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

Supreme Court briefSep 3, 2019

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No. ______

In the Supreme Court of the United States

_______________

UNITED STATES OF AMERICA

ALFREDO BELTRAN LEYVA

________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

__________________

PETITION FOR A WRIT OF CERTIORARI

/s/Stephen C. Leckar*

Stephen C. Leckar

Counsel of Record

Evan Lisull

Kalbian Hagerty LLP

888-17th St., NW, 10th Floor

Washington, D.C. 20036

(202) 742-4242

(202) 223-6625 (fax)

sleckar@kalbianhagerty.com

Attorneys for Petitioner

Question Presented for Review

After pleading guilty to federal narcotics charges, Petitioner was sentenced to

life imprisonment based entirely on unverified in-court testimony by agents

recounting

unsworn

statements

made

unsentenced

cooperators

during

debriefings. Petitioner was denied cross-examination of the cooperators.

On appeal, Petitioner contended that his sentence rested on constitutionally

offensive misinformation and should be reviewed de novo—as the Sixth Circuit has

held and the Eighth Circuit does in the closely analogous context of revocation of

supervised release. However, the court below reviewed only for abuse of discretion,

as if the cooperators had appeared in-court, despite acknowledging that four courts

of appeals apply the less deferential clear-error standard.

The question presented is whether the Court should resolve this conflict by

requiring de novo review (or at a minimum, review for clear error).

RULE 14.1(b) CERTIFICATE

Petitioner certifies as follows:

(i)

Parties. The parties who appeared before the United States District

Court for the District of Columbia and in the United States Court of Appeals for the

District of Columbia Circuit in the proceedings which resulted in the judgment from

which a writ of certiorari is sought are: Petitioner Alfredo Beltran Leyva and

Respondent the United States of America.

(ii)

Corporate disclosure statement: No corporation was before the Court of

Appeals or the District Court below.

(iii)

Related cases: The underlying case, United States v. Alfredo Beltran

Leyva, Criminal No. 12-0184(RJL), was initiated in the United States District Court

for the District of Columbia. A Final Judgment was entered on April 5, 2017.

The Court of Appeals, No. 17-3027, entered its opinion, reported at 916 F.3d

14 (D.C. Cir. 2019), and judgment on February 26, 2019.

Petitioner is aware of no other related cases in any other court or before this

Court.

/s/ Stephen c. Leckar

Stephen C. Leckar, Counsel of Record

Table of Contents

Opinions Below

Jurisdiction

Constitutional Provision Involved

Statement of the Case

Factual Background

Reasons for Granting the Petition

Argument and Reasons Relied on for Allowance of the Writ

I. There is a clear conflict in the standard used to review fact-findings in

federal sentencings that follow guilty pleas

II. There are serious concerns with applying the abuse of discretion and clear

error standards to review the constitutional reliability of sentencing factfindings based entirely on uncorroborated hearsay

