Opposition Brief — LaQuanda Gilmore Garrott, Petitioner v. United States

Supreme Court briefDec 3, 2020

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No. 20-423

In the Supreme Court of the United States

LAQUANDA GILMORE GARROTT, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

RICHARD E. ZUCKERMAN

Principal Deputy Assistant

Attorney General

S. ROBERT LYONS

KATIE BAGLEY

JOSEPH B. SYVERSON

GREGORY S. KNAPP

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the district court plainly erred in rejecting

a plea agreement under which petitioner would plead

guilty to only one of ten felony tax counts charged in the

indictment, based on the court’s determination that the

agreement would require it to impose an inappropriately low sentence.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (M.D. Ala.):

United States v. Garrott, No. 17-cr-487 (Aug. 8, 2019)

United States Court of Appeals (11th Cir.):

United States v. Garrott, No. 19-13299 (May 1, 2020)

(II)

TABLE OF CONTENTS

Page

Opinion below ................................................................................ 1

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

Statement ...................................................................................... 2

Argument....................................................................................... 7

Conclusion ................................................................................... 16

TABLE OF AUTHORITIES

Cases:

Bonner v. City of Prichard, 661 F.2d 1206

(11th Cir. 1981) ...................................................................... 6

Ellis v. United States District Court, 356 F.3d 1198

(9th Cir. 2004) ................................................................ 11, 12

Flynn, In re, 973 F.3d 74 (D.C. Cir. 2020) .......................... 14

Puckett v. United States, 556 U.S. 129 (2009) .................... 15

Rinaldi v. United States, 434 U.S. 22 (1977) ........................ 9

United States v. Bean, 564 F.2d 700 (5th Cir. 1977) ........ 6, 8

United States v. Davila, 569 U.S. 597 (2013) ...................... 14

United States v. Fokker Servs. B.V., 818 F.3d 733

(D.C. Cir. 2016) ................................................... 9, 12, 13, 14

United States v. Greener, 979 F.2d 517

(7th Cir. 1992) ........................................................................ 8

United States v. Hyde, 520 U.S. 670 (1997) .................... 8, 13

United States v. Martin, 287 F.3d 609 (7th Cir.),

cert. denied, 537 U.S. 884, and 537 U.S. 917 (2002) ......... 11

United States v. Miller, 722 F.2d 562 (9th Cir. 1983) .......... 8

United States v. Olano, 507 U.S. 725 (1993) ....................... 15

United States v. Williams, 504 U.S. 36 (1992) ................... 15

United States, In re, 345 F.3d 450 (7th Cir. 2003) ... 9, 10, 11

(III)

Statutes, guidelines, and rules:

Page

Speedy Trial Act of 1974, 18 U.S.C. 3161(h)(2) .................. 12

18 U.S.C. 3553(a) ................................................................. 3, 9

26 U.S.C. 7206(2) ............................................................. 2, 3, 5

United States Sentencing Guidelines:

§ 6B1.2(a) (2001) .............................................................. 10

§ 6B1.2(a) ........................................................................ 8, 9

§ 6B1.2, comment. ........................................................... 10

Fed. R. Crim. P.:

Rule 11 .................................................................... 8, 11, 12

Rule 11(c) ........................................................................... 7

Rule 11(c)(1) ......................................................... 5, 6, 8, 15

Rule 11(c)(1)(A) ...................................................... passim

Rule 11(c)(1)(B) ......................................................... 5, 6, 7

Rule 11(c)(1)(C) ................................................................. 4

Rule 11(c)(3)(A) ................................................... 3, 4, 8, 13

Rule 11(c)(5)(B) ................................................................. 4

Rule 48(a) ......................................................... 9, 11, 12, 14

Rule 52 .............................................................................. 14

Rule 52(b) ..................................................................... 6, 14

In the Supreme Court of the United States

No. 20-423

LAQUANDA GILMORE GARROTT, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-14)

is not published in the Federal Reporter but is reprinted at 812 Fed. Appx. 905. The opinion and order

of the district court (Pet. App. 39-43) is not published in

the Federal Supplement but is available at 2019 WL

758604.

