Petition for Writ of Certiorari — Guadalupe Avendano-Vasquez, Petitioner v. United States

No.

IN THE SUPREME COURT OF THE UNITED STATES

GUADALUPE AVENDANO-VASQUEZ,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

ELAINE MITTLEMAN

2040 Arch Drive

Falls Church, VA 22043

elainemittleman@ msn.com

(703) 734-0482

(202) 297-2338 cell phone

Counsel of Record for Petitioner

QUESTIONS PRESENTED

Whether an appeal waiver precludes review of the sentence of

supervised release when the defendant has been deported.

Whether an appeal waiver is enforceable when the defendant has not

been advised about the effects of the term of supervised release, particularly

when the probation office does not monitor or supervise the term of

supervised release.

Whether the district court erred in failing to consider U.S.S.G. § 5D1. 1

in imposing a term of supervised release.

1

TABLE: OF CONTENTS

QUESTIONS PRESENTED ......................................i

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

OPINIONS BELOW ...................................................1

JURISDICTION .........................................................1

SENTENCING GUIDELINES PROVISION INVOLVED.... I

STATEMENT OF THE CASE................................................

2

REASONS FOR GRANTING THE PETITION .................4

Appeal waivers' are routinely used to preclude appeals... 5

There are questions about the treatment of supervised

release for defendants who are likely to be deported. .... 9

Ill.

This Case. Presents Issues of Importance .. ................. 11

CONCLUSION.......................................................................12

APPENDIX

Unpublished opinion of the United States Court of Appeals

for the Eleventh Circuit, filed on September 27, 2018..........la

Judgment in the United States District Court, Middle District

of Florida (Tampa Division), filed on May 7, 2015 .............3a

11

TABLE OF AUTHORITIES

Page(s)

Cases:

Class v. United States,

U.S.

-

138 S.Ct. 798 (2018)

. 5

-.

United States v. Bonds, No. 18-4519 (41h Cir. January 24, 2019)

...

7

United States v. Bushert, 997 E2d 1343 (11th Cir. 1993) ............4, 5, 6

United States v. Cofield, No. 18-12807 (11th Cir. February 4, 2019).. 6

United States v. Cuellar, No. 17-13523 (11th Cir. January 11, 2019).. 6

United States v. Duartez-Zevayos, No. 17-15567 (11t Cir.

January 17, 2019) .................................................... 6

United States v. Grinard-Henry, 399 F.3d 1294 (11th Cir. 2005) .......4

United States v. Kankolenski, No. 18-13434 (111h Cir.

January 17, 2019) ..................................................... 6

United States v. Kaufman, 791 E3d 86 (D.C. Cir. 2015) .................7

United States v. Landazuri, No. 1810 750(11th Cir. January 14, 2019) 6

United States v. Menard, No. 18-12835 (11th Cir. February 14, 2019). 6

United States v. Miles, 902 F.3d 1159 (10th Cir. 2018) ..................8

United States v. Noel, No. 18-12233 (11t! Cir. February 11, 2019)

United States v. Payan, No. 18-12400 (11th Cir. January 24, 2019)

United States v. Rivers, No. 18-12716 (11th Cir. January 11, 2019)

United States v. Sosa, No. 18-13886 (11th Cir. February 13, 2019)

111

....

....

....

....

6

7

6

6

United States v. Trotter, 321 ESupp.3d 337 (E.D.N.Y. 2018)

...

9, 10, 11

United States v. Uadiaie, No. 18-13470 (11th Cir. January 15, 2019).. 7

United States v. Wilson, 707 EM 412 (3d Cir. 2013) .....................8

Statutes and Sentencing Guidelines:

18U.S.C.982 ................................................................3

18 U.S.C. §§ 1028(a)(2), 1028(b)(1)(A)(i), and 1028(c)(1) ...........3

18 U.S.C. § 1546(a) .......................................................... 3

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

42 U.S.C. § 408(a)(7)(c) ....................................................3

U.S.S.G § 5D1.1 ....................................................1, 2, 4, 10

Other Authorities:

Christine S. Scott-Hayward, Shadow Sentencing: The Imposition

of Federal Supervised Release, 18 Berkeley J. Cnm. L.

180 (2013) ..................................................................10

U.S. Sentencing Commission, Federal Offenders Sentenced to

Supervised Release (July 20 10) ..........................................11

lv

PETITION FOR A WRIT OF CERTIORARI

Petitioner Guadalupe Avendano-Vasquez respectfully petitions this

Court for a writ of certiorari to review the judgment of the United States

Court of Appeals for the Eleventh Circuit.

OPINIONS BELOW

The opinion of the Eleventh Circuit Court of Appeals, App., infra, la2a, is not reported.

