Petition for Writ of Certiorari — Michael Harrison Lowman, Jr., Petitioner v. United States

No. ________

In The

Supreme Court of the United States

MICHAEL HARRISON LOWMAN, JR.,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Wesley S. White

2300 E. 7th St. Suite 101

Charlotte, NC 28204

Telephone: (702) 824-1695

wes@weswhitelaw.com

Counsel of Record for Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

i

QUESTION PRESENTED

SHOULD AN APPEAL WAIVER THAT DID

NOT EXPRESSLY WAIVE A DUE PROCESS

CHALLENGE BE ENFORCED WHERE THE

SENTENCING COURT BASED ITS SENTENCE

ON UNRELIABLE FACTS IN VIOLATION OF

THE DEFENDANT’S DUE PROCESS RIGHTS?

ii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

TABLE OF AUTHORITIES .....................................iii

OPINION BELOW ..................................................... 1

STATEMENT OF SUPREME COURT

JURISDICTION ......................................................... 1

PROVISIONS OF LAW INVOLVED ........................ 1

STATEMENT OF CASE ............................................ 2

REASONS FOR GRANTING THE WRIT ................. 4

I.

The Supreme Court Should Review

This Case To Resolve Disparate

Treatment of Appeal Waivers

Between The Circuits ........................... 4

II.

The Question Presented Is Important

And Recurs Frequently ........................ 8

CONCLUSION ......................................................... 10

APPENDIX:

Fourth Circuit Order and Judgment ..................... A-1

U.S. District Court Judgment ............................... A-3

iii

TABLE OF AUTHORITIES

Cases

Blackledge v. Perry, 417 U.S. 21(1974) ..................... 4

Campusano v. United States 442 F.3d 770

(2d Cir. 2006) ........................................................... 10

Class v. United States 583 U.S. ____, (2018) . ... 4,5,8,9

Garza v. Idaho 586 U.S. _____,(2019) .............. 4,5,8,9

Menna v. New York, 423 U.S. 61 (1975) ..................... 4

Townsend v. Burke, 334 U.S. 736 (1948).................... 5

United States v. Andis, 333 F.3d 886

(8th Cir. 2003) ........................................................... 7

United States v. Attar, 38 F.3d 727

(4th Cir. 1994) ............................................................ 7

United States v. Bushert, 997 F.2d 1343

(11th Cir. 1993) .......................................................... 8

United States v. Copeland, 707 F.3d 522

(4th Cir.), cert. denied, 134 S. Ct. 126 (2013) ............. 7

United States v. Ford, 688 F. App’x 309

(5th Cir. 2017) ............................................................ 6

United States v. Hahn, 359 F.3d 1315

(10th Cir. 2004) ......................................................... 6

iv

United States v. Johnson, 347 F.3d 412

(2d Cir. 2003) .............................................................. 6

United States v. Johnson, 541 F.3d 1064

(11th Cir. 2008) .......................................................... 7

United States v. Khattak, 273 F.3d 557

(3rd Cir. 2001) ............................................................ 6

United States v. Leal, 933 F.3d 426

(5th Cir.), cert. denied, 140 S. Ct. 628 (2019) ............ 6

United States v. Olano, 507 U.S. 725 (1993) ............. 6

United States v. Teeter, 257 F.3d 14

(1st Cir. 2001) ............................................................ 6

United States v. Torres, 828 F.3d 1113

(9th Cir. 2016) ............................................................ 5

United States v. Tucker, 404 U.S. 443 (1972) ........... 5

United States v. White, 307 F.3d 336

(5th Cir. 2002) ............................................................ 6

William v. New York, 337 U.S. 241 (1949) ................ 5

Statutes

18 U.S.C. §2251(a)...................................................... 2

18 U.S.C. §2252(A)(a)(2)(A) ....................................... 2

18 U.S.C. §2252(A)(a)(5)(B) ....................................... 2

v

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

Constitutional Provisions

U.S. Const. Amend. V ................................................. 2

Other

Nancy J. King and Michael E. O’Neill, Appeal

Waivers and the Future of Sentencing Policy,

55 Duke L.J. 209, 231 (2005) ..................................... 8

Rule 11 of the Federal Rules of Criminal

Procedure .................................................................. 1,2

1

OPINION BELOW

The order of the Fourth Circuit dismissing the

appeal is unpublished. The order is reprinted as

Appendix A1 to this Petition. (Appendix A1, infra).

