Petition for Writ of Certiorari — Alfredo Mendez, Petitioner v. United States

No. ___________

IN THE SUPREME COURT OF THE UNITED STATES

____________________________

____________________________

ALFREDO MENDEZ,

Petitioner,

-vUNITED STATES OF AMERICA,

Respondent.

____________________________

____________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

____________________________

____________________________

PETITION FOR A WRIT OF CERTIORARI

MICHAEL MARKS

Federal Defenders of San Diego, Inc.

225 Broadway, Suite 900

San Diego, CA 92101

Telephone: (619) 234-8467

Facsimile: (619) 687-2666

Email: Michael_Marks@fd.org

Attorneys for Petitioner

QUESTION PRESENTED FOR REVIEW

Whether a federal district court is permitted boundless discretion at

sentencing to weigh established factors at sentencing, as the Ninth Circuit has held,

or whether, following the majority of circuits, appellate courts must instead

determine whether the district court’s weighing of sentencing factors was proper.

prefix

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ........................................................................ prefix

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

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

RELEVANT PROVISIONS ................................................................................................... 2

STATEMENT OF THE CASE ................................................................................................ 2

A.

The Offense ............................................................................................... 2

B.

District Court Proceedings ....................................................................... 3

C.

Appeal to the Ninth Circuit ..................................................................... 7

REASONS FOR GRANTING THE PETITION .......................................................................... 8

A.

The Circuits Are Intractably Split on the Scope of Appellate

Review of a Federal District Court’s Weighing of Established

Sentencing Factors ................................................................................... 8

B.

The Ninth Circuit Was Wrong to Affirm the District Court in

Petitioner’s Case When the District Court Failed to Consider and

Weigh Requisite Factors Under U.S.S.G. § 3B1.2 ................................ 12

C.

This Case is a Good Vehicle for Resolving the Question Presented..... 14

CONCLUSION ................................................................................................................. 15

APPENDIX A – United States v. Mendez, 746 F. App’x 620 (9th Cir. 2018)

APPENDIX B – U.S.S.G. § 3B1.2

i

TABLE OF AUTHORITIES

CASES

Anderson v. City of Bessemer City, N.C., 470 U.S. 564 (1985).................................... 9

Colon–Cabrera v. Esso Standard Oil Co. (P.R.), Inc., 723 F.3d 82 (1st Cir. 2013) ..... 9

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) ............................................ 8, 9

Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) ........................................ 14

United States v. Del Valle-Cruz, 785 F.3d 48 (1st Cir. 2015) ................................ 9, 14

United States v. Diehl, 775 F.3d 714 (5th Cir. 2015) .............................................. 9-10

United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) .......................................... 10

United States v. Gasca-Ruiz, 852 F.3d 1167 (9th Cir. 2017) (en banc) ..................... 10

United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (en banc) .......................... 10

United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) ............................................... 10

United States v. J.J., 704 F.3d 1219 (9th Cir. 2013) .................................................. 11

United States v. Jenkins, 758 F.3d 1046 (8th Cir. 2014) ........................................... 10

United States v. Mendez, 746 F. App’x 620 (9th Cir. 2018) ............................... passim

United States v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016) ................................ 11

United States v. Wright, 747 F.3d 399 (6th Cir. 2014) .............................................. 10

STATUTES

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

18 U.S.C. § 5032 ........................................................................................................... 11

21 U.S.C. § 952 ........................................................................................................... 1, 3

21 U.S.C. § 960 ........................................................................................................... 1, 3

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

ii

28 U.S.C. § 1291 ............................................................................................................. 1

SENTENCING GUIDELINES

U.S.S.G. § 3B1.2 ................................................................................................... passim

U.S.S.G. app. C amend. 794 (2015) ............................................................................. 12

iii

IN THE SUPREME COURT OF THE UNITED STATES

____________________________

____________________________

ALFREDO MENDEZ,

Petitioner,

-vUNITED STATES OF AMERICA,

Respondent.

