Petition for Writ of Certiorari — Kevin Merritt, Petitioner v. United States

Supreme Court briefNov 9, 2020

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No. ______________

In the

Supreme Court of the United States

___________

Kevin Merritt,

Petitioner,

United States of America,

Respondent.

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

Kevin Joel Page

Assistant Federal Public Defender

Federal Public Defender’s Office

Northern District of Texas

525 S. Griffin Street, Suite 629

Dallas, TX 75202

(214) 767-2746

Joel_page@fd.org

QUESTIONS PRESENTED

Whether Holguin-Hernandez v. United States, __U.S.__, 140 S.Ct. 762

(2020), is relevant to the objections necessary to preserve claims of procedural

unreasonableness?

Whether the defendant bears a burden of production to disprove

allegations made in a Presentence Report?

PARTIES TO THE PROCEEDING

Petitioner is Kevin Merritt, who was the Defendant-Appellant in the court

below. Respondent, the United States of America, was the Plaintiff-Appellee in the

court below.

iii

TABLE OF CONTENTS

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

PARTIES TO THE PROCEEDING .............................................................................. ii

INDEX TO APPENDICES ........................................................................................... iv

TABLE OF AUTHORITIES .......................................................................................... v

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

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

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

STATUTORY AND RULES PROVISIONS .................................................................. 1

STATEMENT OF THE CASE....................................................................................... 8

REASONS FOR GRANTING THIS PETITION ......................................................... 12

The courts have divided as to whether Holguin-Hernandez v. United

States may apply to claims of procedural reasonableness. ............................. 12

II.

The circuits are divided as to who bears the burden of production

regarding factual claims made in a presentence report after a specific

objection by the defendant. The position of the court below generates

a high probability of unjust incarceration. ..................................................... 22

CONCLUSION............................................................................................................. 32

INDEX TO APPENDICES

Appendix A Judgment and Opinion of Fifth Circuit

Appendix B Judgment and Sentence of the United States District Court for the

Northern District of Texas

TABLE OF AUTHORITIES

Cases

Page(s)

Atl. Sounding Co. v. Townsend, 496 F.3d 1282 (11th Cir. 2007) ............................. 19

Braxton v. United States, 500 U.S. 344 (2001) ......................................................... 19

Burns v. United States, 501 U.S. 129 (1991) ............................................................ 22

Cutter v. Wilkinson, 544 U.S. 709, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) ......... 13

Gall v. United States, 552 U.S. 38 (2007) ................................................................. 12

Garrett v. Univ. of Ala. at Birmingham Bd. of Trustees, 344 F.3d 1288

(11th Cir.2003) ...................................................................................................... 19

Holguin-Hernandez v. United States, ___ U.S. ___, 140 S. Ct. 762,

206 L.Ed.2d 95 (2020) .................................................................................... passim

Hutto v. Davis, 454 U.S 370 (1982) ........................................................................... 19

In re Holsey, 589 Fed. Appx. 462 (11th Cir. 2014) .................................................... 19

Martin v. Medtronic, Inc., 254 F.3d 573 (5th Cir.2001) ........................................... 19

Matter of Henry, 944 F.3d 587 (5th Cir. 2019) ......................................................... 18

Moore v. Tangipahoa Parish School Board, 921 F.3d 545 (5th Cir. 2019) .............. 18

Tapia v. United States, 564 U.S. 319, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011) ...... 13

Tech. Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399

(5th Cir. 2012) ....................................................................................................... 18

United States v. Abney, 957 F.3d 241 (D.C. April 24, 2020) .................................... 15

United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc) ................... 25, 27

United States v. Archer, 531 F.3d 1347 (11th Cir. 2008) ......................................... 19

United States v. Arroyo-Jaimes, 608 F. App'x 843 (11th Cir. 2015) ........................ 28

United States v. Bernardine, 73 F.3d 1078 (11th Cir. 1996) .................................... 28

United States v. Bledsoe, 445 F.3d 1069 (8th Cir. 2006) .......................................... 26

United States v. Booker, 543 U.S. 220 (2005) ........................................................... 22

United States v. Brown, 52 F.3d 415 (2d Cir. 1995) ................................................. 26

United States v. Campbell, 295 F.3d 398 (3d Cir. 2002) .......................................... 23

United States v. Coleman, 132 F.3d 440 (8th Cir. 1998) .......................................... 26

United States v. Coonce, 961 F.2d 1268 (7th Cir. 1992) ........................................... 24

United States v. Cuddington, 812 F. App'x 241 (5th Cir. 2020) .............................. 14

United States v. Cyr, 337 F.3d 96 (1st Cir. 2003) ..................................................... 24

United States v. Davis, 76 F.3d 82 (5th Cir. 1996) ................................................... 24

United States v. Dominguez-Alvarado, 695 F.3d 324 (5th Cir. 2012) ...................... 14

United States v. Finnesy, 953 F.3d 675, n.8 (10th Cir. 2020) .................................. 15

United States v. Ford, 558 F.3d 371 (5th Cir. 2009) ......................................... 11, 23

United States v. Gonzalez-Cortez, 801 Fed. Appx. 311 (5th Cir. 2020) ..................... 14

United States v. Grant, 114 F.3d 323 (1st Cir. 1997) ............................................... 24

United States v. Greene, 41 F.3d 383 (8th Cir. 1994) ............................................... 27

United States v. Helmsley, 941 F.2d 71 (2d Cir. 1991) ....................................... 25, 26

United States v. Humphrey, 753 F.3d 813 (8th Cir. 2014) ....................................... 26

United States v. Isirov, 986 F.2d 183 (7th Cir. 1993) ............................................... 24

United States v. Johnson, 529 U.S. 53 (2000) ........................................................... 29

United States v. Khan, 701 Fed. Appx. 592 (9th Cir. 2017) .......................... 27-28, 28

United States v. Lang, 333 F.3d 678 (6th Cir. 2003) .......................................... 23, 24

United States v. Lawrence, 47 F.3d 1559 (11th Cir. 1995) ........................................ 28

United States v. Liss, 265 F.3d 1220 (11th Cir. 2001) ............................................... 28

United States v. Lynn, 592 F.3d 572 (4th Cir. 2010) ................................................ 17

United States v. Mannings, 850 F.3d 404 (8th Cir. 2017) .................................. 26, 27

United States v. Martinez, 584 F.3d 1022 (11th Cir. 2009) .......................... 25, 28, 29

United States v. Merritt, 809 Fed. Appx. 243 (5th Cir. June 12, 2020) ..................... 1

United States v. Moser, 168 F.3d 1130 (8th Cir. 1999) ....................................... 26, 27

United States v. Mustread, 42 F.3d 1097 (7th Cir. 1994) ................................... 23, 24

United States v. O’Garro, 280 F. App’x 220 (3d Cir. 2008) ...................................... 23

United States v. Pinnick, 47 F.3d 434 (D.C. Cir. 1995) ............................................ 26

United States v. Poor Bear, 359 F.3d 1038 (8th Cir. 2004) ................................ 25, 27

