Petition for Writ of Certiorari — Joseph Ramon Santillan, Petitioner v. United States

NO.

IN THE

UNITED STATES SUPREME COURT

JOSEPH RAMON SANTILLAN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON A PETITION FOR WRIT OF CERTIORARI

FROM THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

RAPHAEL M. SCHEETZ

425 Second Street S.E.

Suite 1010

Cedar Rapids, Iowa 52402

319-378-7416

scheetzlaw@aol.com

ATTORNEY FOR PETITIONER

Question Presented

Did defendant’s State of California marijuana conviction

constitute a “prior conviction for a felony drug offense,” increasing

defendant’s mandatory minimum sentence from 10 years to 20

years, pursuant to 21 U.S.C. Section 841(b)(1)(B), where the State

Superior Court of California re-designated defendant's State

marijuana felony to a misdemeanor?

List of Parties

All parties appear in the caption of the case on the cover page.

Related Cases

None.

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Table of Contents

OPINION BELOW 000... eeccesesecescecesneeceseeeeeeseeeeseeeeeecsseeentaeeenenes 1

JURISDICTION ooo. ceesccceensecessneeecseneeeessaeeesseeeessseesseesesseresesseanaees 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.......... 2

STATEMENT OF THE CASE ooo. ceeccccccssseccseneeeeesesensseeeesseesensesaees 4

REASONS FOR GRANTING THE WRIT uu... ceeccsccesseeeseeesteeessseeees 7

CONCLUSION 0.0... cee ecccsecessseeseeeseeeeeaeecsaeeneecsseesseseneesseeenseeseesssesenges 20

Index to Appendices

Appendix A

Opinion of the United States Court of Appeals, United States v.

Santillan, Case No. 18-3182, filed December 9, 2019

Appendix B

District Court Order Denying Motion to Strike Section 851 Notice,

United States v. Santillan, Case No. 17-CR-3052, filed March 11, 2018

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Table of Authorities Cited

Cases Page

* Arreola-Castillo v. U.S., 889 F.3d 378 (1th Cir. 2018)............ 9-10

*Barrett v. U.S., 423 U.S. 212, 96 S.Ct. 498 (1976)... 18

*Carr v. U.S., 560 U.S. 488, 180 S.Ct. 2229 (2010)... 18

*Custis v. U.S., 511 U.S. 485, 114 S.Ct. 1782 (1994) oe 8

*Daniels v. U.S., 582 U.S. 374, 121 S.Ct. 1578 (2001)... 8

*Dickerson v. New Banner Institute, Inc., 460 U.S. 108 (2001)... eee 11

*Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120 (2001) ...... 19-20

*Gwaliney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987) ....ccccccccesesssesevecccsseeeneneneeees 18

*Johnson v. U.S., 544 U.S. 295, 125 S.Ct. 1571 (2005)... 8,138

*Lewts v. U.S., 445 U.S. 55, 100 S.Ct. 915 (1980) oo. eeeeeeeeeeeeens 15

*McNeill v. U.S., 563 U.S. 816, 181 8.Ct. 2218 (2011)... 15

*United States v. Diaz, 838 F.3d 968 (9th Cir. 2016)... 11

*United States v. Maxon, 339 F.3d 656 (8th Cir. 2008)............... 16

*United States v. McChristian, 47 F.3d 1499 (9th Cir. 1995)..... 12

*United States v. Wilson, 503 U.S. 329 (1992) oc ceeeeeeeeees 18

1V

Statutes And Rules:

*1 U.S.C. Section 1 (“Dictionary Act”) wicccccececeessscecccceeseeeeens 18

*18 U.S.C. Section 921(a)(20)....... cece ccccccsssscccessssscccsssteeceeeenaaes 11

*18 U.S.C. Section 924(g) occ iccecccscccssssssscccssssteesccestcsceseettaeecs 11

*21 U.S.C. Section 802(44) 0... ceeeeeeesesesseseeesesessnsstteaaas 3,7,14,16

*21 U.S.C. Section 841(b)(1)(A)....... cc ceecceeeeeeeeeeees 2,6,13-14,16,17

*21 ULS.C, Section 851 vo. ccccsecececeescceeseseeeeeeeeeeeetsnstaas 6,12-138

*28 U.S.C. Section 1294(1)......ccccccccsccsssccccssssseccscesssseccesesseeeceseees 1

