Petition for Writ of Certiorari — Martin R. Stancik, Petitioner v. United States

IN THE SUPREME COURT OF THE UNITED STATES

MARTIN STANCIK, PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

STEVEN R. JAEGER, ESQ.

Counsel of Record for Petitioner

THE JAEGER FIRM, PLLC

23 ERLANGER ROAD

ERLANGER, KENTUCKY 41018

(859) 342-4500

(859) 342-4501

srjaeger@thejaegerfirm.com

SUBMITTED: January 8, 2019

QUESTION PRESENTED

Whether a criminal defendant’s waiver of his right to appeal a sentence includes a |

waiver of the right to appeal a later, unforeseen constitutional due process violation

by the sentencing Court.

TABLE OF CONTENTS

QUESTION PRESENTED

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CONSTITIUTIONAL PROVISIONS APPLICABLE TO ISSUES

RAISED

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FEDERAL STATUTES, RULES AND GUIDELINES APPLICABLE

TO ISSUES

I. The Question presented is of exceptional importance..............0..

II. The Sixth Circuit’s decision was wrong

Ill. The circuit courts are split over whether a defendant may

validly waive the right to appeal future constitutional errors

by the Court

CONCLUSION

APPENDIX

APPENDIX A - Order of the United States Court of Appeals for the

Sixth Circuit, dismissing appeal (September 4, 2018)

APPENDIX B - Order of the United States Court of Appeals for the

Sixth Circuit, denying en banc review (October 19, 2018)

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APPENDIX C — Judgment of the United States District Court,

Northern District of Ohio (November 8, 2017) ...ccccccccccescssssceesseeee

TABLE OF AUTHORITIES

CASES

Page

Johnson v. Zerbst, 304 U.S. 458 (1988) occ cece cece eeeeeeseesereseesees 7-8

Santobello v. New York, 404 U.S. 257 (L971) vee ceeceecceeccessecessceetseetseeeeee 5

Tollett v. Henderson, 411 U.S. 258 (1978) oe ceeccceccesccesscesseescererecseeeesnes 5

United States v. Attar, 38 F. 3d 727 (4th Cir. 1994) oo. ecccccecceceeseeeeteee 10

United States v. Borders, 243 Fed. Appx. 182 (7th Cir. 2007) wc. 9

United States v. Brown, 232 F. 3d 399 (4th Cir. 2000) ......ceceeeeeeeeeeeee 10

United States v. Gibson, 356 F. 3d 761 (7th Cir. 2004) oo. eeeeeeeeeee 9

United States v. Guillen, 561 F. 3d 527 (D.C. Cir. 2009)... eee 10

United States v. Khattak, 273 F. 3d 557 (8rd Cir. 2005) oe 6, 10

United States v. Melancon, 972 F. 2d 566 (5th Cir. 1992)... eee 7

United States v. Moore, 97 Fed. Appx. 674 (7th Cir. 2004) wwe. 9

United States v. Petty, 80 F. 3d 1384 (9th Cir. 1996) uo... eee 9

United States v. Tanner, 721 F. 3d 1231 (10th Cir. 2013)... 6

United States v. Teeter, 257 F. 3d 14 (Ast Cir. 2001)... eceeeeeeee 10

United States v. Washington, 83 Fed. Appx. 110 (6th Cir. 2008) .......... 8

STATUTES and CONSTITUTIONS

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18 U.S.C. § L028A(a)(L) ccccsssrese beatecssesesscesscssesesevscevscsesscacesescasaeeseenes 3

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18 U.S.C. § 3552(d)

18 U.S.C. § 3742

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28 U.S.C. §1291

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28 U.S.C. § QOBB ceccccccccsscssssssssssssssstisssssuviutivusevissesssssessssessssesessssssssessesssse

RULES

Federal Rule of Criminal Procedure 11

Federal Rule of Criminal Procedure 32

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Federal Rule of Criminal Procedure 32(g)

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Federal Rule of Criminal Procedure 32(i)(1)(A)

