Petition for Writ of Certiorari — Kasine Deleston, Petitioner v. United States

' v

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

?;*F:

fiA-' Jtv

OFFICF OF THEc; ERK

KASINE DELESTON,

PETITIONER,

V.

UNITED STATES OF AMERICA,

RESPONDENT.

On Petition for Writ of Certiorari

To The Second Circuit Court of Appeals

Case No. 18-837

PETITION FOR WRIT OF CERTIORARI

, pro se

Reg. No. 71962-054

FCI Victorville #1

P.O. Box 3725

Adelanto, CA 92301

■

QOESTION(S) PRESENTED FOR REVIEW

Mr. Deleston is serving a 144 month sentence pursuant to

21

U.S.C.

§

841(a)(1)

and 18 U.S.C.

§

922(g).

However,

the

Petitioner and the Government entered into a stipulated plea

with a sentencing range of 92 to 115 months.

The Question Presented is:

Whether a Plea Can be Ambiguous, and Ultimately Breached

if it Contains an Unfulfillable Sentencing Stipulation and the

Government

Fails

to

Offer

the

Withdraw his Plea?

ii

Defendant

an

Opportunity

to

' l*

LIST OF PARTIES

All parties appear in the caption of the case on the cover

page.

iii

' V-

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

ii

LIST OF PARTIES

iii

TABLE OF CONTENTS

iv

OPINION BELOW

V

JURISDICTION

VI

TABLE OF AUTHORITIES

VII

CONSTITUTIONAL AND STATUTORY PROVISIONS

VIII

STATEMENT OF THE CASE

1

REASON FOR GRANTING THE WRIT

5

(1) Whether a Plea Agreement Can be Ambiguous, and Ultimately

Breached if it Contains an Unfulfillable Sentencing Stipulation

and the Government Fails to Offer the Defendant an Opportunity

to Withdraw his Plea?

CONCLUSION

10

INDEX OF APPENDICES

Appendix A - Second Circuit Opinion (Rehearing)

Appendix B - COA Opinion and Denial

Appendix C - District Court Opinion

iv

OPINION BELOW

Unpublished

opinion

and

judgment

of

the

United

States

Court of Appeals for the Second Circuit entered December 10,

2018,

denying

(Appendix A) .

motion

for-

rehearing

and

reconsideration.

Order of the United States Court of Appeals for

the Second Circuit entered December 18, 2018, denying request

for COA.

(Appendix B). And the United States District Court for

the Southern District of New York order was entered on March 7,

2018.

(Appendix C).

V

JURISDICTION

The date on which the United States Court of Appeals for

the Second Circuit decided this case and denied rehearing en

banc, was December 10, 2018.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

VI

TABLE OF AUTHORITIES

Blackledge v. Allison, 431 U.S. 1 (1987)

5

Brady v. United States, 397 U.S. 742 (1970)

5

Hackfeld & Co. v. United States, 197 U.S. 442 (1905)

7

Mabry v. Johnson, 467 U.S. 50 4 (1984)...............................

5,6,8

Palermo v. Warden, Green, 545 F.2d 286 (2d Cir. 1976)

8

Platt v. United States, 163 F.2d 165 (10th Cir. 1947)

8

Ricketts v. Adamson, 483 U.S. 1 (1987)...............................

5

Rivers v. Comm. Life Ins. Co., 160 F.3d 1164 (7th Cir. 1998).8

Santobello v. New York, 404 U.S. 257 (1971)..

5,6,8

Strickland v. Washington, 466 U.S. 668 (1984)

4

United States v. Deleston,

(2d Cir. 201_) ....3

United States v. Mankiewicz, 122 F.2d 399 (7th Cir. 1997)..8

United States v.

Padilla,

186 F.3d 136

(2d Cir.

2000)....

7

United States v. Randolph, 230 F.3d 243 (6th Cir. 2000)....8

United States v. Ready, 82 F.3d 551 (2d Cir. 1996)

7

United States v. Sandies, 80 F.3d 1145 (7th Cir. 1996)

8

Univ. of Wis, System v. Southwest, 529 U.S. 217 (2000)

8

STATUTE AND RULES

18 U.S.C. § 841(a)

ii, 1

18 U.S.C. § 924(c)

1,6

21 U.S.C. § 841(a)

ii, 1

28 U.S.C. § 1254(1)

VI

28

U.S.C.