JURISDICTION

The judgment of the court of appeals was entered on

May 1, 2020 (Pet. App. 14). On March 19, 2020, the

Court extended the time within which to file any petition for a writ of certiorari due on or after that date to

150 days from the date of the lower-court judgment or

order denying a timely petition for rehearing. Under

that extension order, the deadline for filing a petition

for a writ of certiorari in this case was September 28,

(1)

2020, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Middle District of Alabama, petitioner

was convicted on eight counts of assisting in the filing of

false federal income tax returns, in violation of 26 U.S.C.

7206(2). Judgment 1-2. The district court sentenced

petitioner to 72 months of imprisonment, to be followed

by one year of supervised release. Judgment 3-4. The

court of appeals affirmed. Pet. App. 1-14.

1. Petitioner operated a federal income tax return

preparation business in Alabama. Pet. App. 2, 27;

Presentence Investigation Report (PSR) ¶ 8. Rather

than charge a set fee for her services, petitioner generally took a percentage of her customers’ tax refunds as

payment. Pet. App. 27. Over the course of three years,

petitioner falsified most of her clients’ tax returns and

submitted those false returns to the Internal Revenue

Service. Ibid.; PSR ¶¶ 8-10. As a result, the IRS paid

nearly $675,000 in fraudulently claimed tax refunds, a

percentage of which was paid directly to petitioner. See

Pet. App. 2, 4; PSR ¶ 10.

After petitioner’s scheme was discovered, a federal

grand jury charged petitioner with ten counts of aiding

and assisting in the filing of false income tax returns, in

violation of 26 U.S.C. 7206(2). See Pet. App. 2.

2. Petitioner and the government negotiated two

separate plea agreements, both of which were rejected

by the district court.

a. The first plea agreement was reached under Federal Rule of Criminal Procedure 11(c)(1)(A). Pet. App.

2. Rule 11(c)(1)(A) authorizes the government and a

criminal defendant to reach a plea agreement under

which the defendant agrees to plead guilty to one or

more charged offenses in exchange for the government’s agreement to “not bring, or * * * move to dismiss, other charges,” Fed. R. Crim. P. 11(c)(1)(A). Under Rule 11(c)(3)(A), a “court may accept [such an]

agreement, reject it, or defer a decision until the court

has reviewed the presentence report.” Fed. R. Crim. P.

11(c)(3)(A).

In this case, petitioner and the government agreed

that petitioner would plead guilty to one of the ten Section 7206(2) counts charged in the indictment in exchange for the government’s dismissal of the remaining

nine counts. Pet. App. 2, 39. Petitioner pleaded guilty

pursuant to the agreement before a magistrate judge,

and the matter was set for sentencing before the district

judge. See id. at 2. At sentencing, however, the district

court rejected the agreement, finding that the maximum sentence that the agreement would allow—the 36month maximum for a single violation of Section

7206(2)—would have been “unreasonabl[y]” low in light

of petitioner’s “extensive criminal history.” Id. at 3; see

id. at 39-43. The court noted that petitioner had at least

87 prior convictions: 79 for writing bad checks, four for

theft, one for reckless endangerment, one for domestic

violence and harassment, one for giving a false name to

law enforcement, and one for driving with a revoked license and using a license plate to conceal one’s identity.

Id. at 3 & n.2; see id. at 39-40. And yet, the court observed, petitioner had served a total of only 13 days in

custody for these convictions. Id. at 4, 40-41.

Considering petitioner’s extensive criminal history

and the other 18 U.S.C. 3553(a) sentencing factors, the

district court determined that a sentence of only 36

months “would not merely be unreasonable but would

be outright irrational.” Pet. App. 40. The court expressed no view on “what an appropriate sentence”

would be if petitioner were found guilty on some or all

of the counts charged in the indictment, only that the

36-month maximum sentence available under the proposed plea agreement was “inappropriate.” Id. at 43.

