Petition for Writ of Certiorari — Alj Hilton, Petitioner v. United States

No. ____________

IN THE

SUPREME COURT OF THE UNITED STATES

_________________________

ALJ HILTON,

Petitioner,

v.

UNITED STATES OF AMERICA

__________________________

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

for the Eleventh Circuit

___________________________

PETITION FOR WRIT OF CERTIORARI

___________________________

Robert A. Ratliff, Esq.

Attorney for Petitioner

713 Dauphin St.

Mobile, Alabama 36602

(251) 438-2250 (voice)

(251) 438-6180 (facsimile)

rar@ratlifflegalgroup.com

October 10, 2018

I.

QUESTION PRESENTED FOR REVIEW

I.

Whether Petitioner’s Appeal Waiver Is Inapplicable to Issues of

Trial Court Error in Applying Sentencing Guidelines’

Enhancements or in Calculating Criminal History Points When

Such Errors Are Subsequent to the Execution of the Waiver, and

Are Plain and Affect Petitioner’s Substantial Rights.

i

II.

LIST OF PARTIES AND RULE 29.6 STATEMENT

The caption of the case contains the names of all the parties to the

proceedings before the court of appeals.

The Petitioner is an individual and thus no parent corporations or

publicly held corporations are involved in this matter.

ii

III.

TABLE OF CONTENTS

I.

Questions Presented for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . i

III.

List of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

III.

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

IV.

Table of Cited Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

V.

Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

VI.

Statement of the Basis for Jurisdiction.. . . . . . . . . . . . . . . . . . . . . 2

VII. Rule Involved in this Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

VIII. Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IX.

Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

X.

Issue Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Whether Petitioner’s Appeal Waiver Is Inapplicable to Issues of

Trial Court Error in Applying Sentencing Guidelines’

Enhancements or in Calculating Criminal History Points When

Such Errors Are Subsequent to the Execution of the Waiver, and

Are Plain and Affect Petitioner’s Substantial Rights.

XI.

Why the Writ Should be Granted. . . . . . . . . . . . . . . . . . . . . . . . . . 6

XII. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

XIII. Certificate of Word Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . 24

XIV. Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

iii

APPENDIX CONTENTS

Exhibit 1 – Plea Agreement

Exhibit 2 – Sentencing Hearing Transcript (March 15, 2018)

Exhibit 3 – Judgment of District Court

Exhibit 4 – Opinion of Court of Appeals

iv

IV. TABLE OF CITED AUTHORITIES

Cases:

Pages:

Blackledge v. Allison, 431 U.S. 63 (1977). . . . . . . . . . . . . . . . . . . . . . . . 15

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

(11th Cir. November 17, 2016).. . . . . . . . . . . . . . . . . . . . . . . . . . . 16

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

Hull v. Norcom, Inc., 750 F.2d 1547 (11th Cir. 1985). . . . . . . . . . . . . . 18

Missouri v. Frye, 566 U.S. 134 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . 15

Rogers v. United States, 340 U.S. 367 (1951). . . . . . . . . . . . . . . . . . . . . 8

Tollett v. Henderson, 411 U.S. 258 (1973). . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Andis, 333 F.3d 886 (8th Cir. 2003. . . . . . . . . . . . . . . 19

United States v. Arnett, 628 F.2d 1162 (9th Cir. 1979).. . . . . . . . . . . . 17

United States v. Brown, 232 F.3d 399 (4th Cir. 2000).. . . . . . . . . . . . . 19

United States v. Bushert, 997 F.2d 1343 (11th Cir. 1993). . . . . . . 16,19

United States v. Chandler, 534 F.3d 45 (1st Cir. 2008).. . . . . . . . . . . . 19

United States v. Feichtinger, 105 F.3d 1188 (7th Cir. 1997).. . . . . . . . 19

United States v. Guillen, 561 F.3d 527 (D.C. Cir. 2009). . . . . . . . . . . . 20

United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004). . . . . . . . . . . . 19

United States v. Hilton, 731 Fed. Appx. 948, 2018 U.S.