*28 U.S.C. Section 2255 ..ccccsccsccsscsscssecsscssecssssscssessecssesssssceasens 10

*2016 Cal. Legis. Serv. Prop. 64 ...cccccccccccccccessssccceestsesccseesttseeeeees 4

*Cal. Health & Safety Code Section 11359 ooo. eee eeceeeenseees 4,9

*Cal. Health & Safety Code Section 11861.8 wo... ce eeeeeeeeeeeees 3,9

Petition for Writ of Certiorari

The Petitioner, Joseph Ramon Santillan, respectfully prays

that a writ of certiorari issue to review the Judgment of the

United States Court of Appeals for the Eighth Circuit in this

matter.

Opinion Below

On December 9, 2019, the United States Court of Appeals for

the Kighth Circuit entered its Opinion and Judgment affirming

the United States District Court for the Northern District of Iowa.

See, United States v. Santillan, 944 F.3d 731 (8th Cir. 2019).

Jurisdictional Statement

The date on which the United States Court of Appeals

decided the case was December 9, 2019. This Petition for Writ of

Certiorari is timely filed within ninety (90) days of the filing of the

Eighth Circuit’s decision.

The jurisdiction of this Court is invoked under 28 U.S.C. §

1254(1).

Constitutional and Statutory Provisions Involved

United States Code:

21 U.S.C. § 841(b)(1)(A) (excerpt):

Except as otherwise provided in section 849, 859, 860,

or 861 of this title, any person who violates subsection

(a) of this section shall be sentenced as follows:

(1)(A) In the case of a violation of subsection (a) of

this section involving—

(viii) 50 grams or more of methamphetamine, it

salts, isomers, and salts of its isomers or 500

grams or more of a mixture or substance

containing a detectable amount of

methamphetamine, its salts, isomers, or salts of

its isomers;

such person shall be sentenced to a term of

imprisonment which may not be less than 10

years or more than life and if death or serious

bodily injury results from the use of such

substance shall be not less than 20 years or more

than life.... If any person commits such a

violation after a prior conviction for a felony drug

offense has become final, such person shall be

sentenced to a term of imprisonment which may

not be less than 20 years and not more than life

imprisonment and if death or serious bodily

injury results from the use of such substance

shall be sentenced to life imprisonment... .

1This statute was subsequently amended by the “First Step Act of

2018” on December 21, 2018.

21 U.S.C. § 802(44):

The term “felony drug offense” means an offense that is

punishable by imprisonment for more than one year

under any law of the United States or of a State or

foreign country that prohibits or restricts conduct

relating to narcotic drugs, marihuana, anabolic

steroids, or depressant or stimulant substances.

California Statute:

Health and Safety Code § 113861.8

[a] person who has completed his or her sentence

for a conviction under [§ 113859]... who would

have been guilty of a lesser offense under the

Control Regulate and Tax Adult Use of

Marijuana Act had that act been in effect at the

time of the offense, may file an application before

the trial court that entered the judgment of

conviction in his or her case to have the

conviction... re-designated as a misdemeanor . .

[§11361.8(e)];

Once the applicant satisfies the criteria in

subdivision (e), the court shall re-designate the

conviction as a misdemeanor .... [§11861.8(H];

and,

Any felony conviction that is... designated as a

misdemeanor... under subdivision (f) shall be

considered a misdemeanor... for all purposes. [§

11861.8(h)].

Statement of the Case

In 2008, defendant Joseph Ramon Santillan was convicted in

California state court for possession of marijuana for sale. At the

time of his conviction, the offense was a felony.

In a reflection of society’s changing attitude towards

marijuana, on November 8, 2016, the California electorate passed

Proposition 64.2 Among other things, the Proposition amended

California Health and Safety Code § 11359. The Proposition

reclassified possession of marijuana for sale as a misdemeanor

(punishable by “imprisonment in a county jail for a period of not

more than six months’).