STATEMENT OF

SUPREME COURT JURISDICTION

The jurisdiction of the Supreme Court is

invoked under 28 U.S.C. §1254(1) to review the

decision rendered by the United States Court of

Appeals for the Fourth Circuit on November 6, 2019.

PROVISIONS OF LAW INVOLVED

Rule 11 of the Federal Rules of Criminal Procedure

provides:

(b) Considering and Accepting a Guilty or Nolo

Contendere Plea.

(1) Advising and Questioning the Defendant.

Before the court accepts a plea of guilty or nolo

contendere, the defendant may be placed under

oath, and the court must address the defendant

personally in open court. During this address, the

court must inform the defendant of, and

determine that the defendant understands the

following:

....

(N) the terms of any plea-agreement provision

waiving the right to appeal or to collaterally

attack the sentence.

2

The Due Process Clause of the Fifth Amendment to

the United States Constitution provides:

“No person shall be . . . deprived of life,

liberty, or property, without due process of

law . . . . ”

STATEMENT OF THE CASE

1.

Michael Harrison Lowman, Jr. was

indicted by a federal grand jury in the Western

District of North Carolina in a three-count

indictment filed on October 17, 2017. JA 11.1

Count One charged Lowman with Coercing a

Minor to engage in sexually explicit conduct, in

violation of 18 U.S.C. §2251(a); Count Two charged

Lowman with Receiving Child Pornography which

had travelled in interstate commerce, in violation of

18 U.S.C. §2252(A)(a)(2)(A); and Count Three

charged

Lowman

with

Possessing

Child

Pornography 18 U.S.C. §2252(A)(a)(5)(B). JA 11-14.

2.

Lowman signed a plea agreement,

which was filed on February 21, 2018, JA 90, and

pled guilty to Count One during a Rule 11 plea

hearing on March 2, 2018. JA 18.

The plea

agreement contained a waiver section, purporting to

bar appeals except for (1) Ineffective assistance of

counsel, or (2) Prosecutorial misconduct. The waiver

did not expressly preclude due process challenges to

the sentence. JA 94-95. A factual basis in support of

the plea was also executed by Lowman, indicating

1

“JA” refers to the Joint Appendix on file with Court of Appeals

for the Fourth Circuit.

3

that Lowman made contact with a single 15-year-old

male victim. JA 15.

The government drafted a Statement of

Relevant Conduct (“SRC”) on April 30, 2018, which

was incorporated into the final Presentence Report.

JA 114-17. The SRC alleged, among other things,

“Lowman conducted chats…with at least 53 different

minor male victims.”

In a subsequent presentence filing, the

Government alleged, “Defendant is responsible for

the production of child pornography involving at

least 53 different victims.” JA 96. Lowman, through

counsel, objected to the government’s contentions

regarding the number of alleged victims.

3.

The parties appeared for sentencing in

front of the District Court on January 3, 2019. The

District Court discussed Lowman’s issue with the

number of victims being proffered at 53, saying:

“Let’s move on to this other point that you’ve

raised, though, Mr. White, and that is

pertaining to the number of victims. Because

you first referred to the fact that there were

six identified victims but that there are a total

of 53 victims at least according to what is set

out in the presentence agreement or

presentence report. ‘Identified victims’ and

‘actual victims’ are two different things. So

why does the discrepancy between those two

numbers have any bearing on the question of

sentencing?” JA 40.

Counsel for Lowman then went on to argue

that it had bearing because it would determine the

appropriate sentence. The government offered no

4

further evidence at sentencing to support the

allegation that 53 victims existed.

The Court imposed a sentence of 300 months

in prison. JA 64. In announcing its reasons the Court

stated, “Here there are several aggravating factors.

One is the number of victims.” JA 70.

4.

Lowman filed an appeal with the Court

of Appeals for the Fourth Circuit. However, upon

motion of the government, and specifically citing the

appeal wavier as grounds, the Fourth Circuit

dismissed the appeal, finding that “the issue

Lowman seeks to appeal falls squarely within the

compass of his waiver of appellate rights.” Pet. App.

A1.

REASONS FOR GRANTING THE WRIT

I.

The Supreme Court Should Review

This Case To Resolve Disparate

Treatment

Of

Appeal

Waivers

Between The Circuits.

