Petition for Writ of Certiorari — Jorge Rogelio Reveles-Santana, Petitioner v. United States

No. __-_________

IN THE SUPREME COURT OF THE UNITED STATES

___________

JORGE ROGELIO REVELES-SANTANA,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

___________

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

JASON D. HAWKINS

Federal Public Defender

NORTHERN DISTRICT OF TEXAS

KEVIN JOEL PAGE

Counsel of Record

ASSISTANT FEDERAL PUBLIC

DEFENDER

525 S. GRIFFIN ST., SUITE 629

DALLAS, TX. 75202

(214) 767-2746

QUESTIONS PRESENTED

I.

Whether all facts B including the fact of a prior conviction B that increase a

defendant=s statutory maximum must be pleaded in the indictment and either

admitted by the defendant or proven to a jury beyond a reasonable doubt?

ii

PARTIES

Jorge Rogelio Reveles-Santana is the Petitioner; he was the defendant-appellant below.

The United States of America is the Respondent; it was the plaintiff-appellee below.

iii

TABLE OF CONTENTS

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

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

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

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

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

Opinions Below ..................................................................................................................................... 1

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

Constitutional and Statutory Provisions Involved ............................................................................... 1

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

Reasons for Granting the Writ. ............................................................................................................ 6

This Court should use this case to answer the reoccurring, important question whether

all facts B including the fact of a prior conviction B that increase a defendant=s statutory

maximum must be pleaded in the indictment and either admitted by the defendant or

proven to a jury beyond a reasonable doubt? ...................................................................... 6

Conclusion .......................................................................................................................................... 11

iv

INDEX TO APPENDICES

Appendix A

Judgment and Opinion of Fifth Circuit

Appendix B

Judgment and Sentence of the United States District Court for the

Northern District of Texas

v

TABLE OF AUTHORITIES

Cases

Alleyne v. United States, 133 S. Ct. 2151 (2013) ................................................................... 6, 7, 8, 9

Almendarez-Torres v. United States, 523 U.S. 224 (1998) ............................................................. passim

Apprendi v. New Jersey, 530 U.S. 466 (2000) .............................................................................. passim

Blakely v. Washington, 542 U.S. 296 (2004) ....................................................................................... 7

Booth v. Maryland, 482 U.S. 496 (1987) ........................................................................................... 10

Cunninghams v. California, 549 U.S. 270 (2007) ................................................................................ 9

Descamps v. United States, 133 S. Ct. 2276 (2013) ............................................................................. 6

Dretke v. Haley, 541 U.S. 386 (2004) ................................................................................................. 7

Grady v. Corbin, 495 U.S. 508 (1990) .......................................................................................... 9, 10

James v. United States, 550 U.S. 192 (2007) ....................................................................................... 7

Nijhawan v. Holder, 129 S. Ct. 2294 (2009) ....................................................................................... 7

Payne v. Tennessee, 501 U.S. 808 (1991) ........................................................................................... 10

Rangel-Reyes v. United States, 547 U.S. 1200 (2006) ........................................................................... 7

Shepard v. United States, 544 U.S. 13 (2005) ............................................................................. 6, 7, 9

South Carolina v. Gathers, 490 U.S. 805 (1989) ............................................................................... 10

United States v. Dixon, 509 U.S. 688 (1993) ................................................................................. 9, 10

Statutes

8 U.S.C § 1326 ......................................................................................................................... 1, 6, 10

8 U.S.C. § 1326(a) ................................................................................................................... 4, 5, 10

8 U.S.C. § 1326(b) ..................................................................................................................... 4, 6, 7

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

Rules

Sup. Ct. R 13.1 ................................................................................................................................... 1

Miscellaneous

4 W. Blackstone, Commentaries on the Laws of England 343 (1769) ................................................... 7

1 J. Bishop, Criminal Procedure ' 87, p 55 (2d ed. 1872) ................................................................... 7

