Reply Brief — Gonzalo Holguin-Hernandez, Petitioner v. United States

No. 18-7739

IN THE

GONZALO HOLGUIN-HERNANDEZ,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

REPLY BRIEF FOR PETITIONER

Jeffrey L. Fisher

Phillip J. Lynch

O’MELVENY & MYERS LLP

Counsel of Record

2765 Sand Hill Road

LAW OFFICES OF PHIL LYNCH

Menlo Park, CA 94025

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Suite 104-623

Brian H. Fletcher

San Antonio, TX 78257

Pamela S. Karlan

(210) 883-4435

STANFORD LAW SCHOOL

lawofficesofphil

SUPREME COURT

lynch@satx.rr.com

LITIGATION CLINIC

559 Nathan Abbott Way

Kendall Turner

Stanford, CA 94305

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20006

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

REPLY BRIEF FOR PETITIONER ............................ 1

I.

Plain error review does not apply to

petitioner’s challenge to the length of his

sentence................................................................. 2

A. The Fifth Circuit’s post-sentence

objection requirement is wrong ...................... 2

B. Amicus’s alternative argument for

applying plain error review is wrong as

well .................................................................. 7

C. Amicus’s “facts and circumstances”

argument has no bearing on the proper

standard of review ........................................ 12

II. Petitioner’s sentence is substantively

unreasonable ....................................................... 17

CONCLUSION .......................................................... 19

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Barbour v. City of White Plains,

