Petition for Writ of Certiorari — Brayan Jassiel Leyva-Peraza, Petitioner v. United States

No. 19-

INTHE

Supreme Court of the United States

BRAYAN JASSIEL LEYVA-PERAZA,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

JAMES SCOTT SULLIVAN

LAW OFFICES OF J. SCOTT SULLIVAN

22211 1.H. 10 WEST, SUITE 1206

SAN ANTONIO, TEXAS 78257

(210) 722-2807

QUESTION PRESENTED FOR REVIEW

Whether the decision of the United States Court of Appeals for the Fifth Circuit

(“Fifth Circuit”)-which held the plea agreement in this case was not unconscionable and the

plea thereto was knowing and voluntary-conflicts with the decisions of this Court on an

important matter and therefore the decision by the Fifth Circuit calls for an exercise of this

Court’s supervisory powers such that a compelling reason is presented in support of

discretionary review by this Honorable Court.

Furthermore, whether the decision of the Fifth Circuit on the above issues was in

conflict with other appellate courts and therefore the decision by the Fifth Circuit calls for

an exercise of this Court's supervisory powers such that a compelling reason is presented

in support of discretionary review by this Honorable Court.

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PARTIES TO THE PROCEEDING

The parties to the proceeding are listed in the caption:

Brayan Jassiel Leyva-Peraza: Petitioner (Defendant-Appellant in the lower

Courts)

United States of America: Respondent (Plaintiff-Appellee in the lower

Courts)

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TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW.

PARTIES TO THE PROCEEDING er nnnsrunninevututuisiiininantnintrtsatnerecses ii

TABLE OF CONTENTS.....scssssssstunsstuntsesticissusseeses

CITATIONS TO OPINIONS AND RELEVANT ORDERS...

GROUNDS FOR JURISDICTION, .nnesnesonnninnnnsintniniinnntininininieeecccc. 1

ARGUMENT AMPLIFYING REASONS RELIED ON

FOR ALLOWANCE OF THE WRIT......sssnnstcssnnsssinitneituisssineecec 8-16

CONCLUSION.

INDEX TO APPENDIX

APPENDIX A Decision of the United States Court of Appeals for the Fifth

Circuit denying relief on direct appeal.

APPENDIX B Judgment in a Criminal Case issued the United States District

Court for the Western District of Texas, Pecos Division.

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TABLE OF AUTHORITIES

Cases:

United States v. Garcia-Guerrero, 313 F.3d 892 (St Cir, 2002)....cseececcssscccsscccsssseececsssssssssssssee 6

United States v. Hererra-Rojas, 243 F.34290 (5th Cir. 2001)

United States v. Johnson, 979 F.2d 396, 399 (Gt Cir, 1992)... cceecsssscssssssssessessessssecsssssnssese 16

United States v. Orozco, 717 F. App’x 504 (5th Cir. 2018)

United States v. Randolph, 230 F.3d 248, 250 (6th Cir. 2000).....ccccecscsseeesssssescsssseeee 9, 13, 15-16

United States v. Robison, 924 F 2d 612, 613 (6th Cir. 1991)

Statutes:

18 U.S.C. § 3281. woul

18U.S.C. § 3553 3, 11,12

1S U.S.C. $3553 (a) ssocsscssscssecnnseesssessssssssssessstssstssssssssssssesee 8,7, 11, 18, 14

28U.S.C. § 1291.

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Rules:

Fep.R.CRIM.P. 11

FED.R.CrIM.P. LU(D)(1) (M)-sscssacasssrnsussectnessneanneaneentansniencostvoreccsns 14-15

Fep.R. Crim. P. 11(¢)(1).....

Sentencing Guidelines:

U.S.S.G. § 2L1.1(a)(8).....