Proposition 64 also added Health and Safety Code § 11861.8

which provided that persons with certain marijuana felony

convictions could apply to the California State Court to have their

charge re-designated as a misdemeanor:

[a] person who has completed his or her sentence for a

conviction under [§ 11359] ... who would have been

guilty of a lesser offense under the Control Regulate

and Tax Adult Use of Marijuana Act had that act been

in effect at the time of the offense, may file an

2 See 2016 Cal. Legis. Serv. Prop. 64.

application before the trial court that entered the

judgment of conviction in his or her case to have the

conviction ... re-designated as a

misdemeanor...[§11361.8(e)];

Once the applicant satisfies the criteria in subdivision

(e), the court shall re-designate the conviction as a

misdemeanor...[§11861.8(f)]; and,

Any felony conviction that ts...designated as a

misdemeanor...under subdivision (f) shall be

considered a misdemeanor...for all purposes. [§

11861.8(h)].

Health and Safety Code § 113861.8 (emphasis added).

In November 2017, the defendant filed an application in the

Superior County Court of California to re-designate his marijuana

felony conviction to a misdemeanor. In December 2017, the

Superior Court granted the application. The Superior Court

recalled the February 2008 felony sentence, ordered that the

complaint be deemed amended to allege a misdemeanor, and redesignated the 2008 conviction as a misdemeanor conviction “for

all purposes”.

On November 30, 2017, the defendant was indicted in

federal district court for possession of 500 grams or more of a

mixture or substance containing methamphetamine, in violation

of 21 U.S.C. § 841(b)(1)(A)viii). The defendant pleaded guilty.

According to the plea agreement of the parties, the defendant’s

offense conduct began in April 2017.

In the federal district court, the government filed a notice of

sentencing enhancement, pursuant to 21 U.S.C. Section 851. The

government sought to increase defendant’s mandatory minimum

prison sentence from 10-years to 20-years based upon the

defendant’s prior 2008 California marijuana conviction

The defendant moved to strike the Section 851

enhancement. Defendant argued that he did not have a felony

drug conviction due to the California court’s re-designation of the

offense to a misdemeanor. In a decision filed on March 11, 2018,

the district court disagreed. Appendix B.

Without the enhancement, defendant’s recommended

Sentencing Guideline range was 188 to 235 months in prison on

the drug count; he would have also received only five years of

supervised release.

The district court sentenced defendant to 240-months

mandatory minimum sentence on Count 1, and a ten year term of

supervised release (the defendant also received a consecutive 60-

month sentence for his conviction of 21 U.S.C. Section 924(c) for a

total sentence of 300 months).

The defendant appealed the sentencing enhancement issue.

In a published opinion dated December 9, 2019, United States v.

Santillan, 944 F.3d 731 (8th Cir. 2019), the United States Court of

Appeals for the Eighth Circuit affirmed the district court.

Reasons for Granting the Petition

The United States Court of Appeals for the Eighth Circuit

has decided an important question of federal law that has not, but

should be, settled by this Court. See, Supreme Court Rule 10(c).

A. A “Prior Conviction for a Felony Drug Offense”

Did Not Exist at Time of Defendant’s Sentencing.

A prior conviction meeting the definition of an “offense that

is punishable by imprisonment for more than one year,” see, 21

U.S.C. § 802(44), did not exist when defendant was sentenced in

federal district court in October 2018. In December 2017, the

prior California felony sentence was recalled, the charging

document was amended by operation of law to allege a

misdemeanor, and the offense was retroactively designated a

7

misdemeanor “for all purposes”. Assuming the prior conviction

was an enhancement predicate at all, it had been vacated.

The validity of a prior conviction supporting an enhanced

federal sentence is not beyond challenge. Johnson v. U.S., 544

U.S. 295, 308, 125 S.Ct. 1571, 1577 (2005). “Our cases applying

these provisions assume the contrary, that a defendant given a

sentence enhanced for a prior conviction is entitled to a reduction

if the earlier conviction is vacated.” Id. (citing Custis v. United

States, 511 U.S. 485 (1994); Daniels v. United States, 532 U.S. 374

(2001)).

The Supreme Court has held that, if a prior conviction has

not been set aside by the time of sentencing, it may be used to

enhance the federal sentence. Daniels, 532 U.S. at 382. The

logical corollary is that if a felony conviction is set aside prior to

sentencing, the conviction may not be used to enhance the federal

sentence.