United States v. Price, 409 F.3d 436 (D.C. Cir. 2005) ........................................ 24, 25

United States v. Prochner, 417 F.3d 54 (1st Cir. 2005) ...................................... 23, 24

United States v. Ramirez, 367 F.3d 274 (5th Cir. 2004) ..................................... 23-24

United States v. Reid, 827 F.3d 797 (8th Cir. 2016) ................................................. 27

United States v. Richardson, 161 F.3d 728 (D.C. Cir. 1998) ......................... 25-26, 26

United States v. Rivera, 819 Fed. Appx. 139 (July 20, 2020) ................................... 17

United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005) .................................... 28

United States v. Rodriguez-Delma, 456 F.3d 1246 (10th Cir. 2006) .................. 23, 24

United States v. Rosales–Bruno, 676 F.3d 1017 (11th Cir.2012) ............................. 28

United States v. Sanders, 820 F. App'x 932, n.4 (11th Cir. 2020) ........................... 14

vii

United States v. Showalter, 569 F.3d 1150 (9th Cir. 2006) ...................................... 28

United States v. Solis, 299 F.3d 420 (5th Cir. 2002) ..................................... 11, 23

United States v. Sorrells, 432 F.3d 836 (8th Cir. 2005) ............................................ 27

United States v. Streich, 987 F.2d 104 (2d Cir. 1993) .............................................. 26

United States v. Tabor, 439 F.3d 826 (8th Cir. 2006) ............................................... 26

United States v. Tucker, 404 U.S. 443 (1972) ........................................................... 22

United States v. Valdez, 453 F.3d 252 (5th Cir. 2006) ............................................. 23

United States v. Valencia, 44 F.3d 269 (5th Cir. 1995) ............................................ 23

United States v. Wiant, 314 F.3d 826 (6th Cir. 2003) .............................................. 24

United States v. Zuniga–Salinas, 945 F.2d 1302 (5th Cir.1991) ............................. 19

Statutes

18 U.S.C. § 3553 .................................................................................................. passim

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

Rules

Fed. R. Crim. P. 32 .............................................................................................. passim

Fed. R. Crim. P. 51 ............................................................................... 1, 12, 13, 15, 16

United States Constitution

U.S. Constitution, Amend V ........................................................................................ 7

United States Sentencing Guidelines

USSG § 6A1.3 ......................................................................................................... 6, 22

viii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Kevin Merritt seeks a writ of certiorari to review the judgment of

the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The unpublished opinion of the Court of Appeals is reported at United States

v. Merritt, 809 Fed. Appx. 243 (5th Cir. June 12, 2020)(unpublished). It is reprinted

in Appendix A to this Petition. The district court’s judgement and sentence is

attached as Appendix B.

JURISDICTION

The panel opinion and judgment of the Fifth Circuit were entered on June 12,

2020. This Court has jurisdiction pursuant to 28 U.S.C. §1254(1).

RELEVANT RULES, FEDERAL SENTENCING GUIDELINE AND

CONSTITUTIONAL PROVISION

Federal Rule of Criminal Procedure 51 reads as follows:

Preserving Claimed Error

(a) Exceptions Unnecessary. Exceptions to rulings or orders of the

court are unnecessary.

(b) Preserving a Claim of Error. A party may preserve a claim of error

by informing the court—when the court ruling or order is made or

sought—of the action the party wishes the court to take, or the party's

objection to the court's action and the grounds for that objection. If a

party does not have an opportunity to object to a ruling or order, the

absence of an objection does not later prejudice that party. A ruling or

order that admits or excludes evidence is governed by Federal Rule of

Evidence 103.

Federal Rule of Criminal Procedure 32 provides in relevant part:

***

(1) Required Investigation.

(A) In General. The probation officer must conduct a presentence

investigation and submit a report to the court before it imposes sentence

unless:

(i) 18 U.S.C. §3593 (c) or another statute requires otherwise; or

(ii) the court finds that the information in the record enables it to

meaningfully exercise its sentencing authority under 18 U.S.C. §3553,

and the court explains its finding on the record.

(B) Restitution. If the law permits restitution, the probation officer must

conduct an investigation and submit a report that contains sufficient

information for the court to order restitution.

(2) Interviewing the Defendant. The probation officer who interviews a

defendant as part of a presentence investigation must, on request, give

the defendant's attorney notice and a reasonable opportunity to attend

the interview.

(d) Presentence Report.

(1) Applying the Advisory Sentencing Guidelines. The presentence

report must:

(A) identify all applicable guidelines and policy statements of the

Sentencing Commission;

(B) calculate the defendant's offense level and criminal history category;

available;

(D) identify any factor relevant to:

(i) the appropriate kind of sentence, or

(ii) the appropriate sentence within the applicable sentencing range; and

(E) identify any basis for departing from the applicable sentencing

range.

(2) Additional Information. The presentence report must also contain

the following:

(A) the defendant's history and characteristics, including:

(i) any prior criminal record;

(ii) the defendant's financial condition; and

(iii) any circumstances affecting the defendant's behavior that may be

helpful in imposing sentence or in correctional treatment;

(B) information that assesses any financial, social, psychological, and

medical impact on any victim;

resources available to the defendant;

(D) when the law provides for restitution, information sufficient for a

restitution order;

(E) if the court orders a study under 18 U.S.C. §3552 (b), any resulting

report and recommendation;

(F) a statement of whether the government seeks forfeiture under Rule

32.2 and any other law; and

(G) any other information that the court requires, including information

relevant to the factors under 18 U.S.C. §3553 (a).

(3) Exclusions. The presentence report must exclude the following:

(A) any diagnoses that, if disclosed, might seriously disrupt a

rehabilitation program;

(B) any sources of information obtained upon a promise of

confidentiality; and

other harm to the defendant or others.

(e) Disclosing the Report and Recommendation.

(1) Time to Disclose. Unless the defendant has consented in writing, the

probation officer must not submit a presentence report to the court or

disclose its contents to anyone until the defendant has pleaded guilty or

nolo contendere, or has been found guilty.

(2) Minimum Required Notice. The probation officer must give the

presentence report to the defendant, the defendant's attorney, and an

attorney for the government at least 35 days before sentencing unless

the defendant waives this minimum period.

(3) Sentence Recommendation. By local rule or by order in a case, the

court may direct the probation officer not to disclose to anyone other

than the court the officer's recommendation on the sentence.

(f) Objecting to the Report.

(1) Time to Object. Within 14 days after receiving the presentence

report, the parties must state in writing any objections, including

objections to material information, sentencing guideline ranges, and

policy statements contained in or omitted from the report.

(2) Serving Objections. An objecting party must provide a copy of its

objections to the opposing party and to the probation officer.

(3) Action on Objections. After receiving objections, the probation officer

may meet with the parties to discuss the objections. The probation

officer may then investigate further and revise the presentence report

as appropriate.

(g) Submitting the Report. At least 7 days before sentencing, the

probation officer must submit to the court and to the parties the

presentence report and an addendum containing any unresolved

objections, the grounds for those objections, and the probation officer's

comments on them.