App. LEXIS 19789 (11th Cir. July 18, 2018).. . . . . . . . . . . . . . . . . 2

v

United States v. Johnson, 992 F. Supp. 437 (D.D.C. 1997). . . . . . . . . . 20

United States v. Khattak, 273 F.3d 557 (3d Cir. 2001). . . . . . . . . . . . . 19

United States v. Krasn, 614 F.2d 1229, 1233 (9th Cir. 1980). . . . . . . . 18

United States v. Mathews, 534 Fed. App’x 418 (6th Cir. 2013).. . . . . . 19

United States v. Mezzanatto, 513 U.S. 1965 (1995). . . . . . . . . . . . 16,18

United States v. Ortuna-Herrera,

397 Fed. Appx. 535 (11th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Raynor, 989 F. Supp. 43 (D.D.C. 1997). . . . . . . . . . . . 20

United States v. Rivera, 143 Fed. App’x 622 (5th Cir. 2005).. . . . . . . . 19

United States v. Sawyer, 180 F.3d 1319 (11th Cir. 1999). . . . . . . . . . . 14

United States v. Smith, 127 F.3d 987 (11th Cir. 1997). . . . . . . . . . . . . 14

United States v. Stallings, 463 F.3d 1218 (11th Cir. 2006). . . . . . . . . . 10

United States v. Wright, 862 F.3d 1265 (11th Cir. 2017). . . . . . . . . . . 13

Statutes and Rules:

Amendment V, Constitution of the United States of America. . . . . . . . 3

Federal Rules of Criminal Procedure Rule 11. . . . . . . . . . . . . . . . . 15,16

18 U.S.C. §3553. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

18 U.S.C. §3742(c)(1)-(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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

vi

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

U.S.S.G. §2D1.1(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,8

U.S.S.G. §3E1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,12,13

U.S.S.G. §5K1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

U.S.S.G. §§6B1.2 and 6B1.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Miscellaneous:

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

Section 626. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Nancy J. King & Michael E. O'Neill,

Appeal Waivers and the Future of Sentencing Policy,

55 DUKE L.J. 209, 219 (2005). . . . . . . . . . . . . . . . . . . . . . . 14

Robert E. Scott & William J. Stuntz,

Plea Bargaining as Contract,

101 YALE L. J. 1909, 1911 (1992). . . . . . . . . . . . . . . . . . . . 16

vii

No. ____________

IN THE

SUPREME COURT OF THE UNITED STATES

_________________________

ALJ HILTON,

Petitioner,

v.

UNITED STATES OF AMERICA

__________________________

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

for the Eleventh Circuit

___________________________

PETITION FOR WRIT OF CERTIORARI

___________________________

Robert A. Ratliff, Esq.

Attorney for Petitioner

713 Dauphin St.

Mobile, Alabama 36602

(251) 438-2250 (voice)

(251) 438-6180 (facsimile)

rar@ratlifflegalgroup.com

1

Petitioner, by and through his undersigned counsel, hereby

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

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

V.

OPINION BELOW

The Eleventh Circuit Court of Appeals dismissed the appeal of the

Petitioner’s conviction and sentence in an unpublished opinion

appended hereto. (App., infra, 4a). United States v. Hilton, 731 Fed.

Appx. 948, 2018 U.S. App. LEXIS 19789 (11th Cir. July 18, 2018).

VI.

STATEMENT OF THE BASIS FOR JURISDICTION

The opinion of the court of appeals was entered on July 18, 2018.

(App., infra, 4a) The jurisdiction of this Court is invoked under 28

U.S.C.§1254(1).

VII.

RULE INVOLVED IN THIS CASE

Amendment V, Constitution of the United States of America

(emphasis added):

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

2

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 be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public use,

without just compensation.

VIII.