____________________________

____________________________

Petitioner Alfredo Mendez respectfully prays that a writ of certiorari issue to

review the decision of the United States Court of Appeals for the Ninth Circuit

entered on December 17, 2018.

JURISDICTION

Petitioner pled guilty to importation of methamphetamine and cocaine, in

violation of 21 U.S.C. §§ 952 and 960, in the United States District Court for the

Southern District of California.

imprisonment.

The district court sentenced him to 78 months’

Reviewing his sentence under 28 U.S.C. § 1291, the Ninth Circuit

affirmed Petitioner’s sentence in an unpublished disposition. See United States v.

Mendez, 746 F. App’x 620 (9th Cir. 2018) (attached to this petition as Appendix A).

This Court has jurisdiction to review the Ninth Circuit’s decision under 28 U.S.C.

§ 1254(1).

RELEVANT PROVISIONS

§ 3B1.21

STATEMENT OF THE CASE

A.

The Offense

Desperate for money and deeply lost in alcohol and drug abuse, Petitioner

agreed to smuggle drugs into the United States.

He dropped his car off with a

drug-trafficking organization to construct a hidden compartment in the console of

his car.

The organization loaded drugs into the compartment, and Petitioner

crossed the border successfully.

He dropped of the drugs in the United States, and

the organization paid him $7,000.

A few weeks later, Petitioner agreed to another smuggling attempt.

he dropped the car off with the organization to load the drugs.

Again,

This time, the

organization used more than the secret compartment in the console; they packed

drugs into the rear seats and spare tire of Petitioner’s truck without telling him.

As he approached the border, a drug-sniffing dog alerted to the spare tire.

A

border agent inspected the interior of the truck and discovered several packages of

drugs concealed behind the rear seats.

under arrest.

Agents immediately placed Petitioner

A subsequent search revealed the drugs hidden in the spare tire and

hidden compartment.

The car held 24 kilograms of methamphetamine, 10

kilograms of cocaine, and one kilogram of heroin.

1

The full text of this Guideline is attached at Appendix B.

2

B.

District Court Proceedings

The government charged Petitioner with one count of importation of

methamphetamine and one count of importation of cocaine, each in violation of 21

U.S.C. §§ 952 and 960.

Petitioner pled guilty to both counts.

Prior to sentencing, Petitioner requested a minor-role adjustment under

§ 3B1.2.

He noted that § 3B1.2 cmt. n.3(C) contains a non-exhaustive list of factors

pertinent to the application of the adjustment:

(i) the degree to which the defendant understood the scope and

structure of the criminal activity;

(ii) the degree to which the defendant participated in planning or

organizing the criminal activity;

(iii) the degree to which the defendant exercised decision-making

authority or influenced the exercise of decision-making authority;

(iv) the nature and extent of the defendant's participation in the

commission of the criminal activity, including the acts the defendant

performed and the responsibility and discretion the defendant had in

performing those acts;

(v) the degree to which the defendant stood to benefit from the criminal

activity.

He argued that each factor favored an adjustment.

Petitioner argued that his understanding of the “scope and structure of the

criminal activity” was very limited. See U.S.S.G. § 3B1.2 cmt. n.3(C)(i). His role

in the smuggling operation was discrete and his knowledge was limited to that role.

He did not know to whom the drugs belonged, who manufactured the drugs, or the

drugs’ final destination.

Although he was the driver, registered owner, and sole

occupant of the truck carrying drugs, none of those facts suggested he knew

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anything about the scope of the larger smuggling operation for which he was

working.

Petitioner also argued that the degree of benefit from his activity was small.

See U.S.S.G. § 3B1.2 cmt. n.3(C)(v). Although he had earned $7,000 and was due

to earn the same amount if had successfully crossed on the second occasion, that

amount was only around two percent of the wholesale value of the drugs, which the

government had estimated to be worth $300,000 per load.

Last, Petitioner pointed out that he did not own the drugs and that he was

only smuggling drugs at the behest of drug traffickers in exchange for money.

He

was thus the archetypal minor participant identified by the Sentencing

Commission: “a defendant who does not have a proprietary interest in the criminal

activity and who is simply being paid to perform certain tasks.” See U.S.S.G. §

3B1.2 cmt. n. 3(C).