The district court's judgment was filed on May 7, 2015, in the United

States District Court, Middle District of Florida (Tampa). App., infra, 3a-9a.

JURISDICTION

The judgment of the court of appeals was entered on September 27,

2018. The time to file a petition was extended to February 24, 2019. The

jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

SENTENCING GUIDELINES PROVISION INVOLVED

U.S.S.G § 5D1.1. Imposition of a Term of Supervised Release

(c) The court ordinarily should not impose a term of supervised

release in a case in which supervised release is not required by

statute and the defendant is a deportable alien who likely will

be deported after imprisonment.

Commentary

Application Notes:

5. Application of Subsection (c).

In a case in which the defendant

-

I

is a deportable alien specified in subsection (c) and supervised

release is not required by statute, the court ordinarily should not

impose a term of supervised release. Unless such a defendant

legally returns to the United States, supervised release is unnecessary.

If such a defendant illegally returns to the United States, the need

to afford adequate deterrence and protect the public ordinarily is

adequately served by a new prosecution. The court should, however,

consider imposing a term of supervised release on such a defendant

if the court determines it would provide an added measure of

deterrence and protection based on the facts and circumstances of

a particular case.

STATEMENT OF THE CASE

The decision below is an example of the widespread practice of

dismissing appeals because of appeal waivers. In this case, petitioner had

already been deported when his appeal was considered. In addition,

petitioner was sentenced to a term of supervised release. The district court

did not consider or discuss the sentencing guidelines provision, U.S.S.G. §

513 1.1, which provides that a defendant deportable alien ordinarily should

not be given a term of supervised release. The probation office considered

the case inactive and did not supervise or monitor the petitioner after

deportation, even though he had a sentence that included a term of

supervised release.

1.

Petitioner was charged in a nine-count indictment. Count Three

charged the petitioner with the transfer of false identification documents,

2

including a Permanent Resident Alien Card (Form 1-551) and a Social

Security card, in violation of 18 U.S.C. §§ 1028(a)(2), 1028(b)(1)(A)(i), and

1028(c)(1). The charges also included violations, of 18 U.S.C. § 1546(a), 42

U.S.C. § 408(a)(7)(C) and a forfeiture provision, 18 U.S.C. § 982.

A change of plea hearing was conducted by the magistrate

judge on December 3, 2014. On December 19, 2014, the district court

adopted the magistrate judge's report and recommendation and ordered that

petitioner be adjudicated guilty as to Count Three.

A sentencing hearing, was conducted on May 7, 2015, before

Judge Virginia M. Hernandez Covington. Petitioner was sentenced to 24

months imprisonment on Count Three. He was placed on supervised release

for a term of 36 months. He was ordered to pay a special monetary

assessment of $100. The fine was waived.

A judgment was entered in the district court on May 7, 2015.

The court adjudicated that the petitioner was guilty on Count Three. Counts

One, Two, and Four through Nine were dismissed on the motion of the

United States.

According to the Bureau of Prisons website, petitioner was

released on June 29, 2016. In an email dated January 23, 2018, a probation

officer stated that "[o]ur records show that he was removed from the U.S. on

3

08/11/2016. However, I highly recommend you contact ICE. They are the

ultimate authority on the matter."

In an unpublished per curiam opinion, the Eleventh Circuit

granted the government's motion to dismiss the appeal pursuant to the

appeal waiver. The court noted that petitioner had contended that there was

a question whether his conviction was considered final for removal

purposes. Also, petitioner contended that his term of supervised release

should be vacated because the district court did not consider his status as a

defendant likely to be deported. The district court had not addressed or

discussed U.S.S.G. § SD 1.1. App., la-2a.

In granting the government's motion to dismiss, the Eleventh

Circuit relied upon United States v. Bushert, 997 F.2d 1343, 1350-51 (11th

Cir. 1993) (sentence appeal waiver will be enforced if it was made

knowingly and voluntarily), and United States v. Grinard-Henry, 399 EM

1294, 1296 (11th Cir. 2005) (waiver of the right to appeal includes waiver of

the right to appeal difficult or debatable legal issues or even blatant error).

App., 2a.

REASONS FOR GRANTING THE PETITION

The Court should grant certiorari to address the conflict among the

circuit courts about enforcing appeal waivers and the pervasiveness of

appeal waivers. In addition, it appears that a great majority of appeal

waivers are enforced. The result is that the appellate process is essentially

denied to many, if not most; criminal appeals in federal courts. There should

be much stricter review of the appeal waiver process.