J. Archbold, Pleading and Evidence in Criminal Cases 44 (15th ed. 1862) ........................................... 7

vi

United States Constitution

U.S. Const. amend. V ........................................................................................................................ 2

U.S. Const. amend. VI ....................................................................................................................... 3

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PETITION FOR A WRIT OF CERTIORARI

Petitioner Jorge Rogelio Reveles-Santana respectfully petitions for a writ of certiorari to

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

OPINIONS BELOW

The unpublished opinion of the United States Court of Appeals for the Fifth Circuit is

captioned as United States v. Reveles-Santana, No. 18-10664, 747 Fed. Appx. 996 (January 16,

2019)(unpublished), and is provided in the Appendix to the Petition. [Appx. A].

JURISDICTIONAL STATEMENT

The instant Petition is filed within 90 days of an opinion affirming the judgment, which was

entered on January 16, 2019. See SUP. CT. R. 13.1. This Court’s jurisdiction to grant certiorari is

invoked under 28 U.S.C. ' 1254(1).

CONSTITUTIONAL PROVISIONS, RULES, AND STATUTES INVOLVED

8 U.S.C. ' 1326 provides in part:

(a) In general. Subject to subsection (b), any alien who-(1) has been denied admission, excluded, deported, or removed or has departed the

United States while an order of exclusion, deportation, or removal is outstanding,

and thereafter

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

prior to his reembarkation at a place outside the United States or his application for

admission from foreign contiguous territory, the Attorney General has expressly

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

previously denied admission and removed, unless such alien shall establish that he

was not required to obtain such advance

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consent under this or any prior Act,

shall be fined under title 18, United States Code, or imprisoned not more than 2

years or both.

(b) Criminal penalties for reentry of certain removed aliens.

Notwithstanding subsection (a), in the case of any alien described in such subsection(1) whose removal was subsequent to a conviction for commission of three or more

misdemeanors involving drugs, crimes against the person, or both, or a felony (other

than an aggravated felony), such alien shall be fined under title 18, United States

Code, imprisoned not more than 10 years, or both;

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

felony, such alien shall be fined under such title, imprisoned not more than 20

years, or both;

(3) who has been excluded from the United States pursuant to section 235(c) [8

USCS ' 1225(c)] because the alien was excludable under section 212(a)(3)(B) [8

USCS ' 1182(a)(3)(B)] or who has been removed from the United States pursuant

to the provisions of title V [8 USCS '' 1531 et seq.], and who thereafter, without

the permission of the Attorney General, enters the United States, or attempts to do

so, shall be fined under title 18, United States Code, and imprisoned for a period of

10 years, which sentence shall not run concurrently with any other sentence.[;] or

(4) who was removed from the United States pursuant to section 241(a)(4)(B) [8

USCS ' 1231(a)(4)(B)] who thereafter, without the permission of the Attorney

General, enters, attempts to enter, or is at any time found in, the United States

(unless the Attorney General has expressly consented to such alien's reentry) shall be

fined under title 18, United States Code, imprisoned for not more than 10 years, or

both. For the purposes of this subsection, the term "removal" includes any agreement

in which an alien stipulates to removal during (or not during) a criminal trial under

either Federal or State law.

The Fifth Amendment to the United States Constitution provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use, without just compensation.

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The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and district wherein the crime shall have been

committed, which district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defense.

3

STATEMENT OF THE CASE

A.

Trial Court Proceedings

Petitioner was indicted on one count of illegally re-entering the country, a violation of 8

U.S.C. § 1326(a) and (b)(1)(2)). He pleaded guilty to the charged offense without benefit of plea

agreement, opting instead only to file a written Factual Resume, which provided:

Jorge Rogelio Reveles-Santana is a citizen and national of Mexico, born in

San Diego De La Union, Guanajuato, Mexico. On about August 3, 2011, Reveles

was deported and removed to Mexico at Laredo, Texas. On about December 15,

2016, Reveles was arrested in Hood County, Texas for felony theft. Reveles had reentered the United States illegally, and he had not applied for nor received

permission from the Attorney General of the United States or the Secretary of the

Department of Homeland Security to re-enter the United States at any time after

being deported.