700 F.3d 631 (2d Cir. 2012) ................................. 11

Beech Aircraft Corp. v. Rainey,

488 U.S. 153 (1988) ....................................... 13, 16

Brubaker v. City of Richmond,

943 F.2d 1363 (4th Cir. 1991) ............................. 12

Cooter & Gell v. Hartmax Corp.,

496 U.S. 384 (1990) ....................................... 11, 12

Dean v. United States,

137 S. Ct. 1170 (2017) ..................................... 8, 18

Gall v. United States,

552 U.S. 38 (2007) ........................................passim

Geller v. Randi,

40 F.3d 1300 (D.C. Cir. 1994) ............................. 12

Hensley v. Eckerhart,

461 U.S. 424 (1983) ............................................. 11

Koon v. United States,

518 U.S. 81 (1996) ............................................... 15

Local Union No. 38, Sheet Metal Workers’ Int’l

Ass’n v. Pelella,

350 F.3d 73 (2d Cir. 2003)................................. 4, 5

Pepper v. United States,

562 U.S. 476 (2011) ............................................. 15

Perdue v. Kenny A. ex rel. Winn,

559 U.S. 542 (2010) ............................................. 11

Peugh v. United States,

569 U.S. 530 (2013) ............................................... 8

iii

Rita v. United States,

551 U.S. 338 (2007) ......................................... 9, 17

United States v. Beech-Nut Nutrition Corp.,

871 F.2d 1181 (2d Cir. 1989) ............................... 12

United States v. Castro-Juarez,

425 F.3d 430 (7th Cir. 2005) ........................... 3, 15

United States v. Gall,

No. 4:04-cr-00116 (S.D. Iowa 2005) .................... 10

United States v. Heard,

709 F.3d 413 (5th Cir. 2013) ................................. 3

United States v. Neal,

578 F.3d 270 (5th Cir. 2009) ................................. 3

United States v. Nino,

728 Fed. Appx. 413 (5th Cir. 2018) ..................... 19

United States v. Peltier,

505 F.3d 389 (5th Cir. 2007) ............................. 2, 3

United States v. Rita,

No. 3:04-cr-00105-1 (W.D.N.C. 2005) ................... 9

United States v. Whitelaw,

580 F.3d 256 (5th Cir. 2009) ................................. 3

United States v. Williams,

753 F.3d 626 (6th Cir. 2014) ............................... 12

Yee v. City of Escondido,

503 U.S. 519 (1992) ............................................. 14

Young v. Langley,

793 F.2d 792 (6th Cir. 1986) ................................. 5

Constitutional Provisions

U.S. Const., amend. VIII, Cruel and Unusual

Punishment Clause ............................................. 14

iv

U.S. Const., amend. XIV, § 1, Due Process

Clause .................................................................... 5

Statutes

18 U.S.C. § 3161(h)(7)(B)(iv) ..................................... 12

18 U.S.C. § 3161(h)(8) ................................................ 12

18 U.S.C. § 3553..................................................passim

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

18 U.S.C. § 3553(a)(1) ................................................ 16

18 U.S.C. § 3553(a)(2)(A) ........................................... 15

18 U.S.C. § 3553(a)(2)(B) ........................................... 16

18 U.S.C. § 3553(a)(2)(C) ............................... 12, 13, 16

18 U.S.C. § 3553(f) ..................................................... 18

21 U.S.C. § 841(b)(1)(B) ............................................. 18

42 U.S.C. § 1988(b) .................................................... 11

Rules and Regulations

Fed. R. Civ. P. 11 ....................................................... 11

Fed. R. Civ. P. 46 ....................................................... 14

Fed. R. Civ. P. 51(c)(2)(A) ............................................ 4

Fed. R. Crim. P. 30(d) .................................................. 4

Fed. R. Crim. P. 51 .............................................passim

Fed. R. Crim. P. 51(b) .............................................. 6, 9

United States Sentencing Guidelines Manual

U.S.S.G. § 5A ....................................................... 18

U.S.S.G. § 5C1.2 .................................................. 18

Other Authorities

Black’s Law Dictionary (11th ed. 2019) ...................... 7

v

U.S. Courts, U.S. District Courts – Criminal

Defendants Disposed of, by Type of

Disposition and Offense, During the 12Month Period Ending March 31, 2016

(2016) ................................................................... 15

Wright, Charles A. & Arthur R. Miller, Federal

Practice and Procedure (3d ed. 2008) ................. 14

REPLY BRIEF FOR PETITIONER

This Court granted certiorari to decide “[w]hether

a formal objection after pronouncement of sentence is

necessary to invoke appellate reasonableness review of

the length of a defendant’s sentence.” Pet. i. Faced

with the plain text of Rule 51, the Court-appointed

Amicus agrees that no such objection is necessary.

“[A]n after-the-fact objection,” Amicus concedes, “is not

the only way to preserve a substantive-reasonableness

challenge.” Amicus Br. 30; see also Petr. Br. 10-15.

But tasked with defending the judgment below,

Amicus argues the Fifth Circuit actually follows an

alternative test and faults petitioner for failing to

satisfy it. That test—which would still diverge from

the approach taken by every other court of appeals—

would require a defendant to argue not only that he

“should be sentenced to a specific sentence,” but also

to tell the district court that “anything above a

[certain] sentence” would be reversed on appeal.

Amicus Br. 30. This proposal finds no more support in

the text of Rule 51 (or 18 U.S.C. § 3553) than does the

Fifth Circuit’s rule. It also contravenes this Court’s

federal sentencing precedent, offers no practical

benefit, and would upend settled practice in numerous

other areas of the law.

Amicus’s other contention—that Rule 51 requires

defendants to tick off “the specific facts and

circumstances” supporting each argument in favor of a

lower sentence, Amicus Br. 20—is no more availing.

This Court need not address this contention. The

question here is what is necessary “to invoke appellate

reasonableness review of the length of a defendant’s

sentence,” Pet. i, not what defendants must do to

preserve particular arguments in support of such a

2

claim. In any event, the district court had fair notice of

each aspect of the Section 3553 claim petitioner seeks

to advance in this appeal. To the extent Amicus

maintains otherwise, he demands a level of ritualistic

formality that is neither required nor useful.

For all of these reasons, this Court should hold

that the Fifth Circuit erred in applying plain error

review to petitioner’s substantive Section 3553 claim.

If, as in past cases, this Court also considers for itself

whether the district court’s sentence is reasonable, it

should hold that it is not. The district court wanted to

ensure that petitioner’s first offense “mean[t]

something.” J.A. 11. Yet that offense already produced

23 months of mandatory extra prison time in

connection with petitioner’s second offense. The

additional term of imprisonment the district court

imposed on top of that sentence was therefore “greater

than necessary” to achieve the goals of Section 3553(a).

I.

Plain error review does not apply to petitioner’s

challenge to the length of his sentence.

A. The Fifth Circuit’s post-sentence objection

requirement is wrong.

1. Attempting to muddy the issue this Court

granted certiorari to decide, Amicus initially asserts

that it is “not at all clear” that the Fifth Circuit

requires a post-sentence objection to preserve a

challenge to the length of a sentence for appeal.

Amicus Br. 30. Amicus is incorrect. The Fifth Circuit

requires a post-sentence objection, and it applied that

rule here.

In United States v. Peltier, 505 F.3d 389 (5th Cir.

