Reply Brief — Michael J. Baxter, Petitioner v. United States

No. 19-6647

IN THE

SUPREME COURT OF THE UNITED STATES

MICHAEL J. BAXTER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the Eleventh Circuit Court of Appeals

PETITIONER’S REPLY TO BRIEF IN OPPOSITION

MICHAEL UFFERMAN

Michael Ufferman Law Firm, P.A.

2022-1 Raymond Diehl Road

Tallahassee, Florida 32308

(850) 386-2345/fax (850) 224-2340

FL Bar No. 114227

Email: ufferman@uffermanlaw.com

COUNSEL FOR THE PETITIONER

A. TABLE OF CONTENTS AND TABLE OF AUTHORITIES

1.

TABLE OF CONTENTS

A.

TABLE OF CONTENTS AND TABLE OF AUTHORITIES . . . . . . . . . . . . . . ii

B.

1.

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

2.

Table of Cited Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ii

2.

TABLE OF CITED AUTHORITIES

a.

Cases

Apprendi v. New Jersey, 530 U.S. 466 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Batson v. Kentucky, 476 U.S. 79 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

United States v. Booker, 543 U.S. 220 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6

United States v. Canania, 532 F.3d 764 (8th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Carvajal, No. 04 Cr. 222(AKH), 2005 WL 476125,

2005 U.S. Dist. LEXIS 3076 (S.D.N.Y. Feb. 17, 2005). . . . . . . . . . . . . . . . . . . 5

United States v. Coleman, 370 F. Supp. 2d 661 (S.D. Ohio 2005).. . . . . . . . . . . . . . . 4

United States v. Folk, 754 F.3d 905 (11th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . 1

United States v. Frias, 39 F.3d 391 (2d Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Gray, 362 F. Supp. 2d 714 (S.D. W. Va. 2005). . . . . . . . . . . . . . . . . 4

United States v. Grier, 475 F.3d 556 (3d Cir. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Huerta-Rodriguez, 355 F. Supp. 2d 1019 (D. Neb. 2005). . . . . . . . 4-5

United States v. Ibanga, 454 F. Supp. 2d 532 (E.D. Va. 2006). . . . . . . . . . . . . . . . . . 3

United States v. Kandirakis, 441 F. Supp. 2d 282 (D. Mass. 2006). . . . . . . . . . . . . 3-4

United States v. Papakee, 573 F.3d 569 (8th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . 5-6

United States v. Pimental, 367 F. Supp. 2d 143 (D. Mass. 2005). . . . . . . . . . . . . . . . 4

United States v. Scheiblich, 346 F. Supp. 3d 1076 (S.D. Ohio 2018). . . . . . . . . . . . . 7

United States v. Scheiblich, 2019 WL 4254615 (6th Cir. Sep. 9, 2019). . . . . . . . . . . 7

United States v. Watts, 519 U.S. 148 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3, 5-7

United States v. Wendelsdorf, 423 F. Supp. 2d 927, 936-939 (N.D. Iowa 2006). . . . . 4

iii

Witte v. United States, 515 U.S. 389 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

b.

Other Authority

Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable

Limits on the Discretion of Sentencers, 101 Yale L.J. 1681 (1992). . . . . . . . . . 6

U.S. Const. amend V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6

U.S. Const. amend VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3-7

iv

B. ARGUMENT

The questions presented are important.

1.

Whether striking two out of three black veniremembers

demonstrates a “pattern of discrimination” as necessary to satisfy the first

step of the inquiry pursuant to Batson v. Kentucky, 476 U.S. 79 (1986).

The Petitioner continues to rely on the arguments set forth in his certiorari

petition in support of his assertion that the Government in this case failed to make a

prima facie showing that defense counsel’s peremptory challenge of Juror M. was

exercised on the basis of race (the first step of the Batson inquiry). As explained by the

district court during the jury selection proceeding, the panel in this case had three

African-Americans: Juror C., Juror H., and Juror M. Although defense counsel struck

Juror C. and he attempted to strike Juror M., defense counsel did not strike Juror H.

See United States v. Folk, 754 F.3d 905, 914 (11th Cir. 2014) (“Thomas was one of only

three black veniremembers, and one of these three was ultimately seated on the jury.

The striking of two out of three black veniremembers does not demonstrate a pattern

of discrimination . . . .”). By granting the certiorari petition in this case, the Court will

have the opportunity to specifically address what constitutes “a prima facie showing

that a peremptory challenge has been exercised on the basis of race” for purposes of

step one of the Batson inquiry. This issue has the potential to affect a substantial

number of cases in every jurisdiction.

2.

Whether a sentence based on acquitted conduct violates the Sixth

Amendment to the Constitution.

