Petition for Writ of Certiorari — Fabian Delgado, Petitioner v. United States

No. ___________

________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

________________________________________________________

October Term, 2019

________________________________________________________

FABIAN DELGADO,

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 WRIT OF CERTIORARI

________________________________________________________

JOHN A. KUCHERA

210 N. 6th St.

Waco, Texas 76701

(254) 754-3075

(254) 756-2193 (facsimile)

johnkuchera@210law.com

SBN 00792137

Attorney for Petitioner

i

Issue Presented

1. Whether principles of contract law require consideration (benefit to

the defendant) to support a valid plea agreement.

ii

Table of Contents

Page

Issue Presented

ii

1. Whether principles of contract law require consideration

(benefit to the defendant) to support a valid plea agreement.

Table of Contents

iii-iv

Table of Authorities

v-vii

Citation to Opinion Below

1

Jurisdiction

1

Restatement (Second) of Contracts (1981)

2

Statement of the Case

3-7

First Reason for Granting the Writ: The Fifth Circuit’s non7-9

recognition of the doctrine that plea agreements in criminal cases

should confer some benefit to the defendant is contrary to any

reasoned understanding of due process.

Second Reason for Granting the Writ: The Fifth Circuit’s non- 9

recognition of the doctrine that plea agreements in criminal cases

should confer some benefit to the defendant is in conflict with

Mabry Johnson, 467 U.S. 504 (1984) and Puckett v. United States,

556 U.S. 129 (2009).

Third Reason for Granting the Writ: The Fifth Circuit’s non10-15

recognition of the doctrine that plea agreements in criminal cases

should confer some benefit to the defendant appears to be in conflict

with every other circuit that has considered the issue.

iii

Conclusion

15

Certificate of Service

16

Appendix A: Opinion of Fifth Circuit Court of Appeals

iv

Table of Authorities

Page(s)