§

2255

3,4

RULES:

S.Ct. R. 19(a)

5

Fed. R. Crim. P. 11(c)(1)(B)

8

VII

OTHER AUTHORITY:

Black's Law Dictionary, 8th Edition

6,7

83 D.J.S., Stipulations 93 (2000)

7

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment provides in relevant part:

"No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indictment

of Grand Jury, except in cases arising in . ..; nor shall any

person be subject for the same offense 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. "

The Sixth Amendment 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 witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have

Assistance of Counsel for his defense."

VIII

STATEMENT OF RELEVANT FACTS

On or about February 27, 2015, an Indictment charged Mr.

Deleston with one court of possession with intent to distribute

cocaine, heroin, and marijuana in violation of 21 U.S.C. § 841;

one

count

of

possession

of

a

firearm in connection with a

narcotics offense in violation of 18 U.S.C. § 924(c); and one

count of felon in possession of a firearm in violation of 18

U.S.C. § 922(g).

(Docket #6).

On or about November

stipulated

plea

of

guilty

20,

2015,

Deleston entered into a

to

Count

One

of

the

Indictment,

possession of narcotics with intent to distribute, and to Count

Three,

felon in possession of a firearm.

plea

hearing,

opportunity

to

Mr.

Deleston

discuss

consider his options.

satisfied

with

his

the

Id.

confirmed

charges

at 4.

lawyer's

(Docket #46). At the

He

with

that

he

had

his

lawyer

the

and

to

also agreed that he was

representation

and

that he was

voluntarily entering into the plea.

During

the

plea .colloquy

the

Court

acknowledged

that

Deleston had entered into a stipulated plea agreement with a

Guideline range of

92

explained

that

had

calculate

the correct Guideline range, which could vary from

it

to 115 months, but the district court

its

own

the terms of the plea agreement.

independent

(Id.

at

obligation

11-12) .

The Court

stated:

I want to know that any prediction, calculation or

estimate that anyone had given you, including your own

lawyer, as to what sentence I might give you is not

binding on the Court and if it turned out to be wrong,

you will not be permitted to withdraw your guilty

plea."

1

to

(Id. at 11).

In entering his plea of guilty, Mr. Deleston agreed that

he possessed narcotic drugs

and a

firearm in his apartment.

(Id. at 15-16).

Prior

to

Deleston's

sentencing,

prepared a Presentence Report

the

Probation

Office

("PSR") that concluded that Mr.

Deleston had an offense level of 30 and that he fell within

Criminal History Category IV.

the

stipulated

plea

(PSR at f 88) .

agreement,

Deleston's

By contrast, in

attorney

and

the

government agreed that Deleston had a combined offense level of

26,

which included a three-point reduction for acceptance of

responsibility.

(Plea Agrm't at 5). This four level difference

was

the

based

Deleston

on

used

or

Probation

possessed

narcotics

distribution

Deleston's

offense

Office's

firearms

offense.

level

conclusion

in

that

Mr.

connection with his

Based

on

and criminal history category,

the

(PSR

1

20-27).

Probation Office calculated that the term of imprisonment fell

within

a

range

Guidelines.

of

135

to

168

months

under

the

advisory

(PSR at SI 88).

At sentencing on or about February 26, 2016, the district

court

asked

the

parties

calculation of Mr.

to

address

Deleston's

the

sentence.

Probation

(Docket

Office's

# 55 at 7).

Deleston's counsel argued that the four-level enhancement was

inappropriate because it was based on a "coincidental proximity

of guns and drugs in the same location." (Id. at 9). The Court

questioned

the

Government

concerning

interaction proceeded as follows:

2

the

enhancement.

The

THE COURT: ...I guess what I found rather interesting

in the government's submission is they didn't merely

say that they stand by their plea agreement. They said

they stand by their plea agreement and they object to

the enhancement.