U.S.S.G. § 2L1.1(b)(2)(A)

U8.8.G.§2L1.1(0) 8) oneemnnnnnnnnnnninninnsniainninnnnninneecee., 5,6

Other:

Paul Bennett Marrow, Contractual Unconscionability: Identitying and

Understanding Its Potential Elements, 72N.Y.S1.B.J. 18 (Feb. 2000) seesisesireiiresseceeed 9

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PETITION FOR WRIT OF CERTIORARI

Petitioner, BRAYANJASSIEL LEYVA-PERAZA, respectfully requests this Honorable Court

grant this petition and issue a Writ of Certiorari to review the decision of the United States

Court of Appeals for the Fifth Circuit, which is in conflict with rulings of this Court and other

Circuit Courts on the issue of whether the specifics of the plea bargain were unconscionable

and whether plea was knowing and voluntary, such that compelling reasons are presented

in support of discretionary review by this Honorable Court.

CITATIONS TO THE OFFICIAL AND UNOF FICIAL

REPORTS OF THE OPINIONS AND ORDERS ENTERED IN THE CASE

From the Federal Courts:

The Order of the United States Court of Appeals for the Fifth Circuit, United States

v. Brayan Jassiel Leyva-Peraza, No. 19-50875 (5th Cir. June 5, 2020), appears at

Appendix A to this Petition and is unreported.

The Judgment in a Criminal Case of the United States District Court for the Western

District of Texas, Pecos Division, appears at Appendix B to this petition and is

unreported.

From the State Courts:

None.

GROUNDS FOR JURISDICTION

On June 5, 2020, the United States Court of Appeals for the Fifth Circuit affirmed the

sentence imposed on Mr. Leyva-Peraza. A copy of this Order appears at Appendix A. The

jurisdiction of this Court is invoked under 28 U.S.C. § 1254. A copy of the Judgment issued

by the United States District Court for the Western District of Texas, Pecos Division, is

attached at Appendix B.

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. V

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall private property be taken

for public use, without just compensation.

U.S. Const. Amend, VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime

shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation: to be confronted with witnesses against him; to have compulsory

process for obtaining witnesses in this favor; and to have Assistance of

Counsel for his defense.

STATEMENT OF THE CASE

Indictment and Plea:

On August 9, 2018, the Government filed a five count indictment charging Mr. Leyva-

Peraza with violations relating to transporting illegal aliens. ROA.18. Subsequently, Mr.

Leyva-Peraza entered into a plea agreement with the Government. ROA.145-47.

downward departure under the United States Sentencing Guidelines (“U.S.S.G.”

Under the terms of the plea agreement, Mr. Leyva-Peraza agreed to plead guilty to

Count 4 of the indictment, which was based on the transporting of illegal aliens resulting in

death. ROA.145. The first provision of the agreement which is relevant to the issues in this

Petition provides that Mr. Leyva-Peraza agreed to “waive the right to argue any other

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) or any

sentencing variance under 18 U.S.C. § 3553(a).” ROA.147. The second provision provides:

The parties agree that the Court will consult with and take into account the

U.S.S.G. and accompanying policy statements for the calculation of

Defendant's sentence pursuant to 18 U.S.C. § 3553 as construed by United

States v. Booker, 543 U.S. 220 (2005). However, Defendant understands that

the U.S.S.G. is advisory and that the Court may consider other factors on

sentencing, which would result in a greater or lesser sentence than the

sentencing range calculated under U.S.S.G.

ROA.147-48. The final relevant provisions declared that, by entering this agreement, Mr.

Leyva-Peraza “voluntarily and knowingly waives the right to appeal the sentence on any

ground.” ROA.148-49.

The Guilty Plea Hearing:

Mr. Leyva-Peraza entered a plea of guilty on January 17, 2019. ROA.72. The Court

asked Mr. Leyva-Peraza if he understood “he was giving up his right to directly appeal [his]

conviction and sentence to a higher court” and “in the event you do not like the sentence

that you received from the district judge, you will not be able to appeal your conviction to a

higher court.” ROA.87. Mr. Leyva-Peraza said: “Yes.” ROA.87. There was no mention of

the waiver of the right to argue fora departure or variance at sentencing before the District

Court.

The PSR: Offense Conduct

APresentence Investigation Report (“PSR or “the report”) was prepared and revised

on numerous occasions. ROA.152-97. The report included a discussion of the Offense

Conduct. ROA.187-90.