STATEMENT OF THE CASE

Petitioner, Alj Hilton (herein also referred to as “defendant” or

“Mr. Hilton”) was named in a one-count indictment by the July 2017

Federal Grand Jury for the Southern District of Alabama, Mobile,

Alabama. The sole count charged that on or about February 20, 2017,

the Petitioner did knowingly possess with the intent to distribute

approximately 453.4 grams of methamphetamine, in violation of 21

U.S.C. §841(a)(1).

Mr. Hilton was arrested on August 25, 2017, in the District of

Colorado, and released on bond on August 31, 2017. On November 15,

2017, Mr. Hilton pled guilty to the one-count indictment, pursuant to a

written plea agreement. (App.,infra, 1a, Plea Agreement) The terms of

the Plea Agreement provide that the United States will not bring any

additional charges against the defendant related to the facts underlying

3

the indictment, and will recommend a sentence at the low end of the

guideline range. The Government also agreed to recommend a

downward departure, pursuant to U.S.S.G. §5K1.1 or Rule 35, if the

defendant provides substantial assistance to the Government.

In addition, Paragraph 24 of the Plea Agreement included a

limited waiver of the right to appeal and a limited waiver of collateral

attack. Id., at 11-12. This limitation, however, reserved a right to appeal

any sentence which constituted an upward departure or variance from

the advisory guideline range.

The Petitioner was sentenced on March 15, 2018 to a term of

incarceration of 210 months and a subsequent term of supervised

release of five years. (App., infra, 2a, Sentencing Hearing Transcript)

The judgment of the district court was entered on March 15, 2018. (See,

App., infra, 3a, Judgment). A Notice of Appeal was filed by Petitioner’s

counsel on March 16, 2018, appealing the district court’s sentence. In

response, the Government sought to dismiss the appeal, before it was

heard on its merits, based on a limited appeal waiver included in the

subject Plea Agreement.

Appellant is currently in the care and custody of the Federal

4

Bureau of Prisons at FCI Yazoo City (Low), Yazoo City, Mississippi.

IX.

STATEMENT OF FACTS

The instant drug offense was investigated by the Mobile County

Street Enforcement Narcotics Team (MCSENT), the Drug Enforcement

Administration (DEA), and Homeland Security Investigations (HSI), all

of Mobile, Alabama. On February 20, 2017, MCSENT Officer Brian

Smith was contacted by a Confidential Informant (CI) who advised that

he had made several unrecorded phone calls with an individual in

Mississippi named Alj Hilton. The CI had arranged for Mr. Hilton to

deliver him one pound of methamphetamine later that same day.

Mr. Hilton and the CI continued to communicate over the course of

the day, and law enforcement setup an undercover position in the

Tillman’s Corner area of Mobile, where the CI and Mr. Hilton agreed to

meet. During their surveillance, officers observed the Petitioner and

another male, later identified as Arthur Burney, standing near Mr.

Hilton’s vehicle in the parking lot of an auto parts store. After receiving

confirmation from the CI that Mr. Hilton was entering the CI’s vehicle,

officers converged on the area, and Mr. Hilton was taken into custody

without incident.

5

(After taking Petitioner into custody, officers noticed that Burney

was no longer at Hilton’s vehicle. Officers entered the adjacent auto

parts store, and observed Burney walk to an end cap and toss a gun into

the display. Burney was subsequently taken into custody and officers

recovered a .32-caliber Beretta pistol. Unlike Petitioner, Burney was

charged with firearm possession.)

A search of Mr. Hilton’s vehicle revealed 453.4 grams of

methamphetamine. After recovering the methamphetamine, Appellant

was read his Miranda rights, and agreed to speak with officers. Mr.

Hilton confirmed that he and Burney had traveled together from

Mississippi, but declined to make any further statement to law

enforcement. He was subsequently indicted in the Southern District of

Alabama.

X.

ISSUE PRESENTED

I.