2007), the Fifth Circuit considered whether it should

follow the Seventh Circuit’s holding that there is no

need “to object to a sentence as unreasonable after its

3

pronouncement ” to preserve a substantive Section

3553(a) claim for appeal. J.A. 35-37 (reprinting

Peltier) (quoting United States v. Castro-Juarez, 425

F.3d 430, 433 (7th Cir. 2005)) (emphasis added). The

Fifth Circuit rejected the Seventh Circuit’s rule,

holding that a defendant must “object at sentencing to

the reasonableness of his sentence,” id. 35—a phrase

that makes no sense unless it contemplates objecting

to a sentence that has already been imposed.

Neither of the subsequent Fifth Circuit cases

Amicus cites backed away from this requirement.

United States v. Heard, 709 F.3d 413, 425 (5th Cir.

2013), cited Peltier while faulting the defendant for

“fail[ing] to object[]” to the reasonableness of his

sentence. And United States v. Neal, 578 F.3d 270,

272-74 (5th Cir. 2009), involved an alleged “procedural

error”—not a substantive Section 3553(a) claim.

Consequently, lawyers in the Fifth Circuit continue to

understand circuit law to require a post-sentence

objection to preserve the ability to challenge the length

of a sentence on appeal. See NACDL Br. 9-13.

Moreover, the Fifth Circuit applied Peltier’s postsentence objection rule in this case. The court of

appeals stated that plain error review applies “when a

defendant fails to object in the district court to the

reasonableness of the sentence imposed,” and it cited

United States v. Whitelaw, 580 F.3d 256 (5th Cir.

2009). J.A. 2. Whitelaw, in turn, cites Peltier for this

same rule. 580 F.3d at 259-60.

2. The closest Amicus comes to defending the Fifth

Circuit’s post-sentence objection requirement is

referencing two types of claims, outside the criminal

sentencing context, that sometimes require postruling objections. Amicus Br. 31-32. Neither example

is analogous.

4

Start with Amicus’s reference to jury instructions.

To preserve a claim of instructional error, a litigant

must object after the instruction issues; a request

beforehand for a different proposed instruction is

insufficient to preserve a claim of error. But as Amicus

recognizes (Br. 31), this requirement is explicitly

stated in the rules governing jury instructions. See

Fed. R. Crim. P. 30(d) (requiring a specific objection

after the court informs the parties of its intended

instructions); Fed. R. Civ. P. 51(c)(2)(A) (same). The

reason is simple: When a court irons out differences in

competing proposed instructions, its refusal to adopt

particular language could reflect merely stylistic

preferences. The after-the-fact objection requirement

forces litigants to alert the court when they believe

deviations from their proposals implicate important

legal rights.

Criminal Rule 51, by contrast, contains no

comparable language requiring a post-ruling

objection. That, too, makes sense, particularly in the

setting at hand: No sentencing judge would ever think

a defendant’s earlier request for a shorter sentence

was just a matter of style.

Next, Amicus references practices governing

excessive damages. Amicus asserts that “[e]ven if a

defendant had previously argued for no damages or

low damages,” a defendant “must still challenge the

excessiveness of a damages award via a post-trial

motion to preserve an excessiveness claim for appeal.”

Amicus Br. 32. The cases Amicus cites for that

proposition, however, involve a scenario not present

here: a defendant who wishes to preserve an argument

for appeal that is legally distinct from the arguments

it raised earlier. In Local Union No. 38, Sheet Metal

Workers’ Int’l Ass’n v. Pelella, 350 F.3d 73, 88 (2d Cir.

5

2003), for example, the defendant argued on appeal

that the punitive damages award against it violated

the Due Process Clause. Yet it “never raised this

argument with the district court.” Id. at 89. Instead, it

had previously argued merely for evidentiary and

statutory reasons that a lower punitive award should

be imposed. Id. at 79. Similarly, in Young v. Langley,

793 F.2d 792, 794 (6th Cir. 1986), the trial court “never

had an opportunity to pass on the claim” the

defendants presented on appeal.

Here, by contrast, petitioner advanced the same

legal claim during the sentencing hearing in the

district court that he is pressing on appeal—namely

that Section 3553 dictates a shorter sentence. In other

words, a defendant who argues on appeal that his

sentence is substantively unreasonable is not

advancing a different claim; he is merely renewing his

previous claim in a new forum, phrased in terms of the

applicable standard of review.

3. Amicus is also incorrect insofar as he suggests

that the preservation requirements for procedural

Section 3553 claims dictate that a post-sentence

objection rule should apply to substantive Section

3553 claims. Amicus Br. 24-26.