United States Supreme Court Rule 12

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United States Supreme Court Rule 13.1

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United States Supreme Court Rule 13.3

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OTHER

Susan R. Klein et al., Waiving the Criminal Justice System: An

Empirical and Constitutional Analysis, 52 Am. Crim. L. Rev. 73

(2015)

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UNITED STATES SENTENCING GUIDELINES

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United States Sentencing Guideline 6A1.2(c)

vi

PETITION FOR A WRIT OF CERTIORARI

Martin Stancik respectfully petitions for a Writ of Certiorari to review the

Order of the United States Court of Appeals for the Sixth Circuit dismissing his

appeal.

OPINIONS BELOW

The Sixth Circuit’s October 19, 2018, opinion denying en banc! panel review

is unpublished and attached hereto at App. 4a 5a. The split, two-to-one Sixth

Circuit panel opinion and Order from September 4, 2018, granting dismissal of Mr.

Stancik’s appeal is also unpublished and attached hereto at App. la- 3a. The district

court’s Judgment is unpublished and attached hereto at App. 6a- 12a.

JURISDICTION

Jurisdiction was generally conferred upon the Court of Appeals pursuant to

28 U.S.C. §1291. The Jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§1254(1) and United States Supreme Court Rule 12.

The Order of the United States Court of Appeals for the Sixth Circuit was

entered on September 4, 2018. A Petition for Rehearing and Rehearing Hn Banc

was timely filed with the United States Court of Appeals for the Sixth Circuit and

was denied by Order dated October 19, 2018. This petition is timely filed pursuant

to Supreme Court Rule 13.1 and 13.3.

CONSTITUTIONAL PROVISIONS APPLICABLE TO ISSUES RAISED

The Fifth Amendment to the United States Constitution provides in relevant

part: “No person shall be deprived of life, liberty, or property, without due process of

+

law.

FEDERAL STATUTES, RULES AND GUIDELINES APPLICABLE TO ISSUES

18 U.S.C. 3552(d) provides in relevant part that “the court shall assure that a

report filed pursuant to this section is disclosed to the defendant, the counsel for the

defendant...at least ten days prior to the date set for sentencing...”

Federal Rule of Criminal Procedure 32 requires in relevant part that:

(g) Submitting the Report. At least 7 days before sentencing, the probation

officer must submit to the court and to the parties the presentence report and

an addendum containing any unresolved objections, the grounds for those

objections, and the probation officer's comments on them.

United States Sentencing Guideline 6A1.2(c) requires in relevant part that

“At least 7 days before sentencing, the probation officer must submit to the court

and to the parties the presentence report and an addendum containing any

unresolved objections, the grounds for those objections, and the probation officer’s

comments on them.”

STATEMENT OF THE CASE

1. Martin Stancik was licensed by the state of Ohio to sell insurance and

annuity products. From May 2003 to around July 2004, he was employed by MONY

Life Insurance Company. From July 2004 to around February 2006, he was

employed as a financial advisor by AXA Equitable Life Insurance Company. From

February 2006 to around October 2014, he was employed as a financial advisor by

2

Voya Financial, Inc. During all times, he was also a self-employed investment

advisor and worked under the company name Many Plans Service Company. A.B.,

M.N., B.S. and E.T. were clients of Mr. Stancik who sought his assistance as a

financial advisor.

2. Stancik was indicted in a two-count indictment. Count One alleged Mail

Fraud, a violation of 18 U.S.C. 1341. Count Two alleged Aggravated Identity Theft

in violation of 18 U.S.C. 1028A(a)(1). The alleged victims were A.B., M.N., R.S. and

i.T.

3. Mr. Stancik entered a guilty plea on July 12, 2017, which was accepted by

the Court on July 24, 2017. The Plea Agreement included the following:

Defendant acknowledges having been advised by counsel of Defendant’s rights,

in limited circumstances, to appeal the conviction or sentence in this case,

including the appeal right conferred by 18 U.S.C. 3742, and to challenge the

conviction or sentence collaterally through a post-conviction proceeding,

including a proceeding under 28 U.S.C. 2255. Defendant expressly and

voluntarily waives those rights, except as specifically reserved below.

