sentence thus depends on the judge=s

ability to find the existence and date of a prior conviction, and to use that date to

increase the statutory maximum. This power was affirmed in Almendarez-Torres v.

United States, 523 U.S. 224 (1998), which held that the enhanced maximums of 8

U.S.C.' 1326 represent sentencing factors rather than elements of an offense, and

that they may be constitutionally determined by judges rather than juries. See

Almendarez-Torres, 523 U.S. at 244.

This Court, however, has repeatedly limited Almendarez-Torres. See Alleyne v.

United States, 133 S.Ct. 2151, 2160 n.1 (2013) (characterizing Almendarez-Torres as

a narrow exception to the general rule that all facts that increase punishment must

be alleged in the indictment and proved to a jury beyond a reasonable doubt);

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Descamps v. United States, 133 S. Ct. 2276, 2295 (2013)(Thomas, J., concurring)

(stating that Almendarez-Torres should be overturned); Apprendi v. New Jersey, 530

U.S. 466, 490 (2000) (stressing that Almendarez-Torres represented Aa narrow

exception@ to the prohibition on judicial fact-finding to increase a defendant=s

sentence); Shepard v. United States, 544 U.S. 13 (2005) (Souter, J., controlling

plurality opinion) (AWhile the disputed fact here can be described as a fact about a

prior conviction, it is too far removed from the conclusive significance of a prior

judicial record, and too much like the findings subject to Jones and Apprendi, to say

that Almendarez-Torres clearly authorizes a judge to resolve the dispute.@); Dretke v.

Haley, 541 U.S. 386, 395-396 (2004) (concluding that the application of AlmendarezTorres to the sequence of a defendant=s prior convictions represented a difficult

constitutional question to be avoided if possible); Nijhawan v. Holder, 129 S.Ct. 2294,

2302 (2009) (agreeing with the Solicitor General that the loss amount of a prior

offense would represent an element of an 8 U.S.C. '1326(b) offense, to the extent that

it boosted the defendant=s statutory maximum).

Further, any number of opinions, some authored by Justices among the

Almendarez-Torres majority, have expressed doubt about whether it was correctly

decided. See Apprendi, 530 U.S. at 490; Haley, 541 U.S. at 395-396; Shepard, 544 U.S.

at 26 & n.5 (Souter, J., controlling plurality opinion); Shepard, 544 U.S. at 26-28

(Thomas, J., concurring); Rangel-Reyes v. United States, 547 U.S. 1200,

1201(2006)(Stevens, J., concurring in denial of certiorari); Rangel-Reyes, 547 U.S. at

1202-03 (Thomas, J., dissenting from denial of certiorari); James v. United States,

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550 U.S. 192, 231-232 (2007)(Thomas, J., dissenting). And this Court has also

repeatedly cited authorities as exemplary of the original meaning of the constitution

that do not recognize a distinction between prior convictions and facts about the

instant offense. See Blakely v. Washington, 542 U.S. 296, 301-302 (2004) (quoting 4

W. Blackstone, Commentaries on the Laws of England 343 (1769),1 J. Bishop,

Criminal Procedure ' 87, p 55 (2d ed. 1872)); Apprendi, 530 U.S. at 478-479 (quoting

J. Archbold, Pleading and Evidence in Criminal Cases 44 (15th ed. 1862) , 4

Blackstone, 369-370).

In Alleyne, this Court applied Apprendi=s rule to mandatory minimum

sentences, holding that any fact that produces a higher sentencing rangeCnot just a

sentence above the mandatory maximumCmust be proved to a jury beyond a

reasonable doubt. 133 S. Ct. at 2162B63. In its opinion, the Court apparently

recognized that Almendarez-Torres=s holding remains subject to Fifth and Sixth

Amendment attack. Alleyne characterized AlmendarezTorres as a Anarrow exception

to the general rule@ that all facts that increase punishment must be alleged in the

indictment and proved to a jury beyond a reasonable doubt. Id. at 2160 n.1. But

because the parties in Alleyne did not challenge Almendarez-Torres, this Court said

that it would Anot revisit it for purposes of [its] decision today.@ Id.

The Court’s reasoning nevertheless demonstrates that Almendarez-Torres=s

recidivism exception should be overturned. Alleyne traced the treatment of the

relationship between crime and punishment, beginning in the Eighteenth Century,

repeatedly noting how A[the] linkage of facts with particular sentence ranges . . .

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reflects the intimate connection between crime and punishment.@ Id. at 2159 (A[i]f a

fact was by law essential to the penalty, it was an element of the offense@); see id.

(historically, crimes were defined as Athe whole of the wrong to which the law affixes

[ ] punishment Y include[ing] any fact that annexes a higher degree of punishment@)

(internal quotation marks and citations omitted); id. at 2160 (Athe indictment must

contain an allegation of every fact which is legally essential to the punishment to be

inflicted@) (internal quotation marks and citation omitted). This Court concluded that,

because Athe whole of the@ crime and its punishment cannot be separated, the

elements of a crime must include any facts that increase the penalty. The Court

recognized no limitations or exceptions to this principle.