III. A de novo standard should govern review of claims of unreliable

factfinding in post-plea sentencings that depend on hearsay from unseen

cooperators

IV. This case is a good vehicle for review

Conclusion

Appendix

A. Cases

Table of Cases

*Bose Corp. v. Consumers Union,

466 U.S. 485 (1984)

Brown v. Payton,

544 U.S. 133 (2005)

California v. Green,

399 U.S. 149 (1970)

Campbell v. United States,

373 U. S. 487 (1963)

Cooper Indus., Inc. v. Leatherman Tool Group, Inc.,

532 U.S. 424 (2001)

Dickinson v. Zurko,

527 U.S. 150 (1999)

Gardner v. Florida,

430 U.S. 349 (1977)

Harte-Hanks Communications v. Connaughton,

491 U.S. 657 (1989)

Lafler v. Cooper,

566 U.S. _, 132 S. Ct. 1376 (2012)

Lee v. Illinois,

476 U.S. 530 (1986)

*Lilly v. Virginia,

527 U.S. 116 (1999)

Maine v. Taylor,

477 U.S. 131 (1985)

Miller v. Fenton,

474 U.S. 104 (1985)

14, 20, 21

Northern Marianas Islands v. Bowie,

243 F.3d 1109 (9th Cir. 2001)

iii

*Ornelas v. United States,

517 U.S. 690 (1996)

19, 20

Orvis v. Higgins,

180 F.2d 537 (2nd Cir. 1950)

Pierce v. Underwood,

487 U.S. 552 (1988)

Rand v. Rowland,

154 F.3d 952 (9th Cir. 1998) (en banc)

Southwest Voter Registration Educ. Pro. v. Shelley,

344 F.3d 914 (9th Cir. 2003) (en banc)

Strickland v. Washington,

466 U.S. 668 (1984)

Thompson v. Keohane,

516 U.S. 99 (1995)

Townsend v. Burke,

334 U.S. 736 (1948)

United States v. Bailey,

444 U.S. 394 (1980)

United States v. Cervantes-Pacheco,

826 F.3d 310 (5th Cir. 1987) (en banc)

United States v. Clark,

982 F.2d 965 (6th Cir. 1993)

United States v. Corral,

172 F.3d 714 (9th Cir. 1999)

United States v. Evans,

216 F.3d 80 (D.C. Cir. 2000)

United States v. Gomez-Lemos,

939 F.2d 326 (6th Cir.1991)

United States v. Hernandez-Guerrero,

633 F.3d 933 (9th Cir. 2011)

United States v. Hope,

686 Fed. App’x 623 (11th Cir. 2017)

United States v. Huckins,

53 F.3d 276 (9th Cir. 1995)

United States v. Jones,

514 Fed. App’x 229 (3d Cir. 2013)

United States v. (Joseph) Jones,

744 F.3d 1362 (D.C. Cir. 2014)

United States v. Kendrick,

697 F. App’x 622 (11th Cir. 2017)

United States v. Leyva,

916 F.3d 14 (D.C. Cir. 2019)

United States v. Martinez,

824 F.3d 1256 (10th Cir. 2016)

1, 6, 10, 11, 14, 26

United States v. McGowan,

668 F.3d 601 (9th Cir. 2012)

23, 24

United States v. McKinney,

919 F.2d 405 (7th Cir.1990)

*United States v. Moncivais,

492 F.3d 652 (6th Cir. 2007)

7, 11

United States v. Ortega-Calderon,

814 F.3d 757 (5th Cir. 2016)

*United States v. Pimentel-Lopez,

828 F.3d 1173 (9th Cir. 2016), amended op.,

859 F.3d 1134 (9th Cir. 2017)

United States v. Pineda,

770 F.3d 313 (4th Cir. 2014)

23, 24

United States v. Rodriguez,

731 F.3d 20 (1st Cir. 2013)

United States v. Ryan,

806 F.3d 691 (2nd Cir. 2015)

United States v. Sabillon-Umana,

772 F.3d 1328 (10th Cir. 2014)

United States v. Sanders,

452 F.3d 572 (6th Cir. 2006)

United States v. Scroggins,

880 F.2d 1204 (11th Cir. 1989)

*United States v. Sutton,

916 F.3d 1134 (8th Cir. 2019)

United States v. Swanson,

341 F.3d 524 (6th Cir. 2003)

United States v. Tucker,

404 U.S. 443 (1972)

United States v. White,

620 F.3d 401 (4th Cir. 2010)

United States. v. Williams,

340 F.3d 1231 (11th Cir. 2003)

White v. Illinois,

502 U. S. 346 (1992)

B. Constitutional provisions and statutes

U.S. Const., Amdt. 5

28 U.S.C. § 1254(1)

C. Other Authorities

Appellate Review of Sentences: A Symposium at the Judicial Conference of the

United States Court of Appeals for the Second Circuit,

32 F.R.D. 249 (1962)

Steven A. Childress & Martha S. Davis, FEDERAL STANDARDS OF REVIEW (4th ed.

2010)

*Jeffrey C. Dobbins, Changing Standards of Review, 48 LOY. U. CHI. L. REV. 205

(2016)

*Harry T. Edwards & Linda A. Elliott, FEDERAL STANDARDS OF REVIEW—REVIEW

OF DISTRICT COURT DECISIONS AND AGENCY ACTIONS 13 (2007)

14, 18

Joshua B. Fischman & Max M. Schanzenbach, Do Standards of Review Matter?

The Case of Federal Criminal Sentencing, 40 J. LEGAL STUD. 405 (2011)

*Henry C. Friendly, Indiscretion About Discretion,

31 EMORY L. REV. 747 (1982)

*Carissa B. Hessick & Andrew F. Hessick, Appellate Review of Sentencing

Decisions, 60 ALA. L. REV. 1 (2008)

18, 20

Shana Knizhnik, Failed Snitches and Sentencing Stitches: Substantial Cooperation

and the Cooperators’ Dilemma, 90 N.Y.U. L. REV. 1722 (2015)

Jonathan S. Masur & Lisa Larrimore Ouellette, Deference Mistakes,

82 U. CHI. L. REV. 643 (2015)

*Henry P. Monaghan, Constitutional Fact Review,

85 COLUM. L. REV. 229 (1985)

Note, More Than A Formality: The Case for Meaningful Substantive

Reasonableness Review, 127 HARV. L. REV. 951 (2014)

*Michael M. O’Hear, Appellate Review of Sentences: Reconsidering Deference,

51 WM. & MARY L. REV. 2123 (2010)

Chad M. Oldfather, Appellate Courts, Historical Facts, and the Civil-Criminal

Distinction, 57 VAND. L. REV. 437 (2004))

Amanda Peters, The Meaning, Measure and Misuse of Standards of Review,

13 LEWIS & CLARK L. REV. 233 (2009)

Joseph T. Sneed, Trial-Court Discretion: Its Exercise by Trial Courts and Its Review

by Appellate Courts, 13 J. APP. PRAC. & PROCESS 201 (2012).

vii

William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and

Criminal Justice, 107 YALE L. J. 1 (1997)

15, 17

Andrew E. Taslitz, Prosecuting the Informant Culture, 109 MICH. L. REV. 1077,

1083 (2011)

Hon. Stephen S. Trott, Words of Warning for Prosecutors Using Criminals as

Witnesses, 47 HASTINGS L.J. 1381 (1996)

U.S. Dep’t of Justice, SOURCEBOOK OF CRIM. JUSTICE STATISTICS (1991)

Deborah Young, Fact-Finding at Federal Sentencing: Why the Guidelines

Should Meet the Rules, 79 CORNELL L. REV. 299 (1994)

8, 21

*Randall H. Warner, All Mixed Up about Mixed Questions, 7 J. APP. PRAC. &

PROCESS 101 (2005)

No. ______

In the Supreme Court of the United States

_______________

UNITED STATES OF AMERICA

ALFREDO BELTRAN LEYVA

________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

__________________

PETITION FOR A WRIT OF CERTIORARI

Alfredo Beltran Leyva respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the District of Columbia Circuit

in this case.

OPINIONS BELOW

The court of appeals’ opinion affirming the district court’s sentencing decision

(App., infra, 1a-z) is reported at 916 F.3d 14 (D.C. Cir. 2019).

JURISDICTION

The court of appeals’ judgment was entered on February 26, 2019. A petition

for rehearing or rehearing en banc was denied on April 5, 2019 (App., infra, 2a-b). On

June 20, 2019, Chief Justice Roberts extended the time to file a petition for a writ of

certiorari to and including September 2, 2019. That day being a federal holiday, this

brief is filed the following day. Jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

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.

