Petition for Writ of Certiorari — Laforest Carmichael, aka LaForrest Carmichael, Petitioner v. United States

No. ________________

IN THE SUPREME COURT OF THE UNITED STATES

LAFOREST CARMICHAEL,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

KEVIN L. BUTLER

Federal Public Defender

Northern District of Alabama

DEANNA LEE OSWALD

Assistant Federal Defender

ALEXANDRIA DARBY

Research & Writing Attorney

Counsel of Record

200 Clinton Avenue West

Suite 503

Huntsville, Alabama 35801

256-684-8700

Alex_Darby@fd.org

Counsel for Petitioner

QUESTIONS PRESENTED

Should this Court resolve the current circuit split over whether a

sentencing judge must consider the 18 U.S.C. § 3553(a) sentencing

factors when imposing a sentence for a supervised release violation that

requires mandatory revocation?

Where there is a five-year gap between a supervised release violation

and probation’s petition to revoke release on that violation, and during

that period the supervisee has no other violations, is it substantively

unreasonable to impose a statutory maximum three-year sentence for

the violation?

i

LIST OF RELATED CASES

1. United States v. Carmichael, Case No. 1:98-cr-00024-SLB-SGC-1, U.S. District

Court for the Northern District of Alabama. Judgment entered on February 7,

2019.

2. United States v. Laforest Carmichael, No. 19-10652, U.S. Court of Appeals for the

Eleventh Circuit. Opinion entered on September 26, 2019.

ii

TABLE OF CONTENTS

Question Presented......................................................................................................... i

List of Related Cases ..................................................................................................... ii

Table of Contents ...................................................................................................... iii-iv

Table of Appendices ....................................................................................................... v

Table of Authorities ................................................................................................. vi-vii

Petition for a Writ of Certiorari ................................................................................... 1

Opinion Below ................................................................................................................ 1

Jurisdiction .................................................................................................................... 1

Provisions Involved ........................................................................................................ 2

Statement of the Case ................................................................................................... 5

1. Factual Background ...................................................................................... 5

2. The District Court’s Sentence ....................................................................... 5

3. The Eleventh Circuit’s Affirmance ............................................................... 6

Reasons for Granting the Writ ...................................................................................... 7

I.

The courts of appeal are divided over the first question presented ............ 8

A. The federal Courts of Appeal are divided over whether a district

court must consider the § 3553(a) factors when imposing a

sentence of imprisonment following a mandatory revocation of

supervised release under 18 U.S.C. § 3583(g). ........................................ 8

B. The approach of the Eleventh and Fifth Circuits is wrong, ignores

§ 3583’s place in the broader statutory context of the Sentencing

Reform Act, and leads to absurd results. ................................................ 9

C. The Eleventh Circuit’s approach conflicts with this Court’s

decisions outlining the “reasonableness” review of sentences.............. 13

iii

D. This case provides an ideal vehicle to address this issue. .................... 13

II.

Mr. Carmichael’s sentence is substantively unreasonable, where,

contrary to this Court’s reasoning in United States v. Pepper, the district

court imposed the statutory maximum sentence of incarceration, despite

Mr. Carmichael’s significant rehabilitation during the five years

following the violation....................................................................................... 14

Conclusion .................................................................................................................... 18

iv

TABLE OF APPENDICES

United States v. Carmichael, No. 1:98-cr-00024-SLB-SGC (N.D. Ala. February 7,

2019) (judgment) ................................................................................................... App. A

United States v. Carmichael, No. 19-10652, 777 F. App’x 977 (11th Cir. 2019)

(affirming district court’s judgment) .................................................................... App. B

v

TABLE OF AUTHORITIES

Cases

Page(s)

Gall v. United States, 552 U.S. 38 (2007) ............................................................. 13, 14

Gundy v. United States, 139 S. Ct. 2116 (2019) ......................................................... 10

National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007)....... 10

Pennsylvania v. Sullivan, 302 U.S. 51 (1937) ............................................................ 15

