Petition for Writ of Certiorari — John Doe #1, Petitioner v. United States

No. ____________________

IN THE

Supreme Court of the United States

_________________________________

JOHN DOE #1

Petitioner,

vs.

UNITED STATES,

Respondent.

_________________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

_________________________________

PETITION FOR WRIT OF CERTIORARI

_________________________________

MICHELLE ANDERSON BARTH

CJA appointed counsel for Petitioner

Law Office of Michelle Anderson Barth

P.O Box 4240

Burlington, VT 05406

(619) 884-3883

i.

QUESTIONS PRESENTED

Whether the Second Circuit Court of Appeals erred, in violation of U.S.

Const. V, when it imposed the communication condition of supervision which

is vague, unfairly impacts John Doe #1’s intimate familial relationships, and

is an outlier among Courts of Appeals’ decisions that have examined similar

issues?

Whether a federal district court is permitted boundless discretion to

weigh established factors at sentencing, as the Second Circuit has held, or

whether, following the majority of circuits, appellate courts must instead

determine whether the district court’s weighing of sentencing factors was

proper?

ii

ii.

PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT

Petitioner is John Doe #1, defendant-appellant below. Respondent is

the United States, plaintiff-appellee below. Petitioner is not a corporation.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .................................................................................. ii

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 STATEMENT ........................................................................ iii

TABLE OF AUTHORITIES ............................................................................... vi

PETITION FOR CERTIORARI .......................................................................... 1

OPINIONS BELOW ............................................................................................ 1

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

I.

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

II.

ARGUMENT ............................................................................................. 6

A.

B.

This Court should grant JD-1's petition to resolve the growing

split of Circuit authority regarding this condition's legality. ...... 6

1.

This Court should grant certiorari because the

communication condition unfairly impacts JD-1's intimate

familial relationships and this Order is an outlier among

Courts of Appeals decisions that have examined similar

issues, even within the Second Circuit............................... 6

2.

The Order's conclusion that the communication condition is

not unconstitutionally vague or overbroad is part of a

growing split in the various Courts of Appeals decision that

have examined similar issues .............................................. 9

3.

The Court should grant certiorari because conditions of

supervision like this one are imposed frequently and are

untethered from the goals of reducing recidivism and

helping an offender reintegrate issues .............................. 12

The Order's conclusion that the sentence was substantively

reasonable because it did not "shock the conscience" instead of

examining the weight the district court assigned to the relevant

sentencing factors is an outlier ................................................... 16

iv

III

CONCLUSION ....................................................................................... 19

INDEX TO APPENDICES

Opinion, United States v. John Doe #1 .............................. APPENDIX A

v

TABLE OF AUTHORITIES

Page

CASES

Arciniega v. Freeman,

404 U.S 4, (1971) ............................................................................................... 10

Colon–Cabrera v. Esso Standard Oil Co. (P.R.), Inc.,

723 F.3d 82 (1st Cir. 2013) .................................................................................. 6

Gall v. United States,

552 U.S. 38 (2007) ............................................................................................. 14

Roberts v United States,

468 U.S. 609 (1984) ............................................................................................. 7

United States v. Bear,

769 F.3d 1221 (10th Cir. 2014) ........................................................................... 8

United States v. DeGroate,

940 F.3d 167 (2d Cir. 2019) .............................................................................. 14

United States v. Del Valle-Cruz,

785 F.3d 48 (1st Cir. 2015) ............................................................................. 6,14

United States v. Diehl,

775 F.3d 714 (5th Cir. 2015) .......................................................................... 6,15

United States v. Doe #1,

802 Fed. App'x 655 (2d Cir. 2020 .............................................................. passim

United States. v. Fey,

834 F.3d 1 (1st Cir. 2016) .................................................................................... 7

United States v. Hall,

912 F. 3d 1224 (9th Cir. 2019) ............................................................................ 4

United States v. Irey,

612 F.3d 1160 (11th Cir. 2010) ...................................................................... 6,15

United States v. Jenkins,

758 F.3d 1046 (8th Cir. 2014) ........................................................................ 6,15

vi

United States v. LeCompte,

800 F.3d 1209 (10th Cir. 2015) ........................................................................... 7

United States v. Mumuni,

946 F.3d 97 (2d Cir. 2019) .................................................................................. 4

United States v. Munoz,

812 F.3d 809 (10th Cir. 2016) ............................................................................. 9

United States v. Myers,

426 F.3d 117 (2d Cir. 2005) ........................................................................... 3,5,8

United States v. Sainz,

827 F.3d 602 (7th Cir. 2016) ............................................................................... 7

United States v. Wolf Child,

699 F.3d 1082 (9th Cir. 2012) ............................................................................ 7

United States v. Wright,

747 F.3d 399 (6th Cir. 2014) ......................................................................... 6,15

Wilkinson v. Russell

182 F.3d 89 (2d Cir. 1999) ................................................................................... 7

OTHER AUTHORITIES

U.S. Const. amend V ........................................................................................... 2