(h) Notice of Possible Departure from Sentencing Guidelines. Before the

court may depart from the applicable sentencing range on a ground not

identified for departure either in the presentence report or in a party's

prehearing submission, the court must give the parties reasonable

notice that it is contemplating such a departure. The notice must specify

any ground on which the court is contemplating a departure.

(i) Sentencing.

(1) In General. At sentencing, the court:

(A) must verify that the defendant and the defendant's attorney have

read and discussed the presentence report and any addendum to the

report;

(B) must give to the defendant and an attorney for the government a

written summary of—or summarize in camera—any information

excluded from the presentence report under Rule 32(d)(3) on which the

court will rely in sentencing, and give them a reasonable opportunity to

comment on that information;

officer's determinations and other matters relating to an appropriate

sentence; and

(D) may, for good cause, allow a party to make a new objection at any

time before sentence is imposed.

(2) Introducing Evidence; Producing a Statement. The court may permit

the parties to introduce evidence on the objections. If a witness testifies

at sentencing, Rule 26.2(a)–(d) and (f) applies. If a party fails to comply

with a Rule 26.2 order to produce a witness's statement, the court must

not consider that witness's testimony.

(3) Court Determinations. At sentencing, the court:

(A) may accept any undisputed portion of the presentence report as a

finding of fact;

(B) must—for any disputed portion of the presentence report or other

controverted matter—rule on the dispute or determine that a ruling is

unnecessary either because the matter will not affect sentencing, or

because the court will not consider the matter in sentencing; and

any copy of the presentence report made available to the Bureau of

Prisons.

(4) Opportunity to Speak.

(A) By a Party. Before imposing sentence, the court must:

(i) provide the defendant's attorney an opportunity to speak on the

defendant's behalf;

(ii) address the defendant personally in order to permit the defendant to

speak or present any information to mitigate the sentence; and

(iii) provide an attorney for the government an opportunity to speak

equivalent to that of the defendant's attorney.

(B) By a Victim. Before imposing sentence, the court must address any

victim of the crime who is present at sentencing and must permit the

victim to be reasonably heard.

the court may hear in camera any statement made under Rule 32(i)(4).

***

Federal Sentencing Guideline 6A1.3 provides:

(a) When any factor important to the sentencing determination is

reasonably in dispute, the parties shall be given an adequate

opportunity to present information to the court regarding that factor. In

resolving any dispute concerning a factor important to the sentencing

determination, the court may consider relevant information without

regard to its admissibility under the rules of evidence applicable at trial,

provided that the information has sufficient indicia of reliability to

support its probable accuracy.

(b) The court shall resolve disputed sentencing factors at a

sentencing hearing in accordance with Rule 32(i), Fed. R. Crim. P.

The Fifth Amendment to the United States Constitution provides:

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.

STATEMENT OF THE CASE

Facts and Proceedings in District Court

During a routine traffic stop, Fort Worth Police Officers found just under three

kilograms of high purity methamphetamine in the vehicle of Petitioner Kevin

Merritt. See (Record in the Court of Appeals, at 28). He pleaded guilty to possessing

this substance with intent to distribute it, the instant case. See (Record in the Court

of Appeals, at 28-29).

A Presentence Report (PSR) calculated a Guideline range of 188-235 months

imprisonment. See (Record in the Court of Appeals, at 152). It also set forth a lengthy

criminal history, the bulk of which consisted of driving with an invalid license and

simple drug possession. See (Record in the Court of Appeals, at 140-144). It also

included one recent assaultive offense, an old conviction for possession of illegal

lottery tickets, convictions that appeared to stem from non-cooperation in an arrest,

and the failure to pay a fine. See (Record in the Court of Appeals, at 140-144).

As to Mr. Merritt’s juvenile history, the PSR set forth three allegations of

criminal conduct that did not result in the filing of a case. See (Record in the Court of

Appeals, at 139-140). The district court’s explicit decision to consider these incidents

represents the basis for the appeal below, and this Petition.

First, the PSR described the following incident as “Battery”:

[t]he Palm Beach County, Florida, Sheriffs Office (PBCSO) offense

report revealed on October 15, 1991, deputies responded to a report of a

fight on a school bus. Specifically, when the bus came to a stop to allow

children off, the defendant and three additional juveniles entered the

bus from the rear door and assaulted the juvenile victim. The driver

attempted to break up the fight and was unable to. When deputies

arrived, the defendant and three additional juveniles were arrested. The

defendant was released to his parents the same day.

(Record in the Court of Appeals, at 139). This incident occurred when Mr. Merrit was

a 14-year-old child. See (Record in the Court of Appeals, at 139).

Second, the PSR described the following incident as “Aggravated Battery” and

“Throw Missile Building”:

The PBCSO offense report revealed on October 8, 1992, deputies

responded to the defendant's residence where it was determined the

defendant and his brother, Lilton Merritt, were fighting with their

neighbor, Sharika Webb (Webb). The defendant and Lilton threw rocks

at Webb, and she was hit by one of the rocks. The defendant also grabbed

Webb around the neck keeping her from picking up rocks she wanted to

throw. After the defendant released Webb, she picked up a rock and

threw it at Lilton's residence, breaking a window. Deputies arrested the

defendant and Webb. They elected not to arrest Lilton. The defendant

was released to his parents the same day.

(Record in the Court of Appeals, at 139). Mr. Merritt was a 15-year-old child at the

time. See (ROA139).

Third, the PSR described the following, which occurred when Mr. Merritt was

17 years of age, as “Possession of Illegal Lottery Tickets”:

The PBCSO offense report revealed on May 21, 1994, detectives were

conducting surveillance on individuals they believed to be engaged in an

illegal lottery operation. A traffic stop was conducted on a vehicle driven

by Calvin Edwards (Edwards). The defendant was not identified as a

suspect in the operation; however, he was the passenger in Edwards's

vehicle. Officers observed on the passenger floor board, a bag containing

white envelopes which contained $259 and numerous illegal lottery

tickets.

(Record in the Court of Appeals, at 140).

Finally, the PSR contained a series of adult arrests that did not result in

conviction. See (Record in the Court of Appeals, at 145-148).

The court imposed sentence at the high end of the Guideline range: 235 months

imprisonment. See (Record in the Court of Appeals, at 123). In support, it recited the

defendant’s criminal history, including the three juvenile incidents discussed above.

See (Record in the Court of Appeals, at 120-123). The court found in each case that it

could “tell from the narrative language ... the things it describes, he actually did, but

he was at an awfully young age, and if that was the only thing, that wouldn’t make

much difference.” (Record in the Court of Appeals, at 120).

The defense objected to these findings (and to others made regarding Mr.

Merritt’s adult arrests). See (Record in the Court of Appeals, at 125). The court

responded that it “didn’t take the simple arrests into account in the decision I made,”

but rather “took into account the narratives that described his conduct.” (Record in

the Court of Appeals, at 125).