When the defendant was sentenced in 2008, his offense was

punishable as a felony drug conviction. However, that changed on

November 8, 2016, when California passed Proposition 64 which

amended defendant’s offense of conviction to a misdemeanor.

California Health and Safety Code § 11859(b). The statute

applied retroactively and provided a procedure in which to have

the felony conviction recalled and re-designated as a

misdemeanor. California Health and Safety Code §11361.8(e).

The record shows that on December 26, 2017, a California

Superior Court set aside defendant’s felony and resulting

sentence. The complaint setting out defendant’s offense was

deemed amended to allege a misdemeanor, and defendant's

offense was retroactively designated a misdemeanor for all

purposes. The effect was to vacate defendant’s prior felony

conviction and replace it with a misdemeanor conviction as a

matter of law. Thus, defendant did not have a felony conviction

when he was sentenced in federal district court in October 2018.

Arreola-Castillo v. United States, 889 F.3d 378 (7th Cir.

2018) is the most recent on-point case. In Arreola-Castillo, the

defendant was convicted of a federal drug crime. 889 F.3d at 381.

In 2006, he received a mandatory minimum sentence of life

imprisonment because he had two predicate New Mexico felony

drug convictions. Id. He subsequently challenged both

convictions in New Mexico state courts where he claimed

ineffective assistance of counsel. Jd. One conviction was vacated

in November 2014; and, the other conviction was vacated in June

2015, Id.

In December 2014, Arreola-Castillo filed a 28 U.S.C. § 2255

motion to reopen his federal sentence. He did not challenge the

validity of the prior State court convictions; rather, he challenged

“their very existence.” Id. at 385. The district court found 21

U.S.C. § 851(e) barred Arreolo-Castillo from reopening his

sentence.

The United States Court of Appeals for the Seventh Circuit

reversed. The Court determined that the sentencing court should

have examined the vacated convictions.

Because vacated convictions are properly considered in a

resentencing following a § 2255 motion, vacated convictions must

also be considered in an original sentencing. In either case,

increased punishment cannot be imposed where a once-qualifying

10

conviction no longer exists because it no longer meets the

definition of a qualifying predicate.

In denying the defendant Santillan’s appeal, the Kighth

Circuit relied primarily on United States v. Diaz, 838 F.3d 968,

973-74 (9th Cir. 2016). It is important to note that Diaz did not

address the California statute at issue in the instant case.

Diaz dealt only with the issue of whether a California

conviction qualified as a predicate conviction. Diaz did not

recognize the fact that, even if a qualifying felony conviction

existed historically, punishment cannot be applied if that

qualifying felony conviction no longer exists (as in the instant

case). Diaz’s reasoning was based primarily on a Supreme Court

case that recognized this legal principle in the context of an 18

U.S.C. § 924(g) prosecution -- Dickerson v. New Banner Institute,

Inc., 460 U.S. 108, 115, 108 S.Ct. 986 (1983), holding superseded

by 18 U.S.C. § 921(a)(20). Dickerson stated “if [the defendant]

was [convicted of the type of crime specified by the statute] and

that conviction somehow was rendered a nullity” there would not

be a firearms prohibition. 460 U.S. at 111.

11

Diaz did not discuss this part of Dickerson and did not

address the holdings of Custis, Daniels, or Johnson.

The Ninth Circuit case governing this issue is United States

v. McChristian, 47 F.3d 1499 (9th Cir. 1995). There, a defendant

received a § 841(b) enhanced sentence even though his prior state

court conviction was stricken after the federal indictment was

filed. Much as in the instant case, the district court in

McChristian found it was irrelevant that the state conviction was

set aside after defendant’s federal indictment. Id. at 1503. The

Ninth Circuit agreed with the defendant’s argument “that the

district court erred in relying on this invalid conviction...” Id. at

1502 (“Ingram contends that the district court erred in relying on

this invalid conviction and the Section 851(e) does not preclude

Ingram from showing the court that the conviction has been

invalidated. We agree.”).