MISC. AUTHORITIES

Number of Offenders on Federal Supervised Release Hits All-Time High, The

Pew Charitable Trusts, (Jan. 24, 2017) ............................................................. 2

vii

PETITION FOR CERTIORARI

Petitioner John Doe #1 respectfully prays for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Second

Circuit.

OPINIONS BELOW

The judgment of the United States Court of Appeals for the Second

Circuit was filed in a summary order on April 27, 2020. A three-judge panel of

the Second Circuit issued a summary order (the “Order”) affirming in part and

vacating in part the judgment of the district court. 1 See United States v. Doe

#1, 802 Fed. App’x 655 (2d Cir. 2020). The Order is attached as Appendix A.

JURISDICTION

On April 27, 2020, a three-judge panel for the Second Circuit denied

Petitioner’s appeal and vacated in part and affirmed in part his sentence in the

aforementioned Order.12 This Court has jurisdiction to review the Second

Circuit’s decision pursuant to 28 U.S.C. § 1254.

CONSTITUTIONAL & STATUTORY PROVISIONS

U.S. Const. Amend. V:

1 The panel vacated the $1,020,000 fine imposed and ordered a remand to address this issue.

2 The time to file a petition for a writ of certiorari runs from the date a judgment is entered by

a United States court of appeals. Sup. Ct. R. 13(1). A petition for a writ of certiorari is timely

when filed within 90 days. Sup. Ct. R. 13(1). A petition is timely filed if mailed on the date

for filing. Sup. Ct. R. 29.2. If the due date falls on a Saturday, Sunday, federal holiday, or day

the Court is closed, it is due the next day the Court is open. Sup. Ct. R. 30.1. The Second

Circuit Court of Appeals entered the Order affirming the convictions in this case on April 27,

2020, making the petition for writ of certiorari ordinarily due on July 24, 2020. However, an

order issued by this Court on March 19, 2020 in response to the COVID-19 pandemic extended

the due date to 150 days instead of 90 days making this petition for writ of certiorari due on

September 24, 2020.

1

“No person shall . . . be deprived of life, liberty, or property,

without due process of law.”

I.

STATEMENT OF THE CASE

Petitioner John Doe #1, (“JD-1”), along with his son, co-defendant John

Doe #2, (“JD-2”), appealed from the May 15, 2018 judgments entered in the

United States District Court for the Southern District of New York sentencing

them to 144 months imprisonment followed by five years of supervised release.

In addition, JD-1 was fined $1,020,000 and JD-2 was fined $390,000.

On appeal, JD-1 and JD-2 challenged the imposition of their fines, the

substantive reasonableness of their sentences, and two supervised release

conditions. At issue in this petition is the communication prohibition condition

of supervision and the substantive reasonableness of JD-1’s sentence.

The communication prohibition prohibits communicating or interacting

with someone known to be a convicted felon without JD-1 first obtaining the

permission of his probation officer. The communication condition states:

8. You must not communicate or interact with someone

you know is engaged in criminal activity. If you know

someone has been convicted of a felony, you must not

knowingly communicate or interact with that person

without first getting the permission of the probation

officer.

JD-1 submitted that this condition was unlawful and unjustified

because it prohibits interaction or communication between JD-1 and his son,

JD-2, without advance permission from their probation officers because both

2

have suffered felony convictions and are subject to the same standard

condition. Specifically, JD-1 argued that the condition is vague, overbroad,

infringes on his substantive due process rights to familial association, and

gives the probation officer unfettered control over his right of association. Its

enforcement, JD-1 argued, would result in an improper delegation of authority

to the probation officer because it could only be administered in an ad hoc and

subjective fashion.

With respect to JD-1’s substantive due process challenge, although the

Second Circuit has previously vacated restrictions on contact among family

members in some contexts, see, e.g., United States v. Myers, 426 F.3d 117 (2d

Cir. 2005), it found no substantive due process error here because the error

was not plain.