The court assured the parties it would maintain “an

open mind as to what constitutes a reasonable sentence”

up until the time of sentencing. Id. at 43 n.2. But it

cautioned that another binding plea agreement “would

most likely be viewed as a guess as to what the judge

[wa]s thinking, or bait to catch the best deal.” Ibid.

Having rejected the proposed agreement, the district court, consistent with Rule 11(c)(5)(B), permitted

petitioner to withdraw her guilty plea. See Pet. App. 5,

42, 49; Pet. C.A. Br. 4-5. In the absence of the plea

agreement—and a plea—the government was not obligated to dismiss any of the ten charged counts, and it

did not move to do so.

b. On the eve of trial, the parties reached a second

plea agreement, this time under Rule 11(c)(1)(C). Pet.

App. 5. Rule 11(c)(1)(C) authorizes the government and

criminal defendant to reach a plea agreement under

which the defendant agrees to plead guilty to a charged

offense in conjunction with the parties’ agreement to “a

specific sentence or sentencing range,” Fed. R. Crim. P.

11(c)(1)(C). Again, under Rule 11(c)(3)(A), a “court may

accept [such an] agreement, reject it, or defer a decision

until the court has reviewed the presentence report.”

Fed. R. Crim. P. 11(c)(3)(A). If a court accepts the plea

agreement, it is bound by the agreed-upon sentence or

sentencing range. Fed. R. Crim. P. 11(c)(1)(C). In this

case, the parties agreed to a sentence at the bottom of

the Guidelines sentencing range provided that petitioner pleaded guilty to two of the ten Section 7206(2)

counts. Pet. App. 5.

The district court rejected the second plea agreement, reiterating its view that a binding plea agreement

“would be seen as manipulating the [c]ourt” into participating in plea negotiations, which Rule 11(c)(1) prohibits. Pet. App. 50; see id. at 48-55. The court stated that

the parties were free to pursue another plea agreement

pursuant to Rule 11(c)(1)(B), which would recommend

but not bind the court to any particular sentence or sentencing range. See id. at 52. The court made clear that

its rejection of both previous plea agreements was

“driven by what is a reasonable sentence,” not by the

number of counts petitioner was willing to plead to. Id.

at 53; see ibid. (“This is all about sentencing. And sentencing is the [c]ourt’s prerogative.”).

Again, the government did not move to dismiss any

counts in the absence of a plea. Before trial, the government offered petitioner another plea agreement that

would have required her to plead guilty to two counts

without a sentence recommendation, but petitioner rejected such an agreement. Gov’t C.A. Br. 2; see Pet.

App. 6. The case thus proceeded to trial on all ten

counts. Pet. App. 6. Ultimately, the jury found petitioner guilty on eight counts. Ibid. The district court

imposed a within-Guidelines sentence of 72 months of

imprisonment and ordered her to pay restitution in the

amount of $56,897, citing petitioner’s extensive criminal

history in support of the sentence. Id. at 7.

3. The court of appeals affirmed in a unanimous,

nonprecedential opinion. Pet. App. 1-14. As relevant

here, petitioner argued on appeal that the district court

impermissibly participated in plea negotiations, in violation of Rule 11(c)(1)’s instruction that a district court

“must not participate” in such negotiations, Fed. R.

Crim. P. 11(c)(1), when it rejected the first plea agreement and later told the parties that they could enter into

a nonbinding agreement under Rule 11(c)(1)(B). Pet.

App. 8. Because petitioner had not raised that claim in

the district court, the court of appeals reviewed the

claim for plain error. Pet. App. 9; see Fed. R. Crim. P.

52(b). And the court of appeals found that “the district

court did not participate in the parties’ plea negotiations.” Pet. App 10.

