Petition for Writ of Certiorari — Jeffrey Neal Cuddington, Petitioner v. United States

No.

—————— —————

In the

Supreme Court of the Anited States

Jeffrey Neal Cuddington,

Petitioner,

V.

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

Brandon E. Beck

Assistant Federal Public Defender

Federal Public Defender’s Office

Northern District of Texas

1205 Texas Ave. #507

Lubbock, Texas 79401

(806) 472-7236

brandon_beck@fd.org

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QUESTIONS PRESENTED

In Holguin-Hernandez v. United States, this Court reserved whether a

formal objection at the time of sentencing is required to preserve abuseof-discretion review of the procedural reasonableness of a sentence.

Circuits are now split on the question. What is required of a defendant

to properly preserve a claim of procedural unreasonableness?

Whether Mr. Cuddington’s sentence is substantively reasonable in light

of his exceptional history and characteristics?

PARTIES TO THE PROCEEDING

Petitioner is Jeffrey Neal Cuddington, who was the Defendant-Appellant in

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

in the court below.

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RULE 14.1(b)(iii) STATEMENT

This case arises from the following proceedings in the United States District

Court for the Northern District of Texas and the United States Court of Appeals for

the Fifth Circuit:

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

e United States v. Cuddington, No. 6:16-cr-028-C-BL-1 (N.D. Tex. Mar. 27,

2019)

There is also a related civil case:

e Cuddington v. United States, No. 6:18-cv-019-C-BL (N.D. Tex. 2018)

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TABLE OF CONTENTS

QUESTION PRESENTED 1.0.0... cceccesseesseeteeneecseeesseesseenseenneeneesnneennenseeereeseessneenneeneeeneens 1

PARTIES TO THE PROCEEDING) ou... ceeeeseessseeeseseeececeeceesccseeeeeeeceeanaaanaaanssrsseseesesens il

RULE 14.1(b)(iii) STATEMENT. 1.0... ceecccceseeeesneeesseeseneeeenseensseeneessnsscesresesenseeenneeenaes lil

TABLE OF AUTHORITIES .0..........cceeeeeeeseesesnnnensanaaneceneeeeeesceseeeeeeessneeeereseessereseeeessnnenees Vv

PETITION FOR A WRIT OF CERTIORARL 1.0.0... ..cceeeeeesenneeeeeeeeeenstaneeeeceeeeenntreanaeeeeens 1

OPINIONS BELOW ..000......cccceceeseeessesssnsnneeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee ae aaa eee esses eee eee e ee geee gee 1

JURISDICTION. .......cccccccccscccecceceeececeesessssnesnaaeaaeaaeeaeeeeeeeeeeseeeeeeeeeeeeeseeeeeeeeeeeeeeeeeeeeneeenes 1

STATUTORY AND RULES PROVISIONS ..........::cssscccececeesssrtreeeesentttnnsnneecesseeesenenens 1

STATEMENT OF THE CASE ,j......cccceessscccccscccceeeeeeeeeeeeeeeeeeeeeeeeeeeneeeee eee ene e ne gee eeeee 3

REASONS FOR GRANTING THIS PETITION.........ccesecesssseeeereeeestneeecnsneeeeeensesenenees 5

I. Last term, this Court reserved the question of “what is sufficient to

preserve a claim that a trial court used improper procedures in arriving

at its chosen sentence.” Mr. Cuddington’s case presents an appropriate

opportunity to settle the circuit split on this PLreciSe 1SSUC..........eeseeeereettererees 5

A. Circuits are divided over whether a specific objection 1s required to

preserve abuse-of-discretion review of procedural reasonableness ............ 5

B. Under the Fourth Circuit’s Lynn standard, the district court’s

sentence was procedurally unreasonable because it failed to

adequately explain the reasons for the sentence IMPOSE .......ceseeeeeeseeeeeeees 6

II. The sentence was substantively unreasonable because the district court

failed to take into account Mr. Cuddington’s history and characteristics .......... 9

CONCLUSION. .ccccccccccsessccccessessececcesssneecesssneeeeesssnnaeeeseesseaeeeeeeenaaeeeeeeeeeeeeeeeeeeeeeeg sense eens 11

APPENDICES

Fifth Circuit Opinion. ........cceseeescesseceseesseeeeseeeseeensentasensnensneeenaeenanesneseeeeeeees App. A