With regard to the vagueness and overbreadth challenges to the

communication condition, the Second Circuit concluded that even if there was

error was made, it did not satisfy the plain error standard. The Order did not

address JD-1’s argument that the communication condition would result in

uneven enforcement amounting to affording too much discretion to the

probation officer.

In response to JD-1’s claim that his sentence was substantively

unreasonable because the district court placed too much weight on one factor—

JD-1’s alleged breach of his cooperation agreements—and not enough weight

on other factors, such as his extraordinary cooperation efforts, the Second

3

Circuit affirmed his sentence. The Second Circuit stated that, “A sentence is

substantively unreasonable when it is manifestly unjust or when it shocks the

conscience. Id. at 656 (citing United States v. Mumuni, 946 F.3d 97, 107 (2d

Cir. 2019). It stated that it should not “second guess the weight (or lack

thereof) that the judge accorded to a given factor or to a specific argument made

pursuant to that factor” when reviewing sentences for substantive

reasonableness. Id. at 657.

The Second Circuit vacated the fines and remanded to the district court

to address the appropriateness of fines. The panel affirmed JD-1 and JD-2’s

sentences in all other respects, including the challenged supervised release

conditions.

JD-1’s petition should be granted by this Court for at least four main

reasons.

First, the Order’s conclusion that the communication condition does

not violate JD-1’s substantive due process rights when it impacts his familial

relationships is an outlier among Courts of Appeals’ decisions. See e.g.,

United States v. Hall, 912 F.3d 1224, 1226 (9th Cir. 2019) (reversing, as

violative of due process, a condition of supervised release limiting defendant’s

interaction with his adult son, with whom he conspired on the underlying

offense). It also contradicts authority within the Second Circuit. See e.g.,

United States v. Myers, 426 F.3d 117, 130 (2d. Cir. 2005) (vacating condition

of supervised release which prohibited defendant from visiting with his own

4

son unless he precleared visit with probation).

Second, the Order’s conclusion that the communication condition is not

unconstitutionally vague and overbroad is an outlier in the various Courts of

Appeals’ decisions that have examined similar issues. Resolution of this issue

will lead to circuit courts’ uniformity.

Third, the issue has national importance. With nearly 190,000 inmates,

the federal prison system is the largest in the nation. Number of Offenders on

Federal Supervised Release Hits All-Time High, The Pew Charitable Trusts,

(Jan. 24, 2017). 3 The number of offenders serving a term of supervised release

has risen three-fold in the last two decades. Id. (comparing statistics between

1995-2015). More than eight in ten offenders sentenced to federal prison are

subject to court-ordered supervised release. Id. As a standard condition of

supervised release, this troublesome condition is imposed with great frequency

and impacts many federal offenders.

Finally, regarding the substantive reasonableness of the sentence

imposed, unlike the Second Circuit, the majority of circuits have ruled that the

appellate court should review whether a district court properly weighed legal

factors at sentencing. Under this view, “[t]he abuse of discretion standard is

not a rubber stamp, counseling affirmance of every discretionary decision made

by a trial court.” United States v. Del Valle-Cruz, 785 F.3d 48, 58 (1st Cir.

3 The information cited herein can be found at : https://www.pewtrusts.org/en/research-andanalysis/issue-briefs/2017/01/number-of-offenders-on-federal-supervised-release-hits-alltime-high (last visited on September 16, 2020).

5

2015) (internal quotation marks omitted). The First Circuit reasoned: “The

[district] court exceeds its discretion when it fails to consider a significant

factor in its decisional calculus, if it relies on an improper factor in computing

that calculus, or if it considers all of the appropriate factors but makes a serious

mistake in weighing such factors.” Id. (quoting Colon–Cabrera v. Esso

Standard Oil Co. (P.R.), Inc., 723 F.3d 82, 88 (1st Cir. 2013)). Several other

circuits apply some form of the same test. See e.g., United States v. Diehl, 775

F.3d 714, 724 (5th Cir. 2015); United States v. Wright, 747 F.3d 399, 413 (6th

Cir. 2014); United States v. Jenkins, 758 F.3d 1046, 1050 (8th Cir. 2014);

United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010). The Second

Circuit is an outlier in finding that a sentence must be shocking or manifestly

unjust before permitting meaningful review of how a district court weighs the

relevant sentencing factors.

II.

ARGUMENT

A.

This Court should grant JD-1’s petition to resolve the split of Circuit

authority regarding this condition’s legality.

1.