For all of the reasons set forth in the certiorari petition, undersigned counsel

1

asserts that the Petitioner’s case is the appropriate case for the Court to reconsider its

holding in United States v. Watts, 519 U.S. 148, 157 (1997). As explained in the

certiorari petition, the Petitioner was charged with unjustified use of force (count 1)

and falsifying records (count 2). At the conclusion of the trial, the jury found the

Petitioner not guilty of count 1 and guilty of count 2. The recommended sentencing

range pursuant to the United States Sentencing Guidelines was an imprisonment

range of 46 months to 57 months. However, at the sentencing hearing, the district

court imposed an upward variance sentence of 60 months’ imprisonment. (A-19-26).1

In doing so, the district court relied on “acquitted conduct” (i.e., the conduct that

formed the basis for count 1 – even though the jury acquitted the Petitioner of that

count):

!

“But I do find that [Darren Glover] was not disruptive to the point

that any physical force properly could be used against him. He

didn’t try to assault Mr. Baxter. Mr. Baxter was behind the desk

and came around, and force was used against Mr. Glover for no

reason at all. My finding is that Mr. Baxter willfully inflicted

unnecessary brutal force and badly injured Mr. Glover . . . .”;

!

“As I noted earlier, the Supreme Court has made clear that

acquitted conduct can properly be considered, and that’s so here.

So I do consider the force that was used against Mr. Glover.”;

1

References to the appendix to the certiorari petition will be made by the

designation “A” followed by the appropriate page number.

2

!

“This is a case where deterrence may have an effect. . . . [T]here are

people in the Department of Corrections that know that unlawful

force is sometimes used, and they need to find out that the

punishment for doing it, that the punishment for giving – making

false reports is substantial.”

(A-37-40) (emphasis added).

Undersigned counsel submits that it is appropriate for the Court to reconsider

the validity of Watts in light of the Court’s recent Sixth Amendment holdings.

Undersigned counsel again notes that a number of district courts have refused to

consider acquitted conduct when calculating a reasonable sentence. See, e.g., United

States v. Ibanga, 454 F. Supp. 2d 532, 536 (E.D. Va. 2006) (“Sentencing a defendant

to time in prison for a crime that the jury found he did not commit is a Kafka-esque

result.”);2 United States v. Kandirakis, 441 F. Supp. 2d 282, 321-329 (D. Mass. 2006)

(submitting all enhancement facts, including acquitted conduct, to an advisory jury at

2

In Ibanga, the court explained that “Justice Stevens’s constitutional majority

opinion in United States v. Booker, 543 U.S. 220 (2005), expressly questioned the

continuing validity of Watts”:

Justice Stevens’s constitutional majority opinion states, “in neither Witte

[v. United States, 515 U.S. 389 (1995),] nor Watts was there any

contention that the sentencing enhancement had exceeded the sentence

authorized by the jury verdict in violation of the Sixth Amendment.”

Booker, 543 US. at 240. Justice Stevens further noted that Watts

“presented a very narrow question regarding the interaction of the

Guidelines with the Double Jeopardy Clause, and did not even have the

benefit of full briefing or oral argument.” Id. at 240 n.4 (citation omitted).

Ibanga, 454 F. Supp. 2d at 536 & n.3.

3

sentencing); United States v. Wendelsdorf, 423 F. Supp. 2d 927, 936-939 (N.D. Iowa

2006) (rejecting as an abomination the government’s proposed sentence increase based

on acquitted conduct); United States v. Coleman, 370 F. Supp. 2d 661, 668 (S.D. Ohio

2005) (“At sentencing, acquitted conduct should always be considered using a

reasonable doubt standard; otherwise, a defendant’s Sixth Amendment right to a jury

trial is eviscerated.”); United States v. Pimental, 367 F. Supp. 2d 143, 150 (D. Mass.

2005) (“It makes absolutely no sense to conclude that the Sixth Amendment is violated

whenever facts essential to sentencing have been determined by a judge rather than

a jury . . . and also conclude that the fruits of the jury’s efforts can be ignored with

impunity by the judge in sentencing.”);3 United States v. Gray, 362 F. Supp. 2d 714, 720

(S.D. W. Va. 2005) (comparing the Guidelines advice against the beyond a reasonable

doubt result and rejecting the Guidelines advice if it greatly differs from the beyond

a reasonable doubt result); United States v. Huerta-Rodriguez, 355 F. Supp. 2d 1019,

1028 (D. Neb. 2005) (“[T]he court finds that it can never be ‘reasonable’ to base any

significant increase in a defendant’s sentence on facts that have not been proved

3

In Pimental, the court reasoned:

[t]o consider acquitted conduct trivializes “legal guilt” or “legal innocence”

– which is what a jury decides – in a way that is inconsistent with the

tenor of the recent case law. . . . [W]hen a court considers acquitted

conduct it is expressly considering facts that the jury verdict not only

failed to authorize; it considers facts of which the jury expressly

disapproved. . . . To tout the importance of the jury in deciding facts,

even traditional sentencing facts, and then to ignore the fruits of its

efforts makes no sense – as a matter of law or logic.

Pimental, 367 F. Supp. 2d at 152-153.