Cases

Correale v. United States,

479 F.2d 944 (1st Cir. 1973) ................................................................. 8

Mabry v. Johnson,

467 U.S. 504 (1984) ........................................................................... 8, 9

Missouri v. Frye,

566 U.S. 134 (2012) ............................................................................... 8

Puckett v. United States,

556 U.S. 129 (2009) ........................................................................... 8, 9

Santobello v. New York,

404 U.S. 257 .......................................................................................... 8

United States v. Aderholt,

87 F.3d 740 (5th Cir. 1996) ............................................................... 6, 7

United States v. Barron,

172 F.3d 1153 (9th Cir. 1999) ............................................................... 8

United States v. De La Fuente,

8 F.3d 1333 (9th Cir. 1993) ................................................................. 13

United States v. DeFusco,

949 F.2d 114 (4th Cir. 1991) ............................................................... 11

United States v. Granik,

386 F.3d 404 (2d Cir. 2004) .................................................................. 8

United States v. Gray,

528 F.3d 1099 (8th Cir. 2008) ............................................................. 12

v

United States v. Hammond,

742 F.3d 880 (9th Cir. 2014) ............................................................... 13

United States v. Hernandez,

134 F.3d 1435 (10th Cir. 1998) ........................................................... 14

United States v. Hunter,

835 F.3d 1320 (11th Cir. 2016) ........................................................... 13

United States v. Lutchman,

910 F.3d 33 (2d Cir. 2018) ............................................................ 10, 11

United States v. Novosel,

481 F.3d 1288 (10th Cir. 2007) ........................................................... 15

United States v. Outlaw,

319 F.3d 701 (5th Cir. 2003) ................................................................. 5

United States v. Randolph,

230 F.3d 243 (6th Cir. 2000) ............................................................... 12

United States v. Rivera-Cruz,

878 F.3d 404 (1st Cir. 2017) ............................................................... 10

United States v. Snelson,

555 F.3d 681 (8th Cir. 2009) ............................................................... 12

United States v. Stacey,

531 F.3d 565 (8th Cir. 2008) ................................................................. 5

United States v. Thomas,

639 F.3d 786 (7th Cir. 2011) ............................................................... 14

United States v. Thournout,

100 F.3d 590 (8th Cir. 1996) ................................................................. 9

United States v. Torres-Perez,

777 F.3d 764 (5th Cir. 2015) ................................................................. 5

vi

United States v. Williams,

510 F.3d 416 (3d Cir. 2007) ................................................................ 14

United States v. Williamson,

598 F.3d 227 (5th Cir. 2010) ................................................................. 5

Statutes and Sentencing Guidelines

18 U.S.C. § 3231 ........................................................................................ 3

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

U.S.S.G. § 3E1.1 ........................................................................................ 4

U.S.S.G. § 3E1.1(a) .................................................................................... 5

U.S.S.G. § 3E1.1(b) .................................................................................... 5

U.S.S.G. § 5K1.1 .................................................................................... 6, 7

Other Authorities

Restatement (Second) of Contracts (1981) ........................................... 2, 5

Sup. Ct. R. 10(a) .................................................................................. 7, 10

vii

PETITION FOR WRIT OF CERTIORARI

Petitioner Fabian Delgado (“Delgado”) respectfully petitions for a

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

Appeals for the Fifth Circuit.

Citation to Opinion Below

The opinion of the United States Court of Appeals for the Fifth

Circuit, affirming Torres’ conviction and sentence is styled: United States

v. Delgado, ___ F. App’x ___, 2019 U.S. App. LEXIS 13195 (5th Cir. 2019).

Jurisdiction

The opinion of the United States Court of Appeals for the Fifth

Circuit, affirming the Petitioner’s conviction and sentence was

announced on May 1, 2019 and is attached hereto as Appendix A.

Pursuant to Supreme Court Rule 13.1, this petition has been filed within

90 days of the date of the judgment. This Court’s jurisdiction is invoked

pursuant to 28 U.S.C. § 1254(1).

1

Restatement (Second) of Contracts (1981)

§ 71 Requirement of Exchange; Types of Exchange

(1) To constitute consideration, a performance or a return promise

must be bargained for.

(2) A performance or return promise is bargained for if it is sought

by the promisor in exchange for his promise and is given by the

promisee in exchange for that promise.

(3) The performance may consist of

(a) an act other than a promise, or

(b) a forbearance, or

(c) the creation, modification, or destruction of a legal

relation.

(4) The performance or return promise may be given to the

promisor or to some other person. It may be given by the promisee

or by some other person.

§ 75 Exchange of Promise for Promise

Except as stated in §§ 76 and 77, a promise which is bargained

for is consideration if, but only if, the promised performance

would be consideration.

2

Statement of the Case

Delgado pled guilty to conspiring to possess with intent to

distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and

846. As part of his plea agreement, he purportedly waived the right to

appeal. The district court sentenced him to 262 months in prison, five

years of supervised release, and no fine. The jurisdiction of the federal

district court was invoked pursuant to Title 18 U.S.C. § 3231 (“The

district courts of the United States shall have original jurisdiction,

exclusive of the courts of the States, of all offenses against the laws of the

United States.”). Delgado was granted an out-of-time appeal by the

district court and his subsequent notice of appeal to the Fifth Circuit was

timely.

On appeal, Delgado argued that the waiver of appeal provision

should not bar him from arguing that his sentence was substantively

unreasonable because he received no benefit (consideration) in return for

pleading guilty. The purported consideration to be received by Delgado

in the plea agreement was twofold: (1) the Government would move for

a third level acceptance of responsibility reduction if Delgado otherwise

3

qualified, and (2) the possibility that the Government would move for a

downward departure.

(i) Benefit #1: Government request for one-level acceptance

of responsibility reduction

Section 3E1.1 of the sentencing guidelines provides in relevant part

as follows:

(a) If the defendant clearly demonstrates acceptance of

responsibility for his offense, decrease the offense level by 2

levels.

(b) If the defendant qualifies for a decrease under subsection

(a), . . . upon motion of the government stating that the

defendant has assisted authorities in the investigation or

prosecution of his own misconduct by timely notifying

authorities of his intention to enter a plea of guilty, thereby

permitting the government to avoid preparing for trial and

permitting the government and the court to allocate their

resources efficiently, decrease the offense level by 1

additional level.

U.S.S.G. § 3E1.1 (2016).