This Court should grant certiorari because the communication

condition unfairly impacts JD-1’s intimate familial relationships

and this Order is an outlier among Courts of Appeals’ decisions

that have examined similar issues, even within the Second

Circuit.

This Court has long recognized a constitutional right to freedom of

association. Roberts v United States, 468 U.S. 609, 617 (1984). Included in

this right is the “freedom of intimate association,” which is exemplified by

6

those personal affiliations that “attend the creation and sustenance of a

family—marriage; childbirth; the raising and education of children; and

cohabitation with one's relatives .” Id. at 619 (citations omitted). It is wellestablished that a parent's interest in maintaining a relationship with his or

her child is protected by the Due Process Clause. Wilkinson v. Russell, 182

F.3d 89, 103-04 (2d. Cir. 1999).

Conditions prohibiting or limiting a defendant’s associational interests,

particularly with minors, have been vacated by other appellate courts. See,

e.g., United States. v. Fey, 834 F.3d 1, 5-6 (1st Cir. 2016) (vacating condition

restricting the defendant’s contact with children); United States v. Sainz, 827

F.3d 602, 608 (7th Cir. 2016) (vacating condition prohibiting any contact with

children and remanding it in order to modify the condition to exclude incidental

contact with children in commercial settings); United States v. LeCompte, 800

F.3d 1209, 1215-1218 (10th Cir. 2015) (remanding condition restricting contact

with minors because the court did not adequately explain how applying such a

condition related to the defendant’s criminal offense, the defendant’s history

and characteristics, or how it served the purposes of deterring criminal

activity, protecting the public, and promoting the defendant’s rehabilitation).

See e.g. United States v. Wolf Child, 699 F3d 1082, 1095-96 (9th Cir. 2012) (if

the record does not justify imposing a supervised release condition that

infringes on a defendant’s liberty interest, the limiting condition may not be

imposed simply because a probation officer has the authority to mitigate the

7

severity of the improper deprivation of liberty); United States v. Bear, 769 F.3d

1221, 1229 (10th Cir. 2014) (finding condition that restricted contact with

defendant’s own children violated defendant’s constitutional liberty interest in

his relationship with his children).

In United States v. Myers, then Judge Sotomayor writing for the Second

Circuit held that a condition of supervision restricting familial association with

a defendant’s minor children in a case where the defendant had suffered a

conviction for receiving child pornography was unreasonable:

In short, when a fundamental liberty interest is implicated

by a sentencing condition, we must first consider the

sentencing goal to which the condition relates, and whether

the record establishes its reasonableness. We must then

consider whether it represents a greater deprivation of

liberty than is necessary to achieve that goal. Here,

however, the record was inadequate on both prongs of the

inquiry, allowing us neither to identify the goal to which

the condition related nor to determine whether an undue

deprivation of liberty occurred.

426 F.3d 117, 126 (2d. Cir. 2005).

The Order’s conclusion that the communication condition did not violate

JD-1’s substantive due process rights when it interferes in his most intimate

familial relationships contradicts Myers.

It also stands among Courts of

Appeals’ decisions that have examined similar issues. See e.g., United States

v. Hall, 912 F.3d 1224, 1226 (9th Cir. 2019) (reversing, as violative of due

process, a condition of supervised release limiting defendant’s interaction with

his son to “normal familial relations.”).

8

Here, a fundamental interest is at stake. As worded, the condition is a

greater deprivation of liberty than what is necessary to further any legitimate

governmental concern. As such, this condition unnecessarily infringes upon

JD-1’s protected associational interest—communicating with his own son.

This Court should grant certiorari to correct these significant departures

from established Constitutional principles.

2.

The Order’s conclusion that the communication condition is not

unconstitutionally vague or overbroad is part of growing split in

the various Courts of Appeals’ decisions that have examined

similar issues.

The Order’s conclusion that the communication condition is not

unconstitutionally vague or overbroad is part of a growing split in the various

Courts of Appeals’ decisions that have examined similar issues. See generally

United States v. Munoz, 812 F.3d 809 (10th Cir. 2016) (noting disagreement

between the circuits regarding several standard conditions of supervision,

including the communication condition).

Vagueness principles have been applied to conditions that impact

defendants and their relationships with their adult children. For example, in

United States v. Hall, Gordon Hall (“Hall”) and his son, Benton (“Benton”) were

both sentenced to prison for their business venture helping others defraud the

government through false money orders. Hall, 912 F.3d at 1226. The two were

already incarcerated for a separate joint criminal enterprise.

Id.

