Petition for Writ of Certiorari — Sandchase Cody, Petitioner v. United States

No. __________

In the Supreme Court of the United States

____________

SANDCHASE CODY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

____________

PETITION FOR WRIT OF CERTIORARI

____________

James T. Skuthan

Acting Federal Defender

Michelle R. Yard, Counsel of Record

Research and Writing Attorney

Florida Bar No. 0014085

Federal Defender’s Office

201 South Orange Avenue, Suite 300

Orlando, Florida 32801

Telephone: (407) 648-6338

E-Mail: Michelle_Yard@fd.org

QUESTION PRESENTED

Whether Mr. Cody was denied due process when after the removal of his unlawful

ACCA sentencing enhancement, following a 28 U.S.C. § 2255 motion, the district court

denied his request for a resentencing hearing.

i

LIST OF PARTIES

Petitioner, Sandchase Cody, was the movant in the district court and the appellant

in the court of appeals. Respondent, the United States of America, was the respondent in

the district court and the appellee in the court of appeals.

ii

TABLE OF CONTENTS

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

List of Parties ................................................................................................................................ ii

Petition ............................................................................................................................................1

Opinion and Order Below ...........................................................................................................1

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

Relevant Constitutional and Statutory Provisions ...................................................................2

Statement ........................................................................................................................................3

Reasons for Granting the Writ ....................................................................................................6

After the Uncontested Removal of his Unlawful Sentence Enhancement,

Mr. Cody was Erroneously Deprived of his Due Process Right to A

Resentencing Hearing ......................................................................................................6

Conclusion ...................................................................................................................................13

Appendix

Decision of the Court of Appeals for the Eleventh Circuit,

Sandchase Cody v. United States, 19-12427 ....................................................................... A

Amended Order Granting, in Part, Motion to Vacate and Denying COA,

Sandchase Cody v. United States, 8:16-cv-1790-T-27CPT ................................................. B

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Adams v. United States, 338 F. App’x 799 (11th Cir. 2009) ....................................................... 7

Bonner v. Prichard, 661 F.2d 1206 (11th Cir. 1981) .................................................................... 9

David Johnson v. United States, 619 F.2d 366 (5th Cir. 1980) .................................................... 9

Johnson v. United States, 135 S. Ct. 2551 (2015).................................................................. 4, 5, 8

Kentucky v. Stincer, 482 U.S. 730, 107 S. Ct. 2658 (1987) .................................................... 8, 10

Pepper v. United States, 131 S. Ct. 1229 (2011) ......................................................... 5, 10, 11, 12

Spencer v. United States, 773 F.3d 1132 (11th Cir. 2014),

cert. denied, 135 S. Ct. 2836 (2015) ................................................................................... 13

United States v. Bass, 104 F. App’x 997 (5th Cir. 2004) ............................................................. 6

United States v. Brown, 879 F.3d 1231 (11th Cir. 2018) ................................................... 8, 9, 10

United States v. Fowler, 749 F.3d 1010 (11th Cir. 2014) ............................................................. 6

United States v. Jackson, 923 F.2d 1494 (11th Cir. 1991) ...................................................... 7, 12

United States v. Miller, 594 F.3d 172 (3d Cir. 2010) ................................................................... 6

United States v. Novaton, 271 F.3d 968 (11th Cir. 2001) .......................................................... 12

United States v. Parrish, 427 F.3d 1345 (11th Cir. 2005) .......................................................... 12

United States v. Rozier, 485 F. App’x 352 (11th Cir. 2012) ........................................................ 6

United States v. Stevenson, 162 F. App’x 907 (11th Cir. 2006) .................................................. 7

United States v. Taylor, 11 F.3d 149 (11th Cir. 1994) ................................................................. 7

United States v. Thomason, 940 F.3d 1166 (11th Cir. 2019) .............................................. passim

iv

Statutes

Page(s)

U.S. Const. amend. V ............................................................................................................... 2, 6

18 U.S.C. § 922(g).................................................................................................................... 2, 11

18 U.S.C. § 924(a) ........................................................................................................................ 11

18 U.S.C. § 924(e) ................................................................................................................. passim

18 U.S.C. § 3231 ............................................................................................................................ 1

18 U.S.C. § 3553(a)(ii) ................................................................................................................... 8