The conduct revealed that, on July 30, 2018, several individuals were involved in

transporting a group of undocumented aliens. ROA.187. United States Border Patrol agents

approached a vehicle involved in the smuggling and Mr. Leyva-Peraza was a passenger in

that vehicle. ROA.187. The PSR establishes the following took place when Mr. Leyva-Peraza

was questioned:

Upon acknowledginghis Constitutional rights, Leyva-Peraza admitted being

the group’s guide and indicated he learned how to be a guide during a

previous smuggling event. Leyva-Peraza related he had accepted the offer

to be a guide in order to earn money for his mother and added he [w]as to be

paid $400 per each undocumented alien smuggled into the United States in

this group (instant offense), and he would be paid upon returning to Mexico.

Leyva-Peraza stated he led the group of undocumented aliens on July 28,

2018, and they walked during the daylight hours. Leyva-Peraza reported on

the afternoon of July 28, 2018, he left two undocumented aliens behind in the

desert. According to Leyva-Peraza, the two undocumented aliens were

brothers-in-law and one was too injured and tired to continue walking. When

asked to elaborate, Leyva-Peraza related that the two subjects were

Guatemalan citizens and added that one of the subjects, Juan Elmer Lux-

Velazquez, told him (Leyva-Peraza) that since his brother-in-law, later

identified as Sergio Tzoy-De Leon, could not keep up, he (Lux-Velazquez)

would stay with him.

ROA.188.

However, the same day, a body was found on a local ranch. ROA.188. Border Patrol

agents arrived and it was determined that the deceased was one of the aliens who had been

left behind. ROA.188-89. The Probation Officer summarized;

During his post-arrest, Leyva-Peraza admitted to having previously

participated in an alien-smuggling venture; however, there is not enough

information to hold him accountable pursuant to relevant conduct provisions.

As such, Leyva-Peraza is held accountable for the seven undocumented

aliens he admittedly smuggled into the United States, one of whom passed

away after being left behind by Leyva-Peraza in the desert.

ROA.190.

PSR Calculations

The PSR assigned a base offense level of 12. ROA.191 (citing U.S.S.G. § 2L1.1(a)(8)).

This level was increased by 3 pursuant to U.S.S.G. § 2L1.1(b)(2)(A) because 6 to 24 unlawful

aliens were smuggled. ROA.191. Based on U.S.S.G. § 2L1.1(b)(6), the offense level was

increased to 18 due to the fact that the offense recklessly created a substantial risk of death

or serious bodily injury. ROA.191. Ten (10) levels were then added in light of the death in

this case. ROA.191 (citing U.S.S.G. § 2L1.1(b)(7)(D)). This brought the adjusted offense

level to 28. ROA.191. Finally, 3 levels were subtracted based on acceptance of

responsibility, leaving a total offense level of 25. ROA.191.

The Probation Officer then addressed criminal history. ROA.192. One (1) history

point was assigned for a previous improper entrance into the United States by an alien.

ROA.192.

This left Mr. Leyva-Peraza with a criminal history score of I. ROA.192. Thus, the

Guidelines range was calculated at 57 to 71 months in prison. ROA.194.

PSR Objections

Mr. Leyva-Peraza filed the following single objection to the PSR:

Objection: The defendant objects to paragraphs 34 and 35 of the presentence

investigation report wherein it is indicated the resulting offense level was

increased to 18 pursuant to USSG § 2L1.1(b)(6) because the offense involved

intentionally or recklessly [creating] a substantial risk or death or serious

bodily injury to another person, and a 10-level increase was applied pursuant

to USSG § 2L1.1(b)(7)(D), which indicates if any person died or sustained

bodily injury, increase the level according to the seriousness of the injury.

Since one of the undocumented aliens in this case passed away after being left

behind in the desert by the by defendant and the co-defendant, the offense

level is increased by 10-levels. Defense counsel contends the application of

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both USSG 2L1.1(b)(6) and USSG § 2L1.1(b)(7)(D) constitutes double

counting.

ROA.198.

The Probation Officer responded:

U.S. v. Hererra-Rojas, 243 F.3d 290 (5th Cir. 2001) indicates it is not

improper double counting to increase the sentence for the risk of death under

USSG § 2L1.1(b)(6) and the resulting death under USSG § 2L1.1(b)(7),

because one focuses on the defendant’s conduct and the other one focuses on

the harm caused by the defendant’s conduct, As such, no revisions have been

to the presentence investigation report.