Hall

appealed a special condition of his release restricting his relationship with his

family. Id. That condition provided that Hall “is permitted to have contact

9

with Benton [ ] only for normal familial relations but is prohibited from any

contact, discussion, or communication concerning financial or investment

matters except matters limited to defendant’s own support.” Id. On appeal,

Hall objected at sentencing that the condition was unconstitutionally vague

and the Ninth Circuit struck the offending words. Id. at 1227.

This condition is also vague.

It does not define what it means to

“interact” with someone but prohibits any interaction. The Order relies on this

Court’s decision in Arciniega v. Freeman, 404 U.S. 4, 4 (1971), to solve the

vagueness issue. Doe #1, 802 Fed. App’x at 657. In Arciniega, a parolee had

his parole revoked on the sole ground that he worked at a restaurant where

other ex-convicts worked. Id. The trial court found him in violation of a parole

condition prohibiting him from associating with other ex-convicts. Id. In a per

curiam opinion, this Court reversed and held that the condition was not

intended to prohibit “incidental contacts between ex-convicts in the course of

work on a legitimate job for a common employer.” Id. This Court did not

consider whether the condition was vague or overbroad. As such, the Second

Circuit’s reliance on Arciniega is misplaced.

The problem of vagueness often goes hand-in-hand with enforcement

issues and such is the case here. For example, if JD-1 waved to JD-2 upon

their release, would that constitute a prohibited “communication”? If both

showed up for a family function at the same time, is that a prohibited

“interaction”? But such problems extend beyond intimate family relationships.

10

If JD-1 knew that the person bagging his groceries at the local market had a

felony conviction and JD-1 exchanged pleasantries with her on a regular basis,

is that prohibited conduct if he has not first obtained permission from his

probation officer?

In general, the probation office is responsible for implementing the

conditions imposed by the court and, in doing so, can exercise discretion. The

enforcement of the communication condition results in an improper delegation

of authority to the probation officer because it can only be administered in an

ad hoc and subjective fashion. That is, the condition, due to its vagueness,

leaves it to the discretion of the probation officer to determine whether JD-1

can have interaction with his son, or has had a prohibited interaction and in

turn, whether to file a petition seeking revocation of JD-1’s supervision.

Notwithstanding the vagueness and enforcement issues, it is simply not

reasonably related to the factors set forth in section 3553(a) as worded. It is

unclear how prohibiting JD-1 from interacting with anyone who has ever

suffered a felony conviction, no matter how old or how unrelated to the instant

offense, relates to any permissible goal of supervised release—certainly none

was offered by the government, probation, or district court at the time of

sentencing. Such a vague and overly broad condition is unsupported by

adequate findings and it is not well-tailored to serve the purposes of

deterrence, rehabilitation, and protection of the public.

11

JD-1 urges this Court to grant his petition so that the Second Circuit

can be brought in line with the majority view.

3.

This Court should grant certiorari because conditions of

supervision like this one are imposed frequently and are

untethered from the goals of reducing recidvisim and helping an

offender reintegrate.

This Court grant this petition on this issue because it raises an issue of

national importance. With nearly 190,000 inmates, the federal prison system

is the largest in the nation. Number of Offenders on Federal Supervised

Release Hits All-Time High, The Pew Charitable Trusts, Jan. 24, 2017. The

number of offenders serving a term of supervised release has risen three-fold

in the last two decades. Id. (comparing offender statistics between 1995-2015).

More than eight in ten offenders sentenced to federal prison are subject to

court-ordered supervised release.

Id. In 2015, ninety-nine percent of all

offenders on federal post-prison supervision were on supervised release, with

1 percent still serving time under the old system of parole. While, Congress

created supervised release in 1984 as a way to help former inmates make the

transition back into the community and reduce rates of reoffending, one

common result is that more offenders are sent to prison for violating the terms

of their supervision (known as technical violations) than for new crimes. More

than two-thirds of all federal offenders who are revoked from supervised

release each year committed technical violations but were not convicted of new

crimes.

Although post-prison monitoring may be an important part of a

defendant’s reintegration, extended periods of community supervision coupled

12

with vague and burdensome conditions of supervision defeat the purpose of

helping an inmate especially when they prevent contact with family. Such

conditions makes the transition back into the community more difficult and

ultimately, does not reduce the rate of reoffending. This case amply illustrates

this point. Why must JD-1 obtain permission from his probation officer before

he speaks with his son? What rehabilitative purpose does that serve after both

defendants

will

have

served

12-year

sentences

before

commencing

supervision? If JD-1 and JD-2 wish to get together with family for a holiday,

why does the Office of Probation get to decide whether that is okay? Such

burdensome conditions and the negative consequences for offenders if they fail

to heed them should be addressed by this Court.

