Petition for Writ of Certiorari — Eric Troy Snell, Petitioner v. United States

NO. ___________

___________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

___________________________________________

ERIC TROY SNELL,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

___________________________________________

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________________________________

Michael F. Smith

THE SMITH APPELLATE LAW FIRM

7566 Main Street, Suite 307

Sykesville, MD 21784

(202) 454-2860

smith@smithpllc.com

Counsel for Petitioner

QUESTION PRESENTED FOR REVIEW

1.

Does the Fourth Circuit’s practice of not addressing

erroneous Sentencing Guidelines calculations but affirming

a sentence under “assumed error harmlessness” review

violate Gall’’s directive that a properly calculated Guidelines

range remain “a meaningful benchmark throughout the

process of appellate review”?

i

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW……………………………..……i

TABLE OF AUTHORITIES………………………………………...……......iv

RULE 14.1(b)(iii) STATEMENT………………………………………….…..1

OPINIONS BELOW…………………………………………………………….2

JURISDICTIONAL STATEMENT……………………………………….…..3

STATUTORY PROVISION INVOLVED…………………………………….5

STATEMENT OF THE CASE AND FACTS………………………….….....6

I.

The government investigates and charges Snell, who

pleads guilty and is sentenced………………………………….………6

II.

The Fourth Circuit disregards the district court’s Guidelines

error as harmless, based on the district court’s comment………....8

REASONS FOR GRANTING THE WRIT………………………………....11

I.

The Fourth Circuit’s “assumed error harmlessness inquiry”

completely excises the Guidelines from the array of factors

considered in sentencing, contrary to Gall v. United States……..11

CONCLUSION/RELIEF REQUESTED……………………………………24

APPENDIX:

1.

Opinion, United States Court of Appeals for the Fourth

Circuit, United States of America v. Eric Troy Snell,

No. 19-4351, affirming the district court, July 27, 2020…….App. 01

ii

2.

Transcript excerpt, Sentencing Hearing, United States District

Court for the District of Maryland, United States of America v.

Eric Troy Snell, District Court No. 1:17-cr-00602-CCB-1,

April 26, 2019..……...……………………………………………..App. 05

3.

Judgment, United States District Court for the District

of Maryland, United States of America v. Eric Troy Snell,

District Court No. 1:17-cr-00602-CCB-1, May 1, 2019…...….App. 11

4.