MR. BEATY: Your Honor, as I understand the plea

agreement requires the government to object to a

calculation of the guidelines that is inconsistent

with it and that is the basis for —

THE COURT: I see. So you are not urging that the facts

don't support the enhancement. You are arguing that

you are bound by your plea agreement, which does not

include the enhancement? (Sentencing Trans, at 7, Ln.

3-17).

MR. BEATY: Your Honor, in response to that I am aware

of the case law that you are referring to and I

certainly concede that the facts here are sufficient

to support that conclusion. (Id. at 8, Ln. 18-21).

The district court concluded that the four level enhancement

was appropriate, and calculated an advisory Guidelines range of

135 to 168 months of imprisonment.

(Id. at 10-11). This range

was higher than the parties stipulated guideline range of 92 to

115 months.

The district court sentenced Mr. Deleston to 144 months of

imprisonment.

Mr.

Deleston

filed

a

timely

Notice

of

conviction and sentence.

See United States v.

U.S.

(July 24,

Dist

LEXIS

107341

2015).

Appeal

of

his

Deleston,

2015

The Second Circuit

denied Deleston's appeal and declined to consider his claim of

ineffective assistance of counsel on direct appeal, and stated

that his ineffectiveness claim could be raised in a collateral

proceeding under § 2255.

On

or

about

May

(Id.).

8,

2017,

Mr.

Deleston

filed a timely

motion under 28 U.S.C. § 2255. In his motion, Deleston asserted

3

that during plea negotiations, his attorney did not provide the

effective

assistance

Amendment

to

the

of

United

counsel

guaranteed

States

Constitution.

the

by

Sixth

Strickland

v.

Washington, 466 U.S. 668 (1984). Specifically, he asserted that

his

attorney was ineffective because his plea agreement with

the government contained a stipulated Guideline range that was

lower than the sentence imposed by the court.

(Appendix C, at

1) . The district court denied this issue stating in relevant

part:

"...the record conclusively shows that Deleston was

aware of his actual sentencing possibilities. At his

plea allocution, the Court advised Deleston of the

possible statutory maximum sentence for each of the

two counts to which he pleaded guilty, and Deleston

confirmed his understanding....

Deleston's plea agreement, which was signed and

dated November 20, 2015, similarly provided that the

Guidelines stipulation was not binding on the Court or

the Probation Office.

(Id.

at 7-8). The district court ultimately denied the motion

under § 2255 on March 7, 2018.

Mr.

Deleston

filed a timely Notice of Appeal on May 3,

2018.

The Second Circuit Court of Appeals denied the request

for

COA

on

September

25,

2018.

Deleston

rehearing which was denied on December 10,

for writ of certiorari now follows.

4

then

2018.

requested

This prayer

REASON(S) FOR GRANTING THE WRIT

I.

WHETHER A PLEA AGREEMENT CAN BE AMBIGUOUS, AND ULTIMATELY

BREACHED,

IF

IT

CONTAINS

AN

UNFULFILLABLE

SENTENCING

STIPULATION AND THE GOVERNMENT FAILS TO OFFER THE DEFENDANT AN

OPPORTUNITY TO WITHDRAW HIS PLEA?

The Second Circuit's decision in this case is in error in

A.

several respects,

Court,

and conflicts with decisions of the Supreme

and the mandatory

language of the plea.

See S.Ct.

R.

19(a) (c) .

The Supreme Court has stated that the law of contracts may

be

useful

as

an analogy

in construing plea agreements.

See

Ricketts v. Adamson, 483 U.S. 1, 15, 97 L.Ed. 2d 1, 107 S.Ct.

2680

(1987);

L.Ed.

2d

Blackledge v.

136,

agreements,

97

S.Ct.

Allison,

1621

431 U.S.

(1977).

63,

75 n.6,

52

In the context of plea

the Supreme Court has explained that a consensual

plea entered into by one fully aware of its direct consequences

must

stand

unless

induced by threats

harassment),

misrepresentation

unfulfillable

promises),

relationship

to

Johnson,

(1984)

the

467 U.S.

504,

or

(including

promises

prosecutor's

509,

(or promises to cease

unfulfilled

that

have

business.