ROA.198.

The Government also answered and agreed:

In supporting his position he cites United States v. Garcia-Guerrero, 313

F.3d 892 (5th Cir. 2002). Ironically, this case completely is adverse to his

position.

The Garcia Court, in citing the District Court Judge, with reference to

applying this increase upon the defendant Garcia, stated “when Garcia

‘stepped up to the plate and [said] I will guide you through the hot South

Texas Desert in the dead of summer’ he placed these individuals in a

substantially risky situation within the meaning of the guideline.” [7d.] [a]t

897.

ROA.201.

The Sentencing Hearing

Mr. Leyva-Peraza was sentenced on May 20, 2019. ROA.219. Counsel for Mr. Leyva-

Peraza made several oral objections during the hearing. ROA.131-39. Allof these objections

related to the actions of Mr. Leyva-Peraza in this case and how the subsequent death

enhanced his Guidelines range of punishment. ROA.131-39. The Court denied all of the

objections. ROA.138-39.

The Court then found the PSR was accurate and adopted its application of the

Guidelines. ROA.139. The total base offense level was set at 25 and the criminal history

category was I. ROA.139. Based on this Guidelines range, with a minimum sentence of 57

months in the custody of the Bureau of Prisons, Mr. Leyva-Peraza’s attorney made the

following argument:

I would ask for low-end of the guidelines, 57 months. That's a pretty good

sentence for his actions, Your Honor.

He did-as I mentioned earlier, he did try to provide Pedialyte, water, and food

to the individual. He didn’t leave the individual byhimself. The individual had

a brother-in-law, I believe it was, that stayed with him that went and got the

rancher and tried to get help and just ask for low-end.

A lot of these cases and case law-and I know you're not bound by that-when

they are given a stiff upward-or not upward by a high level due to the

increase, they end up giving them low-end. And the case that the probation

officer cites, the Hererra-Rojas case, he was given low-end for the same

behavior because they-and they all stress that they had criminal history I’s

on those, Your Honor.

My client is a Mexican citizen. He’s ready to just go back to his family, Your

Honor, and not come back here, He has definitely learned his lesson. We've

been dealing with this case for quite awhile. He’s his emotional roller coaster

has been up and down, up and down, Your Honor. He’s definitely regretful

and sorry for his actions.

ROA.140. As the plea bargain required, Mr. Leyva-Peraza did not argue for a departure or

variance from the Guidelines range in the PSR as applied by the Court.

The Court did not depart from the high-end of the Guidelines and hence sentenced

Mr. Leyva-Peraza to spend 71 months in prison. ROA.142. The Judge noted that he had

considered 18 U.S.C. § 3553(a) and stated that the sentence was fair and reasonable.

ROA.142.

The Appeal to the Fifth Circuit and Subsequent Petition for Writ of Certiorari

Mr. Leyva-Peraza timely filed a notice of appeal. ROA.58. In that proceeding, the

Fifth Cireuit enforced the waiver of appeal and dismissed the appeal. (Exhibit A, page 3).

Review was, as suggested by Mr. Leyva-Peraza, for plain error. (Exhibit A, pages 2-3). After

reviewing the plea hearing, the Fifth Circuit concluded the District Court had complied with

Rule 11 of the Federal Rules of Criminal Procedure and that “equally unavailing is [Mr.

Leyva-Peraza’s] novel and conclusory contention that his plea agreement was

unconscionable.” (Exhibit A, page 3). Mr. Leyva-Peraza now filed this Petition with this

Honorable Court.

ARGUMENTS AMPLIFYING REASONS RELIED ON FOR

ALLOWANCE OF THE WRIT

I

An Unconscionable Plea Agreement

A.

Legal History

Mr. Leyva-Peraza made two arguments with respect to the enforceability of the plea

waiver. One of these arguments was based on the rule of law that the Courts should not

enforce an unconscionable plea agreement. (Opening Brief, pages 16-17, 21). The other

argument addresses whether the plea agreement was knowing and voluntary. (Opening

Brief, pages 13-15, 20).