Under the law of contracts:

To constitute consideration, a performance or a return

promise must be bargained for. A performance or return

promise is bargained for if it is sought by the promisor in

exchange for his promise and is given by the promisee in

exchange for that promise.

4

Restatement (Second) of Contracts § 71 (1981). The Government cannot

give as consideration something it does not possess. The determination

of whether or not a defendant is entitled to a 2-level acceptance of

responsibility reduction under § 3E1.1(a) is made by the district court.

U.S.S.G. § 3E1.1(a).

In the Fifth Circuit, the district court has

independent authority to determine whether § 3E1.1(b) has been

satisfied. United States v. Williamson, 598 F.3d 227, 229 (5th Cir. 2010).

If a defendant satisfies subsections (a) and (b), “a district court lacks

discretion to deny the additional one-level reduction under subsection

(b)[.]” United States v. Outlaw, 319 F.3d 701, 705-06 (5th Cir. 2003).

Therefore, if Delgado satisfied the requirements of subsections (a) and

(b), it would have been reversible error for the Government to refuse to

move for the third level of reduction. See United States v. Torres-Perez,

777 F.3d 764, 768 (5th Cir. 2015). By agreeing to move for a third level

acceptance of responsibility reduction if Delgado otherwise qualified for

the reduction, the Government was not “giving” Delgado anything. See

United States v. Stacey, 531 F.3d 565, 567 (8th Cir. 2008) (“A defendant

5

who has received the two-level reduction is entitled to the third level if

the plea was sufficiently timely.”).

(ii) Benefit #2: Possible downward departure

The downward departure language in the plea agreement did not

bind the Government in any way to move for a downward departure; the

Government conceded nothing. Instead, the Government retained “sole

and exclusive judgment.” ROA.241. In United States v. Aderholt, 87

F.3d 740 (5th Cir. 1996), the defendant pled guilty pursuant to a plea

agreement that granted the Government “sole discretion” as to whether

or not to file a § 5K1.1 motion (which the Government chose not to do).

Id. at 742.

In response to the appellant’s argument that the

Government’s retention of sole discretion violated his right to due process

because it constituted an inducement which required him to give up

constitutional rights, the Fifth Circuit held that there was no

inducement:

[T]he implication of the principle of just return for giving up

constitutional rights requires the existence of a plea bargain

in which the Government bargains away its discretion. There

can be no inducement when the Government retains sole

6

discretion. Appellant's due process challenge is without merit.

(emphasis added)

Id. at 743. Therefore, in the Fifth Circuit, when the Government retains

sole discretion to determine whether or not to file a § 5K1.1 motion, it has

not given anything that amounts to consideration.

In response to these arguments, the Fifth Circuit panel held: “[W]e

have never expressly held that consideration is required to support a

valid plea agreement.” Delgado, 2019 U.S. App. LEXIS 13195, at *1-2

(5th Cir. May 1, 2019).

First Reason for Granting the Writ

Review on a writ of certiorari should be granted pursuant to Rule

10(a) of the Supreme Court Rules when a United States court of appeals

has so far departed from the accepted and usual course of judicial

proceedings as to call for an exercise of this Court’s supervisory power.

Sup. Ct. R. 10(a). The apparent perspective of the Fifth Circuit; i.e., that

it is okay for the Government to draft and rely upon a plea agreement

7

that confers benefits to the Government but none to the defendant, is

contrary to any reasoned understanding of due process.

The conditions for a valid plea presuppose fairness in securing

agreement between an accused and a prosecutor. Mabry v. Johnson, 467

U.S. 504, 509 (1984). Plea bargaining is not some adjunct to the criminal

justice system; “it is the criminal justice system.” Missouri v. Frye, 566

U.S. 134, 144 (2012). Disposition of charges after plea discussions is an

essential part of the process in criminal cases. Santobello v. New York,

404 U.S. 257. 261 (1971). Trust between defendants and prosecutors in

plea bargaining is “essential” and “highly necessary” in the criminal

process. Puckett v. United States, 556 U.S. 129, 141 (2009). “A plea

bargain is not a commercial exchange. . . . What is at stake for the

defendant is his liberty.” United States v. Barron, 172 F.3d 1153, 1158

(9th Cir. 1999). Because plea agreements are unique contracts, ordinary

contract principles are to be tempered with special due process concerns

for fairness. United States v. Granik, 386 F.3d 404, 413 (2d Cir. 2004).