Rita v. United States, 551 U.S. 338 (2007) ................................................................. 13

Tapia v. United States, 564 U.S. 319 (2011) ................................................................. 8

United States v. Booker, 543 U.S. 220 (2005) ............................................................. 13

United States v. Brown, 224 F.3d 1237 (11th Cir. 2000)...................................... 6, 8, 9

United States v. Bryson, 229 F.3d 425 (2d Cir, 2000) ................................................ 15

United States v. Illies, 805 F.3d 607 (5th Cir. 2015) .................................................... 8

United States v. Pepper, 562 U.S. 476 (2011) ....................................................... 14, 15

United States v. Thornhill, 759 F.3d 299 (3d Cir. 2014) .....................................passim

Statutes and Rules of Court

Page(s)

18 U.S.C. § 3231 ............................................................................................................. 2

18 U.S.C. §§ 3551-3586 ................................................................................................ 10

18 U.S.C. § 3553 ....................................................................................................passim

18 U.S.C. § 3582 ....................................................................................................... 3, 12

18 U.S.C. § 3583 ....................................................................................................passim

18 U.S.C. § 3742 ............................................................................................................. 2

28 U.S.C. § 994 ............................................................................................................... 3

vi

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

28 U.S.C. § 1291 ............................................................................................................. 2

Sup. Ct. R. 13 ................................................................................................................. 1

U.S.S.G. Ch. 7 Pt. A. .................................................................................................... 17

Secondary Sources

Page(s)

Scalia & Garner, Reading the Law: The Interpretation of Legal

Texts (2012).................................................................................................................. 10

vii

IN THE SUPREME COURT OF THE UNITED STATES

LAFOREST CARMICHAEL,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner Laforest Carmichael respectfully prays that a writ of certiorari issue

to review the judgment below.

OPINIONS BELOW

The Eleventh Circuit’s decision affirming Mr. Carmichael’s sentence is

unpublished, but is reported at 777 F. App’x 977 (11th Cir. 2019) and appears at

Appendix “B” to the Petition.

JURISDICTION

The Eleventh Circuit affirmed the district court on September 26, 2019. This

Court’s jurisdiction in invoked under 28 U.S.C. § 1254(1). This petition is timely filed

in accordance with Sup. Ct. R. 13.

1

The district court had original subject matter jurisdiction under 18 U.S.C.

§ 3231 and 18 U.S.C. § 3583(e)(2). It entered its judgment revoking Mr. Carmichael’s

supervised release and sentencing him to three years’ imprisonment on February 7,

2019. The Eleventh Circuit had appellate jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a).

PROVISIONS INVOLVED

18 U.S.C. § 3553(a) provides:

(a) Factors to be considered in imposing a sentence.—The court shall impose a

sentence sufficient, but not greater than necessary, to comply with the purposes set

forth in paragraph (2) of this subsection. The court, in determining the particular

sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history and characteristics

of the defendant;

(2) the need for the sentence imposed-(A) to reflect the seriousness of the offense, to promote respect for the law, and

to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training,

medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for-(A) the applicable category of offense committed by the applicable category

of defendant as set forth in the guidelines—

(i) issued by the Sentencing Commission pursuant to section

994(a)(1) of title 28, United States Code, subject to any amendments

made to such guidelines by act of Congress (regardless of whether

such amendments have yet to be incorporated by the Sentencing

2

Commission into amendments issued under section 994(p) of title

28); and

(ii) that, except as provided in section 3742(g), are in effect on the

date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the

applicable guidelines or policy statements issued by the Sentencing

Commission pursuant to section 994(a)(3) of title 28, United States

Code, taking into account any amendments made to such guidelines or

policy statements by act of Congress (regardless of whether such

amendments have yet to be incorporated by the Sentencing

Commission into amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement—

(A)

issued by the Sentencing Commission pursuant to section 994(a)(2) of

title 28, United States Code, subject to any amendments made to

such policy statement by act of Congress (regardless of whether such

amendments have yet to be incorporated by the Sentencing

Commission into amendments issued under section 994(p) of title 28);

and

(B) that, except as provided in section 3742(g), is in effect on the date the

defendant is sentenced

(6) the need to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3582(a) provides:

Factors to be considered in imposing a term of imprisonment.—The court, in

determining whether to impose a term of imprisonment, and, if a term of

imprisonment is to be imposed, in determining the length of the term, shall

consider the factors set forth in section 3553(a) to the extent that they are

applicable, recognizing that imprisonment is not an appropriate means of

promoting correction and rehabilitation. In determining whether to make a

recommendation concerning the type of prison facility appropriate for the

defendant, the court shall consider any pertinent policy statements issued by the

Sentencing Commission pursuant to 28 U.S.C. 994(a)(2).

18 U.S.C. § 3583(e) and (g) provide:

3

(e) Modification of conditions or revocation.—The court may, after considering the

factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(D), (a)(4), (a)(5), (a)(6), and

(a)(7)—

(1) terminate a term of supervised release and discharge the defendant released

at any time after the expiration of one year of supervised release, pursuant to

the provisions of the Federal Rules of Criminal Procedure relating to the

modification of probation, if it is satisfied that such action is warranted by the

conduct of the defendant released and the interest of justice;

(2) extend a term of supervised release if less than the maximum authorized

term was previously imposed, and may modify, reduce, or enlarge the conditions

of supervised release, at any time prior to the expiration or termination of the

term of supervised release, pursuant to the provisions of the Federal Rules of

Criminal Procedure relating to the modification of probation and the provisions

applicable to the initial setting of the terms and conditions of post-release

supervision;

(3) revoke a term of supervised release, and require the defendant to serve in

prison all or part of the term of supervised release authorized by statute for the

offense that resulted in such term of supervised release without credit for time

previously served on postrelease supervision, if the court, pursuant to the

Federal Rules of Criminal Procedure applicable to revocation of probation or

supervised release, finds by a preponderance of the evidence that the defendant

violated a condition of supervised release, except that a defendant whose term is

revoked under this paragraph may not be required to serve on any such

revocation more than 5 years in prison if the offense that resulted in the term of

supervised release is a class A felony, more than 3 years in prison if such offense

is a class B felony, more than 2 years in prison if such offense is a class C or D

felony, or more than one year in any other case; or

(4) order the defendant to remain at his place of residence during nonworking

hours and, if the court so directs, to have compliance monitored by telephone or

electronic signaling devices, except that an order under this paragraph may be

imposed only as an alternative to incarceration.

[…]

(g) Mandatory revocation for possession of controlled substance or firearm or for

refusal to comply with drug testing.--If the defendant—

(1) possesses a controlled substance in violation of the condition set forth in

subsection (d);

(2) possesses a firearm, as such term is defined in section 921 of this title, in

violation of Federal law, or otherwise violates a condition of supervised release

prohibiting the defendant from possessing a firearm;

4

(3) refuses to comply with drug testing imposed as a condition of supervised

release; or

(4) as a part of drug testing, tests positive for illegal controlled substances more

than 3 times over the course of 1 year;

the court shall revoke the term of supervised release and require the defendant to

serve a term of imprisonment not to exceed the maximum term of imprisonment

authorized under subsection (e)(3).

STATEMENT OF THE CASE

1. Factual Background.

In 2014, Mr. Carmichael violated his supervised release by committing various

state-court offenses—trafficking in marijuana, possessing a firearm as a prohibited

person, possessing oxycodone and methamphetamine, and possessing drug

paraphernalia. Under 18 U.S.C. § 3583(g), these offenses required mandatory

revocation of his federal supervised release. Instead of immediately petitioning for

revocation, the probation officer waited five years, until January 2019.

