Reply Brief — Eric Troy Snell, Petitioner v. United States

NO. 20-6336

___________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

___________________________________________

ERIC TROY SNELL,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

___________________________________________

On Petition for a Writ of Certiorari

To the United States Court of Appeals

For the Fourth Circuit

___________________________________________

REPLY OF PETITIONER

___________________________________________

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

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES………………………………………...……...........................ii

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

REPLY ARGUMENT……………………………………………………………………….....1

CONCLUSION/RELIEF REQUESTED………………………………………………..…..6

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TABLE OF AUTHORITIES

Cases

Page

Gall v. United States, 552 U.S. 38 (2007)…………………………………………….…….1

Peugh v. United States, 569 U.S. 530 (2013)…………………………………………...….2

United States v. Abbas, 560 F.3d 660 (7th Cir. 2009)………………………………..……2

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

United States v. Gomez-Jimenez, 750 F.3d 370 (4th Cir. 2014)…………………...2, 4-5

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

United States v. Langford, 516 F.3d 205 (3d Cir. 2008)………………………………….2

United States v. Jones, 565 U.S. 400 (2012)………………………………………….……5

United States v. Williams, 504 U.S. 36 (1992)…………………………………………….5

United States v. Zabielski, 711 F.3d 381 (3d Cir. 2013)…………………………..……..2

Wood v. Georgia, 450 U.S. 261 (1981)………………………………………………...…….6

Statutes

18 U.S.C. § 3553(a)……………………………………...................................................2, 3

Rules

Fed. R. Crim. P. 52(b)……………………………………………………………………..…..1

Supreme Court Rule 10(c)……………………………………………………………….……1

Supreme Court Rule 16.1………………………………………….………………………….6

United States Sentencing Guidelines (Nov. 2018)

USSG §2D1.1(b)(1)……………………………………………………………………………..3

USSG §3.C1.1…………………………………………………………………………..……….4

USSG §3.C1.1, n.4(G)..………………………………………………………………..……….4

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RULE 14.1(b)(iii) STATEMENT

United States v. Eric Troy Snell, 2020 WL 4053823 (D. Md. July 20, 2020) is

the Memorandum denying Petitioner’s motion for compassionate release in the case

sub judice. It was not appealed.

REPLY ARGUMENT

1.

The government’s list of rejected certiorari petitions it maintains have

raised “similar issues,” BIO 9-10 (citing cases), argues in favor of granting the

petition, not denying it. That appellate findings of harmless sentencing error –

whether via the Fourth Circuit’s unique “assumed harmless error inquiry,” or some

variant used by other circuits – result so consistently in petitions to this Court

suggests the presence of an important question of federal law that has not been, but

should be, settled by the Court. Rule 10(c).

2.

Attempts to engraft Fed. R. Crim. P. 52(b) plain-error standards onto

this sentencing error, BIO 10-13, do not address the affront to Gall v. United States,

552 U.S. 38 (2007) presented by “assumed error harmlessness” review. The

government points to the district court’s acknowledgment that acceptance of Snell’s

Guidelines position would have resulted in an offense level of 24, rather than 28, as

proof that it complied with Gall’s directive to “remain cognizant of [the Guidelines]

throughout the sentencing process.” BIO 12-13. But that elides that neither the

district court nor the Fourth Circuit ever explained how and why a 71-percent

deviation from Snell’s proffered Guidelines range, which the imposed sentence

reflects, was substantively reasonable. The government instead would have that

task deemed fulfilled by the district court’s comment that Snell’s offense was “very

serious,” and the Fourth Circuit’s crediting of that explanation as “thorough” and

“compelling.” BIO 13. That’s a lot of work for four words to accomplish. Too much, in

fact, to remain consistent with this Court’s directive to remain cognizant of the

Guidelines throughout sentencing, and ensure that they “are in a real sense the

basis for the sentence.” Peugh v. United States, 569 U.S. 530, 542 (2013) (citation

omitted).

3.

It is of course understandable for the government to defend “assume

error harmlessness inquiry” as a time-saving device useful for avoiding “pointless”

remands and “obviat[ing] questionable appeals.” BIO 13-14, citing United States v.

Abbas, 560 F.3d 660, 667 (7th Cir. 2009) and United States v. Zabielski, 711 F.3d

381, 389 (3d Cir. 2013). But as has been recognized by judges who have seen the

process up close, the practice has devolved into an exercise in sentencing courts

covering their mistakes “with a few magic words.” United States v. Gomez-Jimenez,

750 F.3d 370, 391 (4th Cir. 2014) (Gregory, J., concurring in part and dissenting in

part).

4.

The government’s attempt to distinguish Snell’s cases from other

circuits that diverge from Fourth Circuit practice, BIO 15-18, falls short. The court

in United States v. Langford, 516 F.3d 205, 213 (3d Cir. 2008) required the district

court to give its reasoning from start to finish, from correctly calculated Guidelines

through the § 3553(a) factors – in essence, to show its work. The Fourth Circuit here

did not do that; it simply accepted the district court’s anodyne comment that it

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would impose the same sentence regardless of any Guidelines error. In United

States v. Lanesky, 494 F.3d 558 (6th Cir. 2007), the Sixth Circuit faithfully applied

the requirement that a properly calculated Guidelines range was a prerequisite to

determining “with certainty” whether there was any error. Id. at 561-562. “Assumed

error harmlessness inquiry” does the opposite, completely bypassing the question of

whether the actual sentence was substantively reasonable when measured against

a correct Guidelines calculation.