At sentencing, the district court began its minor-role analysis by citing the

general standard from the application notes to § 3B1.2, that “[t]he court has to be

convinced by a preponderance of the evidence that the defendant is substantially

less culpable that the average participant in the offense.”

The court also cited the

“3B1.2 factors,” presumably referencing the enumerated factors listed in the

application notes.

The court lamented that the information regarding the offense was “vague”

but previewed, “[W]ith the exception of the decision-making authority, the

defendant really doesn’t qualify [for a minor-role adjustment].” The court

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summarized, “My judgment tells me that a guy who brings in 70 pounds of highly

addictive drugs, 50 pounds of methamphetamine, 20 pounds of cocaine, who’s being

paid $7,000, who’s negotiated for that amount, who’s done it before, who’s working

for the same organization, cannot in any sense be considered a minor participant.”

Assessing Petitioner’s degree of knowledge about the scope and operation of

the drug-trafficking organization, the court concluded that Petitioner knew what all

drug importers generally knew.

The court explained, for example, that Petitioner

knew the drug-trafficking organization brought drugs into the United States and

imported them using hidden compartments in vehicles.

Petitioner objected that

those characteristics merely described the average drug courier, which the

Sentencing Commission had identified as a typical minor participant in its

application notes to § 3B1.2.

But the court responded that the Commission did not

properly take into account the difference between “couriers” (those who transport

drugs within the United States) and “importers” (those who transport drugs across

the international border).

“So that’s my response to the Sentencing Commission’s

statement about couriers,” the court declared.

Defense counsel agreed that the Commission hadn’t drawn a distinction

between “couriers” and “importers.”

But he argued that both lacked a “proprietary

interest” in the drugs they transported, making them both minor participants in

large drug-trafficking organizations.

See U.S.S.G. § 3B1.2 cmt. n.3 (“a defendant

who does not have a proprietary interest in the criminal activity and who is simply

being paid to perform certain tasks should be considered for an adjustment under

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this guideline”).

Again the court balked, proclaiming that the Commission’s

definition did not “meet the reality here in the Southern District of California.”

The court noted that couriers prosecuted in the Southern District never own

the drugs they carry.

It continued:

So to say that that is what separates minor participants who are

importing drugs from those who aren’t minor participants is just an

abstraction. It really is. It doesn’t meet the reality here, and I think

if the Sentencing Commission members came and sat in and listened

to cases on a regular basis, they would understand that. I disagree

with them to the extent that they think that—you’re saying they think

that’s a defining factor on whether one gets a minor role.

Counsel put forward one final argument: that the $7,000 Petitioner received was

miniscule compared to the value of the drugs he transported. The court responded,

“I reject that as a metric.”

In support, the court offered only an odd comparison

that drivers of armored cars are also paid small wages in comparison to the value of

the money they carry.

Ultimately denying the minor-role adjustment, the court calculated the

guideline range for the custodial sentence at 168 to 210 months.

But “given

defendant’s track record up to his unfortunate involvement in this,” the court varied

down to a sentence of 78 months.

The court’s sentence fell at the middle of the 70-

to-87 month guideline range that would have applied had it granted the minor-role

reduction.

But the court never calculated the guideline range had the minor-role

adjustment applied nor commented that it would impose the same sentence if that

lower range applied. Mendez timely appealed his sentence to the Ninth Circuit.

6

C.

Appeal to the Ninth Circuit

On appeal, Petitioner argued that the district court had misinterpreted the

Guideline factors.

Specifically, he claimed that the court had inappropriately

assigned no weight to his lack of knowledge about the drug-trafficking organization,

his relatively low pay, and his lack of proprietary interest.

Petitioner explained

that the district court’s disagreement with the Sentencing Commission’s definition

of a minor participant caused it to reject factors it was required to consider under

§ 3B1.2.

