Petition for Writ of Certiorari — Arlow Antone Kay, Petitioner v. United States

No. __________

______________________________________________________________________________

______________________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

_____________________________________________

ARLOW ANTONE KAY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_____________________________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_____________________________________________

PETITION FOR A WRIT OF CERTIORARI

_____________________________________________

JON M. SANDS

Federal Public Defender

*DANIEL L. KAPLAN

Assistant Federal Public Defender

850 West Adams Street, Suite 201

Phoenix, Arizona 85007

(602) 382-2700

* Counsel of Record

______________________________________________________________________________

______________________________________________________________________________

Date Sent by Federal Express Overnight Delivery: August 20, 2018

QUESTION PRESENTED

Have the departure provisions of the United States Sentencing Guidelines

been rendered “obsolete” and “superfluous” by this Court’s opinion in United States

v. Booker, 543 U.S. 220 (2005), rendering robust appellate review of district courts’

applications of these provisions unnecessary?

PARTIES TO THE PROCEEDING

All parties to the proceeding are listed in the caption. The petitioner is not a

corporation.

ii

TABLE OF CONTENTS

Page

Table of Authorities ...................................................................................................... iv

Opinion Below ................................................................................................................ 1

Jurisdiction .................................................................................................................... 1

Pertinent Constitutional Provision ............................................................................... 1

Statement of the Case ................................................................................................... 1

Reason for Granting the Writ ..................................................................................... 10

Argument ..................................................................................................................... 11

Conclusion .................................................................................................................... 22

Appendix A - Court of Appeals Decision

Appendix B - District Court Sentencing

iii

TABLE OF AUTHORITIES

Page

Cases

Beckles v. United States, 137 S. Ct. 886 (2017) .......................................................... 19

Freeman v. United States, 564 U.S. 522 (2011) .......................................................... 19

Gall v. United States, 552 U.S. 38 (2007) ................................................................... 19

Kimbrough v. United States, 552 U.S. 85 (2007) .................................................. 18, 19

Koon v. United States, 518 U.S. 81 (1996) .................................................................... 7

Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) ......................................... 20

Peugh v. United States, 569 U.S. 530 (2013) .............................................................. 19

Ring v. Arizona, 536 U.S. 584 (2002) .......................................................................... 18

Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018) ........................................... 19

United States v. Arnaout, 431 F.3d 994 (7th Cir. 2005) ....................................... 14, 16

United States v. Barber, 119 F.3d 276 (4th Cir. 1997) (en banc) ................................. 8

United States v. Booker, 543 U.S. 220 (2005) ......................................................passim

United States v. Crawford, 407 F.3d 1174 (11th Cir. 2005) ........................... 12, 13, 14

United States v. Diosdado-Star, 630 F.3d 359 (4th Cir. 2011) .................................. 16

United States v. Dixon, 449 F.3d 194 (1st Cir. 2006) ................................................. 12

United States v. Gardenhire, 784 F.3d 1277 (9th Cir. 2015)...................................... 18

United States v. Gutierrez-Hernandez, 581 F.3d 251 (5th Cir. 2009) ............ 12, 13, 21

United States v. Hawk Wing, 433 F.3d 622 (8th Cir. 2006) ....................................... 12

United States v. Jackson, 467 F.3d 834 (3d Cir. 2006)......................................... 12, 21

iv

United States v. Johnson, 427 F.3d 423 (7th Cir. 2005)............................................. 14

United States v. Kaplan, 839 F.3d 795 (9th Cir. 2016), cert. denied,

137 S. Ct. 1116 (2017), and cert. denied sub nom. Strycharske v. United States,

137 S. Ct. 1358 (2017) ................................................................................................ 16

United States v. Kay, 722 F. App’x 750 (9th Cir. 2018) ................................................ 1

United States v. Kelly, 1 F.3d 1137 (10th Cir. 1993) .................................................... 8

United States v. McBride, 434 F.3d 470 (6th Cir. 2006) ............................................ 16

United States v. Mohamed, 459 F.3d 979 (9th Cir. 2006) ..................... 9, 14-16, 20, 21

United States v. Pankow, 884 F.3d 785 (7th Cir. 2018) ............................................. 14

United States v. Robertson, 568 F.3d 1203 (10th Cir. 2009) .......................... 12, 14, 21

United States v. Selioutsky, 409 F.3d 114 (2d Cir. 2005) ........................................... 13

United States v. Walker, 665 F.3d 212 (1st Cir. 2011) ............................................... 13

United States v. Williams, 399 F.3d 450 (2d Cir. 2005) ............................................. 20

Walton v. Arizona, 497 U.S. 639 (1990) ...................................................................... 18

Statutes

18 U.S.C. § 1111 ............................................................................................................. 2

18 U.S.C. § 1112(a) .................................................................................................... 8, 9