Whether Petitioner’s Appeal Waiver Is Inapplicable to Issues of

Trial Court Error in Applying Sentencing Guidelines’

Enhancements or in Calculating Criminal History Points When

Such Errors Are Subsequent to the Execution of the Waiver, and

Are Plain and Affect Petitioner’s Substantial Rights.

XI.

WHY THE WRIT SHOULD BE GRANTED

The Government moved to dismiss Petitioner’s appeal based upon

6

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

“As part of the bargained-for exchange represented in this plea

agreement, and subject to the limited exceptions below, the defendant

knowingly and voluntarily waives the right to file any direct appeal. . .”

Motion to Dismiss, p. 5 1 Though some defendants among the circuits

have unsuccessfully attempted to categorize such an appeal challenging

the application of Sentencing Guidelines’ enhancements or the

calculation of criminal history points as an appeal falling within the

standard appeal waiver exception, Petitioner maintains that sentencing

errors in applying Sentencing Guidelines’ enhancements or in

calculating criminal history points when such errors are plain and affect

Petitioner’s substantial rights cannot and should not fall within the

unilateral, asymmetric, prospective restrictions of limited appeal

waivers.

The sentencing issues sought to be challenged on appeal do not go

A standard exception in many such limited waivers, including the

subject agreement, was that a sentence imposed which constitutes a

variance from the statutory maximum or variance from the advisory

guideline range could still be challenged on appeal.

1

7

to matters of guilt nor evidence. As the Government affirmed in its

Motion to Dismiss, at his trial proceedings, the Petitioner admitted to

the evidence described in the plea agreement’s factual resume. Contrary

though to the Government’s representation, the Petitioner is not

suggesting innocence but rather seeking error-correction in both plain

error sentencing calculation and constitutional applications.

How does a litigant engage in error-correction if the trial court

makes an error at sentencing in light of the limited appeal

waiver?

Paragraph 15 of the subject Presentence Investigation Report

(“PSI”)2 provided a specific offense characteristic of two levels pursuant

to U.S.S.G. §2D1.1(b)(1). This enhancement to the total offense level

was objected to at sentencing, an objection which the trial court denied.

(See, Sentencing Hearing, p.3-4, (App.,infra, 2a))

However, denying this objection was in error but because of the

limited appeal waiver, Petitioner did not have the right of appellate

review.

In Paragraph 15 of the PSI, the Probation Officer cited that these

The subject PSI is referenced in the Appellant Brief. It is found

as Doc. 28 in the trial court docket.

2

8

two levels were included “because a dangerous weapon was possessed by

a co-conspirator.” The record, though, is devoid of any evidence (a) that

Mr. Hilton possessed a weapon, (b) that Mr. Hilton was aware that

anyone at the scene of the offense possessed a dangerous weapon, or (c)

that Mr. Hilton even had a co-conspirator.

While it is uncontroverted that Mr. Hilton had a passenger in his

car in driving to the subject drug transaction, nowhere is that passenger

deemed a “co-conspirator.” Based on the definition of the Supreme Court

of the United States, “co-conspirators” are two or more individuals who

have reached an agreement between two or more individuals to commit

the same criminal offense. See, e.g., Rogers v. United States, 340 U.S.

367, 95 L. Ed. 344, 71 S. Ct. 438 (1951) Nowhere is there evidence of the

existence or necessity of an accomplice with Mr. Hilton in the charged

offense.

The Application Notes, in the Commentary to U.S.S.G.

§2D1.1(b)(1), reflect that “[t]he enhancement should be applied if the

weapon was present, unless it is clearly improbable that the weapon

was connected with the offense.” As the record reflects, no weapon

(dangerous or otherwise) was present at the time of the subject drug

9

transaction. Logic dictates that it is clearly improbable that any weapon

was connected with the offense.