81 L.Ed.

2d 437,

no

See

or

proper

Mabry

104 S.Ct.

v.

2543

(quoting Brady v. United States, 397 U.S. 742, 25 L.Ed.

2d 747, 90 S.Ct. 1463

(1970)). Thus, due process requires that

"when a plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part

of

the

inducement

or

consideration,

such

promises

must

be

fulfilled." Santobello v. New York, 404 U.S. 257, 262, 30 L.Ed.

2d 427, 92 S.Ct. 495 (1971). "When the prosecution breaches its

promise

with

respect

to

an

executed

5

plea

agreement,

the

defendant

pleads

guilty

on

a

false

premise,

and

hence

his

conviction cannot stand[.]" Mabry, 467 U.S. at 509.

On

this

record,

Mr.

Deleston,

through

his

attorney,

bargained and negotiated for a stipulation^ in the plea for a

sentence of 92 to 115 months in order to secure dismissal of

more serious charges,

Count Two

a violation of 18 U.S.C. §

924(c), but also on the stipulated condition that no sentence

over

115

months

would be advocated

for by the prosecution.

However, when the Government stated "[y]our Honor, in response

to that I am aware of the case law that you are referring to

and

I

certainly

concede

that

the

facts

are

sufficient

to

support that conclusion,"

(See Sentencing Trans, at 8, 18-21),

the

the

government

violated

principles

of

Santobello,

the

sentencing stipulation, and breached the plea agreement.

It has long been established by the Supreme Court that the

Government

cannot

make

a

promise

that

it

cannot

fulfill.

Santobello, at 262. In this case, the government stipulated to

a

sentence

of

92

to

115

months.

However,

this

plea

was

ambiguous and knowingly unfulfillable for at least two reasons.

First, the language in the plea was ambiguous because the

government knowingly stipulated to a specific sentence of 92 to

115 months, and then stated in the agreement that "neither the

Probation Office nor the Court is bound by the above Guidelines

Stipulation: (1) A material condition or requirement in an agreement;

1.

esp • 5 a factual representation that is incorporated into a contract as a

term; (2) A voluntary agreement between opposing parties concerning some

relevant point: esp • 9 an agreement relating to a proceeding, made by

attorneys representing adverse parties to the proceeding. A stipulation

relating to a pending judicial proceeding, made by a party to the proceeding

or the party's attorney, is binding without consideration. Black's Law

Dictionary, 8th Edition, at 1455.

6

stipulation,

either

as

to

questions

of

fact

or

as

to

the

determination of the proper Guidelines to apply to the facts."

[]

"It is understood that the sentence to be imposed upon the

defendant

is

determined

solely by the Court.

It is

further

understood that the Guidelines are not binding on the Court.

. . .This

Office

cannot,

and

does

not,

make

any

promise

or

representation as to what sentence the defendant will receive."

(See Appendix C, at 8).

Black's Law Dictionary makes clear that "[a]

stipulation

relating to a pending judicial proceeding, made by a party to

the

proceeding

or

the

party's

attorney,

is binding without

consideration.

(Id.

at 1455) . The Supreme Court has also long

recognized that litigants "[a]re entitled to have [their] case

tried

upon

the

assumption that... facts,

stipulated

into the

record, were established." H. Hackfeld & Co. v. United States,

197

U.S.

442,

447,

25

S.Ct.456,

49

L.Ed.

826

(1905).

This

entitlement is the bookend to a party's undertaking to be bound

by the factual stipulations it submits.

L.Ed.

2d,

parties

at 877

must

be

(Alito J.,

held

to

See Post,

dissenting)

their

Joint

at —, 177

(agreeing that "the

Stipulation").

As

leading legal reference summarizes:

"—[Factual stipulations are] binding and conclusive

and the

facts

stated are not subject to

• • /

subsequent variation. So, that parties will not be

permitted to deny the truth of the facts stated, ...

or to maintain a contention contrary to the agreed

statement, ... or to suggest, on appeal, that the

facts were other than as stipulated or that any

material fact was omitted. 83 C.J.S., Stipulations 93

(2000) (footnotes omitted).