18 U.S.C. § 3553(a) & (b)……………………………………...….App. 17

iii

TABLE OF AUTHORITIES

Page

Cases

Freeman v. United States, 564 U.S. 522 (2011)……………………….….13

Gall v. United States, 552 U.S. 38 (2007)..….11, 12, 13, 14, 16, 18, 23, 24

Hendricks v. Jenkins, 2020 Westlaw 5430821

(N.D. Cal. Sept. 10, 2020)………………………………………………....22

Kimbrough v. United States, 552 U.S. 85 (2007)……………11, 12, 16, 18

Peugh v. United States, 569 U.S. 530 (2013)…………………..…12, 13, 16

Rita v. United States, 551 U.S. 338 (2007)…………………..…………….12

United States v. Bah, 439 F.3d 423 (8th Cir. 2006)……………………….15

United States v. Booker, 543 U.S. 220 (2005)……………….……11, 12, 15

United States v. Bowman, 717 F. App’x 202 (4th Cir. 2017)…………….19

United States v. Braithwaite, 449 F. App’x 809 (11th Cir. 2011)……….13

United States v. Dunkley, 812 F. App’x 820 (11th Cir. 2020)………..….15

United States v. Gomez, 690 F.3d 194 (4th Cir. 2012)……………..……..20

United States v. Gomez-Jimenez,

750 F.3d 370 (4th Cir. 2014)…………………………………10, 13, 14, 21

United States v. Grinder, 4th Cir. No. 19-4392……………………………19

United States v. Keene, 470 F.3d 1147 (11th Cir. 2006)……………….…13

United States v. Lanesky, 494 F.3d 558 (6th Cir. 2007)………………….14

iv

United States v. Langford, 516 F.3d 205, 213 (3d Cir. 2008)…….…14, 18

United States v. Montgomery, 815 F. App’x 962 (6th Cir. 2020)…….….16

United States v. Montgomery (On Reh’g),

969 F.3d 582 (6th Cir. 2020)…………………………………………..18-19

United States v. Munoz-Camarena,

631 F.3d 1028 (9th Cir. 2011)…………………………....15, 16-17, 18, 21

United States v. Pearson, 596 F. App’x 198 (4th Cir. 2015)……..………19

United States v. Snell,

2020 Westlaw 4053823 (D. Md. July 20, 2020)………………………..22

United States v. Tavares, 705 F.3d 4 (1st Cir. 2013)……………………..16

Statutes

18 U.S.C. § 3553……………………………………....5, 12, 14, 16, 18, 20, 22

18 U.S.C. § 3621(e)(2)(B)……………………………………………………...22

28 U.S.C. § 1254(1)……………………………………………………...………3

Regulation

28 C.F.R. § 550.55(b)……………………………………………………….….22

Rules

Supreme Court Rule 13.1………………………………………………………3

Supreme Court Rule 16.1………………………………………….….4, 20, 24

Supreme Court Rule 29.4(a)……………………………………………….…..3

v

United States Sentencing Guidelines (Nov. 2018)

USSG §2D1.1(b)(1)………………………………………………………………9

USSG §3C1.1……………………………………………………………..………9

Other authorities

Bureau of Prisons Program Statement 5331.02……………………….….22

Murray, Justin, Policing Procedural Error in the Lower Criminal

Courts (August 17, 2020), FORDHAM LAW REVIEW, Forthcoming,

NYLS Legal Studies Research Paper No. 3675869………………….……22

vi

RULE 14.1(b)(iii) STATEMENT

There are no proceedings in state or federal trial or appellate

courts, including proceedings in this Court, that are directly related to

this case.

OPINIONS BELOW

1.

Opinion, United States Court of Appeals for the Fourth Circuit,

United States of America v. Eric Troy Snell, Court of Appeals No. 194351, affirming the district court, July 27, 2020.

2.

Judgment, United States District Court for the District of

Maryland, United States of America v. Eric Troy Snell, District Court

No. 1:17-cr-00602-CCB-1, sentencing Mr. Snell, May 1, 2019.

2

JURISDICTIONAL STATEMENT

Snell was sentenced on April 26, 2019, with the Judgment issuing

May 1, 2019. (App. 011). He appealed, challenging the district court’s

application of two Guidelines enhancements and its decision not to

grant a downward adjustment for acceptance of responsibility. The

United States Court of Appeals for the Fourth Circuit entered its

Opinion affirming the Judgment on July 27, 2020. (App. 01). This

Court’s jurisdiction is invoked under Title 28, United States Code, §

1254(1).

Rule 13.1 of the Supreme Court, in combination with this Court’s

Order of March 19, 2020, allows for 150 days within which to file a

Petition for a Writ of Certiorari after entry of the judgment of the Court

of Appeals. Accordingly, this Petition is timely filed.

Pursuant to Rule 29.4(a), appropriate service is made to the

Solicitor General of the United States and to Assistant United States

Attorney Leo Wise, who appeared in the United States Court of Appeals

for the Fourth Circuit on behalf of the United States Attorneys Office, a

federal office which is authorized by law to appear before this Court on

its own behalf.

3

Petitioner Snell respectfully prays that a Writ of Certiorari issue

to review the Judgment and Opinion of the United States Court of

Appeals for the Fourth Circuit. In that Opinion, the Fourth Circuit

assumed that Snell raised meritorious challenges to the district court’s

application of two Guidelines enhancements, but nonetheless affirmed

the above-Guidelines sentence because the district court said it would

impose the same sentence regardless of Guidelines error. The court’s

ruling completely divorced Snell’s sentence from appropriate Guidelines

consideration, contrary to Gall v. United States, 552 U.S. 38 (2007),

Kimbrough v. United States, 552 U.S. 85 (2007) and their progeny.

Alternatively, Snell requests a summary disposition on the merits

and remand under Rule 16.1.

4

STATUTORY PROVISION INVOLVED

18 U.S.C. § 3553. Imposition of a sentence (App. 017)

5

STATEMENT OF THE CASE AND FACTS

I.

The government investigates and charges Snell, who pleads guilty

and is sentenced.

The Baltimore Police Department’s corrupt Gun Trace Task Force

(GTTF) for years engaged in the same street crime it was supposed to

stop. GTTF member Jemell Rayam was arrested and began

cooperating, eventually telling investigators he twice gave his friend,

Philadelphia police officer Eric Snell, stolen drugs to be sold in that city.

