Petition for Writ of Certiorari — Jimmy Walter Fuentes, Petitioner v. United States

No. 18 --

IN THE

SUPREME COURT OF THE UNITED STATES

___________

JIMMY WALTER FUENTES,

Petitioner

v.

UNITED STATES OF AMERICA

Respondent

___________

On Petition for Writ of Certiorari

To The United States Court of Appeals for the Fifth Circuit

___________

KEVIN JOEL PAGE

Counsel of Record

FEDERAL PUBLIC DEFENDER’S OFFICE

NORTHERN DISTRICT OF TEXAS

525 GRIFFIN STREET , SUITE 629

DALLAS, TEXAS 75202

(214) 767-2746

QUESTIONS PRESENTED FOR REVIEW

1.

Whether a court of appeals that finds a plain error in the district court’s selection of a

statutory maximum should ordinarily order a limited remand for the sole purpose of

determining whether this error affected substantial rights?

ii

PARTIES

Jimmy Walter Fuentes is the Petitioner, who was the defendant-appellant below. The United

States of America is the Respondent, who was the plaintiff-appellee below.

iii

TABLE OF CONTENTS

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

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

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

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

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

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

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

Statutory Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

Reasons for Granting the Writ.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I.

The decision below conflicts with that of four courts of appeals and neglects recent

guidance from this Court.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

iv

INDEX TO APPENDICES

Appendix A

Judgment and Sentence of the United States District Court for the Northern District

of Texas

Appendix B

Judgment and Opinion of the Fifth Circuit

v

TABLE OF AUTHORITIES

Page No.

FEDERAL CASES

Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Antonakopoulos, 399 F.3d 68 (1st Cir. 2005) .. . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Blancas-Rosas, 637 F. App'x 855 (5th Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Booker, 543 U.S. 220 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

United States v. Coles, 403 F.3d 764 (D.C. Cir. 2005) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Crosby, 397 F.3d 103 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Currie, 739 F.3d 960 (7th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Fuentes, 735 F. App'x 161 (5th Cir. Aug. 23, 2018) . . . . . . . . . . . . . . . . . . . . . . 1

United States v. Galindo, 606 F. App'x 140 (5th Cir. 2014) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Gamboa-Garcia, 620 F.3d 546 (5th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Johnson, 529 U.S. 53 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

United States v. Larios-Villatoro, 684 F. App'x 411 (5th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Mares, 402 F.3d 511 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Paladino, 401 F.3d 471 (7th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

United States v. Piedra-Morales, 843 F.3d 623 (5th Cir. 2016) .. . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Pirani, 406 F.3d 543 (8th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Solano-Hernandez, 847 F.3d 170 (5th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . . 5

FEDERAL STATUTES

8 U.S.C. § 1326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

8 U.S.C. § 1326(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

8 U.S.C. § 1326(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6

vi

18 U.S.C. § 3553(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8

18 U.S.C. § 3553(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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

FEDERAL RULES

Fed. R. Crim. P. 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Fed. R. Crim. P. 52(b) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

UNITED STATES SENTENCING GUIDELINES

USSG § 2L1.2 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

USSG § 2L1.2(b)(2)(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

vii

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Jimym Walter Fuentes, respectfully petitions for a writ of certiorari to review the

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

OPINIONS BELOW

The judgment of conviction and sentence was entered November 22, 2017, and is provided

in the Appendix to the Petition. [Appendix A]. The unpublished opinion of the United States Court

of Appeals for the Fifth Circuit is captioned as United States v. Fuentes, 735 Fed. Appx. 161 (5th

Cir. August 23, 2018)(unpublished), and is also provided in the Appendix to the Petition. [Appendix

B].

JURISDICTIONAL STATEMENT

The opinion order of the United States Court of Appeals for the Fifth Circuit affirming the

sentence as modified were issued on August 23, 2018. [Appx. B]. This Court’s jurisdiction is

invoked under 28 U.S.C. §1254(1).

The case will not be moot, even if this Court’s decisional process extends into next term.

Petitioner is slated for release April 12, 2019. But he will remain subject to a three year term of

supervised release, which the district court may modify in the even that a higher court finds error in

the term of imprisonment. See Johnson v. United States, 529 U.S. 53, 60 (2000).