STATEMENT OF THE CASE

This case asks the Court to resolve an inter-circuit split of the appropriate

standard of review to govern appeals of federal sentencing fact-findings that follow

guilty pleas and are based entirely on unobserved cooperators’ unsworn hearsay. The

courts of appeals are divided three ways in reviewing claims that the underlying

factual determinations failed to meet the Constitution’s due process guarantee

protecting people from being sentenced based on misinformation. Several circuits,

including the D.C. Circuit, review for abuse of discretion. Others review for clear

error. Yet others apply de novo review.

Resolving this split is important. Almost 97% of federal prosecutions are

resolved by guilty pleas. Quite frequently, the sentencing hearings consist of agents

offering extrajudicial hearsay purportedly imparted to them by cooperators, people

whose veracity the law has always regarded with suspicion. Petitioner’s case is one

such example: he pled guilty to a narcotics importation conspiracy with a Sentencing

Guidelines Base Offense Level of 38, meaning a range of 235-293 months

imprisonment. As a result of enhancements that were based entirely on two agents

reciting three unobserved cooperators’ unsworn hearsay claims, Petitioner’s Offense

Level leaped to 50. He received a life sentence.

In upholding that sentence, the D.C. Circuit chose the most deferential

standard, abuse of discretion. That mode of analysis is ill-fitted for reviewing federal

sentencing fact-findings challenged as constitutionally unreliable. It assumes that

the district court evaluated the demeanor of knowledgeable witnesses claiming

knowledge of the facts—not proxies relating multiple levels of hearsay. Yet the

district court here did not do that. Had the court of appeals used a de novo (or even

clear error) standard of review, the enhancements likely would have been rejected.

FACTUAL BACKGROUND 1

Petitioner was indicted in the District Court for the District of Columbia in

2012 for conspiracy to distribute narcotics. He pled guilty without a plea agreement

to cocaine and methamphetamine conspiracy charges.

No trial or evidentiary hearing was held. The parties stipulated to a proposed

Guideline Level 42 sentence, a range of 360 months to life. However, that stipulation

mistakenly included three sentencing enhancements that were adopted three years

after Petitioner’s arrest.

The district court (Richard Leon, J), rejected the proposed sentencing. “I know

you [the government] have ulterior motives, I know you’ve got your own hidden

Petitioner will refer to pages in his Main Brief (“MB:_”), Reply Brief (“RB:_”) and

Appendix filed in the Court of Appeals (“APP”).

agendas. … But I cannot and I will not just accept a stipulation that stipulates away

reality.” 2 The court instead held a sentencing hearing that was unambiguously based

on the agents’ hearsay and then imposed a life sentence on Petitioner.

The only “evidence” came from two FBI agents with no first-hand knowledge

of any information relevant to Petitioner. They reported unsworn and unverified

accounts of their dozens of meetings with unsentenced Spanish-speaking cooperators

with favorable plea agreements. Those men were addicts and murderers who had

committed a wide array of crimes of dishonesty throughout their lives, including

bribery—one was convicted of attempting to bribe a Bureau of Prisons officer after

making a cooperation agreement with the government. Two of them barely knew

Petitioner. The third was a Mexican policeman working for drug cartels; his entire

life was spent living a lie while engaging in acts of force and brutality. 3

Had these three “sources” testified, these issues and others arising from their

inculpatory claims would have been valid grounds for cross-examination. But the

district court refused to require their in-court testimony, notwithstanding

Petitioner’s continued requests. Instead, their claims were filtered through the

agents—one of whom did not speak Spanish—and who admittedly never corroborated

their sources’ claims. 4

[APP-184].

[MB:7-14; RB:7].

[MB:6-7, 14-16; RB:7].

It is unsurprising that the Government failed to provide information with

“sufficient indicia of reliability to support its probable accuracy.” This is illustrated,

for example, by the district court’s findings pertaining to the leadership enhancement

under U.S.S.G. § 3B1.1. The court claimed that two of the unobserved cooperators’

“corroborate with each other with respect to the defendant meeting with El Chapo

and Mayo Zambada [leaders of the Sinaloa Cartel].” 5 Actually the hearsay did not

claim that. 6

Despite that and many similar deficits, the district court’s oral findings

(“Findings”) stated that the defense had offered only “rather generalized” attacks on

the cooperators’ credibility. 7 It found that the “reports credible for the additional

reason that the witnesses”—the unseen cooperators—“had firsthand knowledge” 8

This also is incorrect: there were no true witnesses to speak of and the district court

overlooked other identified concerns. For instance, a bribery enhancement (which

only became effective in 2010, long after Petitioner’s arrest) was tagged on to

Petitioner’s sentence although no one purportedly made any such direct claim. 9

[APP454].

[ MB:18].

[MB:7].

In addition to calling the non-testifying cooperators “witnesses,” the Findings

repeatedly mistakenly refer to the unsworn hearsay statements conveyed by the

FBI as the cooperators’ “testimony.” See MB:17 (collecting examples).

[MB:22-23, 25-26, 33-34]; RB:17 & Addendum].

On such findings was Petitioner’s life sentence upheld. In so doing, the Court

of Appeals did not address Petitioner’s constitutional claim. Instead it accorded

“’especially strong deference’” to the district judge’s “credibility determinations”—

determinations that were not based on observing any witness claiming to be

conversant with the facts. 10

In these circumstances, which occur regularly in the federal courts, a court of

appeals is as well-situated, if not better positioned, to determine whether a district

judge’s fact-findings based on unseen sources’ unsworn hearsay is constitutionally

reliable.

Notably, in applying an abuse of discretion standard, the D.C. Circuit declined

to rule on Petitioner’s Ex Post Facto challenge, which it characterized as “serious,” 11

because it believed that such a ruling would not change the Guidelines levels and

outcome of Petitioner’s sentence. In other words, because the circuit court gave great

deference to the district court’s “factual” findings, it did not rule on another grave

constitutional question that under this Court’s precedent would have impacted

several of the enhancements to Petitioner’s base offense level.