18 U.S.C. § 1153 ............................................................................................................. 2

18 U.S.C. § 3231 ............................................................................................................. 1

18 U.S.C. § 3553(a) .............................................................................................. 5, 9, 16

18 U.S.C. § 3742(f) ....................................................................................................... 13

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

v

Other

U.S.S.G. § 2A1.3 ............................................................................................................. 4

U.S.S.G. § 3E1.1(a) ........................................................................................................ 4

U.S.S.G. § 5K2.1 .................................................................................................. 6, 7, 16

U.S.S.G. § 5K2.6 ........................................................................................................ 7, 8

U.S.S.G. § 5K2.8 ............................................................................................ 4, 5, 6, 7, 8

U.S.S.G. ch. 5, pt. A ................................................................................................... 4, 7

U.S.S.G. ch. 5, pt. K ..................................................................................................... 11

U.S. Sentencing Comm’n, Annual Reports and Sourcebooks (2017) (tbl. 56) ........... 21

vi

Petitioner Arlow Antone Kay respectfully requests that a Writ of Certiorari

be issued to review the judgment of the United States Court of Appeals for the

Ninth Circuit entered on May 21, 2018.

OPINION BELOW

The court of appeals’ memorandum (App. A) is designated “Not for

Publication,” but is published in the Federal Appendix at 722 F. App’x 750. The

district court’s sentencing (App. B) is unreported.

JURISDICTION

The United States District Court for the District of Arizona had jurisdiction

over the government’s federal charges against Mr. Kay pursuant to 18 U.S.C.

§ 3231. The judgment of the United States Court of Appeals for the Ninth Circuit

was entered on May 21, 2018. App. A at 1. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

PERTINENT CONSTITUTIONAL PROVISION

The Sixth Amendment to the United States Constitution provides as follows:

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 defence.

STATEMENT OF THE CASE

1. Arlow Antone Kay is a 33-year-old member of the Navajo Nation and

resident of northern Arizona. In late January of 2016, the government filed an

indictment charging Mr. Kay with one count of second degree murder in violation of

18 U.S.C. §§ 1111 and 1153. The indictment charged that on or about July 3, 2015,

Mr. Kay “with malice aforethought did unlawfully kill” Danny Yellowhair.

Mr. Kay waived his right to a jury trial and entered into a joint stipulation

with the government establishing the following facts as undisputed:

1.

On July 3, 2015, Mr. Kay and Danny Yellowhair (“Mr. Yellowhair”)

were drinking together at a location near Kayenta, Arizona, on the

Navajo Indian Reservation, in the District of Arizona. The location was

near the home of Mike Gray, on the east side of Diamond Towing Yard

in Kayenta.

2.

At some point, an argument ensued between Mr. Kay and Mr.

Yellowhair because Mr. Yellowhair made disparaging comments about

Mr. Kay’s family members.

3.

If called to testify, Lance Benally (“Mr. Benally”) would state that he

was sitting outside Mike Gray’s house with Mr. Yellowhair, Mr. Kay,

and others, drinking 40-ounce bottles of beer. Mr. Benally would testify

that he saw an argument between Mr. Kay and Mr. Yellowhair. Mr.

Benally would further testify that, at some point, he saw Mr. Kay get

up, pull out a small knife, walk towards Mr. Yellowhair, and begin to

stab Mr. Yellowhair.

4.

The Kayenta Police Department received a call on July 3, 2015 at 8:37

p.m., from a Rosie (Rosita) Holiday, about a stabbing. Police responded

to the location described by the caller, a green trailer, where they

found Mr. Yellowhair. Officers who responded to the scene would

testify they found Mr. Yellowhair at the Holiday trailer which was

located approximately 130 yards from Mike Gray’s residence. These

officers would also testify that there was a trail of blood leading from

the Gray residence to the Holiday residence.

5.

Police who responded to the Gray residence found Mr. Kay, who had

not left the scene. He was arrested at that time. At the time of his

arrest, two knives were taken from Mr. Kay. One of the knives had

blood on it.

6.

Mr. Yellowhair was transported to the Kayenta Health Center and

later evacuated via helicopter to the San Juan Regional Medical

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Center, in Farmington, New Mexico. Mr. Yellowhair was taken into

the trauma room at the San Juan Regional Medical Center “under

CPR situation.” He was subsequently pronounced dead.

7.

If called to testify, Lauren Dvorscak, MD, would state that she

performed an autopsy of Mr. Yellowhair, on July 4, 2015. Dr. Dvorscak

would testify that Mr. Yellowhair sustained 15 stab wounds, two of

which punctured a vital organ. Dr. Dvorscak would also testify that a

contributory condition to Mr. Yellowhair’s death was cirrhosis.

8.