B.

The Opinion’s conclusion that the sentence was substantively

reasonable because it did not “shock the conscience” instead of

examining the weight the district court assigned to the relevant

sentencing factors is an outlier.

The Second Circuit denied JD-1’s claim that his sentence was

substantively unreasonable sentence without examined whether the district

court properly weighed the relevant sentencing factors. The Second Circuit

reasoned:

Although Appellants claim that the district court weighed

their crimes more heavily than their cooperation, we will

not “second guess the weight (or lack thereof) that the

judge accorded to a given factor or to a specific argument

made pursuant to that factor” when reviewing sentences

for substantive reasonableness. See United States v.

Degroate, 940 F.3d 167, 178 (2d Cir. 2019) (internal

quotation marks and citation omitted). We accordingly

affirm the sentences as substantively reasonable.

13

Doe #1, 802 Fed. App’x at 657. Thus, the Second Circuit only finds a sentence

substantively unreasonable only when it is manifestly unjust or when it shocks

the conscience. Id.

At the substantive stage of reasonableness review, however, an

appellate court should consider whether a factor relied on by a sentencing court

can bear the weight assigned to it. Although such review is deferential, there

should be such a review. See Gall v. United States, 552 U.S. 38, 49, 50 n.6

(2007) (holding that appellate court “must give due deference” to the district

court's determination as to the “extent” of variance warranted by a given

factor). In other words, the appellate courts should consider whether the

factor, as explained by the district court, can bear the weight assigned it under

the totality of circumstances in the case. Such an approach is consistent with

and follows from the Supreme Court's emphasis on “individualized”

sentencing, id., because it ensures that appellate review, while deferential, is

still sufficient to identify those sentences that cannot be located within the

range of permissible decisions.

The Second Circuit, however, abandons this approach making it outlier

among decisions by other Courts of Appeals. In United States v. Del Valle-

Cruz, the First Circuit explained, “The [district] court exceeds its discretion

when it fails to consider a significant factor in its decisional calculus, if it relies

on an improper factor in computing that calculus, or if it considers all of the

appropriate factors but makes a serious mistake in weighing such factors.” 785

14

F.3d 48, 58 (1st Cir. 2015) (internal quotation marks omitted) (dismissing

defendant’s appeal of his conviction but remanding to the district court for

resentencing).

Several other circuits apply some form of the same test. The Fifth

Circuit has held that “[a] non-Guidelines sentence unreasonably fails to reflect

the statutory sentencing factors set forth in § 3553(a) where it (1) does not

account for a factor that should have received significant weight, (2) gives

significant weight to an irrelevant or improper factor, or (3) represents a clear

error of judgment in balancing the sentencing factors.” Diehl, 775 F.3d at 724.

The Sixth Circuit similarly finds that a sentence is substantively unreasonable

if the district court “gives an unreasonable amount of weight to any pertinent

factor.” Wright, 747 F.3d at 413 (6th Cir. 2014) (internal quotation marks

omitted). The Eighth Circuit has prescribed that “‘[a] district court abuses its

discretion when it (1) ‘fails to consider a relevant factor that should have

received significant weight’; (2) ‘gives significant weight to an improper or

irrelevant factor’; or (3) ‘considers only the appropriate factors but in weighing

those factors commits a clear error of judgment.’” Jenkins, 758 F.3d at 1050

(quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)). And the

Eleventh Circuit holds that “a district court commits a clear error of judgment

when it considers the proper factors but balances them unreasonably.” Irey,

612 F.3d at 1189. The Second Circuit, however, has diverged from the majority

rule, and instead, acts as a rubber stamp. The Second Circuit affords district

15

courts virtually unfettered discretion to weigh factors as they see fit, provided

they properly identify the relevant factors. This Court must resolve the split in

authority and bring the Second Circuit in line with the Sister Circuits.

III.

CONCLUSION

For the foregoing reasons, the petitioner prays that a writ of certiorari

issue to review the judgment of the United States Court of Appeals for the

Second Circuit.

Respectfully submitted,

MICHELLE ANDERSON BARTH

CJA appointed counsel for Petitioner

Law Office of Michelle Anderson Barth

P.O. Box 4240

Burlington, VT 05406

(619) 884-3883

16