10 Compare United States v. Leyva, 916 F.3d 14, 25 (D.C. Cir. 2019). (citation omitted)

with United States v. Sabillon-Umana, 772 F.3d 1328, 1331–32 (10th Cir. 2014)

(Gorsuch, J.) (“in our legal order properly found facts drive sentencing decisions,

not the other way around. Before settling on a guidelines offense level or some

other sentencing conclusion, a district court must take account of the facts—

whether conceded by the defendant, found by a jury, or (perhaps) found by the

court. When that process is reversed, mistakes and miscalculations can creep in,

and we risk sending defendants … to prison for more time than the law fairly

permits”).

Leyva, 916 F.3d at 29.

REASONS FOR GRANTING THE PETITION

This Court has recognized that a case’s substantive outcome can change

“depending on which standard is used.” 12 Legal scholars also have found that the

standard of review is often outcome-determinative.

There is a clear split in the standards of review used to assess reliability of

fact-finding in federal sentencings following guilty pleas. Two courts of appeals have

applied a de novo standard to review due process claims arising from sentencings and

from the analogous circumstance of revocation of supervised release. 13 Six courts of

appeals, now including the D.C. Circuit below, follow the highly deferential “abuse of

discretion” standard. And as the D.C. Circuit recognized, at least four other circuits

review the reliability of sentencing factfinding under the somewhat less deferential

standard of clear error.

This Court should resolve this inter-circuit conflict. And it should do so in a

way that makes it unmistakable that a deferential standard of review should not be

employed when it is inappropriate—such as to assess a post-plea hearing with

Dickinson v. Zurko, 527 U.S. 150, 161-162 (1999); see also Brown v. Payton, 544

U.S. 133, 148 (2005) (Breyer, J., concurring) (“[T]his is a case in which

Congress’ instruction to defer to the reasonable conclusions of state-court

judges makes a critical difference.”); Southwest Voter Registration Educ. Pro. v.

Shelley, 344 F.3d 914, 917 (9th Cir. 2003) (en banc) (noting “standard of review is

important to our resolution of this case”).

Although the Court of Appeals below cited five circuits as applying an abuse of

discretion standard, one of the cases it cited, United States v. Moncivais, 492 F.3d

652, 656 (6th Cir. 2007) (Clay, J.), applied a de novo standard of review to a due

process claim. N.20 infra and accompanying text.

contested fact-finding that was completely driven by unobserved unverified hearsay.

Here, the district court had no more familiarity with the absentee cooperators’

“testimony” than did the D.C. Circuit– it was all unsworn anecdotal hearsay and

multiple hearsay, filtered through language barriers and then supposedly conveyed

by two agents. A three-judge panel with a breadth of experience was as capable of

reviewing the sentencing transcripts de novo, if not better situated to do so, to

determine whether Petitioner’s sentence rested on constitutionally reliable

factfinding.

Petitioner’s situation is not anomalous: almost all federal prosecutions

culminate in a guilty plea. Since the Sentencing Guidelines’ advent, the number of

defendants who stood trial, as compared to pled guilty, has declined from about 16%

to 3%. 14 Yet the practice of appraising the reliability of “facts” supposedly related by

unobserved unsentenced cooperators is recurrent in sentencings.

Using a highly deferential standard to adjudicate an appeal under these

circumstances misapplies the basis for the abuse of discretion and clear error

standards of review. “There is nothing either extraordinary or inexplicable about the

proposition that constitutional rulings—even fact specific ones—should be reviewed

Compare Lafler v. Cooper, 566 U.S. _, 132 S. Ct. 1376, 1388 (2012) (currently 97%

plead guilty) with Deborah Young, Fact-Finding at Federal Sentencing: Why the

Guidelines Should Meet the Rules, 79 CORNELL L. REV. 299, 365 (1994) (84%

formerly pleaded guilty) (citing U.S. Dep’t of Justice, SOURCEBOOK OF CRIMINAL

JUSTICE STATISTICS 528, tbl. 5.36 (1991)).

under a more demanding standard.” 15 For the foregoing reasons, this Court should

grant the petition and resolve the conflict.

United States v. McKinney, 919 F.2d 405, 412 (7th Cir.1990).

ARGUMENT AND REASONS RELIED ON FOR ALLOWANCE OF THE

WRIT

Empirical evidence and recent scholarship confirm that standards of review

matter—often to the point of being outcome-dispositive. 16 This Court’s intervention

is necessary to reconcile the inter-circuit split on the proper standard to review claims

by defendants concerning their due process right to be sentenced only upon

trustworthy information.

I. There is a clear conflict in the standard used to review factfindings in federal sentencings that follow guilty pleas.

There is a due process right not to be sentenced based on “misinformation of

constitutional magnitude.” 17 There is a multi-circuit split in how such claims are

reviewed. The standard of review can be dispositive and this case is a prime example

of why this Court should resolve the circuit conflict.

The D.C. Circuit selected an abuse of discretion standard to review the

reliability of federal sentencing fact-findings after concluding that five circuit courts

of appeals follow that practice. 18 At the same time, it recognized that at least four

See, e.g., Jeffrey C. Dobbins, Changing Standards of Review, 48 LOY. CHI. L. REV.

205, 208, 227-232 (2016); Jonathan S. Masur & Lisa Larrimore Ouellette,

Deference Mistakes, 82 U. CHI. L. REV 643, 657-658, 661 (2015) (citing appellate

decisions); Joshua B. Fischman & Max M. Schanzenbach, Do Standards of Review

Matter? The Case of Federal Criminal Sentencing, 40 J. LEGAL STUD. 405, 409, 431

(2011); Amanda Peters, The Meaning, Measure and Misuse of Standards of

Review, 13 LEWIS & CLARK L. REV. 233, 235-236 (2009).