And United States v. Bah, 439 F.3d 423 (8th Cir. 2006), is factually

indistinguishable in all relevant respects from this case. The district court stated

that “if [I] am wrong about the application of the guidelines...and the guidelines

would advise a sentence that was higher or a sentence that was lower, this is still

my sentence based on all the factors [of § 3553(a).]” Id. at 431 (cleaned up). The

government repeatedly falls back to the district court’s supposedly “thorough

explanation” of its sentence. BIO 16, citing Pet. App. 3 – but as in Bah, and as noted

above, here there simply was none.

4.

The objection to this case as an improper vehicle, BIO 18-19, similarly

is misplaced. Snell’s briefs to the Fourth Circuit detailed extensively why the

district court’s imposition of both two-level enhancements was incorrect. The

government failed to prove a temporal connection between any gun (two of which

were his service weapons) and criminal conduct 12 months earlier, sufficient to

justify the dangerous-weapon enhancement of USSG §2D1.1(b)(1). And the

government’s argument for the obstruction enhancement failed in multiple ways:

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under the Application Notes to USSG §3.C1.1 there not only is no liability for

“attempted” misleading of law enforcement through unsworn statements, but the

misstatement must have “significantly obstructed or impeded” the investigation.

See USSG §3C1.1, n.4(G). Snell’s did not obstruct or impede it in any way, since by

the time FBI agents picked him up, they already knew what his payments to

Rayam were for – in fact, they told the Philadelphia federal court as much, in

detailed sworn statements used to obtain warrants.

The petition thus presents an excellent vehicle for this Court’s resolution of

the question presented. Snell convincingly established with his Fourth Circuit

briefing that the two enhancements were erroneously applied – and the Fourth

Circuit simply skipped the analysis, to declare any error harmless.

5.

In his separate opinion in Gomez-Jimenez, the now-Chief Judge of the

Fourth Circuit identified the “most troubling” aspect of that Court’s cursory

treatment of alleged Guidelines error:

…the practical effect of this conclusion is the creation of a mechanism

whereby district courts may impose one-size-fits-all sentences that

appellate courts would refrain from meaningfully reviewing. Courts

could apply any number of enhancements to justify reaching the

sentence they desire, then use this Court’s harmless error jurisprudence

to prompt us to uphold a sentence that otherwise lacks a sufficient

justification. The notion of consistent sentences for similarly situated

defendants disappears where errors regarding conduct and

enhancements—errors which would make defendants dissimilar—are

swept under the rug of harmlessness. [Gomez-Jimenez, 750 F.3d at 391392 (Gregory, J., concurring in part and dissenting in part)].

Such a ham-handed mechanism simply is not conducive to individualized justice. As

in Gomez-Jimenez, here too, “any procedural error [was] ignored simply because the

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district court” asked the appellate court to do so. Id. at 391 (Gregory, J., concurring

in part and dissenting in part).

6.

Snell in no way forfeited his summary-disposition argument based on

the harm he will suffer by the circuit court leaving unaddressed the erroneous

dangerous-weapon enhancement. BIO 20. Snell extensively briefed the weaponenhancement issue below, detailing why the district court’s acceptance of it was

erroneous. Opening brief, pp. 34-39; Reply, 12-13. He should hardly be penalized

because the circuit court, rather than find the enhancement erroneous and then

discuss whether or not that error was harmless, instead tacitly agreed with him but

chose the shortcut of sidestepping the matter via “assumed error harmlessness

inquiry.” The government’s forfeiture rule would penalize Snell for too convincingly

briefing the district court’s legal error.

The government’s two forfeiture cases are inapposite. One involves a gardenvariety forfeiture by the government itself, which failed to raise an alternate basis

to affirm – that could have been raised at any time in the case – until its merits

brief to this Court. United States v. Jones, 565 U.S. 400, 413 (2012). The other

recites this Court’s “traditional rule” precluding certiorari “only when ‘the question

presented was not pressed or passed upon below.’” United States v. Williams, 504

U.S. 36, 41 (1992) (emphasis added). Of course, Snell in his alternate request does

not seek certiorari, but a summary disposition under Rule 16.1. Pet. 20-22. And

below he certainly pressed the erroneous weapon enhancement; he could hardly

have pressed the circuit court’s ensuing failure to address it. The government offers

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no authority requiring a certiorari petitioner to have anticipated and addressed in

its circuit-court briefing an error first injected into the case in the very opinion of

which certiorari review is sought.

Finally, having analogized “assumed error harmlessness inquiry” to plainerror review, BIO 11-12, the government can hardly deny that even if Snell had

forfeited the issue, this Court still may review it. Requiring a model prisoner to

languish a year longer behind bars because an appellate court chose not to address

the merits of an argument he fully briefed certainly presents an error “so serious as

to constitute a fundamental unfairness in the proceedings.” Wood v. Georgia, 450

U.S. 261, 265 n.5 (1981).

CONCLUSION/RELIEF REQUESTED

Petitioner Snell urges this Court to grant certiorari to resolve this important

question, or in the alternative, grant summary relief under Rule 16.1.

Respectfully submitted,

THE SMITH APPELLATE LAW FIRM

By: /s/ Michael F. Smith

Michael F. Smith

7566 Main Street

Suite 307

(202) 454-2860

smith@smithpllc.com

Counsel for Petitioner Eric Troy Snell

February 22, 2021

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