The incident between Mr. Kay and Mr. Yellowhair, described herein,

took place on the Navajo Indian Reservation. The Navajo Nation is a

federally- recognized Indian tribe. Mr. Kay is an Indian who is subject

to the special jurisdiction of the United States on Indian reservations.

The district court conducted a brief bench trial on these stipulated facts. Mr.

Kay’s counsel (intending that Mr. Kay would receive a two-level reduction in his

United States Sentencing Guidelines (Guidelines) offense level for acceptance of

responsibility), declined to present argument. (All references to the Guidelines

herein are to the 2016 edition of the United States Sentencing Guidelines Manual,

which was applied here without objection from either party.) The government

argued that the stipulated facts confirmed that Mr. Kay acted with malice and was

guilty of second degree murder.

The court “adopt[ed] the parties’ facts as the [c]ourt’s factual findings,” and

proceeded to render its verdict. The court noted that “[t]he only arguable proof of

malice aforethought” was the facts stipulated in paragraphs 2 and 3, but these facts

were “unclear”: They established that Mr. Kay acted in the course of an argument,

after Mr. Yellowhair made “disparaging comments” about his family members, and

there was “no other evidence or proffered testimony to prove malice aforethought

here.” Based on this “very limited evidence,” the court concluded that the

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government had failed to prove that Mr. Kay was guilty of second degree murder.

Finding that the stipulated facts were sufficient to prove “that Mr. Kay

intentionally killed Mr. Yellowhair while in a sudden quarrel or heat of passion

caused by adequate provocation,” however, the court found Mr. Kay guilty of the

lesser included offense of voluntary manslaughter.

2. Eight days later the government filed a motion requesting a “5-level

upward departure” pursuant to Guidelines § 5K2.8 – the policy statement covering

“extreme conduct” – and a 180-month sentence. The government argued that such a

departure was appropriate because the evidence of provocation justifying the

voluntary manslaughter verdict was limited, and because the killing was

“unusually heinous and cruel.” The government further argued that § 5K2.8 was

applicable because Mr. Kay stabbed Mr. Yellowhair 15 times – a “gratuitous

infliction of injury” – and Mr. Kay was “bigger and younger” than Mr. Yellowhair.

Two months later the probation officer circulated a draft presentence report.

The base offense level for voluntary manslaughter is 29. Guidelines § 2A1.3. The

probation officer deducted two levels for Mr. Kay’s acceptance of responsibility

pursuant to Guidelines § 3E1.1(a), yielding an adjusted offense level of 27. Because

Mr. Kay had no countable criminal history, his criminal history category was I.

With an offense level of 27 and a criminal history category of I, Mr. Kay’s

Guidelines sentencing range was 70 to 87 months. Guidelines ch. 5, pt. A. The

probation officer acknowledged that Mr. Kay’s offense conduct “appear[ed] to be

related to his alcohol abuse and his failure to control his temper when intoxicated,”

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and that since the offense, Mr. Kay had “completed an anger management class and

substance abuse treatment.” But the probation officer nevertheless recommended a

“six-level upward departure, pursuant to U.S.S.G. § 5K2.8,” and 168-month

sentence. The probation officer asserted that this upward departure was

appropriate “to address the unusually heinous and brutal conduct of the defendant”

in light of the “excessive physical violence” of the offense.

Mr. Kay filed a sentencing memorandum requesting a sentence within the

70-to-87-month Guidelines sentencing range. He argued that such a sentence would

be sufficient to achieve the purposes of sentencing consistent with 18 U.S.C.

§ 3553(a). Mr. Kay also stressed the connection between the offense and his alcohol

abuse, the aberrant nature of his conduct, and the positive steps he had recently

taken toward his rehabilitation – including his completion of classes in anger

management, graduate equivalency, and substance abuse.

3. After confirming that neither party objected to the presentence report, the

district court adopted the probation officer’s Guidelines calculations, setting the

initial Guidelines sentencing range at 70 to 87 months. App. B at 3-4. The court

heard the statements of Mr. Yellowhair’s widow and daughter, both of whom urged

the court to impose the 15-year statutory maximum sentence. Id. at 4-9. Mr. Kay

declined to allocute, but his counsel noted that he deeply regretted his role in Mr.

Yellowhair’s death, and highlighted the steps he had taken to address the

substance-abuse and anger problems that had contributed to his actions. Id. at 1012. Mr. Kay’s counsel argued against the government’s requested upward

5

departure, noting that only two of the stab wounds Mr. Yellowhair suffered reached

“vital organs,” and that Mr. Yellowhair “probably bled more profusely because of

other preexisting conditions.” Id. at 12. Mr. Kay’s counsel also reminded the court of

the evidence indicating that faulty medical treatment following the incident had

contributed to Mr. Yellowhair’s death, and noted that these facts suggested that

“this wasn’t a particularly cruel or heinous type of circumstance.” Id. at 12-13.