As a practical matter, defendants must often

object to procedural irregularities after they occur.

This need stems from the way such irregularities

arise, not from any inconsistency in how Rule 51

applies. For example, a defendant cannot know ahead

of time that a district court will “fail[] to adequately

explain the chosen sentence.” Gall v. United States,

552 U.S. 38, 51 (2007). So any objection will

necessarily follow imposition of the sentence. By

contrast, a defendant will always tell the court before

sentencing what sentence he thinks is appropriate.

6

And once he does so, he satisfies Rule 51 by alerting

the court of the action he “wishes the court to take.”

Fed. R. Crim. P. 51(b).

Nor is the line between procedural reasonableness

and substantive reasonableness so “blurry,” Amicus

Br. 25, that the Court should require after-the-fact

objections across the board for the sake of simplicity.

The distinction between procedural and substantive

Section 3553 claims is generally clear-cut. As the

United States explains, a procedural Section 3553

claim involves “an objection to the evaluation process,”

U.S. Br. 22—for instance, a mathematical error in

calculating the Guidelines range, “treating the

Guidelines as mandatory,” or failing to explain the

chosen sentence. See Gall, 552 U.S. at 51. A

substantive Section 3553 claim, by contrast,

challenges “the result of that process.” U.S. Br. 22

(emphasis added). And while the remedy for a

procedural claim is merely a new evaluation,

untainted by procedural error, the remedy for a

substantive claim is necessarily a shorter sentence.

Contrary to Amicus’s suggestion, therefore,

procedural Section 3553 claims are not typically

susceptible to repackaging as substantive claims.

Indeed, Amicus offers no real-world examples of

defendants trying to dress forfeited procedural claims

in substantive garb. That failure is telling. Petitioner’s

rule has been the law in most circuits for decades. See

Petr. Br. 9-10 (citing cases). If it actually led to the

sorts of difficulties Amicus predicts, one would expect

to see some evidence. But Amicus musters none. And

the Government—the party with the greatest

experience with sentencings and the most to lose from

the sort of gamesmanship Amicus posits—supports

petitioner.

7

B. Amicus’s alternative argument for applying

plain error review is wrong as well.

Even if Amicus were correct that an after-the-fact

objection may not be “the only way” in the Fifth Circuit

“to preserve a substantive-reasonableness challenge,”

the Fifth Circuit’s rule would be no more defensible.

Amicus Br. 30. At the very least, the Fifth Circuit

requires a defendant, “prior to the imposition of

sentence,” to argue not only “that he should be

sentenced to a specific sentence (e.g., 10 months),” but

also “that anything above a [certain] sentence (e.g., 15

months) would be beyond the range of reasonable

sentences.” Id. This is still far more than any other

circuit demands—and far more than Rule 51 requires.

1. Section 3553 instructs district courts to “impose

a sentence sufficient, but not greater than necessary,”

to fulfill the statute’s enumerated purposes. 18 U.S.C.

§ 3553(a). Based on this language, Amicus asserts that

a defendant who requests a certain sentence is not

identifying “the maximum sentence [he believes] the

court could impose under [the Section 3553(a)]

factors.” Amicus Br. 21. Amicus is incorrect. When a

defendant argues that a certain sentence is sufficient

to serve the purposes of Section 3553(a), he is telling

the court that he views that sentence as the particular

sentence that is appropriate under Section 3553(a).

Put differently, he is arguing that “any lengthier

sentence would be ‘greater than necessary’” for his

case. U.S. Br. 22.

The meaning of Section 3553(a)’s term “sufficient”

supports this reading. In legal parlance, “sufficient”

means “of such quality, number, force, or value as is

necessary for a given purpose.” Sufficient, Black’s Law

Dictionary (11th ed. 2019) (emphasis added).

Accordingly, while Amicus focuses on the indefinite

8

article in the phrase “a sentence sufficient, but not

greater than necessary,” Amicus Br. 16-17, any

sentence greater than one that is “sufficient” to

accomplish the goals of Section 3553(a) is, by

definition, “greater than necessary.” See Dean v.

United States, 137 S. Ct. 1170, 1175 (2017)

(recognizing that Section 3553(a) establishes a

“parsimony principle”). To express the point in

concrete terms: if 10 months is “a sentence” sufficient

to fulfill the purposes of Section 3553(a), then 15

months is indisputably greater than necessary.

The structure of Section 3553(a) reinforces this

conclusion. The provision requires courts to consider

not just the Guidelines’ recommended sentencing

ranges, but also the specific “nature and circumstances

of the offense” and other factors. 18 U.S.C. § 3553(a).