Rayam told agents that Snell’s brother sold the drugs, after which Snell

paid Rayam the proceeds by depositing funds in Rayam’s bank account,

and returned some of the drugs unsold. (Indictment, R.1, pp. 1-6). 1

The government worked extensively to corroborate Rayam’s

information, and in November 2017 obtained an indictment charging

Snell with conspiring to distribute heroin and cocaine. (Id.) Applying

for a tracking warrant to facilitate Snell’s arrest, the government told

the district court in Philadelphia it had corroborated Rayam’s

statements through bank and phone records, security-camera photos of

Relevant documents not contained in the Appendix are cited by their

location in the district-court record (“R. __”) or the Fourth Circuit record

(“App. R. ___”).

1

6

Snell making bank deposits, historical cell-site analyses of numerous

cellphones, GPS information, toll records, text messages, a recorded

jailhouse call from Rayam to Snell, and statements from two other

cooperating GTTF officers. (Application & Affidavit for Tracking

Warrant, R. 30-3, pp. 1-21). Agents also applied for a search warrant,

detailing much of the same information. (Application, R.30-4, pp. 1-17).

Three days later FBI agents arrested Snell at his Philadelphia

home, seizing two service handguns and two disassembled, unregistered

rifles from Snell’s bedroom. (FBI 302, R. 30-5, pp. 1-3). In the

basement they found ammunition for Snell’s service weapons (though

none for the rifles) and a razor containing drug residue. On the drive to

Baltimore, Snell engaged the arresting FBI agents in a wide-ranging

soliloquy touching on the Philadelphia police department, his children,

his love of Philadelphia Eagles football, and his claim that the cash

deposits he made to Rayam’s bank account were for a “gambling debt.”

(Id.) Thanks to its extensive investigation, the government already

knew the latter statement was false. Its case was so airtight that

midway through Rayam’s testimony, Snell changed his plea to guilty

without benefit of an agreement. (Rearraignment TR, R.71, pp. 2-23).

7

The government agreed with the recommendation of the

presentence report (PSR) for five two-level enhancements, resulting in a

Guidelines range of 151-188 months, though it requested a belowGuidelines sentence of 150 months. (R.81, Gov’t. Sent. Mem.). Snell,

who had no prior offenses, opposed all five enhancements and argued

for a Guidelines range of 51-63 months. (R.79, Snell Sent. Mem.). The

district court rejected three of the enhancements but applied two, and

calculated a Guidelines range of 78-97 months. (Sent. TR, App. 07;

Statement of Reasons, R.90 (Sealed), pg. 1).

The court then varied upward, giving Snell a 108-month sentence

to account for his abuse of trust as a police officer. (Sent. TR, App. 0709; Judgment, App. 011; R.90 (Sealed) Statement of Reasons, pg. 1). It

added that “even if I’m wrong on the guidelines, this is the sentence

that I think is appropriate under 3553(a) and is sufficient without being

greater than necessary….” (Sent. TR, App. 09).

II.

The Fourth Circuit disregards the district court’s Guidelines error

as harmless, based on the district court’s comment.

Snell appealed, and in his briefs established legal error in the

application of both enhancements. The obstruction enhancement of

USSG §3C1.1 was improperly applied because the court did not make

8

the requisite finding of willful intent to obstruct. (Opening Brief, App.

R.29, pp. 32-33; Reply, App. R.40, pg. 12). Of even greater import,

Comment Note 4(G) to USSG §3C1.1 requires that an unsworn

falsehood to law enforcement significantly obstruct or impede the

investigation, and Snell’s “gambling debt” comment did not – by the

time he made it, agents had established conclusively that his bank

deposits were drug-sale proceeds. Snell proved that the additional

investigatory legwork the government blamed on his untruth either

predated it or involved GTTF members, not Snell. (Opening Brief, App.

R.29, pp. 19-32; Reply, App. R.40, pp. 4-12).

Snell also established that the dangerous-weapon enhancement of

USSG §2D1.1(b)(1) did not apply because the government failed to

prove a sufficient temporal connection between the weapons and his

criminal conduct of 12 months earlier. (Opening Brief, App. R.29, pp.