Appellate Proceedings

Petitioner appealed, contending that Guideline 6A1.3 and the due process

clause forbade the district court’s use of three juvenile incidents to increase his

sentence. As to the two assaultive episodes, he noted that the district court lacked

any information about the witness or witnesses who claimed to have seen Mr.

Merritt’s conduct. See (Record in the Court of Appeals, at 139). As to the final episode,

he argued that there was simply no good reason to believe that Mr. Merritt possessed

illegal lottery tickets merely because he rode as a passenger in a car where those

tickets happened to lie. See (Record in the Court of Appeals, at 140).

The Fifth Circuit concluded that Petitioner failed to preserve this claim

because he had only “objected to consideration of the mere fact of the arrests,”

rather than “the unreliable factual recitations in the presentence report (PSR)

concerning [these] unadjudicated juvenile arrests.” [Appx. A, at 2]. Further, it

rejected any claim that Holguin-Herrera v. United States, __U.S.__, 140 S.Ct. 762

(2020), called for a more relaxed standard of preservation. Following consistent Fifth

Circuit treatment of the issue, it held that Holguin-Herrera was relevant only to

claims of substantive reasonableness. It said:

[t]he Supreme Court’s decision in United States v. Holguin-Hernandez

is inapplicable to this case of alleged procedural error, for HolguinHernandez did not change “what is sufficient to preserve a claim that

a trial court used improper procedures in arriving at its chosen

sentence.” 140 S. Ct. 762, 767 (2020).

[Appendix A, at 2, n.1].

Proceeding to the merits, the court of appeals declined to reverse because the

defendant presented no rebuttal evidence to the PSR’s allegation that he committed

the relevant juvenile offenses. See [Appx. A, at 2-3]. This followed its long-standing

precedent, which permits the district court to adopt the PSR absent rebuttal evidence.

See [Appx. A, at 2-3][citing United States v. Ford, 558 F.3d 371, 377 (5th Cir.

2009); United States v. Solis, 299 F.3d 420, 455 (5th Cir. 2002)].

REASONS FOR GRANTING THE PETITION

The courts have divided as to whether Holguin-Hernandez v. United

States may apply to claims of procedural reasonableness.

The courts of appeals have divided in their application of HolguinHernandez.

A federal criminal sentence should be sufficient but not greater than necessary

to accomplish the goals of sentencing set forth in 18 U.S.C. §3553(a)(2)(A). This Court

has set forth a two part standard for review of federal sentences. See Gall v. United

States, 552 U.S. 38, 51 (2007). Assuming a sound process, reviewing courts must

decide whether the sentence represents an abuse of discretion as a substantive

matter. See Gall v, 552 U.S. at 51. But before they reach this question, the reviewing

courts:

must first ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence—

including an explanation for any deviation from the Guidelines range.

Id.

Holguin-Hernandez v. United States, __U.S.__, 140 S.Ct. 762 (2020), held that

the substantive portion of this review may be preserved without a specific objection.

See Holguin-Hernandez, 140 S.Ct. at 764. This Court explained that a simple request

for a lesser sentence adequately communicates that a greater sentence is unnecessary

under §3553(a). See id. at 766. It therefore does what Federal Rule of Criminal

Procedure 51 requires: tell the court what action the party wishes it to take, and

provide the grounds for the request. See id. The Rule, emphasized this Court, does

not require appealing parties to state the standard of review in an objection, here,

“reasonableness.” See id. at 766-767.

Significantly, however, Holguin-Hernandez reserved the question of what

objections are necessary to preserve claims of procedural error. It said:

The Government and amicus raise other issues. They ask us to decide

what is sufficient to preserve a claim that a trial court used improper

procedures in arriving at its chosen sentence. And they ask us to decide

when a party has properly preserved the right to make particular

arguments supporting its claim that a sentence is unreasonably long.

We shall not consider these matters, however, for the Court of Appeals

has not considered them. See, e.g., Tapia v. United States, 564 U.S. 319,

335, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011); Cutter v. Wilkinson, 544

U.S. 709, 718, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). We hold

only that the defendant here properly preserved the claim that his 12month sentence was unreasonably long by advocating for a shorter

sentence and thereby arguing, in effect, that this shorter sentence would

have proved “sufficient,” while a sentence of 12 months or longer would

be “greater than necessary” to “comply with” the statutory purposes of

punishment. 18 U.S.C. § 3553(a).

Id. at 767.

The answer to this reserved issue has divided the courts of appeals. Certainly,

the reasoning of the opinion provides significant support for the notion that formulaic

“procedural reasonableness” objections are not required by Rule 51, provided the

defendant has made some effort to inform the court of the action it wishes to take,

and

the

reasons

therefor.

“Procedural

reasonableness,”

“substantive

reasonableness,” is not an error but a standard of review. And Holguin-Herrera states

in terms that an appealing party “need not also refer to the standard of review” to

preserve error. Id. at 766-767.

Yet the court below has repeatedly and categorically rejected any lessons from

Holguin-Hernandez beyond the narrow question of how to preserve substantive

reasonableness review. See United States v. Cuddington, 812 F. App'x 241, 242 (5th

Cir. 2020)(“But the Supreme Court in Holguin-Hernandez explicitly declined to

address whether its reasoning applied to procedural reasonableness. … Accordingly,

our case law requiring a specific objection to preserve procedural error remains

undisturbed,

have

previously

held

least

one

unpublished

decision.”)(internal citations and quotations omitted); United States v. GonzalezCortez, 801 Fed. Appx. 311, 312, n.1 (5th Cir. 2020)(unpublished)(applying plain error

review to a claim of procedural error). Indeed, it did so in the opinion below. See

[Appx. A, n.1]. The court below accordingly adheres to its pre-Holguin-Hernandez

precedent, which required procedural reasonableness objections in all cases. See

Cuddington, 812 F. App'x at 242 (citing United States v. Dominguez-Alvarado, 695

F.3d 324, 327 (5th Cir. 2012) for the proposition that “[i]f a defendant fails to properly

object to an alleged error at sentencing, however, the procedural reasonableness of

his sentence is reviewed for plain error.”).

The court below is joined in this view by the Eleventh Circuit, which has

likewise declined to apply Holguin-Hernandez in the procedural arena. See United

States v. Sanders, 820 F. App'x 932, 937, n.4 (11th Cir. 2020)(unpublished)(“The

Supreme Court's recent decision in Holguin-Hernandez v. United States, ––– U.S. ––

––, 140 S. Ct. 762, 206 L.Ed.2d 95 (2020), does not change our conclusion. In that case

the Court held that by requesting a certain sentence, a defendant generally preserves

his argument that a higher sentence is substantively unreasonable. But the Court

expressly did not decide ‘what is sufficient to preserve a claim that a trial court used

improper procedures in arriving at its chosen sentence.’ Nor does the reasoning of

Holguin-Hernandez help Sanders.”)(internal citations omitted). Likewise, the Tenth

Circuit has concluded that “Holguin-Hernandez’s holding has no direct bearing on the

preservation standards” for procedural claims. United States v. Finnesy, 953 F.3d

675, 691, n.8 (10th Cir. 2020)(cert. pending).