The government countered that an upward departure was justified by Mr.

Kay’s “extreme conduct.” Id. at 15. The government noted that Mr. Kay was larger

and younger than Mr. Yellowhair, stressed the “disparity in the injuries to the

victim versus the defendant,” and described the incident as a “surprise attack.” Id.

at 15-16. The government also asserted that “this is a voluntary manslaughter that

is really close to a second” (i.e., a second degree murder) because what led to it was

“a nothing argument.” Id. at 18.

The court acknowledged that Mr. Kay’s offense conduct had been “aberrant,”

and that he had “made attempts for rehabilitation already.” Id. at 24. But the court

nevertheless “agree[d] with the government and presentence report author” that an

“upward variance” was necessary. Id. at 24-25. The court referred to “Sentencing

Guideline 5K2.1 and 5K2.8,” noting that these provisions “permit the Court to

consider the means by which Mr. Yellowhair’s life was taken.” Id. at 25. The court

found that “the infliction of 15 stab wounds” was “extreme conduct,” explaining that

“when one looks at the medical examiner’s exhibit, it’s degrading to the victim’s

body, and it is a gratuitous infliction of injury to the victim.” Id. The court further

6

reasoned that there was “some merit to considering the relative size of Mr. Kay to

Mr. Yellowhair,” noting that Mr. Kay was “very large” and “youthful.” Id. The court

stated that on these grounds it would “upward vary pursuant to 5K2.1 and 5K2.8.”

Id. The court added that it had “also reviewed guideline 5K2.6,” which “permits the

[c]ourt to consider that a dangerous weapon was used here.” Id. Pursuant to these

upward departure factors, the court determined to sentence Mr. Kay consistently

with “an offense level of 33.” Id. at 26.

At criminal history category I, an offense level of 33 yielded a Guidelines

sentencing range of 135 to 168 months. Guidelines ch. 5 pt. A. The court sentenced

Mr. Kay to “a term of 168 months as provided by the presentence report writer,”

followed by a three-year term of supervised release. App. B at 26.

4. Mr. Kay appealed his judgment to the Ninth Circuit, arguing (inter alia)

that the district court had erred in relying on the departure provisions set forth in

Sections 5K2.1, 5K2.6, and 5K2.8 in determining his sentence. Mr. Kay argued that

the circumstances referenced in these departure provisions failed to distinguish his

case from the “heartland” of voluntary manslaughter cases. Koon v. United States,

518 U.S. 81, 94, 98 (1996) (noting that departures from the Guidelines range are

intended to occur only where the factors justifying them are sufficiently unusual

that they serve to take the case “outside the heartland of cases in the Guideline”

and render the case “atypical”).

Section 5K2.1 applies to cases in which “death resulted.” But the fact that

“death resulted” could not distinguish Mr. Kay’s offense from the “heartland” of

7

voluntary manslaughter cases, Mr. Kay observed, because death results in literally

every voluntary manslaughter case. 18 U.S.C. § 1112(a) (“Manslaughter is the

unlawful killing of a human being without malice.”).

Section 5K2.6 applies “[i]f a weapon or dangerous instrumentality was used

or possessed in the commission of the offense.” But the district court did not explain

its implicit conclusion that Mr. Kay’s use of a knife served to distinguish this case

from the heartland of voluntary manslaughter cases, and Mr. Kay argued that this

premise was inherently implausible. Cf. United States v. Barber, 119 F.3d 276, 285

(4th Cir. 1997) (en banc) (“Although it is true that a murder may be committed by

means other than with a weapon or dangerous instrumentality, generally speaking

it is difficult to imagine anything more within the heartland of conduct

encompassed by the second-degree murder guideline than the use of a dangerous

weapon.”); United States v. Kelly, 1 F.3d 1137, 1142 (10th Cir. 1993) (“The fact that

the end result of a defendant’s conduct is murder necessarily implies that the

instrumentality effectuating the death of the victim was dangerous in the manner it

was used.”). This factor therefore could not justify the district court’s departure

here.

Finally, Section 5K2.8 applies “[i]f the defendant’s conduct was unusually

heinous, cruel, brutal, or degrading to the victim.” In support of its reliance on this

provision, the district court first pointed to the fact that Mr. Kay stabbed Mr.

Yellowhair “not once or twice but multiple times, 15 times.” Mr. Kay argued that

8

the premise that this fact distinguished Mr. Kay’s offense from the “heartland” of

voluntary manslaughter cases flew in the face of the statute defining the crime as

a homicide committed “[u]pon a sudden quarrel or heat of passion.” 18 U.S.C.

§ 1112(a). Mr. Kay noted that a person wielding a knife in the throes of a sudden

quarrel or heat of passion is more, not less, likely to inflict numerous wounds.