In the instant case, after the California court nullified

defendant’s felony conviction in December 2017 and convicted

defendant of a misdemeanor, no qualifying felony conviction

existed. On October 2, 2018, the defendant was “otherwise not

12

subject to an increased sentence as a matter of law.” 21 U.S.C. §

851(d)(2). See also, Johnson, 544 U.S. at 308 (“a defendant given a

sentence enhanced for a prior conviction is entitled to a reduction

if the earlier conviction is vacated.”).

Proposition 64 did more than provide “post-conviction relief,”

Diaz, 838 F.3d at 975. Proposition 64 provided “no-conviction

relief.”

B. No “Final” Conviction Existed at the time of the

Commission of the Instant Offense.

California law treats the defendant’s 2008 conviction the

same as a person who is convicted of possessing marijuana for sale

after November 8, 2016—the convictions are both classified as

misdemeanors. Because the change in law took place before

defendant’s federal offense was committed, federal law accords the

defendant the same treatment.

This issue requires an examination of two subsections of

Title 21. The first subsection, 21 U.S.C. § 841(b)(1)(A), sets out

the basis for increased punishment for a federal drug violation:

13

If any person commits such a violation after a prior

conviction for a felony drug offense has become final,

such person shall be sentenced to a term of

imprisonment which may not be less than 20 years and

not more than life imprisonment...

(underlining added for comparison).

Second, 21 U.S.C. § 802 sets out the definition of “felony

drug offense”:

(44) The term “felony drug offense” means an offense

that is punishable by imprisonment for more than one

year under any law of the United States or of a State or

foreign country that prohibits or restricts conduct

relating to narcotic drugs, marihuana, anabolic

steroids, or depressant or stimulant substances.

(underlining added for comparison).

Therefore, a person may not be required to serve increased

punishment for a federal drug violation unless there is a final

conviction for an offense that “is punishable” as a felony prior to

when he or she “commits” the federal offense.

14

1. When the defendant committed the federal

offense, he did not have a final state conviction

for a felony offense. The California felony

sentence was nullified and the conviction was for

a misdemeanor offense.

Here, as a matter of law, there was no “final” qualifying

prior felony conviction when the defendant committed his federal

offense. In April 2017, the defendant did not have final conviction

for “an offense that is punishable by imprisonment for more than

one year” under California law.

The first step in the analysis is to determine whether there

was a prior felony offense conviction that was “final” as required

by Title 21 for recidivist enhancement. This is a backwardslooking determination, cf. McNeill v. United States, 563 U.S. 816,

131 S.Ct. 2218, 2222 (2011). But the look back does not go to

February 19, 2008, when defendant was convicted in a California

court. The look goes back to the April 2017 federal offense date.’

3 In McNeill, for purposes of the ACCA, the Court looked to

the date of conviction to determine the maximum sentence

applicable to the underlying state offense. However, firearm

statutes do not require that a conviction be “final;” they require

only a conviction. Lewis v. United States, 445 U.S. 55, 67 (1980).

15

Pursuant to Section 841(b)(1)(A), a prior conviction is not

“final” the day the sentence is imposed; time and events must pass

before a conviction is final. See, United States v. Maxon, 339 F.3d

656, 659 (8th Cir. 2008) (final-conviction language applies to

conviction no longer subject to examination on direct appeal

because of conclusion of the appellate process or passage of time

for appeal). Therefore, a § 841(b) look-back cannot go to the date

of a prior conviction; a conviction is not final on that date. The

look-back goes to the date of the new federal crime to determine if

there was a final prior conviction for an “offense that is punishable

by imprisonment for more than one year.” 21 U.S.C. § 802(44).

In April 2017, defendant did not have a final conviction for

an “offense that is punishable by imprisonment for more than one

year.” In April 2017, possession of marijuana for sale was an

“offense that is punishable by imprisonment for” up to six months

in jail. If no possession-of-marijuana-for-sale felony offense

existed, there could be no felony offense for which a conviction

could be final.

A conviction cannot be final if it changes.

16

2. Defendant’s state court conviction does not

support the enhanced federal sentence because,

at the time of the federal offense, the state

offense was not a crime that “is” punishable as a

felony.

The next question is whether, at the time of the federal

offense, defendant had a final conviction for a crime that “is”

punishable as a felony. This is what the plain language of Title 21

requires, and, in April 2017, there was no such thing as a

California offense of possession of marijuana for sale that “is

punishable” as a felony.