By contrast, the D.C. Circuit has given Holguin-Hernandez a broader reading,

concluding that it excused the need for at least some objections to a district court’s

the procedural error. In United States v. Abney, 957 F.3d 241 (D.C. April 24, 2020),

the D.C. Circuit considered the impact of Holguin-Hernandez on the preservation of

a defendant’s allocution claim. See Abney, 957 F.3d at 246-249. In that case, the

defendant asked to speak in the middle of sentencing. See id. at 245. But instead of

offering a chance to allocute (which had not earlier been provided), the court stopped

him and continued imposing the punishment. See id. at 245.

Examining the lessons of Holguin-Hernandez, the D.C. Circuit concluded that

the defendant’s request to speak placed the court on notice of its duty to invite

allocution, the absence of formal objection notwithstanding. See id. at 246-249. The

court believed that Holguin-Hernandez, taking the text of Rule 51 as a guide, required

nothing more than a request for court action, in that case to permit allocution. See id.

at 247. Further, the court thought it “fair to assume district court judges during

sentencing ‘hav[e] in mind’” the duty of presentence allocution, just as the Holguin-

Hernandez court thought it fair to assume courts “have in mind” the duty to comply

with §3553(a)(2)(A). See id. at 248 (quoting Holguin-Hernandez, 140 S.Ct. at 746).

Although the Abney court acknowledged that application of HolguinHernandez beyond substantive reasonableness had been by reserved this Court, it

nonetheless thought the case’s rationale governed:

In applying Holguin-Hernandez, we acknowledge distinctions

between that case and this one. The Court there held that a simple

request for a shorter sentence preserved for appeal the claim that the

sentence was excessive in violation of 18 U.S.C. § 3553(a), but noted that

it was not thereby deciding “what is sufficient to preserve a claim that a

trial court used improper procedures in arriving at its chosen sentence.”

Holguin-Hernandez, 140 S. Ct. at 767; accord id. (Alito, J., concurring).

The Court's caveat was evidently sparked by the concern that a general

request for a lower sentence might not suffice, for example, to bring to a

sentencing court's attention procedural errors in Sentencing Guidelines

calculations.

***

This case involves a claim of procedural error, but because the

procedural right involved is a requisite of any sentencing and its

omission is easy to detect, we treat it as akin to the straightforward

claim of excessive sentence in Holguin-Hernandez and unlike the buried

flaws in Sentencing-Guidelines calculations described in MolinaMartinez and Rosales-Mireles that may call for more specific and

detailed objections to be effectively preserved under the first clause of

Rule 51(b). District courts have a clear, well-established, affirmative

obligation to invite defendants to exercise their right to speak on their

own behalf before sentencing. See Fed. R. Crim. P. 32(i)(4)(A)(ii),

32.1(b)(2)(E). Against that backdrop, it is difficult to envision a request

by a defendant to be heard at sentencing that would not suffice under

Rule 51(b) to “inform[ ]the court” of the nature of the claim. There was

no more need here for Abney to specify that he sought to “allocute” than

there was for Gonzalo Holguin-Hernandez to specify that he sought a

sentence that was no “greater than necessary” under 18 U.S.C. §

3553(a), or to specify that he took exception to the sentence the court

imposed as “unreasonable.” Holguin-Hernandez, 140 S. Ct. at 766.

Id. at248- 249.

Abney cannot be reconciled with the decision below, nor with the position of

the court below and the Tenth and Eleventh Circuits generally. These courts confine

Holguin-Hernandez to the substantive reasonableness context, and find that it has

no significance in determining the adequacy of objections to procedural error. By

contrast, Abney found the case entirely dispositive on this issue.

The Fourth Circuit has also recently reaffirmed, after Holguin-Hernandez, its

prior view that some claims of procedural error do not require formal and specific

objection. See United States v. Rivera, 819 Fed. Appx. 139, 141 (July 20,

2020)(unpublished). Specifically, and using reasoning that prefigured HolguinHernandez, the Fourth Circuit had previously held that “[b]y drawing arguments

from § 3553 for a sentence different than the one ultimately imposed, an aggrieved

party sufficiently alerts the district court of its responsibility to render an

individualized explanation addressing those arguments, and thus preserves its

claim.” United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010).

Citing Holguin-Hernandez, the Fourth Circuit has recently reaffirmed the

validity of Lynn. See Rivera, 819 Fed. Appx. at 141. Indeed, it recognized that

Holguin-Hernandez supports the rule in Lynn. See id. (quoting Lynn, and then

introducing a quote and citation from Holguin-Hernandez with “cf.”). The position of

the Fourth Circuit, like Abney, cannot be reconciled with the position of the court

below, which requires procedural reasonableness objections in all cases, and which

sees no obvious relationship between Holguin-Hernandez and the preservation of

procedural error.

The conflict merits review.

The question reserved by the Holguin-Hernandez court is recurring and widely

applicable, potentially relevant to all manner of procedural error. Of course, the

standard of review is frequently dispositive to the resolution of legal disputes. And

even when it is not dispositive, the erroneous application of plain error effectively

deprives the parties of any meaningful review, and may undermine faith in the

judicial process. It therefore matters in its own right. Further, there is no reason to

believe that the courts considering the issue will bring the lessons of HolguinHernandez to bear on it.

There is a broader reason to accept certiorari regarding the application of

Holguin-Hernandez to the preservation of procedural error. Certiorari would be an

excellent opportunity to correct a line of precedent applied in at least two circuits that

seriously undermines the authority of this Court to state uniform national standards

of law.

The court below has repeatedly held that its precedent must be followed in the

face of intervening contrary Supreme Court authority unless that intervening

authority “unequivocally overrules” a Fifth Circuit precedent. See Matter of Henry,

944 F.3d 587, 591 (5th Cir. 2019)( “a panel of this court can only overrule a prior panel

decision if such overruling is unequivocally directed by controlling Supreme Court

precedent.”)(internal quotations omitted);

Moore v. Tangipahoa Parish School

Board, 921 F.3d 545 (5th Cir. 2019)(requiring that intervening Supreme Court

precedent “unequivocally overrule” Fifth Circuit panel opinions); Tech. Automation

Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012)(same);

Martin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir.2001)(using “unequivocal” the

standard); United States v. Zuniga–Salinas, 945 F.2d 1302, 1306 (5th Cir.1991)

(“unequivocally directed”). And it is joined in this defiant view of Supreme Court

authority by the Eleventh Circuit. See Atl. Sounding Co. v. Townsend, 496 F.3d 1282,

1284 (11th Cir. 2007), aff'd and remanded, 557 U.S. 404 (2009)(“ Under our prior

panel precedent rule, a later panel may depart from an earlier panel's decision only

when the intervening Supreme Court decision is “clearly on point.”)(citing Garrett v.

Univ. of Ala. at Birmingham Bd. of Trustees, 344 F.3d 1288, 1290-92 (11th Cir.2003));

accord United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008); In re Holsey, 589

Fed. Appx. 462, 467 (11th Cir. 2014)(unpublished).