This Court recently discussed guilty pleas and held that that a guilty

plea, by itself, does not bar a defendant from challenging the

constitutionality of the pertinent statute on direct appeal. Class v. United

States,

U.S.

-

138 S.Ct. 798, 802 (2018).

-.

Justice Auto, in dissent, discussed guilty pleas, as follows:

Roughly 95% of felony cases in the federal and state courts are

resolved by guilty pleas. Therefore it is critically important

that defendants, prosecutors, and judges understand the

consequences of these pleas. In this case, the parties have

asked us to identify the claims that a defendant can raise on

appeal after entering an unconditional guilty plea. Regrettably,

the Court provides no clear answer.

Class v. United States,

-

U.S.

-.

138 S.Ct. at 807 (Justice Auto,

dissenting) (footnote omitted).

I.

Appeal waivers are routinely used to preclude appeals.

Appeal waivers result in often summary or cursory dismissal of

appeals by the circuit courts. The Eleventh Circuit held that an appeal

waiver will be enforced if it was made knowingly and voluntarily. United

States v. Bushert, 997 E2d 1343, 1351 (11th Cir. 1993). The waiver is valid

5

if the government shows either that (1) the district court specifically

questioned the defendant about the waiver during the plea colloquy, or (2)

the record makes clear that the defendant otherwise understood the full

significance of the waiver.

In spite of the severe results from the holding that an appeal will be

dismissed, it appears that motions to dismiss the appeal based on an appeal

waiver are granted summarily and without analysis of the facts of the

individual case. A review of recent Eleventh Circuit cases from 2019 shows

a number of appeals that were dismissed in one paragraph per curiam

unpublished opinions in reliance upon Bushert and other cases.

These recent Eleventh Circuit opinions are United States v. Cuellar,

No. 17-13523 (11th Cir. January 11, 2019); United States v. Rivers, No. 1812716 (11th Cir. January 11, 2019); United States v. Landazuri, No. 1810750 (11th Cir. January 14, 2019); United States v. Duartez-Zevayos, No.

17-15567 (11th Cir. January 17, 2019); United States v. Kankolenski, No. 11813434 (11th Cir. January 17, 2019); United States v. Cofield, No. 18-12807

(11th Cir. February 4, 2019); United States v. Noel, No. 18-12233 (11th Cir.

February 11, 2019); United States v. Sosa, No. 18-13886 (11th Cir. February

13, 2019); United States v. Menard, No. 18-12835 (11th Cir. February 14,

2019).

on

Other recent Eleventh Circuit unpublished opinions that have more

than one paragraph and dismiss appeals are United States v. Uadiale, No. 1813470 (11th Cir. January 15, 2019), and United States v. Payan, No. 1812400 (11th Cir. January 24, 2019).

A recent unpublished Fourth Circuit opinion provides another

example of the impact of appeal waivers. In United States v. Bonds, No. 184519 (4th Cir. January 24, 2019), the appeal was dismissed in part and

affirmed in part. The appeal was dismissed as to the sentencing claims and

any other issues covered by the appeal waiver. The court then explained that

it had reviewed the entire record and had found no meritorious grounds for

appeal that were outside the scope of the valid appeal waiver. The district

court's judgment was affirmed for any issues not precluded by the appeal

waiver. This opinion is merely an example of the treatment of appeal

waivers. There are presumably numerous unpublished opinions by the

circuit courts that dismiss appeals because of appeal waivers.

The issues about appeal waivers have been given more detailed

analysis by other circuits. The District of Columbia Circuit held, in United

States v. Kaufman, 791 E3d 86, 88 (D.C. Cir. 2015), that the appeal was not

barred. At the plea hearing, the district court had made two problematic

statements in explaining the waiver provision.

7

The Tenth Circuit, in United States v. Miles, 902 F.3d 1159, 1160 (10th

Cir. 2018), addressed whether an appeal waiver is contrary to public policy

because it is one-sided. The court explained that it had not addressed the

issue, but that several other circuits had rejected that argument and similar

contentions. The court stated that it agreed with the other circuits' reasoning

in upholding the non-mutual appeal waiver. Id. at 1161.

The Third Circuit addressed the question of an appeal waiver in the

context of a modification of the terms and conditions of supervised release.

In United States v. Wilson, 707 F.3d 412, 414 (3d Cir. 2013), the court noted

that Wilson had appealed. The court enforced the appeal waiver and

affirmed the judgment of sentence.

After Wilson began serving his term of supervised release, the court

ordered that the conditions be modified to add that he undergo a mental

health assessment. On appeal, id. at 416, the court explained that the appeal

waiver was a waiver of the right to appeal the sentence that was imposed at

sentencing and memorialized in the judgment and commitment order. This

appeal was not barred by the waiver because Wilson had not explicitly

waived a right to appeal a later modification of his sentence.