During the five years that his state charges were pending, Mr. Carmichael was

released on bond. He reported to his federal probation officer, had clean drug screens,

and worked consistently to support his family. By the time of his final revocation

hearing in 2019, Mr. Carmichael had become engaged to a woman he had been dating

for over four years and they had a five-month-old baby together. Mr. Carmichael had

also maintained relationships with his adult children, even assisting his son adjust

to lifestyle changes that accompanied the loss of his son’s foot.

2. The District Court’s Sentence

At the revocation hearing, Mr. Carmichael stipulated to the violations of his

supervised release. It was undisputed that he had no additional violations since 2014.

5

Mr. Carmichael argued that time-served sentence was appropriate. Mr. Carmichael

recognized the seriousness of his offenses, but argued that his self-rehabilitation

showed that a lower sentence was appropriate. Citing to the recently-passed First

Step Act, he further argued that he had overserved his original sentence by nearly

four years. The court, however, sentenced him to a 36-month term of imprisonment,

the statutory maximum sentence, with no supervision to follow.

3. The Eleventh Circuit’s Affirmance

Mr. Carmichael appealed his sentence to the Eleventh Circuit, arguing that

his sentence was substantively unreasonable because it did not reflect his substantial

self-rehabilitation in the years following his violations. The Eleventh Circuit affirmed

Mr. Carmichael’s sentence, holding that the district court was not required to

consider the 18 U.S.C. § 3553(a) sentencing factors here, because Mr. Carmichael

faced mandatory revocation under 18 U.S.C. § 3583(g). The Court, relying on its

earlier decision in United States v. Brown, 224 F.3d 1237 (11th Cir. 2000), reasoned

that, “[i]ndeed, when a defendant is sentenced to a mandatory term of imprisonment

pursuant to § 3583(g), the only limitation is that the term of imprisonment must not

‘exceed the maximum term of imprisonment authorized under § 3583(e)(3), which is

three years’ imprisonment when the original underlying offense was a Class B

felony.” Pet’r App. B, 3 (quotation and alteration omitted). The Court concluded that

Mr. Carmichael’s claim that the district court erred in weighing the § 3553(a) factors

was “irrelevant” because the court was not required to consider those factors at all.

Id. at 4. The Court further reasoned that Mr. Carmichael’s sentence was, in any

6

event, reasonable, because the district court considered and rejected Mr.

Carmichael’s arguments regarding his sentence. Id. at 4-5.

REASONS FOR GRANTING THE PETITION

Mr. Carmichael’s petition provides this Court with an ideal vehicle to resolve

a current circuit split over whether a district court must consider the 18 U.S.C.

§ 3553(a) sentencing factors when imposing a sentence for a violation of supervised

release that mandates revocation. The question is an important one because federal

district courts revoke supervised release in many cases each year and the Eleventh

Circuit is entrenched in its position that where revocation is mandatory, the

sentencing judge may select any sentence for any reason. The “only limitation” in the

Eleventh Circuit is that the sentence may not exceed the statutory maximum. Under

this standard, a sentencing judge could select a particular sentence on the basis that

the offense was committed on a Tuesday, or because the defendant’s hair was blonde,

or for any other equally arbitrary reason. This absurd reading of the statute, which

has created a circuit split, calls for this Court to intervene.

The first question presented is also dispositive in this case because, under the

§ 3553(a) factors, Mr. Carmichael’s three-year sentence is patently unreasonable. The

district court ignored this Court’s directive that a sentence must be based on the

defendant, as he appears on the day of sentencing, because the district court gave

virtually no weight to Mr. Carmichael’s five-year period of substantial selfrehabilitation.

7

I. The courts of appeal are divided over the first question presented.

A. The federal Courts of Appeal are divided over whether a district

court must consider the § 3553(a) factors when imposing a sentence of

imprisonment following a mandatory revocation of supervised release

under 18 U.S.C. § 3583(g).