This Court should clarify that this approach to Supreme Court authority is

inappropriate. The chief goal of this Court’s certiorari docket is to ensure the

uniformity of federal law. See Braxton v. United States, 500 U.S. 344, 347 (2001). That

task that would become nigh impossible if its holdings were limited to the precise

issue before the Court in each case, leaving inconsistent rules intact based on narrow

distinctions. Deciding about 80 cases a year, this Court cannot be expected to pick

through every circuit (or state high court) decision that conflicts with the rules

announced in its decisions, overruling each one by one.

“[U]nless we wish anarchy to prevail within the federal judicial system, a

precedent of this Court must be followed by the lower federal courts no matter how

misguided the judges of those courts may think it to be.” Hutto v. Davis, 454 U.S 370,

375 (1982). If a lower court is to honor this guidance, it must reconsider its precedent

each time clearly relevant authority issues from this Court (or, for that matter,

Congress). And it must do so even if the new precedent is not “unequivocal” or “clearly

on point.” This is not to say that prior precedent is of no weight or must invariably be

overturned, only that this Court is the ultimate expositor of federal law, and cannot

be ignored every time its guidance is not exact.

The approach of the court below is on full display in the opinion below. There,

the court said the following:

[t]he Supreme Court’s decision in United States v. Holguin-Hernandez

is inapplicable to this case of alleged procedural error, for HolguinHernandez did not change “what is sufficient to preserve a claim

that a trial court used improper procedures in arriving at its

chosen sentence.” ––– U.S. ––––, 140 S. Ct. 762, 767, 206 L.Ed.2d 95

(2020).

[Appx. A, at 2, n.1][emphasis added]. But this quotation from Holguin-Hernandez is

not entirely accurate. This Court actually said that it “will not consider these

matters,” namely the objection requirement in the procedural context. HolguinHernandez, 140 S.Ct. at 767 (emphasis added). This Court did not say that its opinion

did not change or affect the law in this area. The opinion below thus assumes that

the rationale of a Supreme Court precedent cannot change the law except as to the

issue directly before the Court. That assumption is perfectly sensible in the

precedential universe of the Fifth Circuit described above. But in a world where this

Court uses certiorari to establish federal uniformity, it is fallacy.

An opinion from this Court regarding the scope of its Holguin-Hernandez

holding would be an excellent opportunity to disabuse circuit courts of their exclusive

reliance on circuit precedent in the face of relevant intervening Supreme Court

precedent.

The present case is an appropriate vehicle to address the conflict.

This case well presents the issue. The defense in this case urged the district

court not to consider the defendant’s juvenile arrests in fashioning the sentence,

grounding the request in reliability concerns. See (Record in the Court of Appeals, at

125). As in Holguin-Hernandez, the defendant’s request likely called to mind an

“overarching duty” of the district court, here, a duty to impose sentence based on

reasonably reliable information. Had the court of appeals applied the lessons of

Holguin-Hernandez outside its narrow context, it may well have decided the standard

of review differently.

There is a final reason to use the present case to address the conflict as to the

scope of Holguin-Hernandez. The instant Petition also presents another issue that

has divided the courts of appeals, and which merits review: who bears the burden of

production regarding allegations made in a Presentence Report? If Petitioner prevails

in the first issue, this Court could reach the second issue, and resolve two meaningful

divisions of circuit authority with a single grant of certiorari. This Court’s certiorari

resources are precious, and an efficient resolution of both issues would leave space on

the docket to resolve other pressing issues of federal law.

II.

The circuits are divided as to who bears the burden of production

regarding factual claims made in a Presentence Report after a specific

objection by the defendant. The position of the court below generates a high

probability of unjust incarceration.

The federal circuits are divided.

As noted above, federal district courts must impose a sentence no greater than

necessary to achieve the goals in18 U.S.C. §3553(a)(2), after considering the other

factors enumerated §3553(a), including the defendant’s Guideline range. See 18

U.S.C. §3553(a)(2); United States v. Booker, 543 U.S. 220, 245-246 (2005). The

selection of an appropriate federal sentence depends on accurate factual findings.

Only by accurately determining the facts can a district court determine the need for

deterrence, incapacitation and just punishment, identify important factors regarding

the offense and offender, and correctly calculate the defendant’s Guideline range.

At least three authorities combine to safeguard the accuracy of fact-finding at

federal sentencing. Most fundamentally, the due process clause demands that

evidence used at sentencing be reasonably reliable. See United States v. Tucker, 404

U.S. 443, 447 (1972). The Federal Guidelines likewise require that information used

at sentencing exhibit “sufficient indicia of reliability to support its probable accuracy.”

USSG §6A1.3(a). And Federal Rule of Criminal Procedure 32 offers a collection of

procedural guarantees that together “provide[] for the focused, adversarial

development” of the factual and legal record. Burns v. United States, 501 U.S. 129,

134 (1991). These include: a presentence report that calculates the defendant’s

Guideline range, identifies potential bases for departure from the Guidelines,

describes the defendant’s criminal record, and assesses victim impact, (Fed. R. Crim.

P. 32(d)); the timely disclosure of the presentence report, (Fed. R. Crim. P. 32(e)); an

opportunity to object to the presentence report, (Fed. R. Crim. P. 32(f)); an

opportunity to comment on the presentence report orally at sentencing, (Fed. R. Crim.

P. 32(i)(1)), and a ruling on “any disputed portion of the presentence report or other

controverted matter” that will affect the sentence, (Fed. Crim. P. 32(i)(3)).

Several circuits, including the court below, have interpreted these authorities

to impose on the defendant a burden of production. See United States v. Prochner, 417

F.3d 54, 65-66 (1st Cir. 2005); United States v. O’Garro, 280 F. App’x 220, 225 (3d Cir.

2008); United States v. Campbell, 295 F.3d 398, 406 (3d Cir. 2002); United States v.

Valencia, 44 F.3d 269, 274 (5th Cir. 1995); [Appx. A, at 2][citing United States v.

Ford, 558 F.3d 371, 377 (5th Cir. 2009); United States v. Solis, 299 F.3d 420,

455 (5th Cir. 2002)]; United States v. Lang, 333 F.3d 678, 681-682 (6th Cir. 2003);

United States v. Mustread, 42 F.3d 1097, 1102 (7th Cir. 1994); United States v.

Rodriguez-Delma, 456 F.3d 1246, 1253 (10th Cir. 2006). In these circuits, a district

court may adopt the factual findings of a presentence report “without further inquiry”

absent competent rebuttal evidence offered by the defendant. United States v. Valdez,

453 F.3d 252, 230 (5th Cir. 2006); see also Prochner, 417 F.3d at 66; Lang, 333 F.3d

at 681-682; Mustread, 42 F.3d at 1102; Rodriguez-Delma, 456 F.3d at 1253.