Indeed, the pattern of injuries here – a large number of wounds apparently inflicted

rapidly, carelessly, and at random, only two of which touched vital organs –

suggested a homicide falling firmly within the heartland of voluntary

manslaughter. A single fatal injury to the heart or throat, by contrast, would tend to

suggest a premeditated murder. In light of the district court’s misapplication of

these departure factors (and other sentencing errors), Mr. Kay argued, the court of

appeals should vacate his sentence and remand the case for resentencing.

The court of appeals rejected Mr. Kay’s arguments in a brief unpublished

memorandum. App. A. Citing its opinions in United States v. Mohamed, 459 F.3d

979 (9th Cir. 2006), and other cases, the court of appeals held that it “need not

consider whether the district court correctly applied a departure provision set forth

in the Guidelines, but rather review[ed] the deviation from the applicable range for

reasonableness.” App. A at 3. The court reasoned that the sentence was “‘sufficient,

but not greater than necessary’” and qualified as “reasonable.” Id. (quoting 18

U.S.C. § 3553(a)). Except for a modification to one of the supervised release

conditions, the court affirmed Mr. Kay’s sentence. Id. at 4.

9

REASON FOR GRANTING THE WRIT

The circuit courts are deeply divided over the effect of this Court’s opinion in

United States v. Booker, 543 U.S. 220 (2005), on their review of sentencing courts’

applications of the Guidelines’ departure provisions. The majority of circuits to have

addressed the question have concluded that, because the Guidelines remain an

important part of the sentencing process, and because the application of the

departure provisions constitutes an integral part of the application of the

Guidelines, departure rulings should continue to be subject to robust appellate

scrutiny, as they were in the pre-Booker era of mandatory Guidelines. But as this

case illustrates, the Seventh and Ninth Circuits have adopted a very different view.

These courts have taken the position that Booker has rendered the Guidelines’

departure provisions “obsolete” and “superfluous,” and on this basis they have

concluded that the application of these provisions no longer need be rigorously

scrutinized on appeal. Instead, they have concluded, a sentence involving the

application of departure provisions should be affirmed regardless of any error in the

application of these provisions, provided that the final sentence qualifies as

“reasonable.”

The position of the Seventh and Ninth Circuits is wrongheaded, and

impossible to reconcile with this Court’s precedents. It rests on flawed assumptions

regarding the significance of the advisory Guidelines in sentencing, the likelihood

that a district court would modify the sentence upon remand, and the importance of

granting appellate relief where a district court has imposed a sentence based on a

10

miscalculation of the Guidelines range. During the thirteen years since Booker was

issued, this circuit split has thoroughly percolated, and become firmly entrenched.

And the two circuits on the wrong side of the split account for a large proportion of

federal sentences imposed across the country. This Court should accordingly grant a

writ of certiorari and reject the misguided view adopted by the Seventh and Ninth

Circuits with respect to this important issue of federal sentencing law.

ARGUMENT

This Court should grant certiorari to resolve a circuit split regarding the

standard by which circuit courts review sentencing courts’ applications of

the Guidelines’ departure provisions.

In Booker, this Court held that because a mandatory Guidelines framework

would violate a criminal defendant’s Sixth Amendment right to have the maximum

sentence to which he is exposed determined solely based on facts found beyond a

reasonable doubt by a jury, the Guidelines must be construed as advisory only. 543

U.S. at 246. The Court further held that courts of appeals should review sentencing

decisions made pursuant to the now-advisory Guidelines for “reasonableness.” Id. at

264. These holdings raised the question of how courts of appeals should review a

district court’s application of the provisions set forth in Part 5K of the Guidelines,

which in the pre-Booker mandatory Guidelines system permitted district courts to

“depart” from the Guidelines range in narrowly-defined circumstances. A circuit

split on this question quickly opened up in the wake of Booker.

The majority of circuits recognized that several compelling factors called for

continued robust appellate review of Guidelines departure decisions.

11

First, although Booker rendered the Guidelines advisory, the Guidelines

continue to play “an integral role in criminal sentencing.” United States v. Jackson,

467 F.3d 834, 838 (3d Cir. 2006); see also United States v. Gutierrez-Hernandez, 581

F.3d 251, 256 (5th Cir. 2009) (“The properly-calculated guideline sentencing range

is the point from which the court may vary, a necessary factor in determining

reasonableness.”); United States v. Dixon, 449 F.3d 194, 203-04 (1st Cir. 2006)

(“Although the guidelines have become advisory rather than mandatory,

determining the correct [Guidelines sentencing range] remains an appropriate

starting point for constructing a defendant’s sentence.”); United States v. Hawk

Wing, 433 F.3d 622, 631 (8th Cir. 2006) (“When a court of appeals reviews a district

court’s sentencing determination for reasonableness, the correct guidelines range is

still the critical starting point for the imposition of a sentence”) (internal quotation

marks omitted); United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005)

(“Although Booker established a ‘reasonableness’ standard for the sentence finally

imposed on a defendant, the Supreme Court concluded in Booker that district courts

must still consider the Guidelines in determining a defendant’s sentence.”)

