Reply Brief — Larry M. Slusser, Petitioner v. United States

No. 18-6807

__________________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________________________________________________________

LARRY M. SLUSSER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

__________________________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

__________________________________________________________________________

REPLY BRIEF OF PETITIONER

__________________________________________________________________________

MARK OSLER, Esq.

Univ. of St. Thomas (MN)

1000 LaSalle Ave., MSL 400

Minneapolis MN 55403

(254) 717-7032

ELIZABETH B. FORD

Federal Community Defender

Jennifer Niles Coffin

Assistant Federal Defender

Counsel of Record

Federal Defender Services

of Eastern Tennessee, Inc.

800 South Gay Street, Suite 2400

Knoxville, Tennessee 37929

(865) 637-7979

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................... iii

ARGUMENT .................................................................................................................. 1

I.

The Circuits Are in Direct Disagreement on the Question Presented ................. 1

II.

The Cases the Government Cites Do Not Support Denying Review ................... 5

III. The Government Offers No Other Good Reason To Deny Review. ..................... 8

CONCLUSION............................................................................................................. 11

ii

TABLE OF AUTHORITIES

Federal Cases

Brady v. United States,

397 U.S. 742 (1970) ............................................................................................... 7‒8

Class v. United States,

138 S. Ct. 798 (2018) .............................................................................................. 10

Cross v. United States,

892 F.3d 288 (7th Cir. 2018) ................................................................................. 4‒5

Danforth v. Minnesota,

552 U.S. 264 (2008) ................................................................................................... 2

DeRoo v. United States,

223 F.3d 919 (8th Cir. 2000) ............................................................................. 1‒2, 9

Ferguson v. United States,

No. 17-7496 (cert. pending) .................................................................................... 11

James B. Beam Distilling Co. v. Georgia,

501 U.S. 529 (1991) ................................................................................................... 2

Johnson v. United States,

135 S. Ct. 2551 (2015) ......................................................................................passim

Marbury v. Madison,

5 U.S. 137, 1 Cranch 137 (1803) ............................................................................... 2

Moore v. United States,

No. 17-8153 (cert. pending) .................................................................................... 11

Nichols v. United States,

897 F.3d 729 (6th Cir. 2018) ..................................................................................... 2

Quarles v. United States,

No. 17-778 (cert. granted Jan. 11, 2019) ................................................................ 11

Sanford v. United States,

841 F.3d 578 (2d Cir. 2016) ...................................................................................... 6

United States v. Adkins,

743 F.3d 176 (7th Cir. 2014) ................................................................................. 4‒5

United States v. Bibler,

495 F.3d 621 (9th Cir. 2007) .................................................................................... 3

United States v. Carson,

855 F.3d 828 (7th Cir. 2017) ................................................................................. 4‒5

United States v. Cloud,

197 F. Supp. 3d 1263 (E.D. Wash. 2016) ................................................................. 3

United States v. Crosby,

No. 15-4572 (4th Cir. Oct. 30, 2016) ........................................................................ 7

United States v. DeRoo,

No. 3:96-cr-39 (D.N.D. Apr. 14, 1997) ...................................................................... 3

United States v. Frazier-LeFear,

665 F. App'x 727 (10th Cir. 2016) ............................................................................ 6

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United States v. Hahn,

359 F.3d 1315 (10th Cir. 2004) (en banc) ................................................................. 6

United States v. Haskins,

198 F. App’x 280 (4th Cir. 2006) .............................................................................. 7

United States v. Hoopes,

No. 3:11-cr-425-HZ (D. Or. July 5, 2016) ................................................................ 3

United States v. Jacobson,

15 F.3d 19 (2d Cir. 1994) .......................................................................................... 6

United States v. Marin,

961 F.2d 493 (4th Cir. 1992) ..................................................................................... 7

United States v. Morrison,

852 F.3d 488 (6th Cir. 2017) ..................................................................................... 6

United States v. Ornelas,

828 F.3d 1018 (9th Cir. 2016) ................................................................................... 5

United States v. Rios,

No. 2:13-cr-2059 (E.D. Wash. Aug. 12, 2016) .......................................................... 3

United States v. Rosa,

123 F.3d 94 (2d Cir. 1997) ........................................................................................ 6

United States v. Sampson,

684 F. App’x 177 (3d Cir. 2017) ................................................................................ 5

United States v. Stitt,

139 S. Ct. 399 (2018) ............................................................................................... 10

Welch v. United States,

136 S. Ct. 1257 (2016) ............................................................................................... 2

Constitution & Statutes

18 U.S.C. § 922(g) .......................................................................................................... 3