Sentencing courts, therefore, should start with

Guidelines ranges and then use the other factors to

fine-tune a specific sentence according to the

particulars of each defendant’s case. See Peugh v.

United States, 569 U.S. 530, 536-37 (2013).

Amicus emphasizes in response that appellate

courts will not vacate a sentence as too long unless it

falls “outside the reasonable range of sentences for a

given case,” and a defendant’s request for a particular

sentence in the district court “says nothing about the

potential range of reasonable sentences.” Amicus Br.

17-18, 21 (citation omitted). This merely repackages

the Fifth Circuit’s error: It conflates the standard of

review on appeal (namely, reasonableness) with

Section 3553(a)’s directive to the district court. See

Petr. Br. 17. And, as petitioner and the Government

have explained, parties need not frame arguments or

objections in district courts according to the standard

of appellate review. Id. 18; U.S. Br. 23-25.

9

2. Even if Amicus were correct that Section

3553(a) itself instructs district courts merely to select

any sentence from a range of available options, it

would make no difference. It would still not follow that

a defendant who asks for a particular sentence must

also identify the upper limit of the permissible range

and expressly argue that any sentence above that limit

would “exceed[] the range of reasonable sentences that

§ 3553(a) allows,” Amicus Br. 18. This is so for several

reasons.

a. Most important, Amicus’s argument finds no

support in the text of Rule 51. To preserve a claim of

error, Rule 51 simply requires a party to “inform[] the

court—when the court ruling or order is . . . sought—

of the action the party wishes the court to take.” Fed.

R. Crim. P. 51(b). Nowhere in Rule 51 is there a

requirement that the party inform the court of the full

range of actions the party thinks is permissible for the

court to take. Nor does Rule 51 require the party to

state that an action it thinks the court might take is

outside the permissible range of actions.

b. Amicus’s proposed requirement is also at odds

with this Court’s precedent. As petitioner noted in his

opening brief, this Court has twice reviewed sentences

for substantive reasonableness, as opposed to plain

error. See Petr. Br. 20 (citing Rita v. United States,

551 U.S. 338, 359-60 (2007); Gall v. United States, 552

U.S. 38, 59-60 (2007)). Yet the defense counsel in Rita

simply asked the district court for a “downward

departure” from the sentencing guidelines and

explained the reasons he thought a departure was

warranted. See Tr. 6-28, United States v. Rita,

No. 3:04-cr-00105-1 (W.D.N.C. June 7, 2005). The

attorney never stated what the highest permissible

sentence would be or “specifically argue[d],” Amicus

10

Br. 18, that a sentence beyond that point would be

unreasonable.

Likewise, in Gall, the government simply

recommended a particular sentence. It did not identify

a permissible range of sentences or state that any

sentence below a certain lower limit would be

unreasonable. See Tr. 27-41, United States v. Gall,

No. 4:04-cr-00116 (S.D. Iowa June 8, 2005).

c. Much like the Fifth Circuit’s post-sentence

objection

requirement,

Amicus’s

proposed

requirement would also lack any practical or tangible

benefit. For starters, an argument that a sentence is

outside the “range” of reasonable sentences would add

nothing of value for a district court. Any such

arguments would mimic the defendant’s arguments

for a lower sentence. By articulating the reasons why

a particular sentence is sufficient, a defendant puts

the district court on notice of the reasons why he

thinks a longer sentence would transgress Section

3553(a). Requiring anything more from the defendant

would be redundant.

Moreover, even if there were a theoretical

distinction between the kinds of arguments that

support a requested sentence and those that establish

an upper limit on the district court’s available options,

no competent defense counsel would ever argue that

the sentence she requests is less than the maximum

permissible sentence. It is difficult to imagine a lawyer

telling the court: “You should impose a 10-month

sentence, but anything up to 15 months would also be

perfectly legal.” This would cut the legs out from under

the requested sentence. The practical effect of

Amicus’s rule, then, would be simply that all

defendants would formulaically argue that their

11

requested sentences are the maximum permissible

sentences under Section 3553.

d. Lastly, requiring defendants to argue

specifically that any sentence beyond a particular

length would fall beyond the range of permissible

options would clash with existing practice beyond the

context of criminal sentencing. In myriad areas of

law—all governed by Rule 51 or its civil counterpart—

a judge may choose from a range of options. And in all

these areas, the Rules require litigants to request from

the court only their desired action. Litigants need not

also argue to the district court that anything beyond

some outer limit of the court’s discretionary range

would be illegal. A few examples:

• Under numerous civil rights statutes, district

courts have discretion to award prevailing

parties a “reasonable attorney’s fee.” E.g., 42

U.S.C. § 1988(b). To preserve the ability to

challenge an award on appeal, litigants must

simply argue for a different amount than the

court ultimately awards. They need not argue

that any given amount falls outside of some

permissible range of options. See, e.g., Perdue

v. Kenny A. ex rel. Winn, 559 U.S. 542, 547-50

(2010); Hensley v. Eckerhart, 461 U.S. 424,

428-29 (1983); Barbour v. City of White Plains,

700 F.3d 631, 634-35 (2d Cir. 2012).

• A district court imposing sanctions under

Federal Rule of Civil Procedure 11 has

“discretion to tailor an ‘appropriate sanction,’”

Cooter & Gell v. Hartmax Corp., 496 U.S. 384,

399 (1990), including a particular dollar

amount or length of punishment. To preserve

the right to appeal, litigants do not need to

identify the permissible range of options for the

12

district court. See id. at 389-91, 399-401; Geller

v. Randi, 40 F.3d 1300, 1303-04 (D.C. Cir.

1994); Brubaker v. City of Richmond, 943 F.2d

1363, 1370-74 (4th Cir. 1991).

• The Speedy Trial Act enables courts to grant

continuances to give counsel “reasonable time

necessary for effective preparation.” 18 U.S.C.

§ 3161(h)(7)(B)(iv); see also id. § 3161(h)(8). To

preserve for appeal a challenge to the length of

a continuance, a defendant simply needs to

object to the granting of the continuance or

request a shorter one. See, e.g., United States

v. Williams, 753 F.3d 626, 635-36 (6th Cir.

2014); United States v. Beech-Nut Nutrition

Corp., 871 F.2d 1181, 1196-98 (2d Cir. 1989). A

defendant does not need to argue separately

that any continuance beyond a certain length

would be unreasonable.

Amicus’s proposed objection requirement would upend

all of these long-settled understandings. This Court

should not adopt a new approach in this case that

would require sweeping changes across criminal and

civil procedure alike.

C. Amicus’s “facts and circumstances” argument

has no bearing on the proper standard of

review.

Amicus does not dispute that, if petitioner

preserved his overall substantive reasonableness

claim, he may argue to the court of appeals that the

sentence he proposed in the district court would have

been long enough to satisfy Section 3553(a)’s

deterrence factor. Amicus Br. 35. Amicus argues,

however, that petitioner’s contention on appeal that

his proposed shorter sentence would have been

sufficient “to protect the public,” 18 U.S.C.

13

§ 3553(a)(2)(C), is not preserved. Amicus Br. 33-34.

According to Amicus, Rule 51 requires defendants to

list for the district court “the specific facts and

circumstances” relating to each argument in support

of a shorter sentence, id. 20, and petitioner did not

identify in the district court “the specific grounds”

supporting his public-dangerousness argument. Id. 33.

This Court should not consider Amicus’s

contention. The question presented asks what is

necessary to “invoke appellate reasonableness review

of the length of a defendant’s sentence,” Pet. i—that is,

what a defendant must do to ensure that his challenge

is reviewed on appeal for abuse of discretion, not plain

error. Whether a particular argument may be

advanced on appeal in support of a preserved

challenge is a distinct, fact-bound issue. At any rate,

there is no problem with petitioner’s advancing his

“public dangerousness” argument in support of his

Section 3553(a) claim.

1. To preserve a claim for appeal, a litigant must

generally “put[] the court on notice as to his concern.”

Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 174

(1988). Accordingly, a criminal defendant seeking to

preserve a challenge to the length of his sentence for

appeal must provide the district court with fair notice

of his arguments in support of a shorter sentence.

At the same time, a defendant challenging the

substantive reasonableness of his sentence on appeal

is not strictly beholden to the precise contentions he

advanced in the district court. Rather, a defendant

may press any argument regarding the Section

3553(a) factors that fairly flows from the contentions

and facts he presented to the district court. This

parallels the distinction this Court has drawn between

claims and arguments more generally. As this Court

14

has put it, so long as “a federal claim is properly

presented” on appeal, “parties are not limited to the

precise arguments they made below.” Yee v. City of

Escondido, 503 U.S. 519, 534 (1992). So too here.