(citations omitted). This fact behooves courts of appeals to “require that the entirety

of the Guidelines calculation be done correctly, including rulings on Guidelines

departures.” Jackson, 467 F.3d at 838; see also United States v. Robertson, 568 F.3d

1203, 1211 (10th Cir. 2009) (“[W]e have concluded not only that the Guidelines

departures ‘survive Booker,’ but also that our pre-Booker cases provide the standard

for when to depart from the recommended [Guidelines] range.”) (citations omitted);

12

Crawford, 407 F.3d at 1178 (“Booker does not alter our review of the application of

the Guidelines”).

Second, Booker’s articulation of a “reasonableness” standard of review of

sentencing decisions (543 U.S. at 261) must be understood to include review for

procedural errors, including errors in the application of Guidelines departure

provisions. United States v. Selioutsky, 409 F.3d 114, 118 (2d Cir. 2005) (“An error

in determining the applicable Guideline range or the availability of departure

authority would be the type of procedural error that could render a sentence

unreasonable under Booker.”).

Third, Booker “left in force 18 U.S.C. § 3742(f) which provides: ‘If the court of

appeals determines that . . . the sentence was imposed in violation of law or

imposed as a result of an incorrect application of the sentencing guidelines, the

court shall remand the case for further sentencing proceedings with such

instructions as the court considers appropriate.’” Gutierrez-Hernandez, 581 F.3d at

256; accord Crawford, 407 F.3d at 1178 (“Booker did not affect 18 U.S.C. section

3742(f), which mandates remand of any case in which the sentence was imposed as

a result of an incorrect application of the sentencing guidelines”) (internal quotation

marks omitted).

In view of these considerations, these circuits have continued to apply robust

appellate review to district courts’ application of the Guidelines’ departure

provisions after Booker. See, e.g., United States v. Walker, 665 F.3d 212, 233 (1st

Cir. 2011). Indeed, some circuits have stated that Booker did not alter the standard

13

by which they review Guidelines departure decisions. See, e.g., Robertson, 568 F.3d

at 1211; Crawford, 407 F.3d at 1178.

The Seventh and Ninth Circuits, however, have adopted a very different

view.

The Seventh Circuit has taken the position that “the concept of ‘departures’

has been rendered obsolete in the post-Booker world.” United States v. Arnaout, 431

F.3d 994, 1003 (7th Cir. 2005). The Seventh Circuit reasoned that “after Booker

what is at stake is the reasonableness of the sentence, not the correctness of the

‘departures’ as measured against pre-Booker decisions that cabined the discretion of

sentencing courts to depart from guidelines that were then mandatory.” United

States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005). The Seventh Circuit construed

Booker’s reasonableness standard as providing that “[s]entences varying from the

guidelines range . . . are reasonable so long as the judge offers appropriate

justification under the factors specified in 18 U.S.C. § 3553(a).” Id.; accord United

States v. Pankow, 884 F.3d 785, 793-94 (7th Cir. 2018) (citing Johnson, 427 F.3d at

426).

The Ninth Circuit has aligned itself with the Seventh Circuit’s position. In

United States v. Mohamed, 459 F.3d 979 (9th Cir. 2006), the Ninth Circuit surveyed

the conflicting circuit approaches and concluded that that “better view” was “to

treat the scheme of downward and upward ‘departures’ as essentially replaced by

the requirement that judges impose a ‘reasonable’ sentence.” Id. at 986. The court

reasoned that it would be “redundant” to require district courts to conduct “two

14

exercises – one to calculate what departure would be allowable under the old

mandatory scheme and then to go through much the same exercise to arrive at a

reasonable sentence.” Id. at 986-87. The court further reasoned that the “use and

review” of departures after Booker “would result in wasted time and resources in

the courts of appeal, with little or no effect on sentencing decisions.” Id. at 987.

“After all,” the court reasoned, “if a district court were to employ a post-Booker

‘departure’ improperly, the sentencing judge still would be free on remand to impose

exactly the same sentence by exercising his discretion under the now-advisory

guidelines.” Id. That sentence “would then be reviewed for reasonableness, in which

case it is the review for reasonableness, and not the validity of the so-called

departure, that determines whether the sentence stands.” Id. In addition, the court

posited, harmlessness review would require affirmance notwithstanding an

“erroneous departure,” provided that the resulting sentence was reasonable. Id.