On the issue of unconscionable plea agreements and due process, Mr. Leyva-Peraza

discussed Santobello v. New York, 404 U.S. 257, 261 (1971). He also discussed an opinion

of the United States Court of Appeals for the Sixth Cireuit (“Sixth Circuit”) thoroughly

ie

exploring the issue, United States v. Randolph, 230 F.3d 248, 250 (6th Cir. 2002). (Opening

Brief, pages 16-17).

In Randolph, the Sixth Circuit explained, as a preliminary rule, “plea agreements

are contractual in nature” and hence “in interpreting and enforcing them, we are to use

traditional principles of contract law.” Id. at 249 (quoting United States v. Robison, 924

F.2d 612, 618 (6th Cir. 1991)). However, the Court declared “they are more than that” and

proceeded to remind the Government it has “a greater degree of responsibility than the

defendant ... for imprecisions or ambiguities in the plea agreement.” Jd. The Fifth Circuit

did not address this argument.

Historically, this Court has noticed “there may be contracts so extortionate and

unconscionable on their facts as to raise the presumption of fraud in their inception, or at

least to require but slight additional evidence to justify such presumption.” Hume v. United

States, 132 U.S. 406, 414 (1889). Similarly, this Court has explained the Courts should not

enforce plea bargains with “unfillable promises” or plea bargains that are “perhaps by

promises that are by their nature improper as having no proper relationship to the

prosecutor's business.” Brady v. United States, 397 U.S. 742, 746 (1970).

An exact definition of an unconscionable agreement would be questionable at best.

As one commentator has explained, what makes a contract unconscionable is “far from

clear.” Paul Bennett Marrow, Contractual Unconscionability: Identifying and

Understanding Its Potential Elements, 72 NY. Sv. B.J. 18 (Feb. 2000). One New York

Court of Appeals has declared that an unconscionable contract is one which “is so grossly

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unreasonable or unconscionable in light of the mores and business practices of the time and

place as to be unenforceable according to its literal terms. Mandel v. Liebman, 303 N.Y.

88, 94 (1951). Hence, because of the Government’s burden of fairness in plea bargain

agreements, as noted above, the burden in this case to establish fairness and enforceability

weighs that much heavier on the Government.

The Fifth Circuit has taken notice of this legal requirement for a plea bargain. In

2018, the Court addressed an argument that a “plea agreement is invalid because it is

procedurally and substantively unconscionable.” United States v. Orozco, 717 F. App’x 504

(5th Cir. 2018). The Fifth Cireuit did not reject this rule of law, but rather concluded: “Our

review of the plea agreement reveals no clear or obvious error with respect to Orozco’s

unconscionability argument.” Jd. at 504. Thus, the appeal was dismissed. /d. Therefore,

although the plea agreement in Mr. Orozco’s case was not unconscionable, the Fifth Circuit

acknowledged the validity of the principle that a plea agreement must be conscionable, both

procedurally and substantively, in order to be enforced. Id.

B

Evaluating the Agreement in this Case

The plea agreement in this case provided, in return for the enforcement of the terms

of the bargain, that Mr. Leyva-Peraza waived his right to appeal his sentence. ROA.148-49,

That provision is clear. However, there are two important and specific terms of the plea

bargain which when reviewed establish that the agreement is unconscionable.

One of these provisions is a promise to Mr. Leyva-Peraza as to how the district Court

must determine his sentence. ROA.147-48. It was agreed the Court:

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* will consult and take into account the Sentencing Guidelines and policy

statements for calculating the sentence;

will sentence Mr. Leyva-Peraza pursuant to 18 U.S.C. § 3553, as construed by

United States v. Booker, 543 U.S. 220 (2005);

will apply the Guidelines as advisory; and

may consider other factors on sentencing which would result in a greater or

lesser sentencing range calculated under the Guidelines.

ROA.147-48.