The Ninth Circuit disagreed and affirmed Petitioner’s sentence in an

unpublished memorandum disposition. Mendez, 746 F. App’x at 621. The panel

began by noting that the district court had properly identified the relevant factors

under § 3B1.2. Id. The panel then ruled that “[t]he record does not support

[Petitioner’s] contention that the district court failed to apply some of the factors

because of a policy disagreement with the Sentencing Commission; rather, the court

declined to give those factors the weight urged by [Petitioner].” Id. Without

discussing whether the district court had given those factors appropriate weight,

the panel then concluded that the district court “did not abuse its discretion by

denying the minor role adjustment in light of the totality of the circumstances.”

Id.

The panel cited different factors to support its conclusion “including Petitioner’s

prior successful drug crossing and the large amount of drugs Petitioner smuggled.”

Id.

7

REASONS FOR GRANTING THE PETITION

This Court should grant certiorari to resolve a circuit split on the proper

scope of appellate review of a federal district court’s application of a multi-factor

legal test at sentencing.

As the majority of the circuits have held, district courts

must do more than merely identify relevant sentencing factors. District courts

must go further to give proper weight to the individual factors and weigh them in a

logical and reasonable manner.

Accordingly, appellate courts must review whether

a district court properly weighed legal factors at sentencing and must reverse when

the district court abuses its discretion by giving improper weight to a particular

factor.

Breaking from this reasoned rule, the Ninth Circuit has held that a district

court imposing sentence need not weigh legal factors in a particular manner.

Instead, the Ninth Circuit has held that mere identification and consideration of

some relevant factors is sufficient to avoid any abuse of discretion. The Ninth

Circuit’s rule is unworkable, and this Court should reverse and clarify that circuit

courts must review the manner in which a district court weighs legal factors at

sentencing under a multi-factor test.

A.

The Circuits Are Intractably Split on the Scope of Appellate Review of a

Federal District Court’s Weighing of Established Sentencing Factors

This Court has held that “[a] district court would necessarily abuse its

discretion if it based its ruling on an erroneous view of the law or on a clearly

erroneous assessment of the evidence.” Cooter & Gell, 496 U.S. at 405. While

appellate courts review the district court’s legal determinations, “[t]he reviewing

8

court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate

the role of the lower court.”

573 (1985).

Anderson v. City of Bessemer City, N.C., 470 U.S. 564,

Yet “[t]he Court has long noted the difficulty of distinguishing between

legal and factual issues,” Cooter & Gell, 496 U.S. at 401.

That difficulty has

resulted in a split of authority regarding the scope of appellate review of the

application of multi-factor legal tests at sentencing.

The majority of circuits have ruled that the appellate court must review

whether a district court properly weighed legal factors.

Under this view, “[t]he

abuse of discretion standard is not a rubber stamp, counseling affirmance of every

discretionary decision made by a trial court.” United States v. Del Valle-Cruz, 785

F.3d 48, 58 (1st Cir. 2015) (internal quotation marks omitted). As the First Circuit

puts it: “The [district] court exceeds its discretion when it fails to consider a

significant factor in its decisional calculus, if it relies on an improper factor in

computing that calculus, or if it considers all of the appropriate factors but makes a

serious mistake in weighing such factors.” Id. (quoting Colon–Cabrera v. Esso

Standard Oil Co. (P.R.), Inc., 723 F.3d 82, 88 (1st Cir. 2013)).

Several other circuits apply some form of the same test.

The Fifth Circuit

has held that “[a] non-Guidelines sentence unreasonably fails to reflect the

statutory sentencing factors set forth in § 3553(a) where it (1) does not account for a

factor that should have received significant weight, (2) gives significant weight to an

irrelevant or improper factor, or (3) represents a clear error of judgment in

balancing the sentencing factors.” United States v. Diehl, 775 F.3d 714, 724 (5th

9

Cir. 2015).

The Sixth Circuit similarly proclaims that a sentence is substantively

unreasonable if the district court “gives an unreasonable amount of weight to any

pertinent factor.” United States v. Wright, 747 F.3d 399, 413 (6th Cir. 2014)

(internal quotation marks omitted).