Petitioner objected before and at sentencing to any punishment in excess of a two-year

statutory sentence on the basis that his indictment did not charge–nor did he confess–facts sufficient

to trigger a punishment in excess of 2 years and one-year supervised release. More specifically,

Petitioner argued in his PSR objection that his indictment did not allege a prior conviction that

would invoke the sentencing enhancement in 8 U.S.C. §1326(b), and therefore, the maximum term

of imprisonment allowed under the statue charged in the indictment was not more than two years

imprisonment and one-year supervised release, as set forth in 8 U.S.C. § 1326(a).

At sentencing, Petitioner trial attorney unsuccessfully re-urged the objection. The district

court imposed a variance sentence of 40 months and two-years supervised release.

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B.

The Appeal

Petitioner appealed his sentence, arguing, that the district court’s sentence exceeded the

statutory maximum authorized by 8 U.S.C. § 1326(a). The court of appeals affirmed his sentence,

concluding that this constitutional challenge was foreclosed by Almendarez-Torres v. United States, 523

U.S. 224 (1998). See [Appendix A].

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REASONS FOR GRANTING THE WRIT

This Court should use this case to answer the reoccurring, important question: whether all facts

B including the fact of a prior conviction B that increase a defendant=s statutory maximum must

be pleaded in the indictment and either admitted by the defendant or proven to a jury beyond a

reasonable doubt

Introduction.

Petitioner was subjected to an enhanced statutory maximum under 8 U.S.C. '1326(b)

because the removal charged in the indictment followed an aggravated felony conviction. Petitioner=s

sentence thus depends on the judge=s ability to find the existence and date of a prior conviction, and

to use that date to increase the statutory maximum. This power was affirmed in Almendarez-Torres v.

United States, 523 U.S. 224 (1998), which held that the enhanced maximums of 8 U.S.C.' 1326

represent sentencing factors rather than elements of an offense, and that they may be constitutionally

determined by judges rather than juries. See Almendarez-Torres, 523 U.S. at 244.

This Court, however, has repeatedly limited Almendarez-Torres. See Alleyne v. United States, 133

S.Ct. 2151, 2160 n.1 (2013) (characterizing Almendarez-Torres as a narrow exception to the general

rule that all facts that increase punishment must be alleged in the indictment and proved to a jury

beyond a reasonable doubt); Descamps v. United States, 133 S. Ct. 2276, 2295 (2013)(Thomas, J.,

concurring) (stating that Almendarez-Torres should be overturned); Apprendi v. New Jersey, 530 U.S.

466, 490 (2000) (stressing that Almendarez-Torres represented Aa narrow exception@ to the prohibition

on judicial fact-finding to increase a defendant=s sentence); Shepard v. United States, 544 U.S. 13

(2005) (Souter, J., controlling plurality opinion) (AWhile the disputed fact here can be described as

a fact about a prior conviction, it is too far removed from the conclusive significance of a prior

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judicial record, and too much like the findings subject to Jones and Apprendi, to say that AlmendarezTorres clearly authorizes a judge to resolve the dispute.@); Dretke v. Haley, 541 U.S. 386, 395-396

(2004) (concluding that the application of Almendarez-Torres to the sequence of a defendant=s prior

convictions represented a difficult constitutional question to be avoided if possible); Nijhawan v.

Holder, 129 S.Ct. 2294, 2302 (2009) (agreeing with the Solicitor General that the loss amount of a

prior offense would represent an element of an 8 U.S.C. '1326(b) offense, to the extent that it

boosted the defendant=s statutory maximum).