Relying on the former Fifth Circuit’s decision in

United States v. Bean, 564 F.2d 700 (1977), the court of

appeals found no error in the district court’s rejection

of the first plea agreement. Pet. App. 10 (citing Bean,

564 F.2d at 703-704); see Bonner v. City of Prichard,

661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting

as binding precedent in the Eleventh Circuit all decisions of the former Fifth Circuit handed down before

October 1, 1981). In Bean, the court had recognized

that a trial judge may reject a plea agreement that “will

result in the defendant’s receiving too light a sentence

under the circumstances of the case,” including where

the agreement limits the defendant’s maximum sentence by agreeing to the dismissal of certain counts. 564

F.2d at 703-704. The court of appeals reasoned that in

this case, the district court acted “well within its authority to reject the plea agreement” on the ground that it

would have compelled an unreasonable sentence. Pet.

App. 10.

The court of appeals further observed that the district court had expressly recognized on multiple occasions that it could not participate in plea negotiations—

for example, in denying petitioner’s motion for a status

conference to discuss the court’s concerns with the proposed agreement. Pet. App. 10-11. The court of appeals

also determined that, even if the district court had erred

when it mentioned the possibility of a nonbinding plea

agreement under Rule 11(c)(1)(B), that error was not

plain. Id. at 11. “We have never held, and [petitioner]

doesn’t cite to any case holding, that a district court violates [R]ule 11(c)(1) when it rejects a plea agreement

because it doesn’t want to be bound to a specific sentence under [R]ules 11(c)(1)(A) and 11(c)(1)(C).” Ibid.

ARGUMENT

In the court of appeals, petitioner argued that, in rejecting the plea agreements in this case, the district

court impermissibly “participated in plea negotiations

between [petitioner] and the government in violation of

[Federal Rule of Criminal Procedure] 11(c)(1).” Pet.

C.A. Br. 9 (emphasis omitted). In this Court, petitioner

argues, for the first time, that the district court “violate[d] the separation of powers” by rejecting the first

plea agreement. Pet. i. Rule 11(c), however, expressly

authorized the district court to reject the Rule

11(c)(1)(A) agreement, and the court permissibly exercised its discretion in doing so on the ground that it

would compel an unreasonable sentence. The court of

appeals thus correctly rejected petitioner’s challenge

under plain-error review. Its decision does not conflict

with any decision of this Court or of another court of

appeals. And this case would be an unsuitable vehicle

for considering either the argument petitioner raised

below or the separation-of-powers argument she raises

for the first time in this Court. The petition for a writ

of certiorari should be denied.

1. The district court acted within its discretion in rejecting the Rule 11(c)(1)(A) “charge bargain” proposed

by the parties. Federal Rule of Criminal Procedure

11(c)(1) provides that the parties “may discuss and

reach a plea agreement” under which the government

agrees that it will “not bring, or will move to dismiss,

other charges.” Fed. R. Crim. P. 11(c)(1)(A). The Rule

further provides that the district court “must not participate in these discussions.” Fed. R. Crim. P. 11(c)(1).

At the same time, however, Rule 11 states that the court

is free to “reject” a resulting plea agreement “of the

type specified in Rule 11(c)(1)(A) or (C).” Fed. R. Crim.

P. 11(c)(3)(A); see United States v. Hyde, 520 U.S. 670,

675-676 (1997) (recognizing a district court’s authority

to reject a Rule 11(c)(1)(A) agreement).

In exercising that discretion, the Sentencing Guidelines provide that the district court should consider

whether “the remaining charges adequately reflect the

seriousness of the actual offense behavior [so] that accepting the agreement will not undermine the statutory

purposes of sentencing or the sentencing guidelines.”

Sentencing Guidelines § 6B1.2(a). Lower courts have

similarly recognized that the district court may reject a

“charge bargain” plea agreement if it determines that

the agreement “will result in the defendant’s receiving

too light a sentence under the circumstances of the

case.” United States v. Bean, 564 F.2d 700, 704 (5th Cir.