STATUTES, RULES, AND GUIDELINES INVOLVED

8 U.S.C. §1326 provides in part:

(a) In general

Subject to subsection (b), any alien who—

(1) has been denied admission, excluded, deported, or removed or has

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

or removal is outstanding, and thereafter

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

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

United States or his application for admission from foreign

contiguous territory, the Attorney General has expressly consented to

such alien’s reapplying for admission; or (B) with respect to an alien

previously denied admission and removed, unless such alien shall

establish that he was not required to obtain such advance consent

under this chapter or any prior Act,

shall be fined under title 18, or imprisoned not more than 2 years, or

both.

(b) Criminal penalties for reentry of certain removed aliens

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

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

three or more misdemeanors involving drugs, crimes against the

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

alien shall be fined under title 18, imprisoned not more than 10 years,

or both;

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

an aggravated felony, such alien shall be fined under such title,

imprisoned not more than 20 years, or both...

18 U.S.C. §3553(a) provides in part:

(a) Factors To Be Considered in Imposing a Sentence.—The court shall impose a

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

forth in paragraph (2) of this subsection. The court, in determining the particular

sentence to be imposed, shall consider—

***

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by

the applicable category of defendant as set forth in the

guidelines—

(i) issued by the Sentencing

Commission pursuant to section

994(a)(1) of title 28, United States

Code, subject to any amendments

made to such guidelines by act of

Congress (regardless of whether such

amendments have yet to be

incorporated by the Sentencing

Page 2

Commission into amendments issued

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

(ii) that, except as provided in section

3742(g), are in effect on the date the

defendant is sentenced; or

(B) in the case of a violation of probation or

supervised release, the applicable guidelines or policy

statements issued by the Sentencing Commission

pursuant to section 994(a)(3) of title 28, United States

Code, taking into account any amendments made to

such guidelines or policy statements by act of

Congress (regardless of whether such amendments

have yet to be incorporated by the Sentencing

Commission into amendments issued under section

994(p) of title 28);

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission pursuant to

section 994(a)(2) of title 28, United States Code,

subject to any amendments made to such policy

statement by act of Congress (regardless of whether

such amendments have yet to be incorporated by the

Sentencing Commission into amendments issued

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

(B) that, except as provided in section 3742(g), is in

effect on the date the defendant is sentenced.

Federal Rule of Criminal Procedure 52 provides:

Harmless and Plain Error

(a) Harmless Error. Any error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.

(b) Plain Error. A plain error that affects substantial rights may be considered even

though it was not brought to the court's attention.

Page 3

STATEMENT OF THE CASE

A.

Prior Re-Entry Case

In November 2013, Petitioner Jimmy Walter Fuentes was convicted by a federal district court

in Maryland of illegal re-entry to the United States following deportation. See (ROA.137-138). In

that Maryland case, the government sought to enhance his sentence based on a prior conviction. See

(ROA.248-259). It maintained that conviction to be a felony, an aggravated felony, and a “crime of

violence” under then-applicable USSG §2L1.2. See (ROA.248-259). The Maryland district court

rejected all of the government’s claims. See (ROA.212-213, 219).

The Maryland court’s ruling on the aggravated felony question was in the alternative. The

court stated that it had “two problems” with the government’s contention that the prior conviction

was an aggravated felony. (ROA.219). First, it thought its legal position doubtful, and resolved that

doubt in favor of the defendant. See (ROA.219). Second, the court thought that a lesser sentence

would be warranted in any case. See (ROA.219). The court entered sentence of time served

(reflecting less than a year of imprisonment), and described the offense on the judgment as a

violation of 8 U.S.C. §1326(a). See (ROA.137-138). Subsection (a) of 1326 governs illegal re-entry

in the absence of a prior felony or aggravated felony.

B.

District Court Proceedings in the Instant Case

After his removal, Petitioner returned to the United States and was found in the Northern

District of Texas. See (ROA.34). A grand jury indicted him for illegal re-entry, naming 8 U.S.C.