The federal Courts of Appeal are currently split on whether a district court

must consider the § 3553(a) factors when imposing a sentence upon supervised

release. The Eleventh and Fifth Circuits have held that a district court is not required

to consider the statutory sentencing factors. See United States v. Brown, 224 F.3d

1237, 1241 (11th Cir. 2000) (abrogated on other grounds by Tapia v. United States,

564 U.S. 319 (2011); United States v. Illies, 805 F.3d 607, 609 (5th Cir. 2015) (“When

revoking a term of supervised release under § 3583(g), the district court may consider

the § 3553(a) factors in determining the length of the resulting sentence, but is not

required to do so.”). The Third Circuit, on the other hand, has held that a district

court must consider the § 3553(a) factors when imposing a sentence on mandatory

revocation of supervised release. United States v. Thornhill, 759 F.3d 299, 309 (3d

Cir. 2014). The three circuits to have decided this issue are firmly entrenched in their

contrary positions. The question presented therefore needs resolution by this Court.

And because of the importance of this federal question, affecting thousands of

defendants each year, this Court should not wait for other circuits to weigh in before

granting certiorari to resolve it.

8

B. The approach of the Eleventh and Fifth Circuits is wrong, ignores

§ 3583’s place in the broader statutory context of the Sentencing

Reform Act, and leads to absurd results.

Congress has made clear that, when imposing a sentence of imprisonment, a

district court must look to the sentencing factors found in 18 U.S.C. § 3553(a). But

the Eleventh Circuit has held that a sentencing court is not required to perform that

analysis in one type of case—the imposition of a term of imprisonment following a

mandatory revocation of supervised release, pursuant to 18 U.S.C. § 3583(g). In so

ruling, the Eleventh Circuit further entrenches itself in a split among several federal

Courts of Appeal. Moreover, in so holding, the Eleventh Circuit ignores § 3583(g)’s

place within the broader context of the Sentencing Reform Act. Reviewing § 3583(g)

in its broader statutory context shows that, in mandatory revocation proceedings,

while the sentencing factors do not apply to a district court’s determination of

whether to revoke a defendant’s supervised release, they apply in determining the

appropriate sentence. Finally, this Court’s rulings show that the § 3553(a) factors

apply in such proceedings, because this Court has framed appellate review of the

reasonableness of a sentence around these factors.

Reading

§ 3583(g) in its broader statutory context makes clear that a

sentencing court must consider the statutory sentencing factors before imposing a

sentence of imprisonment, even if revocation is mandatory. In its decisions holding to

the contrary, the Eleventh Circuit reasons that mandatory revocation of supervised

release does not require the consideration of the § 3553(a) factors because, unlike

§ 3583(e), the provision governing discretionary revocation, § 3583(g) does not

expressly reference the § 3553(a) factors. Brown, 224 F.3d at 1240-42. But this

9

interpretation of § 3583(g) reads the words of § 3583 in a vacuum, focusing only on

the reference to the § 3553(a) factors in § 3583(e) and the lack of reference to those

factors in § 3583(g). Such a reading ignores: (1) key procedural differences in

mandatory and discretionary revocation proceedings and (2) § 3583’s place in the

overall Sentencing Reform Act. Instead, “the text and structure of § 3583 and the

Sentencing Reform Act require a district court to consider the sentencing factors in

§ 3553(a) in determining the duration of the term of imprisonment imposed under the

mandatory revocation provision in § 3583(g).” Thornhill, 759 F.3d at 309.

Courts do not construe the words of a statute in a vacuum. Gundy v. United

States, 139 S. Ct. 2116, 2126 (2019). “It is a fundamental canon of statutory

construction that the words of a statute must be read in their context and with a view

to their place in the overall statutory scheme.” Id. (quoting National Assn. of Home

Builders v. Defenders of Wildlife, 551 U.S. 644, 666 (2007)). This is because “[c]ontext

is a primary determinant of meaning.” Scalia & Garner, Reading the Law: The

Interpretation of Legal Texts 167 (2012). Because statutes often contain many

interrelated parts comprising the whole, the entirety of a statute provides the context

for each of its parts. Id. Thus, § 3583(g), cannot be analyzed in a vacuum. Instead,

this Court must look to that subsection in the context of both § 3583 as a whole and

the Sentencing Reform Act, 18 U.S.C. §§ 3551-3586.