Defendant reserves the right to appeal: (a) any punishment in excess of the

statutory maximum: or (b) any sentence to the extent it exceeds the maximum

of the sentencing imprisonment range determined under the advisory

Sentencing Guidelines in accordance with the sentencing stipulations and

computations in this agreement, using the Criminal History Category found

applicable by the Court. Nothing in this paragraph shall act as a bar to

Defendant perfecting any legal remedies Defendant may otherwise have on

appeal or collateral attack with respect to claims of ineffective assistance of

counsel or prosecutorial misconduct.

4. An initial Presentence Investigation Report was prepared on September

14, 2017. Defense counsel received this on October 19, 2017, and discussed it with

Mr. Stancik on October 21, 2017, three days prior to the original sentencing date.

Objections were filed to the original PSR by Mr. Stancik on October 27, 2017. A

revised report was issued on November 2, 2017, six days before the November 8,

2017, sentencing hearing. This failed to comply with the requirements of Federal

Rule of Criminal Procedure 32(g) and violated Mr. Stancik’s due process rights.

5. In the revised PSR, a victim impact statement from E.T. was added

(which was not a part of the original PSR). This statement was relied upon by the

AUSA at sentencing and used by the Court to justify its high-end sentence. Mr.

Stancik was sentenced by the Court to 41 months on Count One and 24 months on

Count Two, to be served consecutively.

6. A divided three-judge panel of the Sixth Circuit dismissed Mr. Stancik’s

appeal. App. la: 3a. The majority of the panel found that the plea colloquy

comported with the requirements of Rule 11, and that because of that, Mr. Stancik

entered his plea and waived his appellate rights knowingly and voluntarily. App.

la- 2a. Because of that, the panel determined that Mr. Stancik “assumed the risk

that something unfavorable could occur later.” App. 2a. This included preventing

Mr. Stancik from pursuing “his right to bring that [due process] challenge on appeal

through the broad language of his appellate-waiver provision.” Id. Thus, the panel

held that he waived his right “to appeal even errors of constitutional dimension.” Id.

The appeal was dismissed. App. Id.

7. The dissenting opinion explained that it would deny “dismissal of the due

process claim to allow the claim to proceed to a decision on the merits.” App. 2a.

8. The Sixth Circuit denied rehearing/ rehearing en banc. App. 4a.

REASONS FOR GRANTING THE PETITION

The Sixth Circuit dismissed Mr. Stancik’s appeal, holding that a broad,

general appeal waiver includes the waiver of appealing later errors of

constitutional, due process dimensions. App. 2a. Specifically, it determined that Mr.

Stancik “waived his right to bring that [due process] challenge on appeal through

the broad language of his appellate-waiver provision.” Id. Finally, the panel decided

that Mr. Stancik “assumed the risk that something unfavorable could occur later.”

Id. The Court erred for the following reasons:

I. The Question presented is of exceptional importance.

The vast majority of all federal criminal cases are resolved with a plea. In

fact, this Court has encouraged fair plea bargaining in criminal cases. See

Santobello v. New York, 404 U.S. 257, 260 (1971) (If every criminal charge were

subjected to a full-scale trial, the States and the Federal Government would need to

multiply by many times the number of judges and court facilities”). It is

unquestioned that a majority of plea agreements nationwide include some form of

appeal rights waiver. See Susan R. Klein et al., Waiving the Criminal Justice

System: An Empirical and Constitutional Analysis, 52 Am. Crim. L. Rev. 73 (2015).

These waivers obviously include a defendant’s waiver of many trial- related rights.

This Court had added that a guilty plea sacrifices a defendant’s right to appeal

constitutional violations that occurred prior to the entry of the guilty plea. Tollett v.

Henderson, 411 U.S. 258, 266-67 (1978). The important question now before this

Court is whether a criminal defendant also sacrifices his right to appeal unforeseen

constitutional violations that occur after the entry of the guilty plea and the appeal

waiver.