Amicus seems to contend that Rule 51 requires

something more. As Amicus puts it, a defendant must

make “specific mention of . . . § 3553(a) factors” and

present “particular circumstances that relate to those

factors” to preserve the right to challenge the sentence

imposed as substantively unreasonable on appeal.

Amicus Br. 23. Insofar as Amicus insists that a

defendant must not only explain to the district court

how the facts and circumstances merit a shorter

sentence but also must expressly tie each argument to

particular sentencing factors under Section 3553(a),

Amicus goes too far.

To begin, Amicus’s argument is based on an

analogy to the requirement in Federal Rule of Civil

Procedure 46 that litigants state the “grounds” for all

requests. Amicus Br. 14-15. Amicus assumes the word

“grounds” means “facts and circumstances.” Id. 13, 23.

But the “grounds” Rule 46 refers to are legal, not

factual, grounds. See 9B Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure

§ 2473 (3d ed. 2008) (providing examples). So,

assuming Rule 51 tracks Rule 46’s “grounds”

requirement, it does not require defendants requesting

a shorter sentence to recite every “fact and

circumstance” relevant to that request. Instead, Rule

51 requires a defendant arguing for a shorter sentence

to make sure the district court understands he is

relying on Section 3553—as opposed, say, to the

Eighth Amendment’s Cruel and Unusual Punishment

Clause. And petitioner did just that when he told the

15

district court that “under 3553” a shorter sentence

would be sufficient. J.A. 10.

A more rigid requirement to link every “fact and

circumstance” with particular Section 3553(a) factors

would not offer district courts any practical benefits

either. District courts are well aware that their

“overarching duty” in sentencing is to impose the

sentence that is “sufficient but not greater than

necessary” to achieve the purposes described in

Section 3553(a). Pepper v. United States, 562 U.S. 476,

491 (2011) (quotation marks omitted). And they are

intimately familiar with the Section 3553(a) factors.

Cf. Koon v. United States, 518 U.S. 81, 99 (1996)

(quotation marks omitted) (recognizing district courts’

“special competence” in sentencing). After all, they

oversee the sentences of more than 70,000 defendants

every year. 1 District courts do not need defendants to

explain how each and every fact and circumstance

maps on, for example, to the need “to promote respect

for the law” or “to provide just punishment for the

offense.” 18 U.S.C. § 3553(a)(2)(A).

Indeed, the Section 3553(a) factors are so broad

and overlapping that any such requirement would only

“saddle busy district courts with the burden of sitting

through” formalistic recitations of the sentencing

factors courts already know. United States v. CastroJuarez, 425 F.3d 430, 434 (7th Cir. 2005). Consider a

defendant who argues to the district court that a

shorter sentence is warranted because his crime was a

one-off

occurrence

driven

by

exceptional

See, e.g., U.S. Courts, U.S. District Courts–Criminal

Defendants Disposed of, by Type of Disposition and Offense,

During the 12-Month Period Ending March 31, 2016,

1

https://www.uscourts.gov/sites/default/files/data_tables/fjcs_d4_0

331.2016.pdf.

16

circumstances. That defendant is arguing that “the

nature and circumstances of the offense” merit a

shorter sentence. 18 U.S.C. § 3553(a)(1). But he is also

arguing that his “history and characteristics” merit a

shorter sentence. Id. And that there isn’t as great a

need “to protect the public from [his] further crimes.”

Id. § 3553(a)(2)(C). And, by extension, that his need for

deterrence is diminished. Id. § 3553(a)(2)(B). By any

reasonable measure, a defendant need not spell out

each of these linkages to “put[] the court on notice,”

Beech Aircraft, 488 U.S. at 174, regarding why he

thinks a sentence is sufficient.

2. Applying the proper fair-notice framework

makes clear that petitioner may maintain on appeal

not only that his sentence was unjustified by the need

for deterrence, but also that he did not pose an ongoing

danger to the public. Before the Fifth Circuit,

petitioner argued that “[n]othing in the record”

indicated he posed a danger to the public. Petr. CA5

Br. 11. This simply notes the absence of a finding—i.e.,

that the district court did not find he posed an ongoing

danger. And this notation was in keeping with

petitioner’s argument that a shorter sentence would

have made him equally unlikely to reoffend, J.A. 10—

an argument that speaks to whether a longer sentence

was needed “to protect the public from further crimes

of the defendant.” 18 U.S.C. § 3553(a)(2)(C).

Amicus also notes that petitioner made an

affirmative assertion in support of his public

dangerousness argument—namely, that when he was

arrested, he “was found in remote areas of Texas, far

from people.” Amicus Br. 8 (quoting Petr. CA5 Br. 11).