Defendants in these jurisdictions cannot compel the government to introduce

evidence in support of the PSR’s findings merely by objecting to them – defendants

must instead introduce evidence of their own. See United States v. Ramirez, 367 F.3d

274, 277 (5th Cir. 2004)(holding that “[t]he defendant bears the burden of

demonstrating that the information relied upon by the district court in sentencing is

materially untrue”)(citing United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996));

Prochner, 417 F.3d at 66 (holding that “[e]ven where a defendant objects to facts in a

PSR, the district court is entitled to rely on the objected-to facts if the defendant's

objections ‘are merely rhetorical and unsupported by countervailing proof’”)(quoting

United States v. Cyr, 337 F.3d 96, 100 (1st Cir. 2003)(further quotations omitted), and

citing United States v. Grant, 114 F.3d 323, 328 (1st Cir. 1997)); Lang, 333 F.3d at

681-682 (“agree(ing) with the reasoning of the Seventh Circuit that [a] defendant

cannot show that a PSR is inaccurate by simply denying the PSR’s truth,” and further

holding that, “[i]nstead, beyond such a bare denial, he must produce some evidence

that calls the reliability or correctness of the alleged facts into question”)(citing

Mustread, 42 F.3d at 1102, and United States v. Wiant, 314 F.3d 826, 832 (6th Cir.

2003)); Mustread, 42 F.3d at 1102 (citing United States v. Coonce, 961 F.2d 1268,

1280-81 (7th Cir. 1992), and United States v. Isirov, 986 F.2d 183, 186 (7th Cir. 1993));

Rodriguez-Delma, 456 F.3d at 1253 (holding that the “defendant’s rebuttal evidence

must demonstrate that information in PSR is materially untrue, inaccurate or

unreliable”).

But the D.C., Second, Eighth, Ninth, and Eleventh Circuits have all rejected

this reasoning. In each of these courts, an objection to facts stated in a PSR shifts the

burden of production to the government to produce additional supporting evidence.

See United States v. Price, 409 F.3d 436, 444 (D.C. Cir. 2005)(“the Government may

not simply rely on assertions in a presentence report if those assertions are contested

by the defendant.”); United States v. Helmsley, 941 F.2d 71, 98 (2d Cir. 1991) (“If an

inaccuracy is alleged [in the PSR], the court must make a finding as to the

controverted matter or refrain from taking that matter into account in sentencing. If

no such objection is made, however, the sentencing court may rely on information

contained in the report.”); United States v. Poor Bear, 359 F.3d 1038, 1041 (8th Cir.

2004) ("If the defendant objects to any of the factual allegations . . . on which the

government has the burden of proof, such as the base offense level. . . the government

must present evidence at the sentencing hearing to prove the existence of the

disputed facts."); United States v. Ameline, 409 F.3d 1073, 1085-86 (9th Cir. 2005) (en

banc)(“However, when a defendant raises objections to the PSR, the district court is

obligated to resolve the factual dispute, and the government bears the burden of proof

. . . . The court may not simply rely on the factual statements in the PSR. “); United

States v. Martinez, 584 F.3d 1022, 1026 (11th Cir. 2009) (“It is now abundantly clear

that once a defendant objects to a fact contained in the [PSR], the government bears

the burden of proving the disputed fact by a preponderance of the evidence.”). An

examination of each these circuits reveals that the division of authority is sharp,

consistent, and significant to the outcome of cases.

The D.C. Circuit has held “the Government may not simply rely on assertions

in a presentence report if those assertions are contested by the defendant.” United

States v. Price, 409 F.3d 436, 444 (D.C. Cir. 2005). Rather, the Government must

“demonstrate [information in a PSR] is based on a sufficiently reliable source to

establish [its] accuracy . . . .” Id. (citing United States v. Richardson, 161 F.3d 728,

737-38 (D.C. Cir. 1998)). Further, the government’s burden is triggered “whenever a

defendant disputes the factual assertions in the report,” and the defendant “need not

produce any evidence, for the Government carries the burden to prove the truth of the

disputed assertion.” Id. (citing United States v. Pinnick, 47 F.3d 434, 437 (D.C. Cir.

1995))(emphasis added).

Similarly, the Second Circuit has repeatedly emphasized that the burden of

proof shifts to the government when the defense objects to the PSR’s factual

assertions. See Helmsley, 941 F.2d at 90; Streich, 987 F.2d 104, 107 (2d Cir.

1993)(“The government’s burden is to establish material and disputed facts [in the

PSR] by the preponderance of the evidence.”); United States v. Brown, 52 F.3d 415,

419 (2d Cir. 1995) (“The defendant offered no evidence to controvert the government’s

proffers which is not to say or even intended to suggest the burden of proof ever shifted

from the government.”)(emphasis added).

The Eighth Circuit permits the district court to adopt any portion of the PSR

not attacked by specific objection. See United States v. Tabor, 439 F.3d 826, 830 (8th

Cir. 2006); United States v. Moser, 168 F.3d 1130, 1132 (8th Cir. 1999); United States

v. Coleman, 132 F.3d 440, 441 (8th Cir. 1998). It distinguishes between objections to

“the facts themselves,” on the one hand, and to “recommendation[s] based on those

facts,” on the other. United States v. Bledsoe, 445 F.3d 1069, 1072-1073 (8th Cir. 2006).

The latter type of objection triggers no burden of proof on the part of the government.

See United States v. Mannings, 850 F.3d 404, 409-410 (8th Cir. 2017); United States

v. Humphrey, 753 F.3d 813, 818 (8th Cir. 2014); Bledsoe, 445 F.3d at 1072-1073;

Moser, 168 F.3d at 1132. But the former type of objection triggers an obligation on

the part of the government to present evidence in support of the PSR. See United

States v. Sorrells, 432 F.3d 836, 838-839 (8th Cir. 2005)(“Given the Government's

failure to present substantiating evidence, the district court erred in using the PSR's

allegations of the uncharged conduct to increase Sorrells's base offense level.”); Poor

Bear, 359 F.3d at 1041; United States v. Greene, 41 F.3d 383, 386 (8th Cir. 1994) (“If

the sentencing court chooses to make a finding with respect to the disputed facts, it

must do so on the basis of evidence, and not the presentence report.”). This is because

in the Eighth Circuit, “[t]he presentence report is not evidence…” United States v.

Reid, 827 F.3d 797, 801 (8th Cir. 2016).

These principles remain the law in the Eighth Circuit. As recently as 2017,

that jurisdiction has applied the distinction between objections to the facts, and to

the inferences drawn therefrom, recognizing the government’s burden of proof in the

former case. See Mannings, 850 F.3d at 409-410. Further, these are not mere abstract

principles, but frequently determine the outcome of appeal. The Eighth Circuit has

repeatedly vacated criminal sentences due to the government’s failure to support a

PSR’s factual finding in the face of appropriate objection. See Sorrells, 432 F.3d at

838-839, and cases cited therein.

The Ninth Circuit has similarly held, en banc, that a court “may not simply

rely on the factual statements in the PSR,” in the face of objection. See Ameline, 409

F.3d at 1085-86. As one would expect of a statement of law found in an en banc

opinion, this principle remains the law of the Circuit today. See United States v. Khan,

701 Fed. Appx. 592, 595 (9th Cir. 2017)(unpublished)(“A district court may not simply

rely on the factual statements in a PSR when a defendant objects to those facts.”).