Given the volume of plea agreements and appeal waivers throughout the

federal criminal justice system, this Court’s guidance is necessary to provide clarity

and certainty for all future criminal defendants, their attorneys, prosecutors, and

the district and circuit courts on the important issue presented in this case. The

question of whether general appeal waivers, like the one in this case, can validly

include, as the majority held, a waiver of later, unknown “errors of constitutional

dimension,” will not go away and be resolved without this Court weighing in and

deciding the issue. In addition, criminal defendants need to be made aware, without

any doubt, if such broad appellate waivers include a bar to challenge later

constitutional rights violations by the court. Review should be granted by this

Court.

II. The Sixth Circuit’s decision was wrong.

One of the most foundational principles of due process is that a person may

only waive a right if he or she does so “knowingly.” This happens only if a defendant

understands the specific privilege that is being relinquished and the potential

ramifications of that choice. United States v. Tanner, 721 F. 3d 1231, 1233 (10 Cir.

2013); see also United States v. Khattak, 273 F. 3d 557, 560-61 (3*4 Cir. 2008).

Unfortunately, the vast majority of appeal waivers, including the one in Mr.

Stancik’s case, are couched in the broad, general terms that the individual is

waiving the right to appeal their conviction or sentence without any specific

references to what actual issues may fall under the scope of that waiver.

Such broad, general waivers beg the questions: Can a defendant who is not

advised of the specific possible issues for appeal knowingly waive his right to pursue

those issues and possibly understand the consequences of doing so? In addition, can

a defendant knowingly waive the right to appeal an unknown constitutional

violation during a sentence that has yet to be imposed? These questions present a

vastly different scenario than a defendant who waives the right to challenge

constitutional violations known to exist at the time he agrees to the waiver of his

appellate rights. To sugeest, as the majority did here, that a defendant “assumed

the risk that something unfavorable could occur later,” App. 2a, strains basic

notions of fairness and allows the court to reach an incorrect conclusion in

dismissing Mr. Stancik’s appeal.

Instead, sentencing appellate waivers cannot, and should not, be interpreted

to include waivers of challenges to violations of other rights and guarantees under

the United States Constitution that have not yet occurred. Stated plainly, a waiver

of such a violation cannot be knowing as “the right [to appeal sentencing error]

cannot come into existence until after the judge pronounces sentence; it is only then

that the defendant knows what errors the district court has made- i.e., what errors

exist to be appealed, or waived.” United States v. Melancon, 972 F. 2d 566, 572 (5th

Cir. 1992) (Parker, J., concurring). This Court itself has defined that a waiver is “an

intentional relinquishment or abandonment of a known right or privilege.” Johnson

v. Zerbst, 304 U.S. 458, 464 (1938). If such a constitutional violation has yet to

occur, then how can such be known to exist? Deciding, as the majority did in this

case, that Mr. Stancik waived his right to appeal a challenge of the unknown,

constitutional due process error, infringes upon his right to due process and results

in an obvious miscarriage of justice that should not be endorsed by this Court.

Review is necessary to correct this injustice.

Ill. The circuit courts are split over whether a defendant may validly waive the

right to appeal future constitutional errors by the Court.

This Court’s review is also needed to resolve a conflict growing among the

courts of appeals as to whether a general appeal waiver applies to prevent later

challenges to unanticipated constitutional, due process violations. Specifically, in

this case, the issue of whether or not a defendant can knowingly waive an

unanticipated and yet to occur Rule 32 violation by the Court is also an issue in

which the lower courts disagree. In fact, the courts of appeals have split along the

same fissure that divided the majority and dissent of the panel below.

Some circuits, like the majority below, have followed only unpublished

guidance. For instance, the Sixth Circuit previously found in the unpublished

decision of United States v. Washington, 83 Fed. Appx. 110, 111 (6th Cir. 2003) that

an appeal waiver applies to Rule 32 violations because such errors are “clearly part

of the sentencing phase of the case.” Likewise, the Seventh Circuit also suggested in

unpublished opinions that a defendant’s claim on appeal of a Rule 32 violation was

foreclosed by the defendant’s waiver of the right to appeal any sentence within the

statutory maximum. See United States v. Moore, 97 Fed. Appx. 674, 675 (7 Cir.