§1326(a) and (b)(2) as the statute violated. See (ROA.9). Section 1326(b)(2) applies to defendants

who re-enter the country following an aggravated felony.

Petitioner pleaded guilty, see (ROA.31-34), and Probation generated a Presentence Report

(PSR). The PSR applied the 2016 version of USSG §2L1.2, and included a four level enhancement

for a pre-removal “conviction for any ... felony offense (other than an illegal reentry offense)...” See

(ROA174-175); USSG §2L1.2(b)(2)(D). It also concluded that the statutory maximum was twenty

Page 4

years, the applicable punishment for defendants who re-enter the country following an aggravated

felony. See (ROA183).

The sentencing hearing was adjourned so that the parties could locate the pleadings and

transcript of the Maryland proceedings. See (ROA.102-106). When it reconvened, the court below

concluded that it was bound by the Maryland court’s findings. See (ROA.113-114). Specifically, it

deferred to the Maryland court’s finding that Petitioner had never sustained a felony other than his

last illegal re-entry. See (ROA.113-114). It thus found that the Guidelines were 24-30 months

imprisonment, and sentenced at the top of this range. See (ROA.116, 124).

Yet the court did not overrule the PSR’s finding that Petitioner had been previously convicted

of an aggravated felony. See (ROA.116). To the contrary, it stated that it was adopting the PSR save

only its Guideline calculation. See (ROA.291). And the court named the statute of conviction on the

judgment as 8 U.S.C. §1326(b)(2). See (ROA.49).

C.

Proceedings in the Court of Appeals

On appeal, Petitioner argued that the district court plainly erred in determining his statutory

maximum. Under Fifth Circuit law, he argued, the district court was bound by a prior court’s

determination that his convictions lacked an aggravated felony at that time. See United States v.

Gamboa-Garcia, 620 F.3d 546, 548-549 (5th Cir. 2010); United States v. Piedra-Morales, 843 F.3d

623, 624-625 (5th Cir. 2016); United States v. Solano-Hernandez, 847 F.3d 170, 179 (5th Cir. 2017);

United States v. Larios-Villatoro, 684 Fed. Appx. 411, 411-412 (5th Cir. 2017); United States v.

Blancas-Rosas, 637 Fed. Appx. 855, 856 (5th Cir. 2016)(unpublished); United States v. Galindo, 606

Fed. Appx. 140, 141 (5th Cir. 2014)(unpublished). He thus argued that the district court had

sentenced him under the mistaken impression that his statutory maximum was 20 years rather than

ten.

The court of appeals found plain error, and, indeed, amended the judgment to strike any

reference to 8 U.S.C. §1326(b)(2). [Appendix B]. Yet it declined to order resentencing, for the sole

reason “that nothing in the record suggests that the 20-year maximum sentence for a violation of §

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1326(b)(2) influenced the district court's sentencing decision.” [Appendix B]. It did not ask the

district court whether it would have imposed a lesser sentence if it were aware of the lesser statutory

range. [Appendix B].

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REASON FOR GRANTING THE PETITION

The decision below conflicts with that of four courts of appeals and neglects recent guidance

from this Court.

Federal Rule of Criminal Procedure 52(b) authorizes the courts of appeals to notice plain

error even in the absence of an objection if it affects a party’s substantial rights. See Fed. R. Crim.

P. 52(b). This Court has recognized that plain error affecting the Federal Sentencing Guideline range

will generally affect the parties’ substantial rights. See Molina-Martinez v. United States, __U.S.__,

136 S.Ct. 1338 (2016). Further, it has authorized the courts of appeals to ask district courts – through

a limited remand – whether they would have likely imposed a different sentence but for a plain error.

See Molina-Martinez,136 S.Ct. at 1348 (noting with approval that “[c]ourts have, for example,

developed mechanisms short of a full remand to determine whether a district court in fact would

have imposed a different sentence absent the error.”)(citing United States v. Currie, 739 F. 3d 960,

967 (7th Cir. 2014)). This comports with 28 U.S.C. §2106, which provides the courts of appeals

broad discretion to “direct the entry of such appropriate judgment, decree, or order, or require such

further proceedings to be had as may be just under the circumstances.”