Courts of this circuit have been quite clear that to justify the

dangerous weapon enhancement, the Government must show by a

preponderance of the evidence that either the firearm was present at

the site of the charged conduct or prove that the defendant possessed a

firearm during conduct associated with the offense. United States v.

Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006). (Only if the

Government meets its burden, then the burden shifts to the defendant

to demonstrate that a connection between the weapon and the offense

was "clearly improbable." Id.; also see, United States v.

Ortuna-Herrera, 397 Fed. Appx. 535 (11th Cir. 2010))

The Government, as reflected in the trial court record, failed to

meet its burden.

No evidence was presented that Mr. Hilton possessed a firearm.

(App.,infra, 1a). While it is conceded that since possession of a firearm

by a co-conspirator is reasonably foreseeable and in furtherance of a

conspiracy, such a possession could trigger an enhancement to a

defendant if a conspiracy was charged. Such a charge was not made.

10

In the subject case, the alleged firearm was allegedly possessed by

a third party. The indictment at bar cites one count and only one

defendant. This alleged possession was not in furtherance of any

conspiracy as no conspiracy was alleged, charged, or included in Mr.

Hilton’s Plea Agreement. (App., infra, 1a) Mr. Hilton was not a member

of any conspiracy and the only reference to a firearm was made by the

Government in arguments and not by evidence in the record or in the

Factual Resume of the Appellant.(Id.)

Consequently, it was error for the trial court to apply the

Sentencing Guidelines as it did in enhancing Mr. Hilton’s total offense

level for a weapon that did not exist.

How does a litigant engage in error-correction with regard to

acceptance of responsibility if the trial court makes an error at

sentencing in light of the limited appeal waiver?

The United States Sentencing Guidelines provide that a defendant

can be credited up to three levels for acceptance of responsibility at

sentencing against a total offense level. This credit is established in

§3E1.1:

Acceptance of Responsibility

(a)

If the defendant clearly demonstrates acceptance of

11

responsibility for his offense, decrease the offense level by 2 levels.

(b) If the defendant qualifies for a decrease under subsection (a),

the offense level determined prior to the operation of subsection (a)

is level 16 or greater, and upon motion of the government stating

that the defendant has assisted authorities in the investigation or

prosecution of his own misconduct by timely notifying authorities

of his intention to enter a plea of guilty, thereby permitting the

government to avoid preparing for trial and permitting the

government and the court to allocate their resources efficiently,

decrease the offense level by 1 additional level.

In the Commentary to this Guideline, the Application Notes reflects

that in determining whether a defendant qualifies under subsection (a),

appropriate considerations include truthfully admitting the conduct

comprising the offense(s) of conviction; voluntary payment of restitution

prior to adjudication of guilt; voluntary surrender to authorities

promptly after commission of the offense; and the timeliness of the

defendant's conduct in manifesting the acceptance of responsibility.

Petitioner fulfilled these suggestive factors. He truthfully admitted

the conduct comprising the offense(s) of conviction. Although he was

arrested in Denver, Colorado, he voluntarily consented to being

arraigned in Mobile, Alabama. In general, the timeliness of Mr. Hilton's

conduct in manifesting the acceptance of responsibility deserves

application of both U.S.S.G. §3E1.1(a) and (b).

12

The Government’s position regarding this issue is that Petitioner’s

subsequent misdemeanor charges for careless driving, disorderly

conduct, and driving under the influence abrogates any privilege to

receive this beneficial credit. (See, Sentencing Transcript, (App.,infra,

2a) As support, the government cites United States v. Wright, 862 F.3d

1265 (11th Cir. 2017).

In Wright, the defendant, while out of jail on pretrial supervision,

was arrested, convicted, and sentenced for the crime of possession of

marijuana. Although Wright had cooperated and entered a guilty plea in

her federal case, the district court denied Wright a reduction for

acceptance of responsibility because of her marijuana conviction during

pretrial release.