What do these promises mean? Central to these guarantees was the Government’s

decision to promise Mr. Leyva-Peraza the Sentencing Court would be bound to follow the

mandate of Booker and 18 U.S.C. § 3553, and consider a “greater or lesser sentence than

the sentencing range.” ROA.147-48,

Booker was the genesis of the change as to how 18 U.S.C. § 3553 would be applied by

the Sentencing Courts and thus an understanding of Booker and its progeny is in order. In

fact, it is essential because the Government guaranteed it in return for the waiver of Mr.

Leyva-Peraza’s constitutional rights.

In Booker, this Court determined the Sentencing Guidelines were no longer

mandatory. 543 U.S. at 245. Hence, the Guidelines became “effectively advisory.” Id. Yet,

more importantly, a Sentencing Court is required to consider the Guidelines range and

“tailor the sentence in light of other statutory concerns as well, see 18 U.S.C. § 3553(a).” Id.

This is the Booker mandate and therefore the Government promised Mr. Leyva-Peraza that

the Sentencing Court would tailor his sentence in accordance with 18 U.S.C. § 3553.

Thus, the next issue is how a sentence is promulgated in accordance with 18 U.S.C.

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§ 3553. Booker determined the Sentencing Court must not only take into account the

Guidelines, it must do so “together with other sentencing goals” under 18 U.S.C, § 3553. Td.

at 259. Booker also requires the Sentencing Judge to consider “the pertinent sentencing

commission policy statements, the need to avoid unwarranted sentencing disparities, and

the need to provide restitution to the victims.” 543 U.S, at 545 (citing 18 U.S.C. § 3553).

Therefore, the government’s plea bargain in this case included a guarantee that all of these

rules under Booker and 18 U.S.C. § 3553 would be followed at sentencing, including the

consideration by the Sentencing Court of a sentence less than the Guidelines range.

ROA.147-48,

18 U.S.C. § 3553 further encompasses downward departures and variances from a

specific Guidelines range. Booker likewise guarantees the Sentencing Judge is not required

to sentence the defendant inside the Guidelines range. 543 U.S. at 259-61. It is within this

context that the Government promised that it agreed the Court would not treat the

Guidelines as mandatory and it would be within the Sentencing Judge's authority to

consider downward departures and variances.

However, despite this promise that the District Court would apply the Guidelines and

Booker, and consider a departure or variances below the Guidelines range, the Government

slips into the agreement that Mr. Leyva-Peraza cannot ask the District Court to fulfill that

promise.

As noted above, the agreement provided that Mr. Leyva-Peraza would “waive the

right to argue any other downward departure under the United States Sentencing

AX

Guidelines or any sentencing variance under 18 U.S.C. § 3553(a).” ROA.147. Mr. Leyva-

Peraza submits a promise made to the accused and then taken away as part of the same

promise, as was done in this case, is unconscionable.

As noted above and in the Opening Brief to the Fifth Circuit, the Sixth Circuit relied

on the precedent of this Court to explain that “it is a violation of due process to hold a

defendant to an unconscionable agreement in the absence of proof of his fully informed

consent to the risk that the bargained-away count of the indictment might return, like

Hydra’s head, the stronger for having been once cut off. Randolph, 230 F.3d at 250

(emphasis in original). In Randolf, the Sixth Circuit also restated the law that plea

bargains require the use of traditional contract law. Id. The Court further relied upon the

holding in Santobello v. New York, 404 U.S. 257, 261 (1971), that the practice of plea

bargaining “presupposes fairness in securing agreement between an accused and a

prosecutor.” Jd. It was recognized that such a “presupposition derived from the

constitutional guarantee of due process.” Id. Hence, this rule against the enforcement of

unconscionable plea agreements is well established in the Constitution and the Supreme

Court of the United States. See ¢d.

Cc.

The Unenforceable Contract

Respectfully, the agreement in this case is not merely ambiguous, it is inherently

fraudulent. The Government promises that the Sentencing Court must give full

consideration to downward departures and downward variances, but that neither Mr. Leyva-

Peraza nor his lawyer may utter a word on the issue. On the one hand, the agreement

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without reservation promised Mr. Leyva-Peraza that Booker would be followed and that the

Sentencing Court could sentence below the Guidelines range. The agreement then makes

this promise meaningless and illusory by ordering the defendant and his lawyer to say

nothing and leave the issue of a departure or variance to the Government and the Court.