Further, any number of opinions, some authored by Justices among the Almendarez-Torres

majority, have expressed doubt about whether it was correctly decided. See Apprendi, 530 U.S. at 490;

Haley, 541 U.S. at 395-396; Shepard, 544 U.S. at 26 & n.5 (Souter, J., controlling plurality opinion);

Shepard, 544 U.S. at 26-28 (Thomas, J., concurring); Rangel-Reyes v. United States, 547 U.S. 1200,

1201(2006)(Stevens, J., concurring in denial of certiorari); Rangel-Reyes, 547 U.S. at 1202-03

(Thomas, J., dissenting from denial of certiorari); James v. United States, 550 U.S. 192, 231-232

(2007)(Thomas, J., dissenting). And this Court has also repeatedly cited authorities as exemplary of

the original meaning of the constitution that do not recognize a distinction between prior

convictions and facts about the instant offense. See Blakely v. Washington, 542 U.S. 296, 301-302

(2004) (quoting 4 W. Blackstone, Commentaries on the Laws of England 343 (1769),1 J. Bishop,

Criminal Procedure ' 87, p 55 (2d ed. 1872)); Apprendi, 530 U.S. at 478-479 (quoting J. Archbold,

Pleading and Evidence in Criminal Cases 44 (15th ed. 1862) , 4 Blackstone, 369-370).

In Alleyne, this Court applied Apprendi=s rule to mandatory minimum sentences, holding that

any fact that produces a higher sentencing rangeCnot just a sentence above the mandatory

maximumCmust be proved to a jury beyond a reasonable doubt. 133 S. Ct. at 2162B63. In its

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opinion, the Court apparently recognized that Almendarez-Torres=s holding remains subject to Fifth

and Sixth Amendment attack. Alleyne characterized AlmendarezTorres as a Anarrow exception to the

general rule@ that all facts that increase punishment must be alleged in the indictment and proved

to a jury beyond a reasonable doubt. Id. at 2160 n.1. But because the parties in Alleyne did not

challenge Almendarez-Torres, this Court said that it would Anot revisit it for purposes of [its] decision

today.@ Id.

The Court’s reasoning nevertheless demonstrates that Almendarez-Torres=s recidivism

exception should be overturned. Alleyne traced the treatment of the relationship between crime and

punishment, beginning in the Eighteenth Century, repeatedly noting how A[the] linkage of facts with

particular sentence ranges . . . reflects the intimate connection between crime and punishment.@ Id.

at 2159 (A[i]f a fact was by law essential to the penalty, it was an element of the offense@); see id.

(historically, crimes were defined as Athe whole of the wrong to which the law affixes [ ] punishment

Y include[ing] any fact that annexes a higher degree of punishment@) (internal quotation marks and

citations omitted); id. at 2160 (Athe indictment must contain an allegation of every fact which is

legally essential to the punishment to be inflicted@) (internal quotation marks and citation omitted).

This Court concluded that, because Athe whole of the@ crime and its punishment cannot be

separated, the elements of a crime must include any facts that increase the penalty. The Court

recognized no limitations or exceptions to this principle.

Alleyne=s emphasis that the elements of a crime include the Awhole@ of the facts for which a

defendant is punished seriously undercuts the view, expressed in Almendarez-Torres, that recidivism

is different from other sentencing facts. See Almendarez-Torres, 523 U.S. at 243B44; see also Apprendi,

530 U.S. at 490 (AOther than the fact of a prior conviction, any fact that increases the penalty for a

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crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.@) Apprendi tried to explain this difference by pointing out that, unlike other facts,

recidivism A>does not relate to the commission of the offense= itself[.]@ 530 U.S. at 496 (quoting

Almendarez-Torres, 523 U.S. at 230). But this Court did not appear committed to that distinction; it

acknowledged that Almendarez-Torres might have been Aincorrectly decided.@ Id. at 489; see also

Shepard v. United States 544 U.S. 13, 26 n.5 (2005) (acknowledging that Court’s holding in that case

undermined Almendarez-Torres); Cunningham v. California, 549 U.S. 270, 291 n.14 (2007) (rejecting

invitation to distinguish between Afacts concerning the offense, where Apprendi would apply, and

facts [like recidivism] concerning the offender, where it would not,@ because AApprendi itself Y leaves

no room for the bifurcated approach@).