18 U.S.C. § 3553(a) ........................................................................................................ 9

U.S. Sentencing Commission Materials

U.S.S.G. § 3E1.1(b) .................................................................................................... 8‒9

U.S. Sent’g Comm’n, Mandatory Minimum Penalties in the Federal Criminal

Justice System (2011) ............................................................................................... 9

iv

ARGUMENT

The government contends that the circuits are not divided on whether a

collateral-attack waiver bars a claim that a defendant’s ACCA sentence exceeds the

statutory maximum. The government is wrong. Courts in every other circuit have

announced (and applied) a longstanding rule that would permit review of Mr.

Slusser’s claim on the merits. Pet. at 1‒2 & nn.3‒4. The Eighth Circuit has applied

its rule in the ACCA context, while district courts in the Ninth Circuit have applied

that court’s rule in countless Johnson cases. The Seventh Circuit’s recent deviation

from its own rule in order to bar review of a Johnson challenge to an ACCA

sentence only proves that this Court should now intervene.

I.

The Circuits Are in Direct Disagreement on the Question Presented.

The government concedes that the Eighth Circuit in DeRoo v. United States,

223 F.3d 919 (8th Cir. 2000), refused to enforce a collateral-attack waiver because

the ACCA sentence was illegal, following its rule that an appeal waiver cannot bar

a challenge to an illegal sentence. Id. at 926. The government argues, however,

that the error in DeRoo was different because it was “plain based on the text of

Section 924(e) and the law at the time of sentencing, not based on a development in

the law that occurred after the defendant’s sentence became final.” BIO at 15. This

does not make the error different.

A sentence that is illegal now because it exceeds the statutory maximum was

illegal when it was imposed, no matter when its illegality became known.

By

invalidating the residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015),

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this Court did not suddenly make unconstitutional what was previously

constitutional, but recognized—at long last—that the residual clause was void when

Congress enacted it. See Danforth v. Minnesota, 552 U.S. 264, 271 (2008) (“[T]he

source of a ‘new rule’ is the Constitution itself, not any judicial power to create new

rules of law”; “the underlying right necessarily pre-exists [the Supreme Court’s]

articulation of the new rule.”); Welch v. United States, 136 S. Ct. 1257, 1268 (2016)

(penalty imposed under residual clause “has not been authorized by any valid

criminal statute”); see also James B. Beam Distilling Co. v. Georgia, 501 U.S. 529,

549 (1991) (Scalia, J., concurring) (Supreme Court has no power to change the law,

but only “the power ‘to say what the law is.’” (quoting Marbury v. Madison, 5 U.S.

137, 1 Cranch 137, 177 (1803)).1

That an illegal sentence is final may say

something about its redressability, but it says nothing about its illegality.

Danforth, 552 U.S. at 271 & n.5.

While the government is correct that the court in DeRoo did not say whether

DeRoo himself acknowledged the propriety of the ACCA in his plea agreement, BIO

at 15, this means only that such acknowledgements are not relevant. As a matter of

fact, DeRoo acknowledged that the ACCA applied in his case, no less than Mr.

Slusser did. In his plea agreement, DeRoo agreed he was guilty as charged in an

The Sixth Circuit, too, recognizes this fundamental precept. Nichols v. United

States, 897 F.3d 729, 735‒36 (6th Cir. 2018) (recognizing that the residual clause

did not “suddenly bec[o]me vague as the Supreme Court penned Johnson,” it was

“unconstitutionally vague all along”; district court was thus without power to

impose ACCA sentence in excess of the proper statutory maximum either now or

then).

1

2

indictment that not only charged him with violating 18 U.S.C. § 922(g), but also

specified the three prior offenses that qualified him for the ACCA’s enhanced

penalty. Plea Agreement at 2, United States v. DeRoo, No. 3:96-cr-39 (D.N.D. Apr.

14, 1997) (Doc. 24). DeRoo also agreed that he “understands” that the offense to

which he pled guilty carries “[a] minimum penalty of 15 years,” and elsewhere

stipulated that he was subject to “a mandatory minimum sentence under [the

ACCA] of 15 years to life.” Id. at 2, 4. None of these acknowledgments meant that

his appeal waiver was enforceable.