United States v. Tucker, 404 U.S. 443, 447 (1972). See also Gardner v. Florida, 430

U.S. 349, 358 (1977); Townsend v. Burke, 334 U.S. 736, 740-41 (1948).

Leyva, 916 F.3d at 25 (citations omitted).

circuits apply clear error review to those determinations. Unrecognized by the court

of appeals below, one of the decisions it cited used a de novo standard to evaluate a

due process sentencing misinformation claim. That is identical to the standard of

review advanced by Petitioner.

Other than to follow what it characterized as the majority rule, the D.C. Circuit

did not explain why it chose the most deferential form of review. 19

a. In United States v. Moncivais, a decision that the D.C. Circuit cited for using

an abuse of discretion review, the Sixth Circuit Court of Appeals held that

determining the reliability of facts found in sentencing proceedings for consistency

with due process was a mixed question of law and fact. For that reason, it followed a

de novo review. 20 That approach is not exceptional: the same court of appeals had

earlier endorsed de novo review as appropriate to determine whether the underlying

proceeding was “fundamentally unfair.” 21

The Sixth Circuit is not unique in requiring a de novo standard to assess the

deprivation of liberty where cogent due process concerns are identified, as they were

here. Using an abuse of discretion standard to review decisions based on

uncorroborated misinformation from shadowy absentee sources was rejected a week

Leyva, 916 F.3d at 25 (citations omitted).

United States v. Moncivais, 492 F.3d 652, 656 (6th Cir. 2007) (Clay, Gilman &

McKeague, JJ) (quoting United States v. Sanders, 452 F.3d 572, 576 (6th Cir.

2006)).

United States v. Clark, 982 F.2d 965, 968 (6th Cir. 1993).

after the underlying decision here. In United States v. Sutton, the Eighth Circuit

Court of Appeals applied a de novo standard to find reversible error in a district

court’s decision to revoke supervised release—a denial of liberty—also based on

hearsay and multiple hearsay from unsworn unseen sources of dubious character. 22

b. Even the decisions cited by the D.C. Circuit to support abuse of discretion

review do not support its conclusion that the underlying sentencing process was

sound, much less constitutionally so:

1. Two of the opinions cited as examples of abuse of discretion review involved

sentences that followed trials. In each the district judge had observed the witnesses

whose testimony was later relied on at sentencing. 23

2. In a third case, in which sentencing following a guilty plea, the defendant’s

undisputed admissions proved the determinant factor. 24 And in the fourth case, also

a post-plea sentencing matter, the appellant-defendant unsuccessfully protested the

sentencing judge’s rejection of the defense’s proffering unsworn hearsay that was not

subject to cross examination. 25

916 F.3d 1134, 1138 (8th Cir. 2019) (Gruender, Kelly & Grasz, JJ).

United States v. Rodriguez, 731 F.3d 20, 31 (1st Cir. 2013); United States v. Pineda,

770 F.3d 313, 318 (4th Cir. 2014).

United States v. Hernandez-Guerrero, 633 F.3d 933, 935, 938 (9th Cir. 2011).

United States v. Kendrick, 697 F. App’x 622, 623 (11th Cir. 2017). Notably the

panel in Kendrick reviewed the district judge’s fact findings for clear error. Id.

c. Nor do the clear error decisions cited by the D.C. Circuit justify rejecting de

novo review of particularized due process challenges to the factfinding process’

reliability. For one thing, none of those opinions indicate that the appellant had

pursued constitutional claims to contest a sentence completely predicated upon

hearsay. 26 And each is further distinguishable: in one, the dispute centered on

whether the appellant’s prior convictions were properly memorialized in a docket

sheet—even though he conceded the key statements in his Presentence Report. 27 In

the others, the courts found abundant external corroboration besides the unseen

cooperator’s hearsay. 28 Here the agents admittedly undertook no effort to

independently corroborate the word of their absentee sources.

See United States v. Ryan, 806 F.3d 691, 693 (2nd Cir. 2015); United States v. Jones,

514 Fed. App’x 229, 232 (3d Cir. 2013) (unpublished); United States v. OrtegaCalderon, 814 F.3d 757, 760 (5th Cir. 2016); United States v. Martinez, 824 F.3d

1256, 1261 (10th Cir. 2016).

Ortega-Calderon, 814 F.3d at 760-61.

Martinez, 824 F.3d at 1262; Ryan, 806 F.3d at 694-95; Jones, 514 Fed. App’x at

232-33.

II.

There are serious concerns with applying the abuse of

discretion and clear error standards to review the

constitutional reliability of sentencing fact-findings based

entirely on uncorroborated hearsay.

This Court should grant certiorari to resolve the conflicts among the circuit

over a proper standard of review. The abuse of discretion standard is ill-suited for

post-plea federal sentencings that rely on unsworn hearsay supposedly emanating

from unseen cooperators. And the clear error standard, although an improvement

over abuse of discretion, nonetheless invites error because the district judge did not

actually observe any testimony of actual, knowledgeable witnesses.

a. “‘When, for example, the issue involves the credibility of witnesses and

therefore turns largely on an evaluation of demeanor,’ deferential review is

favored.” 29 That deferential standard flows from the understanding that the trier of

fact “has had the ‘opportunity to observe the demeanor of the witness.’” 30 Echoing

that perspective, the Court of Appeals below justified its decision to follow an abuse

of discretion standard by emphasizing that “[w]e give ‘especially strong deference to

credibility determinations because the district court has a unique opportunity to

evaluate the credibility of witnesses and to weigh the evidence.’” 31

Harry T. Edwards & Linda A. Elliott, FEDERAL STANDARDS OF REVIEW—REVIEW OF

DISTRICT COURT DECISIONS AND AGENCY ACTIONS 13 (2007) (quoting Miller v.

Fenton, 474 U.S. 104, 114 (1985)).

Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 688 (1989) (citations

omitted). See also United States v. Bailey, 444 U.S. 394, 413 n.9 (1980).

Leyva, 916 F.3d at 25 (quoting United States v. (Joseph) Jones, 744 F.3d 1362,

1367 (D.C. Cir. 2014)).

However, the Court of Appeals’ pronouncement mischaracterized the nature of

the proceedings below. Properly administered, “[g]uideline sentencing is an

adversarial process [which] envisions a confrontation between the parties similar to

that which occurs at a civil bench trial.” 32 The process followed here departed greatly

from that adversarial model.

1. The district court made no evaluation of any knowledgeable witnesses’ incourt credibility or demeanor. Indeed, the district judge affirmatively barred

examination or cross-examination of the invisible cooperators. Instead, the judge’s

factfinding was based on unsworn hearsay supposedly coming from unsentenced

cooperators kept away from the courtroom by the Government, coupled with the

judge’s inaccurate recital that Petitioner had only offered “generalized” objections to

the hidden sources.

Applying the “gentleness of abuse-of-discretion appellate review” 33 to resolve

the reliability of unseen cooperators’ claims abdicates meaningful review. That would

be true even if the sentence being reviewed was not the second most severe form of

punishment in our system.

2. Granting great deference to one person as a factfinder in a case such as this,

which was driven by unobserved hearsay, invites error. The fact of the matter is that

there is “an emerging consensus in the legal and social science literature that people

United States v. Scroggins, 880 F.2d 1204, 1209 (11th Cir. 1989).

William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and

Criminal Justice, 107 YALE L. J. 1, 13 (1997).

generally do a poor job in evaluating demeanor evidence.” 34 Even when district

judges do evaluate demeanor evidence their fact-finding decisions may not always get

it right: “the research to date has found little evidence that those who might be

thought lie detection ‘experts,’ such as law enforcement officers, forensic

psychiatrists, lawyers, and judges, perform much better [than anybody else] in

experimental settings.” 35 And “the commentators who have assessed the

transferability of the experimental results to the courtroom setting have ‘uniformly

concluded’ that the courtroom setting is unlikely to produce substantially better

results, and may actually worsen the problem.” 36

When a district judge’s sentencing completely excludes demeanor and

credibility evidence, the notion of that judge’s “being there” is unlikely to yield

advantages over an appellate panel’s review. 37 Indeed an appellate panel’s

competence to evaluate the reliability of a district judge’s factual findings “‘may be

less a limitation than a source of institutional advantage.’” 38 This is particularly

Michael M. O’Hear, Appellate Review of Sentences: Reconsidering Deference, 51

WM. & MARY L. REV. 2123, 2142 (2010) (citations omitted). Accord Note, More

Than A Formality: The Case for Meaningful Substantive Reasonableness Review,

127 HARV. L. REV. 951, 967 (2014).

O’Hear, 51 WM. & MARY L. REV. at 2143 (citing Chad M. Oldfather, Appellate

Courts, Historical Facts, and the Civil-Criminal Distinction, 57 VAND. L. REV. 437,

438 (2004)).

O’Hear, 51 WM. & MARY L. REV. at 2143 (citing Oldfather, 57 VAND. L. REV. at 458459).

Note, More Than A Formality, 127 HARV. L. REV. at 967.

Id. (quoting O’Hear, 51 WM. & MARY L. REV. at 2148-49).

pertinent where the facts being reviewed emanate from unsworn statements

attributed to unseen sources whose dubious reliability the defense challenged. 39

4. Favoring an abuse of discretion standard to review a record comprised of

unsworn hearsay is akin to ratifying prosecution by affidavit, a process whose

unfairness prompted the common law restrictions on hearsay. 40 “[I]t is perhaps not

too much to claim for the appellate courts that in their supervisory function they may

have the advantage of a wider perspective” than a single district judge. 41

An appropriate review for clear error, which frequently is applied to

nonguilt findings of fact in criminal cases, has a fundamental distinction from what

happened here—and happens whenever contested sentencing factfinding becomes a

function of what agents report being told by unseen cooperators. Although there is a

difference between review for abuse of discretion and for clear error, 42 the “clearly

erroneous” standard of review still remains based on “the importance of first-hand

Henry C. Friendly, Indiscretion About Discretion, 31 EMORY L. REV. 747, 759& n.

39 (1982) (citing Orvis v. Higgins, 180 F.2d 537, 539 (2nd Cir. 1950) (Frank, J.)).

Judge Friendly’s discussion and criticism of the abuse of discretion standard has

been described as “classic.” Stuntz, The Uneasy Relationship Between Criminal

Procedure and Criminal Justice, 107 YALE L. J. at 13 n.41.

White v. Illinois, 502 U. S. 346, 361-362 (1992) (Thomas, J., joined by Scalia, J.,

concurring in part and concurring in judgment).

Appellate Review of Sentences: A Symposium at the Judicial Conference of the

United States Court of Appeals for the Second Circuit, 32 F.R.D. 249, 275 (1962)

(statement of Sobeloff, C.J.).

Pierce v. Underwood, 487 U.S. 552, 558 (1988).

observation.” 43 “Findings of fact are made on the basis of evidentiary hearings and

usually involve credibility determinations, which explains why they are reviewed

deferentially under the clearly erroneous standard.” 44 That process never occurred

in this case.

While a clear error standard would be more appropriate than abuse of

discretion, it is not suitable for due process challenges to the unreliability of

sentencing factfinding linked to multiple levels of hearsay from unsentenced

unobserved cooperators—people

whose

credibility

even experienced

federal

prosecutors confess to have difficulty assessing. 45

Edwards & Elliott, FEDERAL STANDARDS OF REVIEW at 19 (quoting Maine v. Taylor,

477 U.S. 131, 145 (1985) (citing Campbell v. United States, 373 U. S. 487, 493

(1963)). Accord Carissa B. Hessick & Andrew F. Hessick, Appellate Review of

Sentencing Decisions, 60 ALA. L. REV. 1, 14 (2008).