34-37; Reply, App. R.40, pp. 12-13. He showed it was “clearly

improbable” the guns had anything to do with drug activity – the two

handguns were required in his police work, and there was no

ammunition in the house for the disassembled rifles. (Opening Brief,

App. R.29, pp. 37-39; Reply, App. R.40, pp. 12-13). And he noted that

9

the government could not meet the “high bar” of establishing harmless

error: the district court’s statement that it would impose the same

sentence even if it was wrong on the Guidelines did not reflect its

consideration of that sentence in light of Snell’s calculated range.

(Reply, App. R.40, pp. 13-14).

The Fourth Circuit affirmed in a six-paragraph unpublished

opinion issued without oral argument. (App. 01). Applying its

“assumed error harmlessness inquiry,” the court assumed error in the

Guidelines calculation but it found it harmless because the district

court said it would have imposed the same sentence even without error,

and that sentence “would be [substantively] reasonable even if the

Guidelines issue had been decided in the defendant’s favor.” (App. 03,

citing United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir.

2014) (brackets omitted). The appellate court did not compare the

sentence against Snell’s asserted Guidelines range of 51-63 months. It

also disregarded the lack of any elaboration by the district court as to

why, having imposed a sentence 11 percent above the top end of its

Guidelines range (78-97 months), it also would have been substantively

10

reasonable to exceed Snell’s range by 71 percent to impose the same

108-month sentence.

REASONS FOR GRANTING THE WRIT

I.

The Fourth Circuit’s “assumed error harmlessness inquiry”

completely excises the Guidelines from the array of factors

considered in sentencing, contrary to Gall v. United States.

1.

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

the Sentencing Guidelines advisory rather than mandatory, they still

play an important role in sentencing. But the Fourth Circuit’s

“assumed error harmlessness inquiry,” by not requiring either the

district court or circuit court to compare the sentence against a correct

Guidelines range, improperly removes the Guidelines from any

consideration. This Court should grant certiorari and issue a coursecorrection barring the circuit courts from this troubling practice.

2.

The Guidelines “should be the starting point and the initial

benchmark” for sentencing determinations, Gall v. United States, 552

U.S. 38, 49 (2007), since “in the ordinary case, the [Sentencing]

Commission’s recommendation of a sentencing range will ‘reflect a

rough approximation of sentences that might achieve § 3553(a)’s

objectives.” Kimbrough v. United States, 552 U.S. 85, 89 (2007),

11

quoting Rita v. United States, 551 U.S. 338, 350 (2007). The post-

Booker sentencing scheme “aims to achieve uniformity by ensuring that

sentencing decisions are anchored by the Guidelines and that they

remain a meaningful benchmark throughout the process of appellate

review.” Peugh v. United States, 569 U.S. 530, 541 (2013) (emphasis

added), citing Kimbrough, 552 U.S. at 107.

District courts are to begin all sentencing proceedings by correctly

calculating the applicable Guidelines range. Gall, 552 U.S. at 49. After

giving both parties an opportunity to argue for their desired sentence,

the court is to consider all of the 18 U.S.C. § 3553(a) factors to

determine whether they support the party’s requested sentence. Id. at

50-51. Importantly, “[t]he fact that § 3553(a) explicitly directs

sentencing courts to consider the Guidelines supports the premise that

district courts must begin their analysis with the Guidelines and

remain cognizant of them throughout the sentencing process .” Gall, 552

U.S. at 50 n. 6 (emphasis added). “Even if the sentencing judge sees a

reason to vary from the Guidelines, ‘if the judge uses the sentencing

range as the beginning point to explain the decision to deviate from

it, then the Guidelines are in a real sense the basis for the

12

sentence.’” Peugh, 569 U.S. at 542, quoting Freeman v. United States,

564 U.S. 522, 529 (2011) (plurality opinion) (Court’s emphasis).

Miscalculation of the Guidelines range is a significant procedural error.

Gall, 552 U.S. at 51.

3.

Under its “assumed error harmlessness inquiry,” the Fourth

Circuit assumes an error in Guidelines calculation, but considers it

harmless if it determines 1) the district court would have reached the

same result even if it had decided the Guidelines decision the other

way, and 2) the sentence still would be substantively reasonable. (App.

03, citing Gomez-Jimenez, 750 F.3d at 382). The Fourth Circuit

adopted the principle from United States v. Keene, 470 F.3d 1147 (11th

Cir. 2006), see Gomez-Jimenez, 750 F.3d at 385, but the Eleventh

Circuit has effectively abandoned it, employing it only once post- Gall, in

an unpublished decision, United States v. Braithwaite, 449 F. App’x 809

(11th Cir. 2011).