About the Ninth Circuit’s rule, the government can only point out that Bibler

did not involve an ACCA sentence and that the court ultimately enforced the

waiver. BIO at 16 n.2. But sentencing courts in the Ninth Circuit have routinely

applied Bibler to refuse to enforce a waiver in cases raising Johnson-based

challenges. E.g., United States v. Cloud, 197 F. Supp. 3d 1263 (E.D. Wash. 2016);

Opinion and Order at 15‒16, United States v. Hoopes, No. 3:11-cr-425-HZ (D. Or.

July 5, 2016); Order at 4‒5, United States v. Rios, No. 2:13-cr-2059 (E.D. Wash.

Aug. 12, 2016). And the Ninth Circuit’s rule—that the illegal-sentence exception

encompasses any sentence that exceeds the statutory maximum or “violates the

Constitution”—clearly covers a claim that an ACCA sentence exceeds the properly

calculated statutory maximum. This Court has explained that an above-statutorymaximum sentence “denie[s] the petitioner his constitutional right to be deprived of

liberty as punishment for criminal conduct only to the extent authorized by

Congress.” Whalen v. United States, 445 U.S. 684, 690 (1980).

3

The Seventh Circuit’s decision in United States v. Carson, 855 F.3d 828 (7th

Cir. 2017), is in direct conflict with the Eighth and Ninth Circuits. In Carson, the

Seventh Circuit dismissed a defendant’s challenge to his ACCA sentence, reasoning

that it is “not possible to determine if Carson’s sentence as an armed career

criminal is illegal (or a miscarriage of justice) without resolving the merits of his

appeal.” Id. at 831. While Carson superficially appears to align with the Sixth

Circuit’s decision here, it cannot be squared with an earlier Seventh Circuit case,

United States v. Adkins, 743 F.3d 176 (7th Cir. 2014).

In Adkins, the Seventh Circuit confirmed that an appeal waiver will not

prevent a defendant from raising a limited set of claims sounding in due process,

including a claim that “a sentence [] exceeds the statutory maximum for the

defendant’s particular crime.” Id. at 192‒93. It explained that “[t]here are multiple

rationales for these exceptions, such as fundamental fairness to the particular

defendant and the fundamental legitimacy of the judicial process generally.” Id. at

193. The court in Adkins held that the waiver thre did not bar the defendant’s

claim that his condition of supervised release violated due process because it was

unconstitutionally vague. Id.

Carson does not mention the earlier Adkins, or explain why fundamental

rules of fairness and legitimacy would not apply in the ACCA context. Meanwhile,

a later panel of the Seventh Circuit held that an appeal waiver’s exception for a

challenge to the sentence based on a “constitutionally impermissible factor” may

reasonably be interpreted to include a claim that the sentence was based on the

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mandatory Guidelines’ unconstitutional residual clause. Cross v. United States, 892

F.3d 288, 299 (7th Cir. 2018). The government is correct that Cross reached this

conclusion as a matter of contract interpretation, but it ignores the resulting mix of

conflicting signals in the Seventh Circuit. If anything, Adkins, Carson, and Cross

together reflect a growing incoherence in the Seventh Circuit when it comes to

ACCA cases, and that this Court’s swift guidance is needed.

II.

The Cases the Government Cites Do Not Support Denying Review.

Contrary to the government’s suggestion (and the Seventh Circuit’s analysis

in Carson), BIO at 11‒12, the enforceability of Mr. Slusser’s waiver does not depend

on the merits of his Johnson claim. The question presented is whether his waiver is

unenforceable because his claim falls in a category of claims that cannot be waived,

not whether the waiver is unenforceable because his claim is meritorious. Pet. at ii.

In any event, courts of appeals often choose to consider the merits of a claim before

deciding whether to enforce the waiver. For example, in United States v. Sampson,

684 F. App’x 177 (3d Cir.), cert. denied, 137 S. Ct. 2147 (2017)—cited by the

government, BIO at 14—the defendant claimed that the record lacked sufficient

evidence to support the ACCA sentence because “the statutes under which he was

previously convicted were never identified at sentencing.”

Id. at 179. The Third

Circuit enforced the waiver against this evidentiary claim, but only after reviewing

the record and concluding that enforcing the waiver did not work a miscarriage of

justice because the statutes were in fact sufficiently identified at sentencing. Id. at

180‒81; see also United States v. Ornelas, 828 F.3d 1018, 1021 (9th Cir. 2016) (“We

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address whether the sentence was lawful, and apply the appeal waiver if it was.”).

The Tenth Circuit’s decision in United States v. Frazier-LeFear, 665 F. App’x

727 (10th Cir. 2016), likewise does not support the government’s position. That

case does not involve a Johnson challenge to an ACCA sentence, but a Johnson

challenge to the calculation of the defendant’s advisory guideline range and the

resulting sentence within the statutory limits.