1977); see United States v. Greener, 979 F.2d 517, 520

(7th Cir. 1992) (upholding rejection of plea agreement

that “would not adequately represent the defendant’s

criminal conduct and would undermine the sentencing

guidelines”); United States v. Miller, 722 F.2d 562, 563

(9th Cir. 1983) (“Rule 11 also contemplates the rejection

of a negotiated plea when the district court believes that

the bargain is too lenient, or otherwise not in the public

interest.”).

The district court’s rejection of the Rule 11(c)(1)(A)

plea agreement in this case as unreasonable was consistent with those principles. In rejecting that plea

agreement, the court was careful not to involve itself in

plea negotiations or to suggest which charges (if any)

petitioner should plead to. Pet. App. 5-6. It simply declined to accept the particular plea agreement presented to it, which, in its judgment, would compel an unreasonably lenient sentence for the remaining charge

that would not “adequately reflect the seriousness of

the actual offense behavior” and petitioner’s extensive

criminal history. Sentencing Guidelines § 6B1.2(a); see

18 U.S.C. 3553(a). That was a proper exercise of the

court’s sentencing discretion.

Contrary to petitioner’s suggestion (Pet. 35-36), the

district court’s rejection did not impermissibly compel

the government to proceed to trial on any counts or preclude the government’s filing of a motion to dismiss any

counts under Rule 48(a). Where a government’s request to dismiss charges is not contingent on the disposition of the remaining charges, a court generally must

grant that request, unless denying leave is necessary to

“protect a defendant against prosecutorial harassment.” Rinaldi v. United States, 434 U.S. 22, 29 n.15

(1977); see United States v. Fokker Servs. B.V., 818 F.3d

733, 742 (D.C. Cir. 2016) (“A court * * * reviews the

prosecution’s motion under Rule 48(a) primarily to

guard against the prospect that dismissal is part of a

scheme of ‘prosecutorial harassment’ of the defendant

through repeated efforts to bring—and then dismiss—

charges.”) (citation omitted); In re United States, 345

F.3d 450, 454 (7th Cir. 2003) (suggesting that denying

leave might also be appropriate where the prosecutor

“is acting alone rather than at the direction or with the

approval of the Justice Department”); see also Sentencing Guidelines § 6B1.2, comment. (similar). But where,

as here, “the dismissal of charges * * * is contingent

on acceptance of a plea agreement, the court’s authority

to adjudicate guilt and impose sentence is implicated.”

Sentencing Guidelines § 6B1.2, comment. In those circumstances, the court may determine whether or not

acceptance of the plea agreement “will undermine the

sentencing guidelines.” Ibid.

2. Petitioner errs in contending (Pet. 18-31) that the

court of appeals’ decision conflicts with decisions from

the Seventh, Ninth, and D.C. Circuits. All of the decisions cited by petitioner involved a government charging decision that was not contingent on the successful

execution of a plea agreement. None found any error in

a district court’s rejection of a plea agreement, and none

suggests that those courts would find any error—much

less plain error—in the district court’s rejection here.

The Seventh Circuit in In re United States, supra,

took no issue with the district court’s rejection of a Rule

11(c)(1)(A) plea agreement “on the ground that the one

count of which [the defendant] would be convicted if the

agreement were accepted did not reflect the gravity of

his actual offense.” 345 F.3d at 451 (citing Sentencing

Guidelines § 6B1.2(a) (2001)). The problem in In re

United States instead concerned what the district court

did after rejecting the plea agreement.

After the district court rejected the plea agreement,

the defendant in In re United States proceeded to plead

guilty without a plea agreement to one of three charged

counts, and the government moved to dismiss the two

remaining counts. 345 F.3d at 451-452. But the court

refused to dismiss one of the counts, and even appointed

a private lawyer to prosecute that count. Id. at 452. On

the government’s petition for a writ of mandamus, the

Seventh Circuit held that the district court had infringed on the Executive Branch’s prosecutorial discretion by denying the government’s motion to dismiss the

charge and appointing an independent prosecutor to

pursue it. See id. at 452-453. The district court took no

analogous action here, and Seventh Circuit precedent

recognizes that the district court’s discretion to reject a

plea agreement is broader than its authority to deny a

motion to dismiss criminal charges pursuant to Fed. R.