21 U.S.C. § 841(b)(1)(B) .............................................................................................................. 11

28 U.S.C. § 1254(1) ........................................................................................................................ 2

28 U.S.C. § 2255 ............................................................................................................. i, 1, 2, 4, 6

28 U.S.C. § 2255(h) ....................................................................................................................... 4

28 U.S.C. § 3553(a) .................................................................................................................. 5, 12

U.S.S.G. § 2K1.2 ............................................................................................................................ 8

U.S.S.G. § 2K2.1(b)(6) ................................................................................................................... 8

U.S.S.G. § 2K21(a)(2) .................................................................................................................... 8

U.S.S.G. § 3C1.1 ............................................................................................................................ 8

U.S.S.G. § 3D1.2(c)........................................................................................................................ 3

U.S.S.G. § 4B1.4 ............................................................................................................................. 8

U.S.S.G. ch. 3, pt. D ...................................................................................................................... 7

v

In the Supreme Court of the United States

_______________

No.

SANDCHASE CODY

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

PETITION FOR A WRIT OF CERTIORARI

_______________

Sandchase Cody respectfully petitions for a writ of certiorari to review the

Eleventh Circuit Court of Appeals’ denial of certificate of appealability (COA).

OPINION AND ORDER BELOW

The Eleventh Circuit’s denial of Mr. Cody’s COA is provided in Appendix A.

The district court’s amended order granting, in part, Mr. Cody’s 28 U.S.C. § 2255

motion is provided in Appendix B.

JURISDICTION

The United States District Court for the Middle District of Florida had original

jurisdiction over Mr. Cody’s case under 18 U.S.C. § 3231. The district court granted,

in part, Mr. Cody’s 28 U.S.C. § 2255 motion on May 2, 2019. See App. B. Mr. Cody

subsequently filed a notice of appeal and application for COA in the Eleventh Circuit,

which denied the COA on November 14, 2019. See App. A. This petition is timely filed

under Supreme Court Rule 13.1. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. amend. V.

No person shall . . . be deprived of life, liberty, or property, without due

process of law. . . .

The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), provides, in

pertinent part:

(1) In the case of a person who violates section 922(g) of this title and

has three previous convictions . . . for a violent felony or a serious

drug offense, or both, committed on occasions different from one

another, such person shall be fined under this title and imprisoned

not less than fifteen years . . . .

(2) As used in this subsection—

(B) the term “violent felony” means any crime punishable by

imprisonment for a term exceeding one year, or any act of juvenile

delinquency involving the use or carrying of a firearm, knife, or

destructive device that would be punishable by imprisonment for

such term if committed by an adult, that—

(i) has as an element the use, attempted use, or threatened use

of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential

risk of physical injury to another . . . .

28 U.S.C. § 2255 states in relevant part:

(b) Unless the motion and the files and records of the case conclusively

show that the prisoner is entitled to no relief, the court shall cause notice

thereof to be served upon the United States attorney, grant a prompt

hearing thereon, determine the issues and make findings of fact and

conclusions of law with respect thereto. If the court finds that the

judgment was rendered without jurisdiction, or that the sentence

imposed was not authorized by law or otherwise open to collateral

2

attack, or that there has been such a denial or infringement of the

constitutional rights of the prisoner as to render the judgment

vulnerable to collateral attack, the court shall vacate and set the

judgment aside and shall discharge the prisoner or resentence him or

grant a new trial or correct the sentence as may appear appropriate.

STATEMENT

In 2010, Mr. Cody was found guilty of all four counts of his superseding

indictment, which charged him with: (1) distributing and possessing with intent to

distribute a quantity of cocaine, (2) distributing and possessing with intent to

distribute a quantity of cocaine, (3) felon in possession of ammunition, and (4)

possession with intent to distribute a quantity of cocaine base, cocaine, and

marijuana. After trial and before sentencing, Mr. Cody was assigned new counsel and

was committed to the custody of the Attorney General for competency treatment and

restoration.