Rather than have the sentencing court “remain cognizant of [the

Guidelines] throughout the sentencing process,” however, the Fourth

Circuit’s analysis allows it to paper over erroneous Guidelines

calculation merely by stating it would impose the same sentence in any

13

event. Thus, Snell’s 108-month sentence was imposed and affirmed

without either court discussing whether the 71-percent deviation from

the correct Guidelines range, i.e. Snell’s, is substantively reasonable,

based on the extent of that deviation.

As Chief Judge Gregory has noted, “assumed error harmlessness

inquiry” in the Fourth Circuit “has placed Gall in mothballs, available

only to review those sentences where a district court fails to cover its

mistakes with a few magic words.” Gomez-Jimenez, 750 F.3d at 391

(Gregory, J., concurring in part and dissenting in part). “ Gall is

essentially an academic exercise in our circuit now….” Id.

4.

The Fourth Circuit’s willingness to declare a sentence

substantively reasonable without analyzing it against the defendant’s

asserted Guidelines range creates a split with other circuits that refuse

to disregard the Guidelines in that fashion. See United States v.

Langford, 516 F.3d 205, 213 (3d Cir. 2008) (“[o]ur reasonableness

review relies on a district court’s reasoning from the starting point of

the correctly calculated Guidelines through the § 3553(a) factors”);

United States v. Lanesky, 494 F.3d 558, 561-562 (6th Cir. 2007)

(“without considering the sentence in light of a properly calculated

14

guideline range, we cannot conclude with certainty that the defendant’s

substantial rights were unaffected…we cannot be certain that this error

did not cause the defendant to receive a more severe sentence”); United

States v. Bah, 439 F.3d 423, 431 (8th Cir. 2006) (“where, as here, the

sentencing court pronounces an identical alternative sentence, not

based on any alternative guidelines calculation but instead intended to

cover any and all potential guidelines calculation errors, the sentencing

court effectively has ignored the requirement…to ‘first determine the

appropriate guidelines sentencing range’ for the alternative sentence”)

(citation omitted); United States v. Munoz-Camarena, 631 F.3d 1028,

1031 (9th Cir. 2011) (“A district court's mere statement that it would

impose the same above-Guidelines sentence no matter what the correct

calculation cannot, without more, insulate the sentence from remand,

because the court's analysis did not flow from an initial determination

of the correct Guidelines range”).

Even the Eleventh Circuit, originator of the “assumed error

harmlessness inquiry,” now insists on such calculation. United States

v. Dunkley, 812 F. App’x 820, 825 (11th Cir. 2020) (Booker’s consultation

requirement “at a minimum, obliges the district court to calculate

15

correctly the sentencing range prescribed by the Guidelines,” and while

court can still sentence outside of the Guidelines, “the requirement of

consultation is inescapable”) (court’s emphasis) (citation omitted).

In contrast, the First Circuit (like the Fourth) will find Guidelines

error harmless simply because the district court said it would impose

the same sentence anyway under § 3553(a). United States v. Tavares,

705 F.3d 4, 25 (1st Cir. 2013) (failure to calculate Guidelines range was

harmless where district court acknowledged each side’s range but said

both were insufficient and imposed a sentence in excess of both). And

at least one, the Sixth, now has a foot in both camps. United States v.

Montgomery, 815 F. App’x 962 (6th Cir. 2020) (imposition of

aggravating-role enhancement was harmless error where district court

at sentencing said it “would have imposed the same sentence under §

3553(a) even if the guidelines calculation is determined to be wrong”)

(citing cases) (cleaned up).

5.

Munoz-Camarena, supra, underscores why “assumed error

harmlessness inquiry” is incompatible with Gall, Kimbrough and

Peugh. In Munoz-Camarena, the district court erroneously calculated a

Guidelines range of 33-41 months, then imposed a 65-month sentence,

16

stating that it would impose the same sentence even if it was wrong on

the Guidelines. Reversing, the Ninth Circuit held that such a

statement on its own could not insulate the sentence from remand

because the court’s analysis did not flow from a correct Guidelines

calculation. 631 F.3d at 1031. Because the district court “must explain,

among other things, the reason for the extent of a variance,” and that

extent “necessarily is different when the range is different…a one-sizefits-all explanation ordinarily does not suffice.” Id. (court’s emphasis,

citation omitted).