District Court Opinion ........cseceessseseeeseseeeceneeseseeesneeenneeneserseesseeesseeenaneseese ees App. B

1V

TABLE OF AUTHORITIES

Page(s)

Cases

Gall v. United States,

B52 U.S. 38 (2007) .....ccessccsssessscesercessccssssvssecesseesanessesessassnsscesseeesseesnnsensnsoseesesseesesesens 5

Holguin-Hernandez v. United States,

14.0 S. Ct. 762 (2020) ....eccccsccccsccccssseecsssecessseeesaceesnnecseeesessescesaeeessnsensagecessseerneeeseeeenes 9)

Rita v. United States,

B51 U.S. 338 (2007) ..ccccescccssccscccsssscesscesseeeeseesseeesneesssesssseenseeesseeenaeessaeensesssneeseeeenes 6, 7

United States v. Alonzo,

A35 F.3d 551 (Sth Cir. 2006) «0.00... cssccscscesseesenncereecsssesesenseesenessasessssrsseseeesenscenarensees 9

United States v. Castro-Juarez,

AQ5 F.3d 430 (7th Cir. 2005) .........scssscescsssesteereresessronesssssesnesnecessessrsonseasssgnneesneenes 6

United States v. Cuddington,

812 F. App’x 241 (5th Cir, 2020)... .ceceeesesesersersereessessssennensenseseserseesneenennenrenesnessess 1

United States v. Dominguez-Alvarado,

695 F.3d 324 (5th Cir. 2012) ce cececcseseeeeeeeseessensesseseesseennsnsstsessessesesnneneeneensesseeees 5

United States v. Fraga,

704 F.3d 432 (5th Cir. 2018) occ ceccesceseeceeseererseeseereeseeseenseseeeesesssensesssenegesseee se eees 6

United States v. Jackson,

254 F. App’x 434 (5th Cir. 2007) (UNPUD.) ....ceeeceeeeeseeesseeseeeeeeeseeeseeeseeenneeneenssenseeenes 7

United States v. Mondragon-Santiago,

564 F.3d 357 (Sth Cir. 2009) ......ssseccccssescercsesssssscseessssennnesessesessenssnnaneasasanssronees 7,9

United States v. Myles,

805 Fed. Appx. 184 (4th Cir. 2020)... eeeesesesseseesenensersenessesessrenecnesnessenesesnessentgns 6

United States v. Nikonova,

ABO F.3d 371 (Sth Cir. 2007) oc cecesesceseeeeeneenseseesesesessennecnasnsensesnesnesnnenneneesesse eee eeee4 9

United States v. Tisdale,

264 F. App’x 403 (5th Cir. 2008) (UNPUD.) ..ceeeeeseeessecesseeseeeeseeeeeseeesesenanecneceneeens 7, 8

Statutes

18 U.S.C. § 922(g)(8)..

18 U.S.C. § 2252(a)(2)

18 U.S.C. § 3553(a) ....

28 U.S.C. § 1254(1) ....

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cece cece eee ee cece cece eee eeseeeseeeeeeseessesescesesesesessscscesscsscsorosssresssrserer esse eles ele

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PETITION FOR A WRIT OF CERTIORARI

Petitioner Jeffrey Neal Cuddington seeks a writ of certiorari to review the

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

OPINIONS BELOW

The published opinion of the Court of Appeals is United States v. Cuddington,

812 F. App’x 241 (5th Cir. 2020). It is reprinted in Appendix A to this Petition. The

judgment of the district court, which was reinstated on March 26, 2019, is reprinted

in Appendix B to this Petition.

JURISDICTION

The opinion and judgment of the Fifth Circuit were entered on July 9, 2020.

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

STATUTORY AND RULES PROVISIONS

This petition involves 18 U.S.C. § 3553(a):

Factors To Be Considered in Imposing a Sentence.—

The court shall impose a sentence sufficient, but not

ereater than necessary, to comply with the purposes set

forth in paragraph (2) of this subsection. The court, in

determining the particular sentence to be imposed, shall

consider—

(1) the nature and circumstances of the offense and the

history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for

the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the

defendant; and

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional

treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range

established for—

(A) the applicable category of offense committed by the

applicable category of defendant as set forth in the

geuidelines—

(i) issued by the Sentencing Commission pursuant

to section 994(a)(1) of title 28, United States Code,

subject to any amendments made to such guidelines

by act of Congress (regardless of whether such

amendments have yet to be incorporated by the

Sentencing Commission into amendments issued

under section 994(p) of title 28); and

(ii) that, except as provided in section 3742(g), are in

effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised

release, the applicable guidelines or policy statements

issued by the Sentencing Commission pursuant

to section 994(a)(3)_ of title 28, United States Code,

taking into account any amendments made to such

guidelines or policy statements by act

of Congress (regardless of whether such amendments

have yet to be incorporated by the Sentencing

Commission into amendments issued under section

994(p) of title 28);