A complete reading of § 3583 shows that, while a court is not required to

consider the § 3553(a) factors in deciding whether to revoke supervised release where

revocation is mandated by § 3583(g), the court must still consider the factors in

10

imposing an appropriate sentence. Section 3583 governs federal supervised release

and sets forth two types of revocation—mandatory and discretionary. Under

§ 3583(e), discretionary review, “The court may, after considering the factors set forth

in § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)”—

terminate supervised release, extend supervised release, revoke a term of supervised

release and impose a sentence of imprisonment, or order the defendant be placed on

home detention and location monitoring. Under the mandatory revocation scheme,

the court is required to revoke supervised release if a defendant possesses a controlled

substance, possesses a firearm, refuses to comply with drug testing, or tests positive

for drugs more than three times in one year. 18 U.S.C. § 3583(g).

Accordingly, these statutes set out two methods for a court to assess a person

on supervised release. Discretionary revocation involves a three-step process: (1) the

court must decide whether a defendant violated the conditions of his supervised

release; (2) the court must, after considering the § 3553(a) factors, determine whether

to revoke the defendant’s supervised release; and (3) if the court chooses to revoke

supervised release, then it must decide the appropriate term of imprisonment. 18

U.S.C. § 3583(e); Thornhill, 759 F.3d at 308.

On the other hand, mandatory

revocation cuts out the second step, requiring only that the court: (1) decide whether

the defendant violated supervised release in one of four specific ways; and (2) impose

a “term of imprisonment.” 18 U.S.C. § 3583(g); Thornhill, 759 F.3d at 308.

Reading the statutory text of § 3583 together then, where revocation of

supervised release is discretionary, a district court must look to the § 3553(a) factors

11

to determine whether revocation of supervised release is appropriate. Of course, a

court need not consider the § 3553(a) factors to determine whether to revoke

supervised release where revocation is mandatory—the court must revoke supervised

release where the requisite conditions are met. But this does not mean that the

§ 3553(a) factors play no role in the court’s determination of an appropriate sentence

following mandatory revocation.

In fact, other provisions of the Sentencing Reform Act show the opposite.

Section 3583(g) requires the district court to impose a “term of imprisonment.” That

penalty is a common component of most sentences imposed following a conviction.

Thornhill, 759 F.3d at 309. Nothing in § 3583(g) suggests that the court must stray

from its typical role in imposing a term of imprisonment, as set out in § 3582(a). That

section requires that, “if a term of imprisonment is to be imposed, in determining the

length of the term, [the court] shall consider the factors set forth in section 3553(a) to

the extent that they are applicable ….”

In reviewing § 3583(g) within statutory context, the Third Circuit noted that

nothing in the language of § 3553(a) limits its application in mandatory revocation

proceedings. Thornhill, 759 F.3d at 309. “Nor does § 3582(a) include language

concerning the factors to be considered in determining the length of a term of

imprisonment that renders § 3553(a) inapplicable to a mandatory revocation

proceeding.” Id. Accordingly, “the text and structure of § 3583 and the Sentencing

Reform Act require a district court to consider the sentencing factors in § 3553(a) in

12

determining the duration of the term of imprisonment imposed under the mandatory

revocation provision of § 3583(g).” Id.

C. The Eleventh Circuit’s approach conflicts with this Court’s

decisions outlining the “reasonableness” review of sentences.

The Eleventh Circuit’s holding that a sentencing court is not required to

consider the § 3553(a) factors predates this Court’s decision in United States v.

Booker, 543 U.S. 220 (2005), and thus does not account for the myriad of decisions

from this Court outlining the appropriate appellate review of a sentence. Those

decisions setting forth the standard of substantive reasonableness review frame the

appellate analysis around the § 3553(a) factors. See Gall v. United States, 552 U.S.