The Tenth Circuit otherwise

reaffirmed that “[o]f course” sentences “exceeding statutory authorization are

excluded from waiver under the [] miscarriage-of-justice exception set out in [United

States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc)].” Frazier-LeFear, 665 F.

App’x at 731 n.4; see also id. at 731 n.5.

The government also cites Sanford v. United States, 841 F.3d 578, 580 (2d

Cir. 2016), and United States v. Morrison, 852 F.3d 488, 490 (6th Cir. 2017), but

both likewise involved a defendant sentenced under the advisory guidelines who

challenged the application of a guideline provision in determining the sentence

within the statutory range. Moreover, the Second Circuit otherwise recognizes that

an appeal waiver does not waive the right to appeal certain claims, e.g., United

States v. Jacobson, 15 F.3d 19, 23 (2d Cir. 1994) (holding that defendant’s waiver of

right to appeal sentence does not “waive[] the right to appeal from an arguably

unconstitutional use of naturalized status as the basis for a sentence”), which the

government has conceded includes the right to appeal sentence on the ground that

it exceeds the statutory maximum, United States v. Rosa, 123 F.3d 94, 100 n.5 (2d

Cir. 1997).

6

The Fourth Circuit in United States v. Haskins, 198 F. App’x 280 (4th Cir.

2006), enforced an appeal waiver in an ACCA case, but without addressing (or even

mentioning) the possibility that the defendant’s claim implicated a sentence

potentially above the statutory maximum. And in 2016, the Fourth Circuit granted

the government’s motion to remand for resentencing in an ACCA case after the

government conceded that under United States v. Marin, 961 F.2d 493 (4th Cir.

1992), a defendant cannot waive a challenge to an ACCA sentence on the ground

that it exceeds the statutory maximum.

See Joint Motion to Remand for

Resentencing at 2, United States v. Crosby, No. 15-4572 (4th Cir. Oct. 30, 2016)

(“‘[A] defendant could not be said to have waived his right to appellate review of a

sentence imposed in excess of the maximum penalty provided by statute[.]’”

(quoting Marin, 961 F.2d at 496)). The Fourth Circuit’s uneven approach, like the

Seventh Circuit’s, does not prove there is no disagreement, but proves the confusion

and disparity.

Brady v. United States, 397 U.S. 742 (1970), also does not involve a § 2255

challenge to a sentence above the statutory maximum. There, the petitioner was

sentenced upon a plea of guilty to fifty years in prison for federal kidnapping (later

lowered to thirty years)—well below what was understood then to be the statutory

maximum penalty (death). Id. at 743. The Supreme Court later held that this

particular death penalty provision was unconstitutional because it could only be

imposed by a jury, making the risk of death the price of a jury trial. Id. at 746. The

petitioner sought § 2255 relief on the theory that the erroneous presence of the

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death penalty operated to coerce his guilty plea. Id. at 744. The Supreme Court

rejected his claim, holding that the petitioner had entered the plea voluntarily and

intelligently. Id. at 758. While Brady addresses the voluntariness of a plea in light

of a later judicial decision, Brady himself was not sentenced to death. His sentence

was not later deemed unconstitutional and so above the statutory maximum. Brady

thus says nothing about the enforceability of a § 2255 waiver when the sentence

imposed actually exceeds the statutory maximum in light of a later Supreme Court

decision, as here.

III.

The Government Offers No Other Good Reason To Deny Review.

The government emphasizes the “mutual benefits of appeal and categorical

attack waivers,” contending that Mr. Slusser’s case illustrates these mutual

benefits. BIO at 9. But it does not. Mr. Slusser received no benefit from his

collateral-attack waiver, much less one that could justify denying his right to

challenge the sentence—imposed at great cost to his liberty—on the ground that it

exceeds the statutory limits set by Congress.

Mr. Slusser received no benefit because his agreed-upon sentence of 180

months is the same sentence he would almost have certainly received had he pled

guilty without a plea agreement. The sentence was understood by the parties to be

both the mandatory minimum sentence and within his guideline range of 168 to 210

months (before it was truncated at the bottom by the mandatory minimum). (Sent’g

Tr. at 6‒7, Doc. 54.) True, the government agreed not to oppose the two levels off

for acceptance of responsibility, and agreed to move for the third level off, U.S.S.G.