In the plea bargaining process, prosecutors are to be held to “the most

meticulous standard of both promise and performance.”

Correale v.

8

United States, 479 F.2d 944, 977 (1st Cir. 1973). This is to ensure a

defendant receives the performance he is due.

United States v.

Thournout, 100 F.3d 590, 594 (8th Cir. 1996).

Second Reason for Granting the Writ

The Fifth Circuit’s non-recognition of the need for some benefit to

the defendant in a plea bargain is in conflict with U.S. Supreme Court

precedent. In Mabry Johnson, 467 U.S. 504 (1984), the Court noted “plea

agreements are consistent with the requirements of voluntariness and

intelligence -- because each side may obtain advantages when a guilty

plea is exchanged for sentencing concessions[.]” Id. at 508. “It is this

mutuality of advantage that perhaps explains the fact that at present

well over three-fourths of the criminal convictions in this country rest on

pleas of guilty[.]” Id. at 508 n. 8. In Puckett v. United States, 556 U.S.

129 (2009), the Court stated: “[P]lea bargains are essentially contracts. .

. . When the consideration for a contract fails . . . we say that the contract

was broken.” Id. at 137.

9

Third Reason for Granting the Writ

Review on a writ of certiorari should be granted pursuant to Rule

10(a) of the Supreme Court Rules when a United States court of appeals

has entered a decision in conflict with the decision of another United

States court of appeals on the same matter. Sup. Ct. R. 10(a). The First,

Second, Fourth, Sixth, Eighth, Ninth and Eleventh Circuits have

specifically held that for a plea agreement to be valid, it must be

supported by consideration; i.e., some benefit to the defendant.

First Circuit

As Rivera-Cruz correctly points out, we have recognized that

[internal quotes omitted] a plea agreement is a contract under

which both parties give and receive consideration. . . .

Specifically, the government obtains a conviction that it

otherwise might not have and the defendant, correspondingly,

receives less, or a chance at less, than he otherwise might

have.

United States v. Rivera-Cruz, 878 F.3d 404, 408 (1st Cir. 2017).

Second Circuit

In United States v. Lutchman, 910 F.3d 33 (2d Cir. 2018), the

Second Circuit declined to enforce an appeal waiver because the plea

agreement was not supported by consideration:

10

Lutchman's waiver of the right to appeal his sentence was

unsupported by consideration. . . . Lutchman . . . received no

benefit from his plea beyond what he would have gotten by

pleading guilty without an agreement. . . . The plea agreement

here provided Lutchman with no increment of [internal

quotes omitted] certainty as to the extent of his liability and

punishment . . . and it provided him no chance at a reduced

sentence . . . . Because the agreement offered nothing to

Lutchman that affected the likelihood he would receive a

sentence below the statutory maximum, the appellate waiver

was unsupported by consideration, and we will not enforce it

to bar this appeal.

Id. at 37-38.

Fourth Circuit

A plea agreement by its very nature is a bargain in which the

defendant properly obtains some consideration for his

agreement to plead guilty. In most, if not all, cases the

defendant chooses to plead guilty because of the consideration

he will receive for his agreement. Plea agreements are

consistent with requirements of voluntariness because each

side obtains advantages when the guilty plea is exchanged for

government concessions.

United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).

Sixth Circuit

The plea agreement Randolph entered into in Texas was a

contract without benefit or advantage to him--indeed, as we

shall explain, it could only bring him detriment--and as such

was offensive both to the fundamental common law canons of

contract construction and to the constitutional guarantee of

due process..

11

United States v. Randolph, 230 F.3d 243, 249 (6th Cir. 2000).

[T]he effect of the Texas agreement is that the government

could bargain with Randolph, extract a benefit from the

bargain, and then treat its own promise as illusory. . . . A

defendant in Randolph’s position is entitled to presume that

a plea agreement would confer some benefit to him.

Id. at 250.

Eighth Circuit

The government's promise to drop some charges in exchange

for a guilty plea provides the consideration necessary to

support the bargain contained in the plea agreement.