On appeal, the court affirmed. In its opinion, it discussed the

factors to consider under the Guidelines including whether a defendant

voluntarily terminated or withdrew from criminal conduct or

associations. U.S.S.G. § 3E1.1 cmt. n.1(B). However, in that case, the

subsequent drug possession charge was the type of criminal conduct

that reflects on a pattern of behavior, conduct expressly sought to avoid

in order to receive acceptance of responsibility credits. The types of

13

offenses committed by the Petitioner while awaiting sentencing, to the

contrary, were misdemeanors. They were punishable by a fine and

simply represent an inadvertent minor breach of the law. They do not

represent a continuation of criminal conduct or associations as

envisioned by the Sentencing Guidelines.

The determination of whether a defendant has adequately

manifested acceptance of responsibility is a flexible, fact sensitive

inquiry. United States v. Smith, 127 F.3d 987 (11th Cir. 1997) (en banc).

"The defendant bears the burden of clearly demonstrating acceptance of

responsibility and must present more than just a guilty plea." United

States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999). A flexible

inquiry and a full review of Appellant’s history at sentencing, especially

in light of 18 U.S.C. §3553 would clearly indicate a three level departure

for acceptance of responsibility. The trial court’s refusal to conduct such

an inquiry and review in light of §3553 was clear error and should have

been reviewed on appeal.

Whether a prospective appeal waiver is enforceable?

When reviewing the concept of appeal waivers, a concept

14

unexamined for many years by this Court3 , it is posited that the legal

existence of an appeal waiver is ethically and constitutionally suspect as

it is grounded purely in resource conservation considerations advocated

by prosecutors and judges. See, Nancy J. King & Michael E. O'Neill,

Appeal Waivers and the Future of Sentencing Policy, 55 DUKE L.J. 209,

219 (2005).

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

federal statute, which permits filing an appeal by the defendant if the

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

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

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

authorized by Federal Rule of Civil Procedure 11 that acknowledges the

existence of the waiver of the right to appeal by requiring the court to

discuss any such terms in a plea agreement explicitly with defendants.

Fed. R. Civ. Proc. 11.

FED. R. CIV. PROC. 11, note 15, at 224 ("Despite the nearuniform acceptance of appeal waivers by the courts of appeals, their

validity is as controversial as ever and has yet to be addressed by the

Supreme Court.").

3

15

Appeal waivers, the unilateral prospective waiver of the

constitutional right of appellate review, is now a recognized national

practice. With roughly 97% of all federal convictions resulting from

guilty pleas4, and the majority of guilty pleas including appeal waivers,

the enforceability of these provisions is quite fundamental especially in

light of the context of such waivers involving unequal bargaining

positions. Recognizing this unilateral leverage, federal prosecutors have

outlined the parameters and the legality in their U.S. Attorneys

Manual, Criminal Resource Manual (“CRM”), Section 626.

In the CRM, the legality of these provisions generally is confirmed.

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

Henderson, 411 U.S. 258 (1973); Blackledge v. Allison, 431 U.S. 63

(1977), cert. denied, 116 S. Ct. 548 (1995). Consistent with that

principle, the courts of appeals have upheld the general validity of a

sentencing appeal waiver in a plea agreement. See, e.g., United States

v. Bushert, 997 F.2d 1343 (11th Cir. 1993), cert. denied, 115 S. Ct. 652

(1994); however, see Boles v. United States, 2016 U.S. App. LEXIS

4

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

16

20583 (11th Cir. November 17, 2016) (double jeopardy claim is not

barred by a knowing and voluntary waiver). However, it is important to

note that the United States Sentencing Commission's policy statements

allow judges to accept plea agreements as long as the agreements do not

undermine the statutory purposes of sentencing or the Sentencing

Guidelines. USSG §§6B1.2 and 6B1.4 (Nov. 1994).