Crim. P. 48(a). See United States v. Martin, 287 F.3d

609, 623, cert. denied, 537 U.S. 884, and 537 U.S. 917

(2002).

The Ninth Circuit’s decision in Ellis v. United States

District Court, 356 F.3d 1198 (2004) (en banc), likewise

does not conflict with the decision below and, in fact,

strongly supports the district court’s rejection of the

plea agreement here. In Ellis, the government indicted

the defendant on first-degree murder, but subsequently

reached a plea agreement with the defendant under

which the defendant agreed to plead guilty to a superseding information charging him with second-degree

murder. Id. at 1201. As here, the district court initially

accepted the defendant’s guilty plea but rejected the

plea agreement as too lenient. Id. at 1201-1202. The

Ninth Circuit determined that the district court’s actions in that respect complied both with Rule 11 and the

Constitution: “The district court here was free to * * *

reject the proposed plea agreement because it did not

believe the guidelines sentence supported by the nego-

tiated charge was adequate to serve the public interest.” Id. at 1209; see ibid. (“This was a judgment

properly within the judicial function.”).

The problem in Ellis, as in In re United States, was

what happened next. The Ninth Circuit concluded that

the district court erred when, after rejecting the plea

agreement, it vacated the defendant’s guilty plea to

second-degree murder and reinstated the original firstdegree-murder indictment over the government’s objection. Ellis, 356 F.3d at 1209. The Ninth Circuit

found that action, not the rejection of the plea agreement, “intru[ded] * * * into the separate powers of the

executive branch.” Ibid. But, again, nothing of that nature happened here. The government never sought to

introduce a superseding indictment or to file a motion to

dismiss any charges independent from a plea agreement.

Finally, neither decision from the D.C. Circuit on

which petitioner relies (Pet. 27-31) conflicts with the decision below. United States v. Fokker Services, B.V.,

supra, concerned a district court’s authority to deny a

motion to toll certain time limits for prosecution under

the Speedy Trial Act of 1974, 18 U.S.C. 3161(h)(2), pursuant to a deferred prosecution agreement (DPA), not

its authority to reject a plea agreement under Rule 11.

See 818 F.3d at 737-738. Analogizing to a district

court’s limited authority to deny the government’s motion to dismiss criminal charges under Rule 48(a), the

D.C. Circuit held that Section 3161(h)(2)’s requirement

for court approval of a DPA does not grant a court

broad authority to “scrutinize prosecutorial charging

choices.” Id. at 743.

Fokker, however, distinguished a district court’s narrow authority under Rule 48(a) and Section 3161(h)(2)

from its authority to “ ‘accept’ or ‘reject’ a proposed plea

agreement under Rule 11.” 818 F.3d at 745 (quoting

Fed. R. Crim. P. 11(c)(3)(A)). The court reasoned that

only the latter authority is “rooted in the Judiciary’s

traditional power over criminal sentencing.” Ibid. And

the court further explained that “[u]nlike a plea agreement

—and more like a dismissal under Rule 48(a)—a DPA

involves no formal judicial action imposing or adopting

its terms.” Id. at 746. “Whereas a district court enters

a judgment of conviction and then imposes a sentence in

the case of a plea agreement, the court takes no such

actions in the case of a DPA.” Ibid.

Petitioner highlights Fokker’s statement that “[t]rial

judges are not free to withhold approval of guilty pleas

. . . merely because their conception of the public interest differs from that of the prosecuting attorney.” Pet.