4

beyond a reasonable doubt.”); United States v. Carvajal, No. 04 Cr. 222(AKH), 2005 WL

476125, *4, 2005 U.S. Dist. LEXIS 3076, at *10-11 (S.D.N.Y. Feb. 17, 2005) (“I declined

to accept the Government’s argument that, notwithstanding the jury’s verdict that

Carvajal was not guilty of actually distributing crack, I should nevertheless consider

that the acts necessary for completing the substantive crimes were proved by a

preponderance of the evidence.”).4

The Petitioner continues to assert that his Sixth Amendment rights were

violated when the district court considered acquitted conduct in calculating/imposing

the sentence in this case. As explained by Judge Ambro, the decision in Watts is in

tension with Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny:

[E]ven if the specific holding of Watts survives the Supreme Court’s

Apprendi jurisprudence, the practice of considering acquitted conduct

might not. That is, even if considering acquitted conduct for sentencing

purposes does not violate the Double Jeopardy or Due Process Clause of

the Fifth Amendment, doing so might still violate the jury right of the

Sixth Amendment as expounded by Apprendi and its progeny.

United States v. Grier, 475 F.3d 556, 586 n.34 (3d Cir. 2007) (Ambro, J., concurring).

And as explained by Judge Bright in his concurring opinion in United States v.

Papakee, 573 F.3d 569, 577 (8th Cir. 2009):

I join the majority’s ultimate conclusion in these appeals, but write

separately to voice my opposition to the use of acquitted conduct in

determining Blackcloud’s sentence.

I concur, rather than dissent, because I am bound by prior

decisions of this circuit that expressly permit a district court to use

4

See also United States v. Frias, 39 F.3d 391, 393 (2d Cir. 1994) (Oakes, J.,

concurring) (calling acquitted conduct rulings a jurisprudence reminiscent of Alice in

Wonderland: “As the Queen of Hearts might say, ‘Acquittal first, sentence

afterwards.’” ).

5

acquitted conduct at sentencing. But I am aware of no post-Booker

authority from the Supreme Court that authorizes the use of acquitted

conduct.

Not long ago, I wrote extensively that the use of acquitted conduct

violates the Sixth Amendment. See United States v. Canania, 532 F.3d

764, 776 (8th Cir. 2008) (Bright, J., concurring) (noting the Supreme

Court’s affirmation of the centrality of the jury in the criminal-justice

system and that “[a] judge violates a defendant’s Sixth Amendment rights

by making findings of fact that either ignore or countermand those made

by the jury”). I also believe that use of acquitted conduct to enhance a

sentence violates the Due Process Clause of the Fifth Amendment. See

id. at 777 (Bright, J., concurring) (“[T]he consideration of ‘acquitted

conduct’ undermines the notice requirement that is at the heart of any

criminal proceeding.”).

I will not repeat here my concurrence in Canania. But I will

reiterate that “the use of ‘acquitted conduct’ at sentencing in federal

district courts is uniquely malevolent.” Id. (Bright, J., concurring). We

must end the pernicious practice of imprisoning a defendant for crimes

that a jury found he did not commit. It is now incumbent on the Supreme

Court to correct this injustice.

(Bright, J., concurring) (footnote and one citation omitted). See also Daniel J. Freed,

Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion

of Sentencers, 101 Yale L.J. 1681, 1714 (1992) (“Most lawyers, as well as ordinary

citizens unfamiliar with the daily procedures of criminal law administration, are

astonished to learn that a person in this society may be sentenced to prison on the basis

of conduct of which a jury has acquitted him, or on the basis of charges that did not

result in conviction.”) (emphasis added).

The Petitioner respectfully requests the Court to grant his certiorari petition in

order to address the continued validity of Watts. The need for guidance from the Court

on this issue is acute, as the issue has the potential to affect a substantial number of

cases in every jurisdiction. Within the federal judiciary, there is a conflict between

6

circuit courts continuing to permit the consideration of acquitted conduct pursuant to

Watts and district courts refusing to consider acquitted conduct (in light of the Court’s

recent Sixth Amendment decisions).5 The Petitioner prays the Court to grant his

certiorari petition and resolve this conflict.

Respectfully Submitted,

/s/ Michael Ufferman

MICHAEL UFFERMAN

Michael Ufferman Law Firm, P.A.

2022-1 Raymond Diehl Road

Tallahassee, Florida 32308

(850) 386-2345/fax (850) 224-2340

FL Bar No. 114227

Email: ufferman@uffermanlaw.com

COUNSEL FOR THE PETITIONER

5

See United States v. Scheiblich, 346 F. Supp. 3d 1076, 1082 (S.D. Ohio 2018)

(“[T]he Court would be remiss if it did not take the opportunity to note that the use of

conduct neither admitted to by the defendant nor found by the jury creates profoundly

troubling Constitutional issues.”), rev’d, 2019 WL 4254615 (6th Cir. Sep. 9, 2019).

7