II.

There are questions about the treatment of supervised release

for defendants who are likely to be deported.

The treatment of supervised release for defendants who are likely to

be deported presents numerous issues and questions. The website for United

States Courts included a section on immigration-related requirements

relating to probation and supervised release conditions. It appears from the

information on the website that the probation officer identifies the

defendant's case file as "inactive" and ceases supervision efforts after the

deportation proceedings have been concluded. Also, after six months and

annually thereafter until expiration of the term of supervision, a criminal

records check is conducted to detect any activity not discovered through use

of the flash notice. http ://www. uscourts gov/services-forms/immigration.

related-requirements-probation-supervised-release-conditions

Judge Jack B. Weinstein, Senior United States District Judge in the

Eastern District of New York, issued a lengthy opinion that discussed

supervised release. Judge Weinstein explained that "[t]he purpose of federal

supervised release is to assist people who have served prison terms with

rehabilitation and reintegration into the law-abiding community. The United

States Probation Department monitors individuals on supervised release and

can help a supervisee with his or her reintegration

..."

United States v.

Trotter, 321 ESupp.3d 337, 339 (E.D.N.Y. 2018).

In spite of the obligation of the United States Probation Department to

monitor individuals on supervised release, it appears that the Probation

Department does not monitor defendants after they have been deported.

Instead, the cases are treated as "inactive." The defendants who have been

deported apparently do not receive the benefits that are intended to be

provided by supervised release, because the probation officers do not

monitor those individuals.

Judge Weinstein emphasized the need to discuss provi:sions involving

supervised release at sentencing, Trotter, id. at 340, as follows:

The significance of terms and conditions of supervised release

is often ignored when sentencing. See generally Christine S.

Scott-Hayward, Shadow Sentencing: The Imposition of

Federal Supervised Release, 18 Berkeley J. Crim. L. 180,

190 (2013). At the sentencing hearing, the term of supervised

release is seldom discussed; defense counsel, Assistant

United States Attorneys, and the court assume it will be

imposed for a significant period (usually three or five years).

The sentencing hearing centers on the incarceration term.

U.S.S.G. § 5D1. 1(c) provides that the district court ordinarily should

not impose a term of supervised release when it is likely that the defendant

will be deported after imprisonment. In spite of this provision discouraging

the imposition of supervised release, it appears that most district courts

continue to impose supervised release. The Trotter opinion noted that

10

"[b]etween 2005 and 2009 courts imposed supervised release in 95% of

cases." U.S. Sentencing Commission, Federal Offenders Sentenced to

Supervised Release, at 55 (July 2010). Trotter, id at 362.

Whatever the benefits related to supervised release, it appears that

defendants who are deported do not receive those benefits, because their

cases are treated as "inactive." Defendants who are deported are essentially

receiving a different type of supervised release, which involves little or no

supervision or assistance by the probation office.

Further, it is not clear how deported defendants are able to ensure

compliance with conditions, such as submission to random drug testing, of

supervised release if the defendants are not being monitored and are outside

the United States. It is not clear to what extent judges advise defendants at

sentencing how they are to comply with conditions of supervised release

after they are deported.

III. This Case Presents Issues of Importance.

The issues relating to enforcing appeal waivers likely affect a large

percentage of criminal cases. The widespread use of guilty pleas and the

likelihood that many, if not most, of those pleas include appeal waivers,

indicate that the issues relating to appeal waivers affect the functioning of

the courts and the criminal justice system. If appeal waivers are included in

11

most plea agreements, and if those appeal waivers are routinely used to

dismiss appeals, then there may be few substantive appeals permitted. The

criminal justice system depends on the availability of appeals to ensure

fairness. With the overwhelming use of appeal waivers, the existence of

appeals may follow the path of the jury trial into becoming a rare event.

Petitioner would not have known at sentencing that he would be

deported before his appeal was completed. Presumably, he was not advised

how he would be able to comply with the conditions of supervised release

after he was deported. Further, in light of the treatment of his case as

"inactive" by the probation office, it is not clear how petitioner could obtain

any benefits from the term of supervised release.

In the absence of substantive appeals, many issues, including those

involving questions about the Sentencing Guidelines, will not be addressed

by the circuit courts. The lack of guidance and analysis by the circuit courts

on criminal justice matters as a result of widespread appeal waivers presents

a threat to the fairness of the criminal justice system.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted

12

Elaine Mittleman

2040 Arch Drive

Falls Church, VA 22043

elainemittleman@msn.com.

(703) 734-0482

(202) 297-2338 cell phone

Counsel of Record for Petitioner

13