But the district court was adequately apprised of this

fact, too. The record states, and the Government

reminded the court at sentencing, that petitioner was

17

arrested in Culberson County, Texas. Presentence

Investigation Report (PSR) ¶ 10; J.A. 8. The reality

that Culberson County consists of open desert would

have been as well known to the U.S. District Court for

the Western District of Texas as the fact that

downtown San Antonio is densely populated.

II. Petitioner’s

sentence

unreasonable.

is

substantively

In both Rita and Gall, this Court did not only

answer the questions presented regarding how

appellate courts should review criminal sentences. It

also addressed the merits of each defendant’s

substantive Section 3553(a) claim. See Rita v. United

States, 551 U.S. 338, 359-60 (2007); Gall v. United

States, 552 U.S. 38, 56 (2007). The Government

defends the reasonableness of petitioner’s sentence,

U.S. Br. 32-33, so this Court may elect to undertake

substantive reasonableness review here. If it does, it

should deem petitioner’s sentence unreasonable.

When the district court sentenced petitioner, it

imposed a 72-month sentence: a 60-month mandatory

minimum for the second offense, plus a 12-month

revocation sentence on the original offense to run

consecutively. J.A. 9-11. Although the district court

admitted that the Section 3553(a) arguments against

imposing this cumulative sentence were “good,” it

reasoned that the 12-month sentence was necessary to

make petitioner’s original offense “mean[] something.”

J.A. 11. The Government defends the reasonableness

of the 12-month sentence primarily on the ground that

it was within the range recommended by the

Guidelines. U.S. Br. 32-33. The Government also

maintains, echoing the district court, that the sentence

18

properly accounted for petitioner’s being on supervised

release when he committed the second offense. Id.

The Government overlooks the fact that

petitioner’s sentence independently accounted for his

recidivism. If the second offense had been petitioner’s

first, his Guidelines range would have been 30-37

months. PSR ¶¶ 17-27 (offense level); U.S.S.G. § 5A

(sentencing table). That range was superseded by a

mandatory minimum of 60 months. J.A. 9; 21 U.S.C.

§ 841(b)(1)(B). But if petitioner had not been a repeat

offender, the district court would have had discretion,

under the oft-invoked “safety valve” provision, to set

aside the 60-month mandatory minimum and follow

the Guidelines’ recommendation. See 18 U.S.C.

§ 3553(f); see also U.S.S.G. § 5C1.2. Accordingly,

petitioner’s original offense forced the district court to

impose 23 months of prison time for the second offense

that it would not otherwise have been required to

impose. It was therefore unreasonable to impose

another 12 months of imprisonment simply to account

for petitioner’s original offense. See Petr. CA5 Reply

Br. 3-4. That extra term was “greater than necessary”

to effectuate the purposes of Section 3553(a). See Dean

v. United States, 137 S. Ct. 1170, 1175 (2017). 2

At the very least, we agree with the Government that the

Court should remand to allow the court of appeals to address the

substantive reasonableness of petitioner’s sentence in the first

instance. U.S. Br. 32-33. Contrary to Amicus’s argument (Br. 3637), the Fifth Circuit’s conclusion that petitioner’s sentence did

not “constitute a clear or obvious error” does not render such

action unnecessary. Substantive reasonableness review does not

turn on whether “clear or obvious error” occurred. Rather, it

involves whether the district court abused its discretion—that is,

whether the district court unreasonably concluded that “the

2

19

CONCLUSION

For the foregoing reasons, the decision below

should be reversed.

Respectfully submitted,

Jeffrey L. Fisher

O’MELVENY & MYERS LLP

2765 Sand Hill Road

Menlo Park, CA 94025

Brian H. Fletcher

Pamela S. Karlan

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

Philip J. Lynch

Counsel of Record

LAW OFFICES OF PHIL LYNCH

17503 La Cantera Parkway

Suite 104-623

San Antonio, TX 78257

(210) 883-4435

lawofficesofphil

lynch@satx.rr.com

Kendall Turner

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20006

October 30, 2019

§ 3553(a) factors, on the whole, justified the sentence.” Gall, 552

U.S. at 51. Consequently, the Fifth Circuit itself has recognized

that the plain error standard “erects a more substantial hurdle to

reversal of a sentence than does the reasonableness standard.”

J.A. 35; see also United States v. Nino, 728 Fed. Appx. 413, 414

(5th Cir. 2018).