On these grounds, the Ninth Circuit concluded that after Booker it would

“review the district court’s application of the advisory sentencing guidelines only

insofar as they do not involve departures.” Id. In cases in which the district court

“framed its analysis in terms of a downward or upward departure,” the court would

“treat such so-called departures as an exercise of post-Booker discretion to sentence

a defendant outside of the applicable guidelines range” and subject it to “a unitary

review for reasonableness.” Id.; accord United States v. Kaplan, 839 F.3d 795, 804

(9th Cir. 2016), cert. denied, 137 S. Ct. 1116 (2017), and cert. denied sub nom.

Strycharske v. United States, 137 S. Ct. 1358 (2017) (“In this circuit, post-Booker

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departures may not form the basis of a procedural error.”) (citing Mohamed, 459

F.3d at 987); cf. United States v. Diosdado-Star, 630 F.3d 359, 365-66 & n.2 (4th

Cir. 2011) (opining that “any sentence, within or outside of the Guidelines range, as

a result of a departure or of a variance, must be reviewed by appellate courts for

reasonableness pursuant to an abuse of discretion standard” and “offer[ing] no

comment on the observation of several other circuit courts of appeals that the

departure provisions of the Guidelines are obsolete”) (citing Mohamed, 459 F.3d at

985-87, and Arnaout, 431 F.3d at 1003-04); United States v. McBride, 434 F.3d 470,

477 (6th Cir. 2006) (“we believe that Guideline departures are still a relevant

consideration for determining the appropriate Guideline sentence[; t]his Guideline

sentence is then considered in the context of the section 3553(a) factors”).

The upshot of the approach taken by the Seventh and Ninth Circuits is that a

district court’s misapplication of a Guidelines departure factor, no matter how

egregious it may be, is not treated as grounds for a resentencing unless it happens

to yield a sentence that the court of appeals deems “unreasonable.” This case is a

perfect example: The district court here among other things treated the fact that

death resulted from Mr. Kay’s offense as a proper basis for an upward departure

pursuant to Guidelines § 5K2.1, notwithstanding the fact that death results in

literally every voluntary manslaughter case. App. B at 25. The court of appeals was

unconcerned, adhering to its strict head-in-the-sand policy with respect to

misapplications of the Guidelines departure provisions, pursuant to which it “need

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not consider whether the district court correctly applied a departure provision set

forth in the Guidelines.” App. A at 3.

The position of the Seventh and Ninth Circuits is insupportable, both as a

matter of logic and when assessed in light of the principles outlined in this Court’s

post-Booker sentencing opinions.

The notion that a misapplication of a Guidelines departure provision should

be overlooked as long as the final sentence falls within the bracket of what the court

of appeals considers “reasonable” essentially treats the district court’s application of

the Guidelines as a hollow and pointless exercise. It is akin to holding that errors in

the presentation of evidence and argument at trial should be ignored, as long as the

trial evidence was sufficient to support the guilty verdict. The reason this is not the

law is that, regardless of how “reasonable” the guilty verdict may have been, a jury

presented only with proper evidence and argument might have voted to acquit – and

the defendant has a right not to be convicted on the basis of a fundamentally flawed

proceeding.

The same basic principle should hold true in a sentencing: A district judge

who has arrived at a sentence based in part on a misapplication of a Guidelines

departure provision might well have arrived at a different sentence had he correctly

applied that departure provision – and he might well do so on remand, after the

court of appeals has alerted him to his error. In relying on a Guidelines departure

provision, the sentencing judge presumably intended to factor the Sentencing

Commission’s institutional knowledge and expertise into his sentencing decision.

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See Kimbrough v. United States, 552 U.S. 85, 108-09 (2007) (noting that Sentencing

Commission “has the capacity courts lack to base its determinations on empirical

data and national experience, guided by a professional staff with appropriate

expertise.”) (internal quotation marks omitted). After being informed that the

Commission’s knowledge and expertise did not actually lead it to make the

recommendation that the judge initially drew from its departure provisions, the

sentencing judge might well change his mind about what constitutes the

appropriate sentence.

The Ninth Circuit’s assumption that the sentencing judge would adhere to

his original sentencing ruling regardless of having been reversed for misapplying a

Guidelines departure provision, and that remanding for this reason would

accordingly be pointless, suggests that the Ninth Circuit presumes that a

sentencing judge’s reliance on the Guidelines is undertaken merely for the sake of

appearances, to ensure affirmance by the court of appeals. Such cynicism flies in the

face of the presumption that district judges know and follow the law. Walton v.

Arizona, 497 U.S. 639, 653 (1990), overruled on other grounds by Ring v. Arizona,

536 U.S. 584 (2002). And it is difficult to square with Ninth Circuit precedent

holding that Guidelines errors call for reversal even where the district judge

expressly states that he would impose the same sentence again, if the case were to

be remanded for resentencing. United States v. Gardenhire, 784 F.3d 1277, 1283-84

(9th Cir. 2015).