After competency restoration, at sentencing, the four counts were grouped, and

the district court applied the ACCA enhancement. See PSR ¶ 27. 1 Because of the

ACCA enhancement, Mr. Cody argued for a downward variance to the ACCA

mandatory minimum of 180 months. In imposing the ACCA sentence, the sentencing

court stated, “He has appropriately been designated as an armed career criminal

under the United States Sentencing Guidelines. . . . These offenses carry, as counsel

acknowledged, a minimum mandatory term of 15 years.” Cr. Doc. 118 at 14-16

Mr. Cody’s PSR states, “U.S.S.G. § 3D1.2(c) requires grouping of Counts One,

Two, Three, and Four, as Counts One, Two, and Four embody conduct that is treated

as a specific offense characteristic in, or other adjustment to, the guidelines

application to the firearm count (Count Three).” PSR ¶ 27.

1

3

(emphasis supplied). The district court then imposed concurrent sentences of 294

months’ imprisonment on all four counts, followed by supervised release. Mr. Cody’s

appeal was affirmed. In 2014, Mr. Cody filed his first motion to vacate his sentence

under 28 U.S.C. § 2255, that was denied a month later as time-barred and

procedurally defaulted.

In 2016, the Eleventh Circuit Court of Appeals granted Mr. Cody’s Application

for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct

Sentence under § 2255(h). Mr. Cody filed a Motion to Vacate, Set Aside, or Correct

Sentence under § 2255, contending that enhancing his sentence under the ACCA and

career offender residual clauses violated due process. Mr. Cody and the government

agreed and stipulated that that in light of Johnson v. United States, 135 S. Ct. 2551

(2015), Mr. Cody’s sentence was erroneously enhanced under the ACCA because his

Florida convictions for (1) throwing a missile into an occupied motor vehicle, and (2)

shooting at a building no longer qualify as ACCA predicate offenses. However, the

parties disagreed on the appropriate relief. Mr. Cody argued for a de novo

resentencing hearing on all counts, while the government argued the court should

only correct the sentence on count three.

On May 2, 2019, after removing the unlawful ACCA sentence enhancement,

the district court “corrected” only count three of Mr. Cody’s sentence – the sentence

for being a felon in possession of ammunition – following the partial grant of his

§ 2255 motion because the sentence exceeded the lawful statutory maximum. App. B.

In doing so, without a hearing or input from Mr. Cody as to the 28 U.S.C. § 3553(a)

4

factors, Pepper v. United States, 131 S. Ct. 1229 (2011) evidence, or otherwise as to

the appropriate sentence, the district court reduced Mr. Cody’s sentence from 294

months to 120 months (the statutory maximum) to run concurrent to the remaining

unchanged three counts. App B. As a result, Mr. Cody's overall 294-month sentence

remained the same.

In the order, the district court found that the “Johnson remedy is not to vacate

the sentence on Count Three, but rather to correct it.” App. B. at 3-4. The court

further stated that “[a]lthough Petitioner is no longer an armed career criminal under

the ACCA, a new sentencing hearing is not required. The Johnson error in Count

Three does not impact his sentences on Counts One, Two and Four, because the

counts of conviction are not interrelated” and “Petitioner’s armed career criminal

designation had no impact on the sentences imposed on Counts One, Two and Four.”

App. B. at 4, 5. The district court denied a COA. Mr. Cody filed a timely notice of

appeal and sought a COA in the Eleventh Circuit Court of Appeals.

The Eleventh Circuit Court of Appeals denied Mr. Cody’s request for COA on

November 14, 2019 finding that reasonable jurists would not debate whether the

district court abused its discretion by correcting Mr. Cody’s sentence without a full

resentencing hearing because (1) the ACCA enhancement did not undermine the

sentence as a whole, and (2) after removing the ACCA enhancement, the § 922(g)

count was subject to a maximum sentence far below his Guidelines range, and thus,

5

there was no reason for the district court to exercise significant discretion in

modifying the sentence. 2 App. A. at 3.

REASONS FOR GRANTING THE WRIT

While the district court has discretion following the grant of a 28 U.S.C. § 2255

motion to vacate, that discretion is not limitless as “the Due Process Clause places a

limit on that discretion.” United States v. Thomason, 940 F.3d 1166, 1171 (11th Cir.

2019) (citing U.S. Const. amend. V.). In this context, that limit demanded a

resentencing hearing.

AFTER THE UNCONTESTED REMOVAL OF HIS UNLAWFUL SENTENCE

ENHANCEMENT, MR. CODY WAS ERRONEOUSLY DEPRIVED OF HIS DUE

PROCESS RIGHT TO A RESENTENCING HEARING.