The Eighth Circuit has prescribed that “ ‘[a]

district court abuses its discretion when it (1) ‘fails to consider a relevant factor that

should have received significant weight’; (2) ‘gives significant weight to an improper

or irrelevant factor’; or (3) ‘considers only the appropriate factors but in weighing

those factors commits a clear error of judgment.’ ” United States v. Jenkins, 758

F.3d 1046, 1050 (8th Cir. 2014) (quoting United States v. Feemster, 572 F.3d 455,

461 (8th Cir. 2009)). And the Eleventh Circuit holds that “a district court commits

a clear error of judgment when it considers the proper factors but balances them

unreasonably.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010).

The Ninth Circuit, however, has diverged from the majority rule, at least

with regard to multi-factor legal tests.

In United States v. Hinkson, the Ninth

Circuit sitting en banc created a general, two-part abuse of discretion test.

The

Ninth Circuit explained that a trial court abuses its discretion if: 1) it fails to

identify the correct legal rule, or 2) if its application of the correct legal standard

was illogical, implausible, or without support in the record.

62 (9th Cir. 2009) (en banc).

585 F.3d 1247, 1261-

And a subsequent en banc panel confirmed appellate

courts review the application of a sentencing guideline for abuse of discretion. See

United States v. Gasca-Ruiz, 852 F.3d 1167, 1168 (9th Cir. 2017) (en banc). While

10

this general test lines up with other circuits, the application of the Ninth Circuit’s

test to multi-factor legal rules does not.

The minor-role guideline at U.S.S.G. § 3B1.2 is an illustrative example.

After the guideline was amended in 2015 to create a non-exhaustive list of legal

factors, the Ninth Circuit quickly ruled—consistent with its general abuse-ofdiscretion test—that “a district court should consider all of the factors set forth in

the Amendment.”

2016).

United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir.

But the Court also stated:

Once the court has considered all the factors, however, it may grant or

deny a reduction even if some of the factors weigh toward the opposite

result. A district court, therefore, may grant a minor role reduction

even if some of the factors weigh against doing so, and it may deny a

minor role reduction even if some of the factors weigh in favor of

granting a reduction.

Id. In other words, once a district court identifies the proper factors, it is not

required to weigh the factors in a particular manner. See id.; Mendez, 746 F.

App’x at 621 (dismissing without reviewing Petitioner’s claim that the district court

did not afford the proper weight to mandatory factors under § 3B1.2); see also

United States v. J.J., 704 F.3d 1219, 1222 (9th Cir. 2013) (holding that a district

court has total discretion on how to weigh factors under 18 U.S.C. § 5032—the list

of factors governing the transfer of a juvenile to adult court for prosecution—once it

properly identifies the factors).

The Ninth Circuit’s rule therefore cannot be squared with the majority’s.

While most circuits review a district court’s weighing of a multi-factor rule, the

Ninth Circuit affords district courts unfettered discretion to weigh factors as they

11

see fit, provided they properly identify the relevant factors.

This Court must

resolve that split in authority.

B.

The Ninth Circuit Was Wrong to Affirm the District Court in Petitioner’s

Case When the District Court Failed to Consider and Weigh Requisite

Factors Under U.S.S.G. § 3B1.2

In sentencing Petitioner, the district court failed to weigh mandatory factors

in the binding commentary to § 3B1.2.

This was reversible error, but the Ninth

Circuit abdicated its responsibility to review that improper weighing of legal

factors.

The Ninth Circuit ruled that the district court did not abuse its discretion

without evaluating whether the district court’s assignment of little or no weight to

several of § 3B1.2’s enumerated factors was error.

The Ninth Circuit’s decision in

Petitioner’s case is thus a glaring example of the Ninth Circuit’s flawed rule.

The Sentencing Commission’s most recent amendment to § 3B1.2 is

instructive.

On November 1, 2015, the Sentencing Commission amended § 3B1.2

of the Sentencing Guidelines, pertaining to minor-role adjustments.

C amend. 794 (2015).

U.S.S.G. app.