Thus, this agreement is unconscionable because, as described above, it is a proposition “no

man in his senses would make” on the one hand and “no honest and fair man would accept

on the other.” Harl of Chesterfield v. Janssen, 28 Eng. Rep. 82, 100 (Ch. 1750).

In sum, the plea agreement in this case is not merely impermissibly ambiguous, it is

illusory and fraudulent by its own terms. It gives a promise that certain basic constitutional

laws will be followed, and then, the promise is effectively taken away. Accordingly, the

agreement is unconscionable and hence, the ruling of the Fifth Circuit must be set aside and

remanded for review of the sentence.

IL.

Free and Voluntary

Based on the above facts, Mr. Leyva-Peraza. respectfully argues the plea of guilty was

not entered into freely and voluntary. An agreement which promises that a downward

departure will be available to the defendant and then specifically states that the defendant

cannot argue for any downward departure or sentencing variance under 18 U.S.C. § 3553(a)

is not voluntary. (Opening Brief, page 20).

As an initial matter, nothing in Fed. R. Crim. P. 11 justifies a plea agreement which

promises the defendant the Court can grant a downward departure, but then requires that

the defendant and his attorney may not speak up on the issue. Rather, Fep. R. Crim. P.

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11(b)(1)(M) establishes the Court will calculate the Guidelines and consider departures.

Furthermore, there is nothing under the “Plea Agreement Procedures” under Rule 11 which

could be implemented to prevent the defendant from requesting a possible sentence which

was legally available under Booker. Frp. R. CRIM. P. 11(¢)(1).

Further application at this point will clarify this argument. As noted above, the

District Court was required under the agreement treat the Guidelines as advisory, not

mandatory. It was further agreed downward departures were available. Clearly, then, a

provision of the plea agreement that then denies the defendant a promised right, as the

above provision does, is an agreement which cannot be knowing and voluntary. Hence, the

plea agreement, including its appeal waiver, is not enforceable. (Opening Brief, pages 18-

20).

I.

United States v. Randolph Creates a Split in the Circuits

The Sixth Circuit case of United States v. Randolph, 230 F.3d 243 (6th Cir. 2000),

is discussed above. The Sixth Circuit applied the following rule of law from that Circuit's

jurisprudence:

Although plea agreements are contractual in nature, a defendant’s underlying

right of contract is constitutional, and therefore implicates concerns in

addition to those pertaining to the formation and interpretation of commercial

contracts between private parties. Therefore,

“[bJoth constitutional and supervisory concerns require holding

the government to a greater degree of responsibility than the

defendant (or possibly than would be either of the parties to

commercial contracts) for imprecisions or ambiguities in the

plea agreements.”

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United States v. Johnson, 979 F.2d 396, 399 (6th Cir. 1992)). In turn, this led the Court in

Randolph to explain and hold:

Among the constitutional concerns referred to are those pertaining to the due

process clause of the Fifth Amendment. The United States Supreme Court

has stated that where the consensual nature of a plea agreement is called into

question—where “the defendant was not fairly apprised of its consequences” -it

can be attacked under the due process clause. Mabry v. Johnson, 467 U.S.

504, 508-09 (1984).

230 F.8d at 249.

The agreement in this case did not fairly apprise Mr. Leyva-Peraza of its

consequences because a promise was made and set aside in the agreement. Thus, the Fifth

Circuit's affirmance is in conflict with the Sixth Circuit and this Petition should be granted.

CONCLUSION

For these reasons, Mr. Leyva-Peraza respectfully requests that this Court grant this

Petition so the decision in this case does not conflict with decisions of this Court or another

Circuit Court.

WHEREFORE, Petitioner, BRAYANJASSIEL LEYVA-PERAZA, respectfully requests that

this Honorable Court grant this Petition and issue a Writ of Certiorari and review the

decision of the United States Court of Appeals for the Fifth Circuit.

JAMES SCOTT SULLIVAN

OFFICES OF J. SCOTT SULLIVAN

22211 1H. 10 West, SurTE 1206

SAN ANTONIO, TEXAS 78257

(210) 722-2807

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