Because Mr. Cody’s four-count, grouped sentence was a sentencing “package,”

it was error not to vacate Mr. Cody’s entire sentencing package, and thus, it was error

not to hold a resentencing hearing at which Mr. Cody would be present with counsel. 3

Mr. Cody appealed the amended order in his § 2255 case and the amended

judgment in his criminal case. The appeal of his amended judgment remains

pending in the Eleventh Circuit. Case No. 19-11915 (11th Cir. 2019). On November

20, 2019, the government moved to dismiss that appeal for lack of jurisdiction arguing

this issue may only be raised when appealing the denial of a § 2255 motion. The

Eleventh Circuit has not yet ruled on that motion.

2

Counts grouped together pursuant to the sentencing guidelines are

interdependent. See United States v. Rozier, 485 F. App’x 352, 356 (11th Cir. 2012)

(holding that counts were interdependent where they were grouped together); United

States v. Miller, 594 F.3d 172, 181-82 (3d Cir. 2010) (“[C]ounts that were grouped

pursuant to the Sentencing Guidelines at the original sentencing are interdependent

. . . .”); United States v. Bass, 104 F. App’x 997, 999–1000 (5th Cir. 2004) (applying

the sentencing package doctrine where counts were grouped under the sentencing

guidelines); see also United States v. Fowler, 749 F.3d 1010, 1014-15 (11th Cir. 2014)

(“The notion is that, especially in the guidelines era, sentencing on multiple counts is

an inherently interrelated, interconnected, and holistic process which requires a

court to craft an overall sentence . . . .”). This makes eminent sense as counts that are

3

6

See United States v. Jackson, 923 F.2d 1494, 1497 (11th Cir. 1991) (holding that,

when a sentencing package has been vacated on appeal, the defendant’s presence at

a hearing is necessary). The right to be present at sentencing applies when the entire

sentence package was vacated, as it should have been here. See Adams v. United

States, 338 F. App’x 799, 800 (11th Cir. 2009) (“The prisoner’s right to a resentencing

hearing depends on whether his original sentencing package was vacated in its

entirety.”) (emphasis added); United States v. Stevenson, 162 F. App’x 907, 907–08

(11th Cir. 2006) (“Because Stevenson’s original sentence was vacated in its entirety,

the district court erred by not granting him a hearing and affording him the

opportunity to allocute at resentencing.”); see also United States v. Taylor, 11 F.3d

149, 151–52 (11th Cir. 1994) (stating that “[T]here is a distinction between

modifications of sentences and proceedings that impose a new sentence after vacation

of the original sentence. In the former instance, the defendant’s presence is not

required, but in the latter, the defendant has a right to be present and allocute at

resentencing.”).

The Eleventh Circuit Court of Appeals recently held in Thomason, 940 F.3d at

1172, “the defendant has a right to be present only if the modification to the sentence

constitutes a critical stage where ‘his presence would contribute to the fairness of the

grouped together are, in essence, “treated as constituting a single offense for purposes

of the guidelines.” U.S.S.G. ch. 3, pt. D, intro. comment. Indeed, the Fowler Court

described the Eleventh Circuit’s routine practice of vacating entire sentences and

remanding for resentencing on all counts after vacating a “conviction or sentence” on

appeal. Fowler, 749 F.3d at 1016.

7

procedure,’” Id. (quoting Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 2658

(1987)). The Eleventh Circuit stated in Thomason:

To determine if a sentence correction is a critical stage requiring a

hearing with the defendant present, we have identified two factintensive inquiries “to guide our consideration.” Brown, 879 F.3d at

1239–40. First, we ask whether “the errors [that required] the grant of

habeas relief undermine[d] the sentence as a whole.” Id. at 1239. Second,

we ask whether “the sentencing court exercise[d] significant discretion

in modifying the defendant’s sentence, perhaps on questions the court

was not called upon to consider at the original sentencing.” Id. at 1239–

40. If these factors are present, the district court may not modify the

defendant’s sentence without holding a hearing with the defendant

present. Id. at 1240.

Thomason, 940 F.3d at 1172.

Applying the two United States v. Brown, 879 F.3d 1231 (11th Cir. 2018),

factors used by the Eleventh Circuit in Thomason, first, the Johnson errors in Mr.