The Fourth Circuit’s “assumed error harmlessness inquiry” let the

district court shirk that responsibility in sentencing Snell with exactly

that one-size-fits-all explanation. While the court’s actual sentence was

11 percent above the top end of its Guidelines range, it is fully 71

percent above the top end of that for which Snell advocated. The same

explanation the district court gave in justifying the 11-percent variance

a fortiori cannot justify the far larger deviation from Snell’s range, since

“the extent necessarily is different when the range is different.” Munoz-

Camarena, 631 F.3d at 1031.

17

By rubber-stamping the district court’s flawed explanation, the

Fourth Circuit’s “assumed error harmlessness inquiry” disregarded

Gall’s directive to gauge substantive reasonableness against the totality

of circumstances, “including the extent of any variance from the

Guidelines range.” 552 U.S. at 51. Because the analyses of both courts

“did not flow from an initial determination of the correct Guidelines

range,” Munoz-Camarena, 631 F.3d at 1031, it contravenes Gall. See

also Langford, 516 F.3d at 215 (“…while the district court is free to

make its own reasonable application of the § 3553(a) factors, and to

reject (after due consideration) the advice of the Guideline [citation], it

must first duly consider the correct Guidelines” (citing Kimbrough, 552

U.S. at 113 (Scalia, J., concurring)). “Thus, a district court’s incorrect

Guidelines calculation will thwart not only its ability to accomplish the

analysis it is to undertake, but our reasonableness review as well.” Id.

6.

Unsurprisingly, district courts have learned that their

Guidelines analyses can be shielded from appellate review merely by

reciting that the same sentence would be imposed regardless of any

Guidelines error. The judge who sentenced Snell has couched other

sentencing decisions in similar language, and had them affirmed under

18

“assumed error harmlessness inquiry.” See United States v. Pearson,

596 F. App’x 198, 199 (4th Cir. 2015) (affirming sentence where court

indicated that “[t]he sentence I have come to is the one that I think is

appropriate, even if I am wrong about the one point for acceptance of

responsibility….I would impose the same sentence”); United States v.

Bowman, 717 F. App’x 202, 206 (4th Cir. 2017) (“the district court made

clear that the issue of whether the two level decrease applied was

irrelevant to the ultimate sentencing decision”). The judge also has

made similar statements in other cases where no sentencing issue is

raised on appeal. (5/24/19 Sent. TR, R. App. 19-2 in 4th Cir. No. 194392, United States v. Grinder , pg. 136/JA 804 (“…the sentence I’m

about to impose is appropriate, regardless of my calculations and errors

one way or the other, if there are any on the guidelines….”)).

In Montgomery, supra, after a similar district-court statement led

to affirmance as harmless Guidelines error, defendant on rehearing

pointed out that the same district judge routinely includes that

statement in his standard sentencing colloquy. Though the Sixth

Circuit rejected the argument as untimely, one judge noted that such

rote incantations deserve no appellate deference:

19

We see no reason why we should give any weight to boilerplate language designed to thwart a deserved resentencing.

The purpose of our harmless-error analysis is to avoid the

efficiency cost of resentencing in cases where we are

absolutely certain that the district court would have

announced the same sentence had it not erred. That aim

plainly is not served by a standard-issue pledge that the

district court would have come to the same result under the

§ 3553(a) factors had it calculated the Guidelines range

correctly. [United States v. Montgomery (On Reh’g), 969

F.3d 582 (6th Cir. Aug. 5, 2020) (Order) (Moore, J.)].

Plainly, district courts have figured out how to “bulletproof” their

sentences from appellate review through such talismanic recitations.

Granting the writ will allow this Court to end that unjust practice.

7.

Alternatively, the Court should consider summary

disposition under Rule 16.1 and a remand for the Fourth Circuit to

determine whether any Guidelines-calculation error truly was

harmless.

a.

The Fourth Circuit misapplied its own “assumed error

harmlessness” standard, under which it must be “certain” the district

court would have imposed the same sentence even under defendant’s

Guidelines range, and that it would be reasonable. United States v.