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission pursuant

to section 994(a)(2) of title 28, United States Code,

subject to any amendments made to such policy

statement by act of Congress (regardless of whether

such amendments have yet to be incorporated by the

Sentencing Commission into amendments issued

under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect

on the date the defendant is sentenced.[1]

(6) the need to avoid unwarranted sentence disparities

among defendants with similar records who have been

found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the

offense.

18 U.S.C. § 922(g)(8).

STATEMENT OF THE CASE

According to the Presentence Investigation Report (PSR), on February 20,

2015, a government agent downloaded images from a peer-to-peer network that

depicted sexual conduct with underage minors. The agent traced the images to an IP

address associated with Mr. Cuddington, Appellant. On June 3, 2015, federal

investigators executed a search warrant on Mr. Cuddington’s home and discovered

similar images and videos.

Mr. Cuddington was indicted on one count of receipt and distribution of visual

depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C.

§ 2252(a)(2). On December 13, 2016, Mr. Cuddington pleaded guilty to the one-count

indictment. In its PSR, U.S. Probation calculated Mr. Cuddington’s advisory

sentencing range at 151 to 188 months.

In advance of sentencing, counsel for Mr. Cuddington filed a substantial

sentencing memorandum that described Mr. Cuddington’s exemplary history and

characteristics. Counsel submitted 23 character letters that reflected very positively

on Mr. Cuddington. Counsel also submitted 10 military, academic, and employment

documents that demonstrated Mr. Cuddington’s significant contributions to our

country, the academy, and his community.

The district court held its sentencing hearing on April 21, 2017. At the hearing,

counsel for Mr. Cuddington made an impassioned plea for leniency based on Mr.

Cuddington’s history and characteristics. Mr. Cuddington then spoke, expressing

deep remorse and regret for his actions and their effect on the victims and their

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families. In conclusion, Mr. Cuddington asked the district court to consider “not just

the crime committed, but also ... the totality of how I have lived my life.”

Sentencing

After defense counsel and Mr. Cuddington spoke, the district court sentenced

him to 188 months imprisonment—the top of the advisory sentencing range—and

justified the sentence with only the following statement:

I believe this sentence does adequately address the

sentencing objectives of punishment and deterrence.

Shortly after pronouncing the sentence, the court stated “you may stand aside,” and

there was no objection.

The Appeal

On appeal, Mr. Cuddington insisted that his sentence was substantively and

procedurally unreasonable. The Court of Appeals for the Fifth Circuit believed Mr.

Cuddington failed to rebut the presumption of reasonableness attached to his within-

Guidelines sentence and affirmed the substantive reasonableness of his sentence. The

court also disposed of Mr. Cuddington’s challenge to the procedural reasonableness

of his sentence through plain error review.

REASONS FOR GRANTING THIS PETITION

I. Last term, this Court reserved the question of “what is sufficient

to preserve a claim that a trial court used improper procedures

in arriving at its chosen sentence.” Mr. Cuddington’s case

presents an appropriate opportunity to settle the circuit split on

this precise issue.

A. Circuits are divided over whether a specific objection is

required to preserve abuse-of-discretion review of procedural

reasonableness.

Courts engage in a bifurcated review to determine the substantive and

procedural reasonableness of a sentencing decision. Gall v. United States, 552 U.S.

38, 51 (2007). The requirements to preserve a claim on both substantive and

procedural grounds were previously unsettled until this Court resolved the

substantive standard but declined to address the procedural standard in Holguin-

Hernandez v. United States, 140 S. Ct. 762, 767 (2020). Circuit courts have

subsequently failed to reach a consensus and this case presents precisely that

question, whether a specific objection is necessary to preserve a claim that a sentence

is procedurally unreasonable or if something less is sufficient.

The reasonableness of a sentence is typically reviewed under an abuse-ofdiscretion standard. Gall, 552 U.S. at 51. Despite unanimous agreement on this front,

a majority of circuits, including the Fifth Circuit in this case, review for plain error

review when an explicit objection is not raised at sentencing. E.g. United States v.