United States v. Snelson, 555 F.3d 681, 685 (8th Cir. 2009).

Moreover, the plea agreement was supported by

consideration, given the government's agreement to drop two

other charges[.] . . . [internal quotes omitted] Plea agreements

are contractual in nature and should be interpreted according

to general contract principles.

United States v. Gray, 528 F.3d 1099, 1102 (8th Cir. 2008).

Ninth Circuit

To be sure, the idea behind a plea agreement is that each side

waives certain rights to obtain some benefit. . . . [T]he

Hammonds negotiated for favorable recommendations from

the government and the dismissal of charges. Such benefits

are consideration enough to support a plea agreement.

United States v. Hammond, 742 F.3d 880, 883-84 (9th Cir. 2014).

12

[H]ad the parties reasonably understood the plea agreement

to mean what the government now urges, no consideration

would have supported De la Fuente's promise to cooperate in

the investigation of his cousin. . . . If the government's

proffered interpretation of the disputed agreement provision

is correct, the government promised nothing to De la Fuente

for his agreement to cooperate. We are unwilling to impute to

the government the level of cynicism and bad faith implicit in

negotiating an agreement under which it persuaded a

defendant to help convict his relative by offering what

appeared to be a reduced sentence but in fact offered him no

benefit. . . . De la Fuente could not have reasonably

understood the terms of the plea agreement to offer nothing

in exchange for his cooperation; neither, we hope, could the

government have entertained such an understanding.

(emphasis in original)

United States v. De La Fuente, 8 F.3d 1333, 1340 (9th Cir. 1993).

Eleventh Circuit

If, at the time it offered the plea agreement, the government

was aware of facts that would allow it to employ the

exceptions and avoid its promise therein, then it would be

extending an illusory promise. The plea agreement—which is

a contract between the parties—would fail from the outset due

to a lack of valid consideration.

United States v. Hunter, 835 F.3d 1320, 1326 (11th Cir. 2016).

Opinions from the Third, Seventh and Tenth Circuits have at least

suggested that the defendant should receive some benefit from a plea

bargain in order for it to be enforceable.

13

Third Circuit

It is an important consideration in reviewing a plea

agreement that a defendant generally reaps benefits by

entering into such an agreement.

United States v. Williams, 510 F.3d 416, 423 (3d Cir. 2007).

Seventh Circuit

While Thomas cites no case holding that lack of consideration

renders waiver of appeal in a plea agreement unenforceable,

some support for his theory exists. . . . We need not decide

whether to accept Thomas's consideration argument because

the government did give consideration for Thomas's waiver in

the form of two promises[.]

United States v. Thomas, 639 F.3d 786, 788 (7th Cir. 2011).

Tenth Circuit

We do agree that traditional contract principles have, on

occasion, been applied to plea agreements in criminal

proceedings, although our attention has not been drawn to

any case where the court evaluated the consideration

underlying a plea agreement.

United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir. 1998).

The Second Circuit has recognized that a plea agreement can

be challenged for lack of consideration, . . . and this court has

assumed so for the sake of argument[.]

United States v. Novosel, 481 F.3d 1288, 1291 (10th Cir. 2007).

14

Apparently, the Fifth Circuit is alone in not requiring that the

defendant receive some benefit from entering into a plea bargain with the

Government.

Conclusion

For the foregoing reasons, Petitioner Delgado respectfully urges

this Court to grant a writ of certiorari to review the opinion of the United

States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

/s/ John A. Kuchera

JOHN A. KUCHERA

210 N. 6th St.

Waco, Texas 76701

(254) 754-3075

(254) 756-2193 (facsimile)

johnkuchera@210law.com

SBN 00792137

Attorney for Petitioner

15

Certificate of Service

This is to certify that a true and correct copy of the above and

foregoing petition for writ of certiorari has this day been mailed by the

U.S. Postal Service, First Class Mail, to the Solicitor General of the

United States, Room 5614, Department of Justice, 10th Street and

Constitution Avenue, N.W., Washington, D.C. 20530.

SIGNED this 24th day of July, 2019.

/s/ John A. Kuchera

John A. Kuchera, Attorney for

Petitioner Fabian Delgado

16