The court below found a plain error in the determination of the defendant’s statutory

sentencing range. [Appendix B]. Yet it declined to order resentencing, evidently finding no

presumption of a different outcome in the absence of Guideline error. [Appendix B]. Nor did it

follow the guidance of this Court in Molina-Martinez regarding a limited remand. [Appendix B].

Rather, it simply observed that the record as currently composed showed no affect on the sentence

imposed, and concluded that this precluded all forms of relief. [Appendix B]

In this respect, the decision below conflicts with the conduct of multiple other courts of

appeals. As this Court recognized in Molina-Martinez, the Seventh Circuit undertakes a limited

remand to resolve uncertainty regarding the substantial rights question. See Currie, 739 F. 3d at 967.

The Second, Seventh, Ninth, and D.C. Circuits, moreover, have all ordered limited remands to

resolve the substantial rights question in cases of plain error under United States v. Booker, 543 U.S.

220 (2005). See United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005); United States v. Paladino,

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401 F.3d 471, 484 (7th Cir. 2005); United States v. Crosby, 397 F.3d 103, 120 (2d Cir. 2005); United

States v. Coles, 403 F.3d 764, 770 (D.C. Cir. 2005); but see United States v. Mares, 402 F.3d 511,

521-522 (5th Cir. 2005)(rejecting this approach in the Booker context); United States v.

Antonakopoulos, 399 F.3d 68, 80 (1st Cir. 2005)(same); United States v. Pirani, 406 F.3d 543, 552554 (8th Cir. 2005) (en banc)(same); United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.

2005)(same).

Booker error – sentencing the defendant in a mandatory Guideline regime – is precisely

analogous to the error at issue here. Like the error that affected Petitioner, Booker error does not

affect the applicable Guideline range. Rather, it exposes the defendant to a different mandatory range

of possible imprisonment. Similarly, Petitioner was exposed to a range of zero to twenty years

imprisonment as a result of the court’s plain error, but should have been exposed to the lesser range

of zero to 10 years imprisonment. Like Booker error, the error in this case yielded no necessary effect

on the applicable Guideline range. In the wake of Booker, at least four circuits thought that a change

in the mandatory range of imprisonment created enough uncertainty about substantial rights to justify

a limited remand, even if the Guidelines themselves were not affected. To the extent that the decision

below forewent such consultation with the district court, it conflicts with those decisions. To the

extent that it neglected – by appearances – even to consider a limited remand, it is in tension with

Molina-Martinez.

The position of the courts that offer a limited remand in the case of a plain error is a sound

one. The district court must calibrate the factors enumerated at 18 U.S.C. §3553(a) to the entire

sentencing range. So it is reasonably probable that a district court considering a range of zero to

twenty years would reach a different result than one considering a range of zero to ten years

imprisonment. Petitioner’s 30 months sentence is a fourth of his true statutory range, but only an

eighth of the statutory range believed applicable by the district court. It is, in relative terms, twice

as severe when the true range is known. The mere choice of a mandatory sentencing range – here the

statutory maximum – may affect the sentence ultimately imposed. See Paladino, 401 F.3d at 482

Page 8

(observing that a conscientious judge in the era of mandatory Guidelines would attempt to calibrate

the defendant’s position in the range to his culpability). Indeed, 18 U.S.C. §3553(a) probably

demands that the district court consider the statutory range in deciding the sentence, as it requires

consideration of “the kinds of sentences available.” 18 U.S.C. §3553(a)(3).

CONCLUSION

This Court should grant certiorari to determine whether a court of appeals should ordinary

order a limited remand to the district court upon finding a plain error in the determination of the

statutory maximum. Alternatively, Petitioner prays for such relief as to which he may justly entitled.

Respectfully submitted this 21st day of November, 2018.

Kevin Joel Page

KEVIN J. PAGE

COUNSEL OF RECORD

ASSISTANT FEDERAL PUBLIC DEFENDER

FEDERAL PUBLIC DEFENDER’S OFFICE

NORTHERN DISTRICT OF TEXAS

525 GRIFFIN STREET , SUITE 629

DALLAS, TEXAS 75202

(214) 767-2746

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