Dominguez-Alvarado, 695 F.3d 324, 327 (5th Cir. 2012) (“If 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 Fourth Circuit disagrees and follows an alternative approach. In United

States v. Lynn, the Fourth Circuit rejected the rigid objection requirement for issues

of procedural unreasonableness. 592 F.3d 572, 579 (4th Cir. 2010). Instead, the court

held that “[a]n objection to an inadequate explanation will be preserved if, during

sentencing proceedings, the defendant properly raised a meritorious factual or legal

issue relating to one or more of the factors enumerated in 18 U.S.C.S. § 3553(a).” Id.

For example, preserving a claim of inadequate explanation may be as simple as

drawing arguments from § 3553(a) for a sentence other than the one that is ultimately

imposed. United States v. Myles, 805 Fed. Appx. 184, 188 (4th Cir. 2020). Courts that

follow this standard have recognized that imposing an objection requirement has the

tendency both to trap unwary defendants and to encumber district courts with

formulaic objections in each criminal case that potentially compromise judicial

expediency. See United States v. Castro-Juarez, 425 F.3d 4380, 433-34 (7th Cir. 2005).

The Court should grant certiorari to resolve this divide among the courts of

appeals and restore consistency to the review of sentences.

B. Under the Fourth Circuit’s Lynn standard, the district court’s

sentence was procedurally unreasonable because it failed to

adequately explain the reasons for the sentence imposed.

“[A] sentencing judge commits procedural error when [he or she] fail[s] to

adequately explain the chosen sentence ... United States v. Fraga, 704 F.3d 4382,

438-39 (5th Cir. 2013) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).

“Sometimes the circumstances will call for a brief explanation; sometimes they will

call for a lengthier explanation.” Rita v. United States, 551 U.S. 338 (2007). Little

explanation is required, for example, when “[c]ircumstances ... make clear that the

judge rests his decision upon the Commission’s own reasoning that the Guidelines

sentence is a proper sentence (in terms of § 3553(a) and other congressional

mandates) in the typical case, and that the judge has found that the case before him

is typical.” Rita, 551 U.S. at 357.

Yet not every case is typical. In some circumstances, a more complete

justification for the sentence is necessary “to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own

legal decisionmaking authority.” Id. at 356; United States v. Tisdale, 264 F. App’x

408, 411-412 (5th Cir. 2008) (unpub.). Two such circumstances are exemplary: “(1)

“where the defendant or prosecutor presents non-frivolous reasons for imposing a

difference sentence’ and (2) ‘[w]here the judge imposes a sentence outside the

Guidelines.” Whitelaw, 580 F.3d at 261 (quoting Rita, 551 U.S. at 356-357); see also

Mondragon-Santiago, 564 F.3d at 363-364 (failure to address plausible grounds for

downward departure represented plain or obvious error). Courts have also recognized

a duty for the court to explain apparent contradictions in its reasoning. United States

v. Jackson, 254 F. App’x 434, 454-55 (5th Cir. 2007) (unpub.) (“The district court

should have explained its apparently contradictory position on the culpability

issue.”).

While listening to the parties’ arguments may suffice to justify an unusually

brief explanation for the sentence when the court hears nothing of concern, the

opposite is true when the court hears evidence suggesting a much lower sentence

than the Guidelines provide. A court’s “failure to offer any reason whatsoever for

rejecting the defendants’ § 3553(a) arguments or any explanation for following the

Guidelines range constitutes failure to consider the § 3553(a) factors,” amounting to

“procedural error and an abuse of discretion.” Tisdale, 264 F. App’x at 411-412. The

court in this case offered almost no explanation for the sentence even when faced with

a mountain of favorable, mitigating evidence regarding Mr. Cuddington’s history and

characteristics, described in Part II below.

The court’s explanation that the sentence “does adequately address the

sentencing objectives of punishment and deterrence,” in this case, was hardly

sufficient. In 18 U.S.C. § 3553(a), Congress articulated a long series of sentencing

considerations, which include: (1) the nature and circumstances of the offense and

the history and characteristics of the defendant; (2) the need for the sentence to reflect

the seriousness of the offense, to promote respect for the law, and to provide just

punishment; (8) the kinds of sentences available; (4) the correct sentencing range; (5)

any pertinent policy statement; (6) the need to avoid unwarranted sentencing

disparities; and (7) the need to provide restitution to any victims. 18 U.S.C. § 3553(a).