A plea bargain is a contract between the prosecutor and the

defendant, and an appeal waiver is part of that contract5. Plea

agreements must be construed in light of the rights and obligations

created by the Constitution. Id. Guilty pleas are generally negotiated

outside the courtroom, between just the lawyers, without the defendant,

and in the absence of any witness or recording mechanism. See Robert

E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.

J. 1909, 1911 (1992). This “scandalously casual” process of “horse

trading,” which determines who goes to prison and for how long, is “not

Arizona Dept. of Corrections v. Adamson, 483 U.S. 1,15, 107 S.

Ct. 2680, 97 L. Ed. 2d 1 (1987)(“…it seems clear that the law of

commercial contract may in some cases prove useful as an analogy or

point of departure in construing a plea agreement, or in framing the

terms of the debate. It is also clear, however, that …plea agreements

are constitutional contracts.”

5

17

some adjunct to the criminal justice system; it is the criminal justice

system.” Id. at 1911-12 (emphasis in original).

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

plea bargain itself is contractual in nature and ‘subject to contract-law

standards.’” United States v. Krasn, 614 F.2d 1229, 1233 (9th Cir. 1980)

(quoting United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979)).

The terms of a plea agreement are interpreted according to “objective

standards” and, in the event of a dispute, the “dispositive question” is

what the parties “reasonably understood.” Arnett, 628 F.2d at 1164.

Plea agreements are contracts of adhesion, and must be strictly

construed against the Government. See United States v. Mezzanatto,

513 U.S. 196, 115 S. Ct. 797, 130 L. Ed. 2d 697 (1995)(Souter, J.,

dissenting)

Notwithstanding the utilitarian acceptance of appeal waiver

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

equity impacted by requiring a defendant to enter into an asymmetric

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

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

infra, 1a, Plea Agreement, 22. Under the well-established provisions of

18

contract law, this lack of mutuality directly impacts the enforceability of

the contractual plea agreement. See, Hull v. Norcom, Inc., 750 F.2d

1547 (11th Cir. 1985)

Almost all of the circuits have concluded that, absent some

egregious circumstance or a miscarriage of justice, a unilateral waiver of

the right to appeal is generally enforceable, but some opinions limit the

grounds for disregarding appellate waivers to situations in which (i) the

district court relied on a constitutionally impermissible factor, (ii)

counsel was ineffective in connection with the negotiation of the waiver,

(iii) the sentence imposed exceeded the statutory maximum, or (iv) the

wavier was “otherwise unlawful.” See United States v. Mathews, 534

Fed. App’x 418 (6th Cir. 2013); United States v. Chandler, 534 F.3d 45

(1st Cir. 2008); United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004);

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

Khattak, 273 F.3d 557 (3d Cir. 2001); United States v. Brown, 232 F.3d

399 (4th Cir. 2000); United States v. Feichtinger, 105 F.3d 1188 (7th

Cir. 1997). Compare United States v. Rivera, 143 Fed. App’x 622, 623

(5th Cir. 2005) (enumerating arithmetic error in guideline calculations

as a ground for disregarding an appeal waiver). To require a defendant

19

to prospectively waive a future unknown is, unlike a contemporaneous

waiver, inherently unknowing for the defendant simply does not know

what might occur at sentencing. Cf., United States v. Bushert, 997 F.2d

1343 (11th Cir. 1993) Generally, when a guilty plea is entered and the

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

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

presentence report has not yet been prepared, the applicable USSG

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

imposed. Given the quantum of information usually unavailable at the

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

“unknowing and unintelligent.” See, United States v. Johnson, 992 F.

Supp. 437 (D.D.C. 1997) (refusing to accept a plea containing a waiver of

the right to appeal); United States v. Raynor, 989 F. Supp. 43 (D.D.C.

1997) (same).

Recognizing the dichotomy between contemporaneous and

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

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

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

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

20

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

Guillen, an appellate waiver “relieves neither [the defendant’s] attorney

nor the district court of their obligations to satisfy applicable

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

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

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

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

pronouncement resonates with the view that the provisions of 18 U.S.C.