As the Commission explained in its Reason for Amendment,

the changes clarify the governing legal principles that a court must apply in

deciding whether a minor-role adjustment is warranted in a particular case. Id.

The heart of the amendment is a list of non-exhaustive factors in the commentary to

the § 3B1.2 that a district court is required to consider in deciding the propriety of

an adjustment.

The Commission stated that the amended commentary was a

specific response to the Commission’s finding that the adjustment was being applied

inconsistently and more sparingly than it had anticipated. Id.

12

Given the Commission’s goal of encouraging more consistent application of

the guideline, the Ninth Circuit’s ruling in Petitioner’s case makes little sense.

A

district court of course maintains discretion in its application of legal principles to

varying factual scenarios.

But the Commission made express its intent that the

factors rein in overly-broad judicial discretion vis-à-vis minor role.

The express

intent of the Commission was to create a list of legal factors that would lead to an

expected result in most cases.

In Petioner’s case, however, the district court dismissed arguments based on

the guideline’s enumerated factors, because the court “disagreed” with the

Commission and “rejected” their application.

Casting aside the Commission’s

commentary, the district court ruled that a minor-role adjustment was improper

based on the presence of a few facts alone: 1) the amount of drugs; and 2) the fact

that Petitioner had brought drugs across the border on more than one occasion.

And it made this ruling despite the Commission’s addition of express language

stating that “a defendant who does not have proprietary interest in the criminal

activity and who is simply being paid to perform certain tasks should be considered

for an adjustment under this guideline.” U.S.S.G. § 3B1.2, cmt. n.3 (emphasis

added).

The district court’s ruling was thus wholly contrary to the guiding legal

factors in the commentary to § 3B1.2, because the court failed to weigh the factors

properly (or at all).

Under the majority rule requiring appellate courts to review the district

court’s weighing of legal factors, the Ninth Circuit should have reversed. Instead,

13

the Ninth Circuit turned its supposed review for abuse of discretion into a “rubber

stamp.” See Del Valle-Cruz, 785 F.3d at 58 (explaining that review for abuse of

discretion is not a “rubber stamp” on the district court’s ruling).

The panel

conceded that the district court “declined to give those factors the weight” Petitioner

requested, but never evaluated whether the weight the district court did give to

those factors was proper under § 3B1.2. See Mendez, 746 F. App’x at 621.

Instead, the panel affirmed Petitioner’s sentence because of two facts—drug amount

and a prior crossing—without any explanation of why those facts outweighed those

Petitioner (and § 3B1.2) highlighted. See id. Providing essentially no review at

all of the district court’s exercise of discretion was error.

C.

This Case is a Good Vehicle for Resolving the Question Presented

Petitioner’s case is the perfect case to resolve the circuit split in authority.

Here, the sole issue in the case is whether the district court abused its discretion in

denying a minor-role adjustment.

Review of the district court’s weighing of the

factors is entirely dispositive of the case. If, contrary to the Ninth Circuit’s ruling,

the appellate court must review the district court’s weighing of the factors under

§ 3B1.2, Petitioner will necessarily prevail. The district court did not just weigh

the factors improperly, it completely failed to weigh them at all due to its

disagreement with the Sentencing Commission.

And this Court has ruled that an

error in calculating the guideline range, absent unusual circumstances not present

here, requires vacating and remanding for resentencing. Molina-Martinez v.

United States, 136 S. Ct. 1338, 1347 (2016) (“[I]n the ordinary case a defendant will

14

satisfy his burden to show prejudice by pointing to the application of an incorrect,

higher Guidelines range and the sentence he received thereunder”).

In other

words, the case turns entirely on the proper standard of review.

CONCLUSION

For the foregoing reasons, this Court should grant this Petition for a Writ of

Certiorari.

Respectfully submitted,

Dated: March 14, 2019

s/ Michael Marks

MICHAEL MARKS

Federal Defenders of San Diego, Inc.

225 Broadway, Suite 900

San Diego, California 92101-5097

Telephone: (619) 234-8467

Attorneys for Defendant-Appellant

15