38 (2007) (assessing the reasonableness of a sentence in light of the § 3553(a) factors);

Rita v. United States, 551 U.S. 338 (2007) (same). Because appellate review of the

reasonableness of a sentence is framed around the § 3553(a) factors, holding that a

sentencing court is not required to consider these factors in imposing a sentence in a

mandatory revocation proceeding insulates such sentences from appellate review.

D. This case provides an ideal vehicle to address this issue.

This case provides the ideal vehicle to resolve the question presented. The

arguments on both sides of the circuit split are fully developed. The Eleventh Circuit

analyzed the issue in Brown and the Third Circuit analyzed the issue extensively in

Thornhill. Moreover, this case presents an important issue of federal law, as the

Eleventh Circuit’s current ruling effectively precludes substantive reasonableness

review of sentences imposed in mandatory revocation proceedings.

13

In

this

case,

the

Eleventh

Circuit

did

address

Mr.

Carmichael’s

unreasonableness claim. But that does not preclude this Court’s review, because, as

explained below, the Eleventh Circuit incorrectly concluded that Mr. Carmichael’s

sentence was substantively reasonable.

II. Mr. Carmichael’s sentence is substantively unreasonable, where,

contrary to this Court’s reasoning in United States v. Pepper, the district

court imposed the statutory maximum sentence of incarceration, despite

Mr. Carmichael’s significant rehabilitation during the five years following

the violation.

To be substantively reasonable, a sentence imposed must be sufficient, but not

greater than necessary to serve the purposes set forth in 18 U.S.C. § 3553(a): (1) the

nature and circumstances of the offense and the history and characteristics of the

defendant; (2) the need for the sentence imposed: (a) to afford adequate deterrence,

(b) to protect the public, (c) to effectively provide needed correctional treatment; (3)

the types of sentences available; (4) the sentencing range established by the

Sentencing Guidelines; (5) pertinent policy statements from the Sentencing

Commission; (6) the need to avoid unwarranted sentencing disparities; and (7) the

need to provide restitution to any victims. 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)(7); 18 U.S.C. § 3583(e). It is key that a sentencing court impose a sentence that is not

greater than necessary to comply with the relevant sentencing factors, because “[a]

sentence of imprisonment may work to promote not respect, but derision, of the law

if the law is viewed as merely a means to dispense harsh punishment without taking

into account the real conduct and circumstances involved in sentencing.” Gall, 552

U.S. at 54.

14

When sentencing a defendant, a court must “sentence the defendant as he

stands before the court on the day of sentencing.” United States v. Pepper, 562 U.S.

476, 492 (2011) (quoting with approval United States v. Bryson, 229 F.3d 425, 426 (2d

Cir, 2000)). In Pepper, this Court held that a district court imposing a new sentence

on remand could consider a defendant’s post-sentencing rehabilitative conduct. Id. at

493. Following his release from prison at the expiration of his original sentence, Mr.

Pepper’s conduct changed drastically—he had been drug-free for almost five years,

he had excelled both at college and in his employment, he had re-established a

relationship with his estranged father, he had married, and had begun supporting

his stepdaughter. Id. at 492. This Court recognized that this postsentencing conduct

undoubtedly shed light on critical § 3553(a) factors, including Mr. Pepper’s history

and characteristics, the likelihood he would engage in future criminal conduct, and

the diminished need for educational and vocational training. Id. The Court reasoned

that his “exemplary postsentencing conduct may be taken as the most accurate

indicator of ‘his present purposes and tendencies and significantly to suggest the

period of restraint and the kind of discipline that ought to be imposed upon him.’” Id.

at 492-93 (quoting Pennsylvania v. Sullivan, 302 U.S. 51, 55, 58 (1937)).