§ 3742 do not merely confer a right to appeal, but rather impose

limitations on judicial authority, which cannot be “waived” by the

parties. Such a position is underscored by the United States Sentencing

Guidelines that observe that, because “a salient purpose of the

Guidelines is to reduce sentencing disparity and to create uniformity,”

an appeal asserting that the district court “misapplied the Guidelines . .

. should not be barred by waiver”).

In this matter, the trial court erred in two sentencing errors, two

mistakes that are plain and affect the defendant’s substantive rights.

First, the district court erred in applying an enhancement under

U.S.S.G. §2D1.1(b)(13)(D) when no evidence or admission of a firearm

21

was presented. Though the factual support for such an enhancement

was allegedly presented in the Petitioner’s Presentence Investigation

Report prepared by the U.S. Probation Department for the District

Court, in fact no evidence was presented before the court that a firearm

was present in the course of the offense conduct. The sentencing judge

accepted this erroneous presentation and sentenced the defendant

accordingly.

The Government claims that because the Petitioner voluntarily

entered his plea of guilty, he has waived virtually all defects including

the foregoing sentencing errors. The right to error correction through

appellate review is a hallmark of due process. A defendant cannot

intelligently and prospectively waive such possible, including any

probable nor expected, judicial errors.

This writ should be granted because the issue is of fundamental

importance and one unaddressed by both the High Court nor any of the

circuits in any particularity.

XII.

CONCLUSION

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

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

22

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

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

judicial recognition of the paramount need for prompt, eminently fair

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

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

which the quality of our civilization may be judged.”

The global and unrestricted use of appeal waivers deserve to be

brought within some constitutional dimensions. Additionally, as the

circuit courts have not addressed the specific issue and applicability of

double jeopardy, it is incumbent on this Court to provide such a defense

to the Fifth Amendment. The Petitioner respectfully requests that this

Honorable Court issue the requested writ of certiorari.

Respectfully submitted,

/s/Robert A Ratliff

Robert A. Ratliff, Esq.

Robert A Ratliff, PC

713 Dauphin Street

Mobile, Alabama 36602

(251) 438-2250

rar@ratlifflegalgroup.com

Counsel For Petitioner

23

XIII.

CERTIFICATE OF WORD LIMITATIONS

I hereby certify that the foregoing Petition, exclusive of mandated

information under S.Ct.R. 33, is 23 pages in length and 5249 in word

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

prepare this document.

/s/Robert A Ratliff

Robert A. Ratliff

Attorney for Petitioner

24

XIV.

CERTIFICATE OF SERVICE

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

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

to ensure delivery, this 10 day of October, 2018, and that all parties

required to be served have been served:

Solicitor General of the United States

Room 5614, Department of Justice

950 Pennsylvania Avenue, NW

Washington, D.C. 20530-0001

/s/Robert A Ratliff

Robert A. Ratliff, Esq.

Robert A Ratliff, PC

713 Dauphin Street

Mobile, Alabama 36602

(251) 438-2250

rar@ratlifflegalgroup.com

Counsel For Petitioner

25

No. ____________

IN THE

SUPREME COURT OF THE UNITED STATES

_________________________

ALJ HILTON ,

Petitioner,

v.

UNITED STATES OF AMERICA

__________________________

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

for the Eleventh Circuit

___________________________

APPENDIX

___________________________

Robert A. Ratliff, Esq.

Attorney for Petitioner

713 Dauphin St.

Mobile, Alabama 36602

(251) 438-2250 (voice)

(251) 438-6180 (facsimile)

rar@ratlifflegalgroup.com

26

APPENDIX

Table of Contents

Exhibit 1 – Plea Agreement

Exhibit 2 – Sentencing Hearing Transcript

Exhibit 3 – District Court Judgment

Exhibit 4 – Court of Appeals’ Order affirming conviction and sentence

27