Cody’s case did undermine the sentence as a whole. The errors included an increased

statutory range from 10 years to life without parole, as well as an increased guideline

range. 4 Thus, the district court had originally, erroneously believed it had the

At his original sentencing, Mr. Cody was sentenced in error as an Armed

Career Criminal to an enhanced sentence with a total offense level of 34 under

U.S.S.G. § 4B1.4. PSR ¶¶ 37-41. If granted a resentencing hearing, his offense level

would be reduced by six levels. (The current guidelines manual in effect November 1,

2018, would be used in determining how vacating the sentence would impact the

advisory guidelines range. See 18 U.S.C. § 3553(a)(ii).) Mr. Cody’s new base offense

level would be 22 pursuant to U.S.S.G. § 2K1.2 because he did not commit the

“instant offense subsequent to sustaining at least two felony convictions for either a

crime of violence of controlled substance offense.” See PSR ¶ 28 (emphasis supplied);

U.S.S.G. § 2K21(a)(2). He would receive the same four level increase for possessing

ammunition while in possession of a controlled substance. See PSR ¶ 29; U.S.S.G.

§ 2K2.1(b)(6). And the two level adjustment for obstruction of justice. See PSR ¶ 32;

U.S.S.G. § 3C1.1. This would bring him to a total offense level of 28 at resentencing.

4

8

authority to punish Mr. Cody by sentencing him to prison for life without parole. His

sentence of 24.5 years, as compared to life without parole in prison, may appear a

merciful sentence – but it is another thing when he should only have faced a

maximum statutory range on any count of 30 years.

In another case, David Johnson v. United States, 619 F.2d 366 (5th Cir. 1980), 5

the court remanded a case for resentencing when the district court errantly believed

the defendant could be sentenced to 55 years (it was actually 25 years), and imposed

20 years. Id. at 368. The court reasoned that, “Perhaps, after realizing that the

maximum sentence is only 25 years, the District Court may conclude that a 20 year

sentence is too harsh.” Id. In the instant case, the fact that the Johnson error was the

basis for the district court’s errant belief at sentencing that it had the authority to

sentence Mr. Cody to life without parole in prison, on just one of four counts he was

facing, when in actuality, the longest statutory maximum on a single count was 30

years, “undermines the sentence as a whole.” See Brown, 879 F.3d at 1238. And that

belief affected the case as a whole. And the removal of that unlawful enhancement,

and the possibility of life without parole in prison, affects the view of the case as a

whole. Further, due to the Johnson error the district court believed it must impose a

mandatory minimum sentence on the case of 15 years, when in fact, there was no

mandatory minimum on any count.

All decisions of the Fifth Circuit, handed down before close of business on

September 30, 1981, are binding as precedent within the Eleventh Circuit. Bonner v.

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).

5

9

As to the second factor, the sentencing court did exercise significant discretion

in modifying the defendant’s sentence, including on questions the court was not called

on to consider at the original sentencing. The district court did not have to reinstate

the exact same sentence on the three other counts – the court had discretion. The

sentencing guidelines are advisory, and the court failed to consider any Pepper

evidence, on a defendant with known, documented mental health issues (given the

former adjudication of incompetency). The court went from a floor of 180 months with

the unlawful ACCA enhancement at the original sentencing, to no floor under the

advisory guidelines. As the Eleventh Circuit said in Brown, 879 F.3d at 1239:

A resentencing hearing is also needed when a court must exercise its

discretion in modifying a sentence in ways it was not called upon to do

at the initial sentencing. For example, if the original sentencing court

imposed a mandatory minimum sentence that no longer applies, then a

defendant's resentencing hearing may be the first opportunity he has to

meaningfully “challenge the accuracy of information the sentencing

judge may rely on, to argue about its reliability and the weight the

information should be given, and to present any evidence in mitigation

he may have.” Id. at 1496–97. In a case like this, the defendant's

presence is required at a resentencing hearing to “contribute to the

fairness of the procedure.” [Kentucky v.] Stincer, 482 U.S. [730] at 745,

107 S. Ct. at 2667 [(1987)].

Brown, 879 F.3d at 1239. Mr. Cody finds himself in this exact scenario.