Appeal waivers have consistently been the

subject

of

appellate

and

Supreme

Court

jurisprudence, from the emergence of the MennaBlackledge 2 doctrine down to this Court’s recent

decisions in Class v. United States 583 U.S. ____, 138

S. Ct. 798 (February 21, 2018) and Garza v. Idaho

586 U.S. _____, 139 S. Ct. 738 (Feb. 27, 2019). These

2 The doctrine establishes that a plea of guilty to a charge does

not waive a claim that—judged on its face— the charge is one

that the government cannot constitutionally prosecute. It is

derived from Blackledge v. Perry, 417 U.S. 21(1974) and Menna

v. New York, 423 U.S. 61 (1975).

5

recent decisions have clarified the scope of appeal

waivers and brought uniformity among the circuits

with respect to some issues, (challenges to the

constitutionality of a statute in Class, and ineffective

assistance of counsel challenges in Garza) but not

all. This case presents the Court with an opportunity

to bring clarity and resolve differences among the

circuits when it comes to challenging the

constitutionality of a sentence when a generic appeal

waiver exists.

The United States Supreme Court has long

recognized that a criminal defendant has a due

process right to be sentenced on accurate facts and

information. See, e.g., United States v. Tucker, 404

U.S. 443, 447 (1972), William v. New York, 337 U.S.

241 (1949), Townsend v. Burke, 334 U.S. 736 (1948).

Here, Michael Lowman contends that his

sentence was based on the inaccurate and unproven

allegation that there were 53 victims in his case.

This unproven allegation was inaccurate and in

violation of his due process rights, but it

nevertheless earned him a harsh sentence. He was

not allowed to appeal that harsh sentence in the

Fourth Circuit, because of the appeal waiver.

Had Lowman appealed in another circuit

court, however, the outcome may have been

different. Depending on the circuit, a constitutional

attack on the sentence rendered by the district court,

after a plea of guilty containing an appeal waiver,

may or may not be heard on the merits. For example,

the Ninth Circuit has held, in United States v.

Torres, 828 F.3d 1113 (9th Cir. 2016), that appellate

6

waivers are unenforceable when the defendant was

given an illegal or unconstitutional sentence. By

contrast, the Fifth Circuit has held that appellate

waivers will be strictly enforced when a sentence is

challenged, with only two exceptions: first,

ineffective assistance of counsel, United States v.

White, 307 F.3d 336, 339 (5th Cir. 2002), and second,

a sentence exceeding the statutory maximum.

United States v. Leal, 933 F.3d 426, 431 (5th Cir.),

cert. denied, 140 S. Ct. 628 (2019).

The above-cited cases only illustrate

differences between two circuits. Others exist. For

example, the Second Circuit has held that although

an appeal waiver is generally enforceable, if the

defendant

claims

the

sentencing

was

unconstitutional, the waiver will be strictly

construed in order to permit a review of the

constitutional claim. See United States v. Johnson,

347 F.3d 412 (2d Cir. 2003). Meanwhile, the Eighth

Circuit, in adopting a “miscarriage of justice”

standard3 will not enforce a plea waiver when there

3

“The miscarriage of justice” exception to appeal waivers

further demonstrates the need for this Court to review this

case, as some circuits have adopted the exception, and some

have not. See e.g., United States v. Teeter, 257 F.3d 14, 26 (1st

Cir. 2001) (applying miscarriage of justice exception to appeal

waivers); United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir.

2004) (adopting the exception and applying United States v.

Olano, 507 U.S. 725 (1993), substantial rights" analysis);

United Statses v. Khattak, 273 F.3d 557, 563 (3rd Cir. 2001)

("Waivers of appeals, if entered into knowingly and voluntarily,

are valid, unless they work a miscarriage of justice."); but see

United States v. Ford, 688 F. App’x 309, (5th Cir. 2017) (per

curiam), (Fifth Circuit holding that “we have not adopted such

an exception…”).

7

has been an “illegal” sentence. But, “illegal” does not

include any sentence that violates due process, so

long as that sentence is within the statutory range.

See, United States v. Andis, 333 F.3d 886 (8th Cir.

2003).