29 (quoting Fokker, 818 F.3d at 745). But the district

court here refused to accept a Rule 11(c)(1)(A) plea

agreement, not a guilty plea. See Hyde, 520 U.S. at 674

(distinguishing between the “acceptance of the guilty

plea” and the “acceptance of the plea agreement”). Petitioner herself made the decision to withdraw her

guilty plea after the plea agreement was rejected. See

Pet. App. 5; Pet. C.A. Br. 4-5. And while Fokker also

stated that “a district court lacks authority to reject a

proposed agreement based on mere disagreement with

a prosecutor’s underlying charging decisions,” 818 F.3d

at 745, the district court’s rejection of the plea agreement here was expressly based on its concerns about

the appropriate sentence, not the government’s charging decisions. See Pet. App. 40 (“Considering Congress’s sentencing mandate and the history and characteristics of [petitioner], the court is convinced that a

sentence of 36 months would not merely be unreasonable but would be outright irrational.”).

In re Flynn, 973 F.3d 74 (D.C. Cir. 2020) (per curiam) (en banc), is even further afield. In that case, the

D.C. Circuit, on a defendant’s petition for a writ of mandamus, declined to order a district court to grant the

government’s unopposed Rule 48(a) motion to dismiss

criminal charges before hearing argument from an amicus appointed by the district court to oppose that motion.

Id. at 82, 85. The D.C. Circuit denied mandamus relief

on the ground that the defendant and the government

“ha[d] an adequate alternative means of relief,” namely,

“the District Court could grant the motion, reject amicus’s arguments, and dismiss the case.” Id. at 79. The

court acknowledged that denial of the government’s

Rule 48(a) motion could raise separation-of-powers concerns “by intruding on the Executive Branch’s prosecutorial discretion.” Id. at 80 (citing Fokker, 818 F.3d at

737-738). But it concluded that, because the district

court had not yet ruled on the motion to dismiss, any

consideration of those separation-of-powers concerns

was premature. Id. at 80-81. That decision about the

appropriate circumstances for mandamus relief has no

bearing here.

3. In any event, even if the Court were inclined to

consider the question presented, this case would be an

unsuitable vehicle to do so because petitioner failed to

preserve her various arguments in the proceedings below. As petitioner acknowledges (Pet. 12), the court of

appeals correctly applied plain-error review under Rule

52(b) to her claim that the district court impermissibly

participated in plea negotiations because she did not

raise that objection in the district court. See Pet. App.

9; see also United States v. Davila, 569 U.S. 597, 607608 (2013) (holding that Rule 52 applies to a claim that

the district court impermissibly participated in plea negotiations). To prevail under that standard, petitioner

has to show not only error, but error that was “clear or

obvious”; that “ ‘affected the outcome of the district

court proceedings’ ”; and that “ ‘seriously affect[ed] the

fairness, integrity or public reputation of judicial proceedings.’ ” Puckett v. United States, 556 U.S. 129, 135

(2009) (quoting United States v. Olano, 507 U.S. 725,

733-734, 736 (1993)). And even then, an appellate court

would have “discretion [whether] to remedy the error.”

Ibid. (emphasis omitted). Petitioner cannot meet those

requirements here.

In addition, the question that petitioner presents to

this Court differs substantially from the issue she

raised in the court of appeals. Petitioner argued below

only that the district court violated Rule 11(c)(1)’s prohibition on district courts’ participating in plea negotiations. See Pet. C.A. Br. 9-13; Pet. C.A. Reply Br. 2-9.

She did not mention the separation of powers nor cite

any of the Seventh, Ninth, or D.C. Circuit cases that she

now claims contradict the decision below. See ibid. And

the court of appeals did not consider any such constitutional claim. In this Court, petitioner shifts gears, apparently abandoning her claim that the district court violated Rule 11(c)(1) and instead arguing that the district court violated the separation of powers by interfering with the Executive Branch’s charging discretion.

See Pet. i. This Court’s “traditional rule * * * precludes

a grant of certiorari * * * when the question presented

was not pressed or passed upon below.” United States

v. Williams, 504 U.S. 36, 41 (1992) (citation and internal

quotation marks omitted). Petitioner provides no sound

reason to depart from that practice in this case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.