7

the

The

Supreme

Court

has

refused

to

consider

a

party's

argument that contracted a joint "stipulation [entered] at the

outset of the litigation." Board of Regents of Univ. of Wis,

System v.

529 U.S.

Southwest,

217,

226,

120 S.Ct.

1346,

146

L.Ed. 2d 193 (2000).

Therefore,

stipulated

when the Government knowingly entered into a

sentencing

consideration,

and

agreement

then

that

ambiguously

was

stated

binding

"[t]his

without

office

cannot, and does not, make any promise or representation as to

what sentence that the defendant will receive," the language in

the

plea

agreement

became

ambiguous

because

the

government

could not fulfill the sentencing promise - 92 to 115 months

the

sentence that

induced Deleston

into pleading guilty and

waiving a plethora of constitutional rights. This is so because

the government

"ordinarily has certain awesome advantages in

bargaining power," and any ambiguities in the agreement must be

resolved in favor of the defendant. United States v. Padilla,

186

F. 3d

136,

140

(2d Cir.

2000)

(quoting United States v.

Ready, 82 F.3d 551, 558-59 (2d Cir. 1996)).

Next,

the

stipulated

sentence

of

92-115

months

was

unfulfillable. Specifically, the Government knew that it could

not stipulate to a specific sentence because the district court

was

not

bound

by a

sentencing range of

92

to

115 months.

Platt v. United States, 163 F.2d 165 (10th Cir. 1947) (Parties may not

2.

stipulate findings of fact upon which conclusions of law and judgment of

court are to be based; parties may by stipulation establish evidentiary

facts to obviate necessity of offering proof, but based thereon court must

itself find ultimate facts upon which conclusions of law and judgment are

based.); Fed. R. Crim. P. 11(c)(1)(B) (establishing that Government's

recommendation of particular sentence in plea agreement does not bind

court); and United States v. Mankiewicz, 122 F.2d 399, 403 n. 1 (7th Cir.

1997) ("[A]s the Guidelines themselves make clear, although the plea

agreement binds the parties, it does not bind the Court.").

8

Stipulations are made for a reason - to resolve disputed issues

conclusively,

without

trial

or

further

dispute.

Rivers

v.

Commercial Life Ins. Co., 160 F.3d 1164, 1173 (7th Cir. 1998).

A party cannot avoid such a stipulation by saying merely that

it thought the Court was going to err by ruling against it. "To

hold

anything

else

inconsequential

Sandies,

the

would be to reduce

gestures."

(Id. ,

80 F.3d 1145, 1148

government

agreement,

entered

stipulations

quoting

United

to mere

States

v.

(7th Cir. 1996). Therefore, where

into

the

stipulated

sentencing

it violated Deleston's due process and fair trial

rights under the Fifth and Sixth Amendments. Mabry, 467 U.S. at

509;

Santobello,

Randolph,

230

404

U.S.

F.3d

243,

at 262. See also United States v.

250-51

(6th

Cir.

2000)

(If

a

prosecutor's promises is illusory, then a plea is involuntary

and unknowing); and Palermo v. Warden, Green, 545 F.2d 286 (2d

Cir.

1976)

including

("A

guilty

unfulfilled

plea

induced

by

misrepresentation,

unfulfiliable

or

promises,

cannot

stand.").

Therefore, this Court must grant this writ to resolve the

inconsistencies

in

the

Second

Supreme Court precedence.

Circuit

and

in

the

fact

of

The Supreme Court has already held

that plea agreements are governed by contract law, therefore,

the Court must also resolve

this

conflict and conclude that

pleas are ambiguous and ultimately breached if they contain an

unfulfillable sentencing stipulation if the Government fail to

offer the Defendant an opportunity to withdraw his plea.

9

CONCLUSION

For the foregoing reasons, Mr. Deleston's prayer is that

this

Honorable

Court

will

grant

his

writ

to

resolve

the

inconsistencies within the Second Circuit compared to Supreme

Kasine Deleston

Reg. No. 71962-054

FCI Victorville # 1

P.O. Box 3725

Adelanto, CA 92301

10