While, on at least one occasion, the Fourth

Circuit has held "a defendant's agreement to waive

appellate review of his sentence is implicitly

conditioned on the assumption that the proceedings

following entry of the plea will be conducted in

accordance with constitutional limitations", United

States u. Attar, 38 F.3d 727, 732 (4th Cir. 1994), a

constitutional challenge to a sentence is somehow

yet foreclosed so long as “the issue appealed is within

the scope of the waiver.” United States v. Copeland,

707 F.3d 522, 528 (4th Cir.), cert. denied, 134 S. Ct.

126 (2013).

The Eleventh Circuit is no clearer on the

issue. There, any appeal waiver is valid if the

government shows either that: (1) the district court

specifically questioned the defendant about the

waiver; or (2) the record makes clear that the

defendant otherwise understood the full significance

of the waiver. United States v. Johnson, 541 F.3d

1064, 1066 (11th Cir. 2008).

Application of this rule has led to the

conclusion that an appeal waiver "includes more

than just difficult or debatable legal issues; it

includes 'waiver of the right to appeal blatant error.’”

Id. at 1068. At the same time, however, the Eleventh

Circuit has held that "a defendant who has executed

an effective waiver does not subject himself to being

8

sentenced entirely at the whim of the district

court." United States v. Bushert, 997 F.2d 1343, 1350

(11th Cir. 1993). Certainly, it is arguable that a

Defendant such as Lowman, who has been sentenced

on unreliable facts, in violation of due process, has

been damaged at least as much as he would be when

sentenced “at the whim of the district court.”

All of these different approaches, rules, and

standards, underscore the need for this Court to

bring uniformity to the circuit courts when it comes

to constitutional challenges to sentences in the face

of appeal waivers. This Court recently saw the need

to resolve important outstanding issues related to

appeal waivers in both Garza and Class. It is now

time for the Court to bring the same finality when it

comes to questions of constitutional challenges to

sentences, despite the existence of a plea waiver.

II.

The Question Presented Is Important

And Recurs Frequently.

The issue presented here—whether a

defendant can bring a due process challenge to his

sentence despite an appeal waiver—is important,

and occurs frequently in our system. It has been

observed as far back as 2005 that over 65% of plea

agreements in federal cases across the entire country

included an appeal waiver. Nancy J. King & Michael

E. O’Neill, Appeal Waivers and the Future of

Sentencing Policy, 55 Duke L.J. 209, 231 fig. 7

(2005). This figure has most likely increased since

that time.

9

While it is obvious that defendants who elect

to plead guilty and execute plea waivers forfeit

certain constitutional rights, such as the right to a

jury trial and the right to confront witnesses, it is

also clear that, as this Court recently observed in

Garza “all jurisdictions appear to treat at least some

claims as unwaiveable". Garza v. Idaho, 586 U.S.___,

___(2019). The Court specifically addressed how

some courts adhere to the “miscarriage of justice”

standard, and appeared to specifically leave for

another day which and what kind of exceptions

should exist. “We make no statement today on what

particular exceptions may be required.” Id. at

footnote 6.

The time has now come for this Court to make

such a statement, and further clarify its

jurisprudence relating to appeal waivers. This Court

can and should fashion a bright-line rule, as it did in

Garza and in Class, and hold that absent an express

waiver of a due process right, a defendant is not

precluded from bringing a constitutional challenge to

his sentence. This rule would bring all subsequent

cases in line with this Court’s constitutional

mandates regarding due process requirements at

sentencing.

It is easy to see the danger and prejudice that

lack of such a rule brings. As demonstrated, it

happened here to Michael Lowman: The district

court handed down a “harsh” sentence based on

unproven and unreliable facts. Lowman was told by

the Fourth Circuit that, because of the appeal

waiver, he had no recourse, despite an obvious and

colorable due process challenge.

10

This Court has understood the urgency of

clarifying important and deeply-held constitutional

principles as they relate to appeal waivers: Effective

Assistance of Counsel as well as the constitutional

validity of a statute. This Court should now

expressly address the bedrock principle of due

process in relation to appellate waivers, and embrace

the principle recognized by the Second Circuit that

“important constitutional rights require some

exceptions to the presumptive enforceability of [an

appeal] waiver.” Campusano v. United States 442

F.3d 770, 774, (2d Cir. 2006) (Sotomayor, J.) This

case presents the Court with a perfect vehicle within

which to do so.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully Submitted,

Wesley S. White

2300 E. 7th St. Suite 101

Charlotte, NC 28204

Telephone: (702) 824-1695

wes@weswhitelaw.com

Counsel for Petitioner