Gomez, 690 F.3d 194, 203 (4th Cir. 2012). For one thing, the district

court’s perfunctory statement that it would impose the same sentence

20

cannot support to a “certainty” that it actually would have done so

under a corrected Guidelines range. See Gomez-Jimenez, 750 F.3d at

389 (Gregory, J., concurring in part and dissenting in part) (“I do not

believe that a simple statement that the [district] court would have

imposed the same sentence is sufficient, at least where the imposed

sentence exceeds what would have been the Guidelines range absent

the procedural error) (footnote omitted).

Indeed, as discussed above, such certainty cannot exist where the

sentence flows from an incorrect Guidelines calculation. To show

reasonableness, a district court must explain the reason for the extent

of a variance – and that extent cannot even be known, absent the

correct Guidelines calculation. Munoz-Camarena, 631 F.3d at 1031.

Further, the district court’s explanation for why it exceeded an

erroneous Guidelines top by 11 percent cannot do double-duty and

justify exceeding the correct upper limit by 71 percent.2

2 The Fourth Circuit incorrectly described the district court’s upward

variance as based on “a request from the Government.” (App. 03).

Though the government agreed with the PSR’s range of 151-180

months, it requested a sentence below that range. (Govt’s Sent. Mem.

R.81 (Sealed), pg. 1).

21

b.

Even if Snell’s ultimate sentence stands, the error in

Guidelines calculation was not harmless for him. Under 28 C.F.R. §

550.55(b) and BOP Program Statement 5331.02, the dangerous-weapon

enhancement will prevent Snell from obtaining a one-year sentence

reduction to which he would be entitled under 18 U.S.C. § 3621(e)(2)(B)

for completing the BOP’s Residential Drug Abuse Treatment Program,

for which the district court recommended him and for which he will

become eligible in 2022. (Sent. TR, App. 010; see also Hendricks v.

Jenkins, 2020 Westlaw 5430821, at *1-2 (N.D. Cal. Sept. 10, 2020)).

Snell has been a model prisoner. United States v. Snell, 2020

Westlaw 4053823, at *3 (D. Md. July 20, 2020) (denying compassionate

release but noting “Snell’s good conduct in the BOP is commendable”).

Even if the district court’s erroneous assessment of the dangerousweapon enhancement is “harmless” in terms of judicial review of the

sentence under § 3553(a), it cannot truly be deemed “harmless” where it

will keep him incarcerated a full year longer than he should be. See

Murray, Justin, Policing Procedural Error in the Lower Criminal

Courts (August 17, 2020). FORDHAM LAW REVIEW, Forthcoming, NYLS

Legal Studies Research Paper No. 3675869, available at

22

SSRN: https://ssrn.com/abstract=3675869 (advocating consideration of

additional factors beyond whether procedural error affected the

outcome, including whether error “caused substantial harm to a legally

protected interest unrelated to the outcome”).

8.

This Court should end the circuit split under which similarly

situated defendants face dramatically different sentences based solely

on the happenstance of where that sentence is imposed. A defendant

(like Snell) sentenced in the Fourth Circuit can have erroneous

Guidelines calculations overlooked, and an unreasonably lengthy

sentence affirmed, where the district court simply recites that it would

impose the same sentence even if it erred on the Guidelines. Worse,

that can happen where the Guidelines error demonstrably imposes a

harm completely separate from the litigation – such as here, where the

wrongful dangerous-weapon enhancement will keep Snell from

obtaining a one-year sentence reduction.

In contrast, a defendant appealing his sentence in a circuit that

faithfully applies Gall will have his sentence meaningfully reviewed on

appeal. Even if it is affirmed as substantively reasonable, he still can

obtain significant relief, such as correction of an erroneous Guidelines

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enhancement that is having substantial spillover ramifications on him

elsewhere.

CONCLUSION/RELIEF REQUESTED

The circuit courts are divided on the extent to which they adhere

to this Court’s instruction not only to begin the sentencing analysis with

the Guidelines, but also to “remain cognizant of them throughout the

sentencing process.” Gall, 552 U.S. at 50 n. 6 (emphasis added). The

Fourth Circuit’s “assumed error harmlessness inquiry” allows district

courts to completely unmoor their sentencing decisions from Guidelines

analysis in a manner that improperly disregards and evades this

Court’s sentencing directives. It renders Gall a dead letter in that

circuit.

Petitioner Snell urges this Court to grant certiorari review to

resolve this important question, or in the alternative, grant summary

relief under Rule 16.1.

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