Of the items in this list, the district court’s statement only related to subsection (2),

and then, only in part. While the PSR additionally considered subsections (4), (5), and

(7), at no point did the court make any mention of subsections (1), (8), or (6), most

notably subsection (1), which deals with the history and characteristics of the

defendant.

For these reasons, the explanation was on the borderline of adequacy even in

the typical case. But this was not a typical case. Given the unique collection of factors

that distinguish this case from the mine run, the district court’s comments do not

promote the perception of fairness.

II. The sentence was substantively unreasonable because the

district court failed to take into account Mr. Cuddington’s

history and characteristics.

Within-Guidelines sentences, unlike non-Guidelines sentences, are entitled to

a presumption of reasonableness. See United States v. Mondragon-Santiago, 564 F.3d

357, 360-361 (5th Cir. 2009). That presumption, however, is rebuttable. See United

States v. Alonzo, 435 F.3d 551 (5th Cir. 2006). To determine the reasonableness of a

sentence, this Court examines whether the sentence failed to “account for a factor

that should have received significant weight,” gave “significant weight to an

irrelevant or improper factor,” or represented “a clear error of judgment in balancing

the sentencing factors.” United States v. Nikonova, 480 F.3d 371, 376 (5th Cir. 2007).

Here, the sentence represents a plain failure to accord significant weight to Mr.

Cuddington’s history and characteristics.

To say that Mr. Cuddington’s history and characteristics are exemplary would

be an understatement. Typically, the best a federal criminal defendant can show is

that he had little or no criminal history prior to the instant offense. While true that

Mr. Cuddington had no criminal history—neither juvenile nor adult, neither charged

nor uncharged—he also demonstrated so much more.

Throughout his life, Mr. Cuddington has exhibited academic excellence and

service, both to our country and his community. In 2003, he joined the United States

Air Force. While in the Air Force, he served multiple tours of duty, including six

months in Qatar, five months in Iraq, and five months in Afghanistan. In the process,

he received six commendation medals, six unit awards, and one joint service medal.

Among these was an Air Force Commendation Medal, four Meritorious United

Award, two Air Force Good Conduct Medals, an Afghanistan Campaign Medal, an

Iraq Campaign Medal, two Air Force Expeditionary Service Ribbons with Gold

Border, and an Air Force Longevity Service Award. After more than nine years of

service, Mr. Cuddington received an honorable discharge from the Air Force, in May

2018, as a Technical Sergeant E-6.

After his military service, Mr. Cuddington enrolled at Angelo State University.

He graduated in two years with a Bachelor’s degree in Intelligence, Security Studies,

and Analysis, with a minor in mathematics. But Mr. Cuddington was not a typical

student. He received his degree, summa cum laude, with a 3.964 GPA and a 4.0 GPA

in his area of study. Along the way, he excelled in very difficult courses and gained

the respect of his professors.

Throughout his life, Mr. Cuddington has also served as a contributing member

of his community. A character letter from Don Shara, for example, describes how Mr.

Cuddington, his neighbor at the time, helped him build a deck and move two tons of

pellets for a stove. Mr. Shara concluded his letter as follows: “In my experience with

Jeffrey I would love to have him as a neighbor again. He would be a helpful,

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contributing citizen, and an asset to any community.” Kami Elizabeth Orsak

similarly described Mr. Cuddington’s qualities as a dance instructor, friend, and

mentor. Khamillia Aika Washington described Mr. Cuddington’s professionalism and

leadership aptitude. Based on these remarks, as well as others presented to the

district court, Mr. Cuddington touched so many lives in his community.

Yet the district court made no reference to any of these characteristics at

sentencing. The district court never mentioned or addressed the defendant’s

background, and the high-end sentence suggests that it received effectively no weight.

Thus, the sentence should be reversed as substantively unreasonable.

CONCLUSION

Petitioner requests that this Court grant his Petition for Writ of Certiorari and

allow him to proceed with briefing on the merits and oral argument.

Respectfully submitted,

JASON D. HAWKINS

Federal Public Defender

Northern District of Texas

Brandon Beck

Assistant Federal Public Defender

Federal Public Defender's Office

1205 Texas Ave. #507

Lubbock, TX 79424

Telephone: (806) 472-7236

E-mail: brandon_beck@fd.org

Attorney for Petitioner

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