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This Court’s post-Booker decisions bolster these common-sense points,

support the reasoning of the circuit courts that have rejected the Seventh and Ninth

Circuits’ approach, and confirm the appropriateness of continuing to apply robust

appellate review of Guidelines departure decisions after Booker.

This Court has repeatedly affirmed that the Guidelines continue to play a

crucial role in the sentencing determination. See, e.g., Gall v. United States, 552

U.S. 38, 49, 50 n.6 (2007) (district court “should begin all sentencing proceedings by

correctly calculating the applicable Guidelines range,” treat that range as “the

starting point and the initial benchmark” in sentencing, and “remain cognizant of

[the Guidelines] throughout the sentencing process”); Kimbrough, 552 U.S. at 101

(noting that 18 U.S.C. § 3553(a) “still requires a court to give respectful

consideration to the Guidelines”); Freeman v. United States, 564 U.S. 522, 529

(2011) (“Even where the judge varies from the recommended range, if the judge uses

the sentencing range as the beginning point to explain the decision to deviate from

it, then the Guidelines are in a real sense a basis for the sentence.”) (citation

omitted); Peugh v. United States, 569 U.S. 530, 541 (2013) (“The post-Booker federal

sentencing scheme aims to achieve uniformity by ensuring that sentencing decisions

are anchored by the Guidelines and that they remain a meaningful benchmark

through the process of appellate review.”); Beckles v. United States, 137 S. Ct. 886,

899 (2017) (“The Guidelines today play a central role in federal sentencing.”);

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

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meaningful benchmark in the initial determination of a sentence and through the

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

This Court has also confirmed that courts of appeals should not hesitate to

vacate and remand sentences that are based on miscalculations of the Guidelines,

regardless of the likelihood that the district court will reimpose the same sentence

on remand. Most notably in Molina-Martinez v. United States, 136 S. Ct. 1338

(2016), the Court held that a district court’s application of an incorrect Guidelines

range can be treated as evidence of an effect on substantial rights for purposes of

plain error review, even where the final sentence fell within the correct Guidelines

range. Id. at 1345. And in Rosales-Mireles v. United States, the Court held that a

Guidelines error that is plain and affects substantial rights will “in the ordinary

case” seriously affect the fairness, integrity, or public reputation of judicial

proceedings, calling for reversal even where the error is not preserved and

accordingly plain error review applies. 138 S. Ct. at 1903. The Court noted that a

remand for resentencing is not particularly burdensome on the courts or parties,

given that “‘[a] resentencing is a brief event, normally taking less than a day and

requiring the attendance of only the defendant, counsel, and court personnel.’” Id. at

1908 (quoting United States v. Williams, 399 F.3d 450, 456 (2d Cir. 2005)).

These recent holdings constitute a forceful rejection of the Ninth Circuit’s

premise in Mohamed that the hypothetical likelihood of the district court

reimposing the same sentence on remand renders reversal for misapplication of the

Guidelines a pointless and intolerable waste of resources. 459 F.3d at 987.

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The error in the approach to this question adopted by the Seventh and Ninth

Circuits is thus evident, and calls for correction by this Court. As the above-cited

cases demonstrate, the circuit split on this question has thoroughly percolated in

the thirteen years since Booker was issued. The split is now firmly entrenched, and

has been expressly remarked upon in numerous published circuit court opinions.

See, e.g., Gutierrez-Hernandez, 581 F.3d at 255-56 & nn.11-13; Robertson, 568 F.3d

at 1210-11 & n.5; Jackson, 467 F.3d at 838 n.5; Mohamed, 459 F.3d at 985-87. It

gives rise to a patent disparity in sentencing review between the geographic regions

covered by the circuits on either side of the split, with even egregious errors in the

application of Guidelines departure provisions being essentially ignored in the

Seventh and Ninth Circuits, while they are treated as compelling grounds for

resentencing in the other circuits. Moreover, last year the two circuits on the wrong

side of the split accounted for almost one-fifth of all original sentencing appeals. See

U.S. Sentencing Comm’n, Annual Reports and Sourcebooks (2017) (tbl. 56).1 In

short, the circuit courts’ disagreement on this important issue calls out for

resolution by this Court.

1

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-andsourcebooks/2017/Table56.pdf.

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CONCLUSION

For the reasons set forth above, the Petition for a Writ of Certiorari should be

granted.

Respectfully submitted on August 20, 2018.

JON M. SANDS

Federal Public Defender

/s Daniel L. Kaplan

*DANIEL L. KAPLAN

Assistant Federal Public Defender

850 West Adams Street, Suite 201

Phoenix, Arizona 85007

(602) 382-2700

* Counsel of Record

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