2004) and United States v. Borders, 243 Fed. Appx. 182, 183-84 (7% Cir. 2007).

Another circuit, finding like the dissent below, recognized that claims of later

constitutional due process violations should not be included in the scope of an

appellate waiver. In United States v. Petty, 80 F. 3d 1384, 1887-89 (9th Cir. 1996),

in what appears to be the only published opinion on the specific issue in this case,

the Court of Appeals for the Ninth Circuit held that the defendant’s appeal waiver

did not preclude his claim that he and his counsel did not have enough time to

review the PSR before sentencing, in violation of the predecessor to Rule 32(i)(1)(A).

The Ninth Circuit reasoned that, “in the absence of compelling evidence to the

contrary, we do not interpret the language as a waiver of the right to appeal a

substantial violation which arose only after the stipulation was signed and which

could not have been anticipated.” United States v. Petty, 80 F. 3d at 1387.

The panel’s decision in Mr. Stancik’s case takes the position that by entering

the plea agreement with the appeal waiver, he “assumed the risk” for any and all

unfavorable or unconstitutional events that may later occur by the Court. However,

federal appellate courts have routinely carved out exceptions to the enforcement of

appellate waivers that contradict this decision. This includes allowing an appeal to

proceed despite the presence of an appellate waiver if the appeal is on the grounds

that the defendant was sentenced in excess of the statutory maximum. See United

States v. Gibson, 356 F. 3d 761, 765 (7+ Cir, 2004). It also includes allowing an

appeal to proceed if the defendant claims they are sentenced based on an

impermissible factor such as race, gender or religion. See United States v. Guillen,

561 F. 3d 527, 531 (D.C. Cir. 2009) and United States v. Brown, 232 F. 3d 399, 402

(4th Cir. 2000). Additionally, some circuit courts will refuse to enforce an appellate

waiver if enforcing such would constitute a miscarriage of justice. See United States

v. Teeter, 257 F. 3d 14, 25-26 (1st Cir. 2001) and United States v. Khattak, 273 F. 3d

557, 568 (3d Cir. 2001). Others still refuse to enforce an appeal waiver if a

defendant claims a denial of the right to assistance of counsel at sentencing. United

States v. Attar, 38 F. 3d 727, 732-33 (4t Cir. 1994).

In light of these recognized exceptions, it seems that courts may be picking

and choosing, nay, prioritizing, which parts of the Constitution are important

enough to allow a defendant to circumvent an appeal waiver. Here, the Sixth

Circuit clearly downplays Mr. Stancik’s due process violations by the court below.

Would the panel have reached the same conclusion and dismissed his appeal if he

claimed that his sentence was the result of his race, gender or religion? Would it

have dismissed his appeal if there was a blatant overly harsh sentence that

exceeded the statutory maximum? Precedent says that the panel would likely have

allowed such an appeal to continue, despite the appeal waiver. It is unclear why a

court would enforce an appeal waiver in a case involving a due process violation

claim like that in Mr. Stancik’s case, but then not enforce it in a case where a

different constitutional principle is at issue. Is one constitutional safeguard more

important than another in the eyes of the Court? Is one criminal defendant’s right

less protected than another? Review by this Court is necessary to bring uniformity

10

among the circuit courts and answer these difficult questions created by the courts’

actions below.

CONCLUSION

For the above stated reasons, this Petition for a Writ of Certiorari should be

granted.

Respectfully Submitted,

« Shwe, RJeegs

STEVEN R. JAEGER

THE JAEGER FIRM, PLLC

23 Erlanger Road

Erlanger, Kentucky 41018

TELE: (859) 342-4500

EMAIL: srjaeger@thejaegerfirm.com

Counsel for Appellant - Defendant

Submitted: January 8, 2019

i1