Rand v. Rowland, 154 F.3d 952, 957 n.4 (9th Cir. 1998) (en banc). A thorough

analysis of the connection between credibility determinations and clear error

review also appears in United States. v. Williams, 340 F.3d 1231, 1240-1242 (11th

Cir. 2003).

Shana Knizhnik, Failed Snitches and Sentencing Stitches: Substantial

Cooperation and the Cooperators’ Dilemma, 90 N.Y.U. L. REV. 1722, 1745-47

(2015) (“One of the primary critiques of snitching in the criminal justice system is

the endemic problem of cooperators providing false information”).

III. A de novo standard should govern review of claims of unreliable

factfinding in post-plea sentencings that depend on hearsay

from unseen cooperators.

Where a mixed question of constitutional law and fact is presented, a de novo

review is favored. A writ of certiorari should issue here to confirm that standard

should be used in cases of this nature, where liberty interests are at stake.

a. In Lilly v. Virginia, 46 this Court held that its precedents “indicate that we

have assumed, as with other fact-intensive, mixed questions of constitutional law,

that ‘independent review is . . . necessary . . . to maintain control of, and to clarify,

the legal principles’ governing the factual circumstances necessary to satisfy the

protections of the Bill of Rights.” 47 De novo review is necessary to assess issues such

as reliability, for it is a “fluid concept[] that take[s] [its] substantive content from the

particular contexts in which the standards are being assessed.” 48

Otherwise,

employing a deferential standard of review would lead to “varied results” which would

“be inconsistent with the idea of a unitary system of law.” 49

1. When a reviewing court must go beyond a given case’s facts to consider

whether constitutional guarantees were satisfied, a de novo standard of review is

527 U.S. 116, 136 (1999).

Id., 527 U.S. at 136 (quoting Ornelas v. United States, 517 U.S. 690, 697 (1996)

(reasonable suspicion and probable cause determinations should be reviewed de

novo)).

Ornelas, 517 U.S.at 696.

Id., 517 U.S. at 697.

necessary. 50 An independent appellate review of the reliability of the sentencing

factfinding—an “evaluative determination” 51—is necessary to “maintain control of,

and to clarify the legal principles” 52 and through that process “unify precedent.” 53

2. In addition,“[r]egarding certain largely factual questions in some areas of

the law, the stakes—in terms of impact on future cases and future conduct—are too

great to entrust them finally to the judgment of the trier of fact.” 54 “Providing clear

legal guidance is particularly important in the area of sentencing, not only because it

involves important interests like liberty, but also because sentencing affects so many

people.” 55

b. Although mixed questions of fact and constitutional law sometimes are

reviewed under a lesser standard, the prototypical example still “involves the

credibility of witnesses and therefore turns largely on an evaluation of demeanor,”

See, e.g., Miller v. Fenton, 474 U.S. at 112-18; Strickland v. Washington, 466 U.S.

668, 698 (1984) (effective assistance of counsel); United States v. White, 620 F.3d

401, 405 (4th Cir. 2010) (forced medication to restore competency); United States

v. Swanson, 341 F.3d 524, 528 (6th Cir. 2003) (whether suspect is in custody).

Randall H. Warner, All Mixed Up about Mixed Questions, 7 J. APP. PRAC. &

PROCESS 101, 143-144 (2005).

Ornelas, 517 U.S.at 698.

Id. See also Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436

(2001) (de novo review “helps to assure the uniform general treatment of similarly

situated persons that is the essence of law itself”).

Bose Corp. v. Consumers Union, 466 U.S. 485, 501 n.17 (1984).

Hessick & Hessick, Appellate Review of Sentencing Decisions, 60 ALA. L. REV. at

33.

where “there are compelling and familiar justifications for leaving the process of

applying law to fact to the trial court.” 56 Here, however, the district court refused to

observe the unsentenced cooperators, let alone allow for their cross-examination. 57

c. Finally, “frequently recurring fact patterns warrant specific judicial norm

elaboration rather than being left to the trier of fact under a more general

standard.” 58 That perspective also aptly fits this case because so many post-plea

sentencings are a function of a district court’s dwelling on the “evidence” of hearsay

interviews of unsentenced cooperators of questionable credibility that are presented

through “clean-cut government agents,” officers who “undoubtedly would have been

consistent and confident in answering questions.” 59 As the D.C. Circuit recognized

in the context of a trial, when the government presents the “story” of a “less-thanreputable convict . . . sitting in a federal institution” through a “clean-cut FBI agent,”

Thompson v. Keohane, 516 U.S. 99, 111 (1995); Miller, 474 U.S. at 114; see also 2

Steven A. Childress & Martha S. Davis, FEDERAL STANDARDS OF REVIEW, § 7.05 at

20 (4th ed. 2010).

The District Court below asserted that only the Ninth Circuit, which it incorrectly

described as “reversed 80 percent of the time,” might object to a sentencing

hearing based exclusively on agents’ hearsay. [MB:6-7].

Henry P. Monaghan, Constitutional Fact Review, 85 COLUM. L. REV. 229, 267

(1985). See also Joseph T. Sneed, Trial-Court Discretion: Its Exercise by Trial

Courts and Its Review by Appellate Courts, 13 J. APP. PRAC. & PROCESS 201, 204

(2012) (“Issues that pertain to determining the scope and nature of constitutional

rights” should not be subject to trial court discretion).

Deborah Young, Fact-Finding at Federal Sentencing: Why the Guidelines Should

Meet the Rules, 79 CORNELL L. REV. at 345 (emphasizing importance of having

“firsthand testimony” subject to cross-examination as the basis for reliable

factfinding at sentencing).