8

§ 3E1.1(b)—but it gave up nothing. It had no basis to oppose the two levels or to

fail to move for the third, as Mr. Slusser pled guilty less than six weeks after he was

indicted, “thereby permitting the government to avoid preparing for trial and

permitting the government and the court to allocate their resources.” Id. § 3E1.1(b)

cmt.(n.6) (“The government should not withhold such a motion based on interests

not identified in § 3E1.1, such as whether the defendant agrees to waive his or her

right to appeal.”).

True, too, Mr. Slusser’s agreed-upon sentence prevented the district court

from imposing a sentence longer than 180 months once it accepted the agreement,

BIO at 9, but nothing in the record suggests the district court had any reason to

impose a longer sentence in its absence. (See Sent’g Tr. at 8‒13, Doc. 54 (explaining

why 180-month sentence was appropriate in light of mandatory minimum,

guideline range, and sentencing purposes at 18 U.S.C. § 3553(a).) Moreover, judges

rarely impose a sentence above the guideline range in ACCA cases, doing so in

fewer than 2% of cases. U.S. Sent’g Comm’n, Mandatory Minimum Penalties in the

Federal Criminal Justice System 287 (2011).

Even if it could be said that Mr.

Slusser received a benefit from the plea agreement beyond the certainty of a precise

sentence within his guideline range, the miscarriage-of-justice exception is just

that: an exception to that benefit. DeRoo, 223 F.3d at 923, 926.

In the end, the government essentially admits that it exercises unchecked

power in the Sixth Circuit to decide who may test the legality of an ACCA sentence

when there is an appeal waiver.

BIO at 16.

9

It suggests that this power is

acceptable because it decides for itself all relevant legal and factual questions. Id.

But the result is that in some circuits, defendants have the right to a judicial

determination of their claims, but in others they are at the mercy of their

adversary. The inevitable disparity should not be tolerated.

Finally, this is an excellent vehicle for resolving the question presented. The

answer does not depend on the merits of Mr. Slusser’s Johnson claim, and the

question is squarely presented.

The Sixth Circuit relied solely on the waiver

without addressing the merits of Mr. Slusser’s Johnson claim, establishing a firm

rule of uncluttered clarity. In Class v. United States, 138 S. Ct. 798 (2018), this

Court held that a guilty plea does not bar a defendant from appealing his conviction

on the ground that the statute is unconstitutional. Id. at 805. It did not address

the merits of the defendant’s claim, but decided the waiver question based on its

categorical nature. Id. at 807. It can do the same here.

In any event, the effect of this Court’s decision in United States v. Stitt, 139

S. Ct. 399 (2018), decided after Mr. Slusser filed his petition, is not as clear as the

government suggests. BIO at 7, 16. While Mr. Slusser has five prior convictions for

Tennessee aggravated burglary, the government acknowledges that the district

court at sentencing specifically identified only one of those convictions as a

qualifying ACCA predicate. Id. at 4. More important, the district court’s ruling on

the merits of Mr. Slusser’s § 2255 claim expressly did not depend on any of Mr.

Slusser’s Tennessee aggravated burglary convictions.

Pet. App. at 15a.

government did not appeal that ruling or otherwise contest it in the court below.

10

The

Meanwhile, the elements of generic burglary remain unsettled even after

Stitt. Stitt addressed only generic burglary’s “building or structure” element. As

shown in the pending petitions for certiorari in Moore v. United States, No. 17-8153,

and Ferguson v. United States, No. 17-7496, the outcome in Quarles v. United

States, No. 17-778 (cert. granted Jan. 11, 2019), will shed light on whether a variant

of Tennessee burglary sweeps more broadly than generic burglary with respect to

generic burglary’s intent element. Given the still-evolving law on burglary, and the

state of the proceedings below, the question whether Mr. Slusser is entitled to relief

on his Johnson claim would best be left to the lower court even if this Court grants

review.

In short, the uncertain impact of Stitt on the merits of Mr. Slusser’s claim is

no reason to decline review of this narrow question of exceptional importance.

CONCLUSION

For the reasons set forth above and in his petition, Larry M. Slusser requests

that the petition for certiorari be granted.

11

MARK OSLER, Esq.

Univ. of St. Thomas (MN)

1000 LaSalle Ave., MSL 400

Minneapolis MN 55403

(254) 717-7032

ELIZABETH B. FORD

Federal Community Defender

Jennifer Niles Coffin

Assistant Federal Defender

Counsel of Record

Federal Defender Services

of Eastern Tennessee, Inc.

800 South Gay Street, Suite 2400

Knoxville, Tennessee 37929

(865) 637-7979

Counsel for Larry M. Slusser

February 4, 2019

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