The court

in Thomason said,

A resentencing hearing may be necessary “when a court must exercise

its discretion in modifying a sentence in ways it was not called upon to

do at the initial sentencing.” Brown, 879 F.3d at 1239. That exercise may

occur, for example, if the district court vacates a mandatory-minimum

sentence and then is able to consider the statutory sentencing factors for

the first time. Id.

10

Thomason, 940 F.3d at 1173. As discussed below, Mr. Cody’s counsel at his original

sentencing made his sentencing arguments in compliance with the unlawful

mandatory minimum. And the sentencing judge discussed them in imposing

sentence. Id. at 14-16 (stating “[Mr. Cody] has appropriately been designated as an

armed career criminal under the United States Sentencing Guidelines. . . . These

offenses carry, as counsel acknowledged, a minimum mandatory term of 15 years.”

(emphasis supplied).

Instead, the district court “corrected” Mr. Cody’s felon in possession count – to

the new statutory maximum penalty, without hearing any Pepper or other evidence.

Previously, at Mr. Cody’s original sentencing, his attorney argued for a downward

variance to 180 months, the mandatory minimum given the ACCA enhancement. 6

Mr. Cody’s attorney was unable to argue for less than the unlawful ACCA enhanced

mandatory minimum, despite that no other count of conviction carried a mandatory

minimum. See 21 U.S.C. § 841(b)(1)(B). In Thomason, where the Eleventh Circuit

expressly considered due process, the court stressed that “the district court invited

the parties to ‘submit any additional written materials that they wish the court to

consider in fashioning a just and reasonable sentence.’ Thomason submitted a

sentencing memorandum with exhibits detailing his post-sentencing conduct.”

Thomason, 940 F.3d at 1170.

Normally, a § 922(g) offense carries a maximum term of 10 years’

imprisonment. See 18 U.S.C. § 924(a).

6

11

Thus, considering the two factors and Mr. Cody’s arguments, it is clear that

due process demanded a resentencing hearing. The court in Thomason noted that the

district court in that case exercised its discretion in favor of due process because “the

district court imposed a less onerous total sentence.” Id. at 1174. But not so in Mr.

Cody’s case. While Mr. Thomason received an overall 34-month sentence reduction,

Mr. Cody received none. See id. at 1170. And in considering due process, the

Thomason court noted that the “district court first exercised its discretion by

considering evidence of Thomason’s post-sentencing rehabilitative conduct.” Id. at

1174.

Again, not so with Mr. Cody. Despite Mr. Cody’s specific requests to present

Pepper evidence to the district court, he was not given that opportunity and the

district court did not consider any § 3553(a) factors or mitigating evidence. Due

process demanded a resentencing hearing.

Mr. Cody is no longer an armed career criminal. No longer does any mandatory

minimum apply. Mr. Cody is no longer facing a possible sentence of life in prison. Mr.

Cody was not presented with an opportunity to present mitigating evidence or

challenge the accuracy of information that the sentencing judge may rely on, to

dispute its reliability and the weight the information should be given. Mr. Cody was

not presented with an opportunity to allocute. Reasonable jurists would debate

whether it was error not to grant a resentencing hearing following the correction of

Mr. Cody’s unlawful sentence enhancement, causing a denial of due process. See

Jackson, 923 F.2d at 1497; United States v. Parrish, 427 F.3d 1345, 1348 (11th Cir.

2005) (citing United States v. Novaton, 271 F.3d 968, 998 (11th Cir. 2001)) (“Under

12

the Due Process Clause, ‘a defendant is guaranteed the right to be present at any

stage of the criminal proceeding that is critical to its outcome if his presence would

contribute to the fairness of the procedure.’”); see also Spencer v. United States, 773

F.3d 1132, 1140 (11th Cir. 2014), cert. denied, 135 S. Ct. 2836 (2015) (describing the

right as “constitutionally based”).

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari should be granted.

Respectfully submitted,

James T. Skuthan

Acting Federal Defender

/s/ Michelle R. Yard

Michelle R. Yard, Counsel of Record

Research and Writing Attorney

Florida Bar No. 0014085

Federal Defender’s Office

201 South Orange Avenue, Suite 300

Orlando, Florida 32801

Telephone: (407) 648-6338

E-Mail: Michelle_Yard@fd.org

13