And as in the Eighth Circuit, the principle is not merely abstract, but has instead

given rise to reversals when the government failed to offer evidence in favor of the

PSR. See United States v. Showalter, 569 F.3d 1150, 1158-1160 (9th Cir. 2006); Khan,

701 Fed. Appx. at 595.

Likewise, the Eleventh Circuit has found it well settled that “once a defendant

objects to a fact contained in the [PSR], the government bears the burden of proving

the disputed fact by a preponderance of the evidence.” Martinez, 584 F.3d at 1026

(citing United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005), United States

v. Liss, 265 F.3d 1220, 1230 (11th Cir. 2001), United States v. Lawrence, 47 F.3d 1559,

1566 (11th Cir. 1995), and United States v. Bernardine, 73 F.3d 1078, 1080 (11th Cir.

1996)); see also United States v. Rosales–Bruno, 676 F.3d 1017, 1023 (11th Cir.2012)

(defendant’s objections to statements in his PSI placed “on the government the

burden of proving [the disputed] facts.”); Liss, 265 F.3d at 1230 (“When a defendant

challenges one of the bases of his sentence as set forth in the PS[I], the government

has the burden of establishing the disputed fact by a preponderance of the evidence.”).

That burden shifting regime has been recognized as recently as 2015 in United States

v. Arroyo-Jaimes, 608 F. App'x 843 (11th Cir. 2015)(unpublished), which held that an

objection to facts in the PSR sufficed “to place the burden on the government to

produce evidence in support of that fact.” Arroyo-Jaimes, 608 F. App'x at 846. Finally,

as in the Eighth and Ninth Circuits, the Eleventh Circuits has vacated solely for want

of “undisputed evidence in the PSI.” Martinez, 584 F.3d at 1028 (emphasis added).

As can be seen, there is a stark contrast between the courts of appeals

regarding burden of proof at sentencing. It is current, balanced, and widespread, and

it is frequently material to the outcome.

The conflict merits review.

This Court should resolve the conflict between the circuits as to the burden of

production following an objection to the PSR. The issue is hardly isolated, but rather

recurring. Indeed, it is endemic and fundamental to federal sentencing. Virtually

every federal criminal case has a potential sentencing dispute, and it matters a great

deal who is required to muster evidence.

Further, the rule applied below carries the potential for grave injustice. Placing

a burden of proof on the defense creates a risk of wrongfully extending term of

imprisonment based on an inaccurate factual finding. The wrongful extension of a

term of imprisonment is an “equitable consideration[] of great weight.” United States

v. Johnson, 529 U.S. 53, 60 (2000).

The present case is an appropriate vehicle to address the conflict.

The Court should take this case to resolve the division in the courts of appeals.

The court below expressly applied a burden of production to the defendant to rebut

the PSR. See [Appx. A, at 2-3]. Further, it used this burden-shifting regime to resolve

Petitioner’s substantial claim. See [Appx. A, at 2-3].

In the absence of this rule, Petitioner would have been able to show error. He

objected to the consideration of his juvenile arrests, and the government produced

nothing but the PSR. Further, there is no good reason to believe that a full airing of

the relevant facts would have shown the allegations sufficiently reliable for

sentencing purposes. A review of the evidence regarding each of the three allegations

challenged on appeal shows why this is so.

First, as to Petitioner’s alleged fight on a school bus, which the PSR labeled

“Battery.” The PSR sources this allegation to a police report, but it never explains

how the police report’s author came to know or believe in his or her conclusion. See

(Record in the Court of Appeals, at 139). The PSR does not specify the witnesses who

gave the officer an account of the incident; it does not say whether he or she was a

first, second, third, or some-greater-number-hand-witness; it provides no information

about the circumstances under which this witness’s conversation with the police

occurred. See (Record in the Court of Appeals, at 139). The PSR did not state the

defendant’s role, nor his motive. See (Record in the Court of Appeals, at 139). And

while the record shows nothing firm in support of the allegation, it does show that

the prosecutor declined the case. See (Record in the Court of Appeals, at 139). If the

prosecutor responsible for public safety in his or her jurisdiction did not think it

worthy of proceeding, there is good reason to think it might not be provable now.

Second, the court found that Petitioner once threw rocks at a neighbor (while

a child), and that he put his hands around another child’s neck to stop her from

retaliating with rock-throwing of her own. See (Record in the Court of Appeals, at

120, 139). The PSR described the allegation as one of “Aggravated Battery” and

“Throw Missile Building.” (Record in the Court of Appeals, at 139). Here again, we

know that the accusation came from a police report, but nothing more about the

ultimate accuser. See (Record in the Court of Appeals, at 139). Rather, the PSR says

only in the passive voice that “it was determined the defendant and his brother...”

engaged in the relevant criminal conduct. (Record in the Court of Appeals, at 139).

The record thus offers nothing more than silence as to the reasoning of the reporting

officers when they chose to arrest the defendant. There is no firm reason to think the

claim could be well-substantiated upon fuller development of the record.

Third, the court also found that Petitioner committed the “Possession of Illegal

Lottery Tickets.” (Record in the Court of Appeals, at 120, 140). This finding rests on

shockingly scant evidence. Specifically, the PSR said only that officers found

Petitioner riding – as a passenger – in the same car as illegal lottery tickets and cash.

See (Record in the Court of Appeals, at 140). Explaining the defendant’s arrest, the

PSR explained that “the defendant was not identified as a suspect in the operation;

however, he was the passenger in [the driver’s] vehicle.” (Record in the Court of

Appeals, at 140). Again, juvenile prosecutors did not file a case. See (Record in the

Court of Appeals, at 140). Nothing in the record shows either actual or constructive

possession of the contraband. To the contrary, it shows that he was neither

prosecuted nor even treated as a suspect. And yet the district court found that he

committed an offense, and used this in connection with his sentence.

There is no reasonable claim of harmless error, and the court below did not

hold otherwise. See [Appx. A, at 2-3]. The defense objected to consideration of these

arrests in fashioning the sentence, see (Record in the Court of Appeals, at 125), which

the court expressly mentioned in its sentencing explanation, see (Record in the Court

of Appeals, at 120). Rather than downplay their significance, the court said that it

had considered the conduct rather than the arrests themselves. see (Record in the

Court of Appeals, at 125). This course of events makes clear that they played some

role in the selection of the sentence.

CONCLUSION

Petitioner respectfully submits that this Court should grant certiorari to

review the judgment of the United States Court of Appeals for the Fifth Circuit.

Respectfully submitted this 9th day of November, 2020.

JASON D. HAWKINS

Federal Public Defender

Northern District of Texas

/s/ Kevin Joel Page

Kevin Joel Page

Assistant Federal Public Defender

Federal Public Defender's Office

525 S. Griffin Street, Suite 629

Dallas, Texas 75202

Telephone: (214) 767-2746

E-mail: joel_page@fd.org

Attorney for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.