Alleyne=s emphasis that the elements of a crime include the Awhole@ of the facts

for which a defendant is punished seriously undercuts the view, expressed in

Almendarez-Torres, that recidivism is different from other sentencing facts. See

Almendarez-Torres, 523 U.S. at 243B44; see also Apprendi, 530 U.S. at 490 (AOther

than the fact of a prior conviction, 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.@) Apprendi tried to explain this difference by pointing out

that, unlike other facts, recidivism A>does not relate to the commission of the offense=

itself[.]@ 530 U.S. at 496 (quoting Almendarez-Torres, 523 U.S. at 230). But this Court

did not appear committed to that distinction; it acknowledged that AlmendarezTorres might have been Aincorrectly decided.@ Id. at 489; see also Shepard v. United

States 544 U.S. 13, 26 n.5 (2005) (acknowledging that Court’s holding in that case

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undermined Almendarez-Torres); Cunningham v. California, 549 U.S. 270, 291 n.14

(2007) (rejecting invitation to distinguish between Afacts concerning the offense,

where Apprendi would apply, and facts [like recidivism] concerning the offender,

where it would not,@ because AApprendi itself Y leaves no room for the bifurcated

approach@).

Three concurring justices in Alleyne provide additional reason to believe that

the time is ripe to revisit Almendarez-Torres. See Alleyne, 133 S. Ct. at 2164

(Sotomayor, Ginsburg, Kagan, J.J., concurring). Those justices noted that the

viability of the Sixth Amendment principle set forth in Apprendi was initially subject

to some doubt, and some justices believed the Court Amight retreat@ from it. Id. at

2165. Instead, Apprendi=s rule Ahas become even more firmly rooted in the Court’s

Sixth Amendment jurisprudence.@ Id. Reversal of precedent is warranted when Athe

reasoning of [that precedent] has been thoroughly undermined by intervening

decisions.@ Id. at 2166.

The validity of Almendarez-Torres is accordingly subject to reasonable doubt.

If Almendarez-Torres is overruled in another case, the result will obviously

undermine the use of Petitioner=s prior conviction to increase his statutory maximum.

Indeed, any limitation on the scope of this decision in another case will undercut the

decision below. Petitioner=s sentence depends on the district court=s ability to find not

merely that he was previously convicted, but that the date of his prior conviction

preceded the deportation admitted by the plea of guilty. See 8 U.S.C.

'1326(b)(requiring that the defendant=s prior felony conviction precede his removal).

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Stare decisis should be not a bar to this Court’s decision to overrule

Almendarez-Torres. As this Court noted in United States v. Dixon, 509 U.S. 688, 70413 (1993), as it overruled the decision rendered only three years before in Grady v.

Corbin, 495 U.S. 508 (1990):

. . . Although stare decisis is the “preferred course” in

constitutional adjudication, “when governing decisions are unworkable

or are badly reasoned, ‘this Court has never felt constrained to follow

precedent.’”

Dixon, 509 U.S. at 712 (citations omitted). In both Grady v. Corbin and AlmendarezTorres, the initial opinion was rendered by a sharply divided Court with four

dissenters from the five member majority. In both cases the dissent argued that the

majority opinion was contrary to the historical understanding of the issue and

represented a sharp break with that past.

Likewise, in Payne v. Tennessee, 501 U.S. 808, 827-30 (1991), the Court, citing

the same principle, overruled its prior decisions in Booth v. Maryland, 482 U.S. 496

(1987), and South Carolina v. Gathers, 490 U.S. 805 (1989). The Court in Payne noted

that “Booth and Gathers were decided by the narrowest of margins, over spirited

dissents challenging the basic underpinnings of those decisions.” Id. at 828-29.

Almendarez-Torres, like the overruled decisions in Grady v. Corbin, Booth, and

Gathers, was decided by the narrowest of margins, over the spirited dissent of Justice

Scalia challenging the basic underpinnings of the majority's decision.

Because it appears that a majority of the Court now recognizes that the

majority opinion in Almendarez-Torres was badly reasoned, and that the case was

10

wrongly decided, this petition should be granted to reconsider that decision. If this

Court were to do so, it would require this Court to vacate Villa-Sariana’s sentence of

70 months imprisonment and to remand for resentencing under 8 U.S.C. § 1326(a),

which provides for a statutory maximum sentence of two years imprisonment. This

Court has held that Congress unequivocally intended the enhancement provisions of

8 U.S.C. § 1326 to be sentencing factors, not elements. See Almendarez-Torres, 523

U.S. at 235. Such a scheme is unconstitutional. In the alternative, should this court

determine the statute is constitutional but that the sentencing enhancements must

be proven to a jury beyond a reasonable doubt, a remand is still necessary, as the plea

was involuntary under these circumstances.

If this Court were to determine that the Constitution limits Petitioner=s

statutory range of imprisonment to not more than two years, then clearly such

constitutional error substantially prejudiced Petitioner as evidenced by his 70 months

sentence.

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Conclusion

Petitioner respectfully prays that this Honorable Court grant certiorari, and

reverse the judgment below, and/or vacate the judgment and remand for

reconsideration in light of any relevant forthcoming authority.

Respectfully submitted this 14th day of August, 2018.

/s/ PETER FLEURY

PETER FLEURY

Counsel of Record

FEDERAL PUBLIC DEFENDER=S OFFICE

NORTHERN DISTRICT OF TEXAS

819 TAYLOR ST., STE. 9A10

FORT WORTH, TEXAS 76202

817-978-2753

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