“[c]ross-examination may be the ‘greatest legal engine ever invented for the discovery

of truth,’ but it is not of much use if there is no one to whom it can be applied. 60

United States v. Evans, 216 F.3d 80, 85 (D.C. Cir. 2000) (quoting California v.

Green, 399 U.S. 149, 158 (1970)).

IV.

This case is a good vehicle for review.

The district judge’s decision is a direct function of rank unsworn unobserved

hearsay from sources that the courts have long found to present reliability issues. 61

Each unseen unsentenced cooperator “may very well have been hoping to curry favor

with law enforcement officials” by implicating Petitioner. 62 In addition, there is a

“time-honored teaching,” fully applicable to the sentencing phase, “that a codefendant’s confession inculpating the accused is inherently unreliable” 63 and should

be viewed with “‘special suspicion.’” 64 Use of the abuse of discretion standard in these

analogous circumstances sidestepped those inconvenient truths.

a. “It is difficult to imagine a greater motivation to lie than the inducement of

a reduced sentence,” and while “courts uniformly hold that such a witness may testify

so long as the government's bargain with him is fully ventilated so that the jury can

United States v. McGowan, 668 F.3d 601, 607 (9th Cir. 2012) (“Most important, the

sentencing judge had no opportunity to observe Seevers in order to evaluate his

credibility, and no one representing McGowan’s interests ever had an opportunity

to cross-examine Seevers”).

United States v. Huckins, 53 F.3d 276, 279 (9th Cir. 1995). See also United States

v. Corral, 172 F.3d 714, 716 (9th Cir. 1999) (due process violated following guilty

plea by reliance on absent accomplice).

Lee v. Illinois, 476 U.S. 530, 546 (1986); United States v. Pimentel-Lopez, 859 F.3d

1134, 1143-1144 (9th Cir. 2017).

64 United States v. Gomez-Lemos, 939 F.2d 326, 330 (6th Cir.1991) (quoting Lee, 476

U.S. at 541). See also Northern Marianas Islands v. Bowie, 243 F.3d 1109, 1124

(9th Cir. 2001) (“[each contract for testimony is fraught with the real peril that the

proffered testimony will not be truthful, but simply factually contrived to ‘get’ a

target of sufficient interest to induce concessions from the government.”).

evaluate his credibility,” 65 that evaluation did not occur here—certainly not by the

district judge, who “[found] these reports credible for the additional reason that the

witnesses had firsthand knowledge.” 66 Calling those invisible people “witnesses”

further confirms that deferential review should only be provided where sentencing

resembles a real evidentiary hearing. That was not true here:

b. The district judge’s terse findings also reflect no discussion about whether

the agents had unwittingly alerted the cooperators to alter or conform their stories to

the government’s theory. 67 And agents themselves can lose objectivity. 68 Precluding

the defense from cross-examining the cooperators over these issues only added to the

deficits identified above.

The underlying sentencing hearing featured recognized harbingers of

unreliability: no oath; no genuine opportunity to cross-examine; no opportunity to

“observe the declarant’s demeanor”; no consideration of contradicting evidence; and

no “distinct findings regarding the reliability of the hearsay evidence” presented. 69

United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987) (en banc)

(citation omitted).

Id. at 316.

Hon. Stephen S. Trott, Words of Warning for Prosecutors Using Criminals as

Witnesses, 47 HASTINGS L.J. 1381, 1403-04 (1996).

Andrew E. Taslitz, Prosecuting the Informant Culture, 109 MICH. L. REV. 1077,

1083 (2011).

United States v. Pimentel-Lopez, 828 F.3d 1173 (9th Cir. 2016), amended op., 859

F.3d 1134, 1143-1144 (9th Cir. 2017); United States v. Hope, 686 Fed. App’x 623,

626, 629-630 (11th Cir. 2017) (reversing upwards variance based on agents’

relating unsworn hearsay); McGowan, 668 F.3d at 607.

Further proof beyond the vague and contradictory hearsay used to justify the

leadership enhancement imposed by the district court demonstrates the outcomedeterminative effect of a proper standard of review. A de novo standard also would

have found the bribery enhancement unreliable for constitutional purposes because

none of the unseen cooperators claimed to have seen Petitioner bribe public officials. 70

And had a de novo standard been used, it would have been exceedingly difficult to

characterize as constitutionally reliable a determination that Petitioner had engaged

in violence when one of the invisible cooperators (who supposedly said he only met

Petitioner three times over the years) evidently had said nothing about that to the

agents; the second (who only met Petitioner once) purportedly said that someone else

had told him further hearsay about violence; and the third was a confirmed addict

who offered only vague allegations. 71 Furthermore, the district court appears to have

forgotten that during the hearings it had expressed skepticism over one cooperator’s

purported ability to reconstruct events that supposedly occurred a decade or more

earlier. 72

Finally, the Court of Appeals recognized that Petitioner had raised what it

described as “a serious ex post facto issue” of plain error centering on evidence that

three of the five sentencing enhancements found by the district court appeared to be

[MB:23-24].

[MB:21-22].

[MB:9]. That cooperator was the one who was convicted of attempting to bribe a

Bureau of Prisons official while under a cooperation agreement.

based on claims that predated those enhancements’ adoption. 73 But for the appellate

court’s application of a “gentle” standard of review, one designed for situations in

which the witnesses are not proxies, this grave constitutional consideration and the

extent to which Petitioner’s Base Offense Level was artificially inflated by six levels,

also would have been addressed.

CONCLUSION

The issues presented are growing exponentially as more federal defendants

plead guilty and are sentenced in the manner that was used here. Petitioner has

identified important concerns which call for a uniform reconciliation of the standard

of review used to assess due process claims that a sentencing factfinding was

unreliable. The Court should grant this Petition.

Respectfully submitted,

/s/ Stephen c. Leckar*