It is well-established that:

Our first step in interpreting a statute is to

determine whether the language at issue has a

plain and unambiguous meaning with regard to

the particular dispute in the case. Our inquiry

must cease if the statutory language is

unambiguous and “the statutory scheme is

coherent and consistent.”

Robinson v. Shell Oil Co., 519 U.S. 337, 340-41 (1997).

Congress’ use of two different tenses in 21 U.S.C. §

841(b)(1)(A) is critical. The statute uses the present perfect tense

twice when it describes a conviction: “after a prior conviction for a

felony drug offense has become final”, and, “after two or more

17

prior convictions for a felony drug offense have become final.”

That tense denotes something that has been completed. Barrett v.

United States, 423 U.S. 212, 217, 96 S.Ct. 498 (1976).

The statute uses the present tense twice: “commits such a

violation” and “is punishable.” Present tense does not include the

past.

Congress’ choice of tense is determinative. In Carr v. United

States, 560 U.S. 488, 448 (2010), the Supreme Court stated:

Consistent with normal usage, we have frequently

looked to Congress’ choice of verb tense to ascertain a

statute’s temporal reach. See, e.g., United States v.

Wilson, 508 U.S. 329, 388, 112 S.Ct. 1851, 117 L.Ed.2d

593 (1992) (“Congress’ use of a verb tense is significant

in construing statutes”); Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Foundation, Inc., 484 U.S. 49, 57, 108

S.Ct. 376, 98 L.Ed.2d 306 (1987) (“Congress could have

phrased its requirement in language that looked to the

past..., but it did not choose this readily available

option’); Barrett v. United States, 423 U.S. 212, 216, 96

S.Ct. 498, 46 L.Ed.2d 450 (1976) (observing that

Congress used the present perfect tense to “denot[e] an

act that has been completed”).

The Dictionary Act also ascribes significance to verb

tense. It provides that, “[i]n determining the meaning

of any Act of Congress, unless the context indicates

otherwise[,]... words used in the present tense include

the future as well as the present.” 1 U.S.C. § 1. By

implication, then, the Dictionary Act instructs that the

present tense generally does not include the past.

18

The present tense phrase “is punishable by

imprisonment for more than one year” means the applicable

punishment “is” determined based upon the time when a

person “commits” the new federal drug offense. If Congress

had intended otherwise, it would have said “offense that was

punishable.”

os 99

Accepting the Eighth Circuit’s view would make “is

insignificant, if not wholly superfluous.

“It is our duty ‘to give effect, if possible, to every

clause and word of a statute.” United States v.

Menasche, 348 U. S. 528, 588-539 (1955) (quoting

Moniclair v. Ramsdell, 107 U.S. 147, 152 (1888));

see also Williams v. Taylor, 529 U.S. 362, 404

(2000) (describing this rule as a “cardinal

principle of statutory construction”); Market Co.

v. Hoffman, 101 U.S. 112, 115 (1879) (“As early

as in Bacon’s Abridgment, sect. 2, it was said that

‘a statute ought, upon the whole, to be so

construed that, if it can be prevented, no clause,

sentence, or word shall be superfluous, void, or

insignificant”). We are thus “reluctan|[t] to treat

statutory terms as surplusage” in any setting.

Babbitt v. Sweet Home Chapter, Communities for

Great Ore., 515 U.S. 687, 698 (1995); see also

Ratzlaf v. United States, 510 U.S. 135, 140

(1994). We are especially unwilling to do so when

the term occupies so pivotal a place in the

statutory scheme...

19

Duncan v. Walker, 533 U.S. 167, 174 (2001).

The significance of “is” means the date a defendant

“commits” a federal crime is the date used to determine the

available punishment for a prior offense. This is consistent

with Congress’ decision to defer to state law in determining

whether a prior offense is so serious that federal sentence

enhancements should be imposed for recidivism.

Conclusion

The petition for a writ of certiorari should be granted.

Respectfully submitted,

fey. >>

Raphael M. Scheetz

425 2nd Street S.E.

Suite 1010

Cedar Rapids, Iowa 52401

319-378-7416

scheetzlaw@aol.com

ATTORNEY FOR PETITIONER

20