Three concurring justices in Alleyne provide additional reason to believe that the time is ripe

to revisit Almendarez-Torres. See Alleyne, 133 S. Ct. at 2164 (Sotomayor, Ginsburg, Kagan, J.J.,

concurring). Those justices noted that the viability of the Sixth Amendment principle set forth in

Apprendi was initially subject to some doubt, and some justices believed the Court Amight retreat@

from it. Id. at 2165. Instead, Apprendi=s rule Ahas become even more firmly rooted in the Court’s

Sixth Amendment jurisprudence.@ Id. Reversal of precedent is warranted when Athe reasoning of

[that precedent] has been thoroughly undermined by intervening decisions.@ Id. at 2166.

Stare decisis should be not a bar to this Court’s decision to overrule Almendarez-Torres. As this

Court noted in United States v. Dixon, 509 U.S. 688, 704-13 (1993), as it overruled the decision

rendered only three years before in Grady v. Corbin, 495 U.S. 508 (1990):

. . . Although stare decisis is the “preferred course” in constitutional

adjudication, “when governing decisions are unworkable or are badly reasoned, ‘this

Court has never felt constrained to follow precedent.’”

9

Dixon, 509 U.S. at 712 (citations omitted). In both Grady v. Corbin and Almendarez-Torres, the initial

opinion was rendered by a sharply divided Court with four dissenters from the five member majority.

In both cases the dissent argued that the majority opinion was contrary to the historical

understanding of the issue and represented a sharp break with that past.

Likewise, in Payne v. Tennessee, 501 U.S. 808, 827-30 (1991), the Court, citing the same

principle, overruled its prior decisions in Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina

v. Gathers, 490 U.S. 805 (1989). The Court in Payne noted that “Booth and Gathers were decided by

the narrowest of margins, over spirited dissents challenging the basic underpinnings of those

decisions.” Id. at 828-29.

Almendarez-Torres, like the overruled decisions in Grady, Booth, and Gathers, was decided by

the narrowest of margins, over the spirited dissent of Justice Scalia challenging the basic

underpinnings of the majority's decision.

Because Almendarez-Torres was wrongly decided, this petition should be granted to reconsider

that decision. If this Court were to do so, it would require this Court to vacate Petitioner’s sentence

of 40 months imprisonment and to remand for resentencing under 8 U.S.C. § 1326(a), which

provides for a statutory maximum sentence of two years imprisonment. This Court has held that

Congress unequivocally intended the enhancement provisions of 8 U.S.C. § 1326 to be sentencing

factors, not elements. See Almendarez-Torres, 523 U.S. at 235. Such a scheme is unconstitutional. In

the alternative, should this court determine the statute is constitutional but that the sentencing

enhancements must be proven to a jury beyond a reasonable doubt, a remand is still necessary, as

the plea was involuntary under these circumstances.

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If this Court were to determine that the Constitution limits Petitioner=s statutory range of

imprisonment to not more than two years, then clearly such constitutional error substantially

prejudiced Petitioner as evidenced by his 40 months sentence.

Conclusion

Petitioner respectfully prays that this Honorable Court grant certiorari, and reverse the

judgment below, and/or vacate the judgment and remand for reconsideration in light of any relevant

forthcoming.

Respectfully submitted April 12, 2019.

/s/ Kevin Joel Page

KEVIN JOEL PAGE

Counsel of Record

FEDERAL PUBLIC DEFENDER=S OFFICE

NORTHERN DISTRICT OF TEXAS

525 S. GRIFFIN ST., SUITE 629

DALLAS, TEXAS 75202

214-767-2746

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