In imposing the statutory maximum sentence, the district court failed to

consider Mr. Carmichael as he stood before the court on February 7, 2019, five years

after the violation. Mr. Carmichael’s history and characteristics demonstrate that

such a lengthy prison sentence was not necessary to deter him from committing

future offenses or to protect the public. Although this Court’s holding in Pepper

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applied to a sentencing proceeding on remand, the underlying rationale applies with

equal force here. The district court was required to sentence Mr. Carmichael as he

appeared before the court on the day of his revocation hearing. The probation officer

did not immediately petition the court to revoke Mr. Carmichael’s supervised release

upon his arrest for the state charges, and instead waited five years while his state

charges remained pending. During those five years, Mr. Carmichael had been

compliant with the terms of supervision and had taken significant steps toward

rehabilitation. As he stood before the district court on the day of his final revocation

hearing, the statutory maximum 36-month sentence was outside the range of

reasonable sentences dictated by the circumstances of the case. Mr. Carmichael had

served seven years of his eight-year term of supervised release, and the 2014 offenses

were his only violation. For the previous five years, Mr. Carmichael had complied

with the terms of his supervision—he reported to his probation officer as directed and

had clean drug screens.

Furthermore, Mr. Carmichael had taken rehabilitative steps in his personal

life to turn the corner from his prior criminal activity, and these changes show that

neither concerns over his potential recidivism nor protecting the public warranted a

lengthy sentence. Since Mr. Carmichael’s release from prison, he had been involved

in his family’s life and his family had grown. Mr. Carmichael was engaged to a woman

he had been dating for four years. The couple had an infant son. Mr. Carmichael had

also been involved in the lives of his two adult sons. Mr. Carmichael’s recent behavior

is the most accurate indicator of his present tendencies, and it should have governed

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the court’s determination of the appropriate sentence. Although the district court

noted that it had considered Mr. Carmichael’s arguments, in imposing a statutorymaximum sentence, the court showed that it had not adequately weighed the

§ 3553(a) factors in light of Mr. Carmichael’s progress.

The purpose of supervised release is to assist in the transition from

incarceration to liberty, and Mr. Carmichael’s conduct following the state charges

shows that he could meet these goals. He had turned his life around in the five years

his state charges were pending—working, supporting his family, entering into a longterm relationship, and welcoming a new son. Though Mr. Carmichael’s underlying

conduct was serious, his revocation proceedings were not the context in which to

punish the new offense. See U.S.S.G. Ch. 7 Pt. A. (“imposition of an appropriate

punishment for any new criminal conduct would not be the primary goal of a

revocation sentence.”). Instead the focus should have been on the breach of trust

stemming from the violation. Id. Although the violation was serious, Mr.

Carmichael’s compliance with the terms of his supervised release show that he had

taken significant steps, over a long period of time, to restore trust and successfully

transition back into the community. By the time the court sentenced Mr. Carmichael,

by all accounts his supervision had been successful in that he had proved he could

live as a law-abiding, productive member of the community. Accordingly, the

statutory maximum sentence fell outside the range of reasonable sentences in this

case.

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Thus, the Eleventh Circuit erred in concluding that, even if the district court

were required to consider the § 3553(a) factors in imposing his sentence, Mr.

Carmichael’s sentence was nevertheless reasonable. Moreover, the Eleventh Circuit’s

holding that a district court is not required to consider the § 3553(a) factors in

imposing a sentence upon revocation of supervised release, under § 3583(g) ignores

that section’s place in the broader scheme of the Sentencing Reform Act. It likewise

further entrenches a split between the federal courts of appeal. Accordingly, this

Court should grant Mr. Carmichael’s request for a writ of certiorari to resolve the

issue.

CONCLUSION

The petition should be granted.

Respectfully Submitted,

KEVIN L. BUTLER

Federal Public Defender

DEANNA LEE OSWALD

Assistant Federal Defender

_______________________________

ALEXANDRIA DARBY

Research & Writing Attorney

Counsel of Record

200 Clinton Avenue West, Suite 503

Huntsville, AL 35801

256-684-8700 (t)

256-519-5948 (f)

alex_darby@fd.org

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