Petition for Writ of Certiorari — Oscar Guevara Salamanca, Petitioner v. United States

NO.

____________

IN THE UNITED STATES SUPREME COURT

_________________ TERM

__________________________________________________________

OSCAR GUEVARA SALAMANCA,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

__________________________________________________________

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

__________________________________________________________

Erin P. Rust

Assistant Federal Defender

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

835 Georgia Avenue, Suite 600

Chattanooga, Tennessee 37402

(423) 756-4349

Attorney for Oscar Guevara Salamanca

QUESTIONS PRESENTED FOR REVIEW

The state of South Carolina provided Oscar Guevara Salamanca no notice of the date,

location, or time of a hearing to revoke his probation. Then, in his absence and without his

having access to counsel, it revoked his probation and sentenced him to serve five years in

prison. Years later, the district court below relied on the state revocation sentence to increase

Mr. Guevara Salamanca’s sentencing guideline range from 70-87 months to 130-162 months

and sentenced him to 130 months in prison for illegally reentering the United States.

The panel majority below, the dissenting judge, and the state of South Carolina now

agree that the state’s revocation proceeding was “no doubt a violation of his right to due

process under the Constitution.” Pet. App. at 3; id. at 5 (Stranch, J., dissenting); see also

Osbey v. State, 825 S.E.2d 48, 51 (S.C. 2019). But the panel majority concluded it was

nonetheless proper for the district court to rely upon the plainly unconstitutional five-year

sentence to nearly double Mr. Guevara Salamanca’s federal sentence for illegal reentry.

The question presented is this:

May a federal district court enhance a federal sentence based on a prior sentence

imposed by way of a clear and complete deprivation of the individual’s due process right to

be heard?

ii

PARTIES TO THE PROCEEDINGS

All parties appear in the caption of the case on the cover page.

RELATED CASES

South Carolina v. Oscar Albert Guevara, 1Docket Nos. 99-GS-10-1008 through 99-GS-101012 (Ct. Gen. Sess., Charleston Co., S.C. May 16, 2003).

1

The state court documents use the name “Oscar Albert Guevara,” which is identified as an

alias of Mr. Guevara Salamanca in the Presentence Investigation Report. (PSR, R. 23,

PageID #45.)

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ........................................................................... ii

PARTIES TO THE PROCEEDINGS ................................................................................... iii

RELATED CASES................................................................................................................ iii

TABLE OF CONTENTS .......................................................................................................iv

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

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

JURISDICTIONAL STATEMENT ........................................................................................ 2

PRAYER FOR RELIEF……………………………………………………………………...3

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .............................. 3

STATEMENT OF THE CASE AND FACTS ...................................................................... 4

REASONS FOR GRANTING OF THE WRIT .................................................................. 10

ARGUMENT…………………………………...…………………………….…………….13

A district court violates due process when it increases a term of

incarceration based on a prior state sentence imposed in absentia,

without the opportunity to appear and be heard, and without the

assistance of counsel……………………………………………....……………….13

CONCLUSION .................................................................................................................... 19

iv

TABLE OF AUTHORITIES

Page

Supreme Court Cases:

Burgett v. Texas, 389 U.S. 109 (1967)………………………………………..……...……………..13

Custis v. United States, 511 U.S. 485 (1994)………………………………………..………….passim

Daniels v. United States, 532 U.S. 374 (2001)…………………………………………….…….10, 17

Gagnon v. Scarpelli, 411 U.S. 778 (1973)…………………………………………….………..passim

Gall v. United States, 552 U.S. 38 (2007)…………………………………….…………….………..18

Gideon v. Wainwright, 372 U.S. 335 (1963)………………………………….……..………..6, 14, 16

In re Gault, 387 U.S. 1 (1967)……………………………………………………….……..16

Lackawanna Cty. Dist. Attorney v. Coss, 532 U.S. 394 (2001)…………………..…..………….10, 17

Mistretta v. United States, 488 U.S. 361 (1989)……………………………………………..………..7

Morrissey v. Brewer, 408 U.S. 471 (1972)……………………………………………..……………15

Powell v. Alabama, 287 U.S. 45 (1932)…………………………………………..…11, 14, 16, 17-18

United States v. Robertson, 40 F. App’x 933 (6th Cir. 2002)…………………………..…..16

United States v. Tucker, 404 U.S. 443 (1972)…………………………………………..……….10, 13

State Court Cases:

Osbey v. State, 825 S.E.2d 48 (S.C. 2019)…………………………………………………ii, 4, 10, 17

Statutes:

8 U.S.C. § 1326(a)…………………………………………………………………………………....2

8 U.S.C. § 1326(b)(2)…………………………………………………………………….…………..2

18 U.S.C. § 924(e)…………………………………………….………..………………………..13, 18

28 U.S.C. § 1254(1)………………………………………………………………………..…………2

v

Rules:

Supreme Court Rule 13………………………………….…………..………………………2

Supreme Court Rule 29.4……………………………….…………………………..……….2

Sentencing Guidelines:

U.S.S.G. § 2L1.2(b)(2)(A)……………………………………….………………………..5, 8

U.S.S.G. § 2L1.2 cmt. (n.3)………………………………………….………………………8

U.S.S.G. § 4A1.1(a)-(c).………………………………………………………..…………………….8

U.S.S.G. § 4A1.1 cmt. (n.2)…………………………………………………..………………………8

vi

OPINIONS BELOW

United States v. Salamanca, Opinion, 821 F. App’x 584 (6th Cir. 2020)…………Appx. 2-9

United States v. Guevara Salamanca, Judgment, 3:18-cr-107, R. 40

(E.D. Tenn. June 24, 2019)………………………………………….…....Appx. 10-13

1

JURISDICTIONAL STATEMENT

Oscar Guevara Salamanca pled guilty to illegally reentering the United States in

violation of 8 U.S.C. § 1326(a), (b)(2). He was sentenced by the District Court for the

Eastern District of Tennessee on June 24, 2019.

He appealed his sentence to the United

States Court of Appeals for the Sixth Circuit, which affirmed the sentence on August 3,

2020.

This Court's jurisdiction is invoked under Title 28, United States Code, Section

1254(1).

Pursuant to Rule 13 of the Supreme Court and this Court’s March 19, 2020

COVID-19 Order, the time for filing a petition for certiorari review is 150 days from the

lower court judgment.

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 Brian Samuelson, who appeared in the

United States Court of Appeals for the Sixth Circuit on behalf of the United States Attorney’s

Office, a federal office which is authorized by law to appear before this Court on its own

behalf.

2

PRAYER FOR RELIEF

Petitioner, Mr. Oscar Guevara Salamanca, respectfully prays that a writ of certiorari

issue to review the order of the United States Court of Appeals for the Sixth Circuit.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment due process clause of the United States Constitution provides,

“[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.”

The Fourteenth Amendment due process clause of the United States Constitution

provides, “[n]or shall any State deprive any person of life, liberty, or property, without due

process of law.”

The Sixth Amendment right to counsel of the United States Constitution provides,

“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of

counsel for his defense.”

3

STATEMENT OF THE CASE AND FACTS

In 1999 Mr. Guevara Salamanca received a probationary sentence in South Carolina

for an incident in which he stole a police vehicle and made threats to the officers when he

was apprehended.

(Presentence Investigation Report (“PSR”), R. 23, PageID #50.)

In

2003, while in custody in Virginia for burglary, “South Carolina served him with a Probation

Citation, but in the blank for the date and time of the revocation hearing, the Citation

state[ed] ‘TBA’,” and “[f]or the hearing’s location, the Citation sa[id] only ‘Charleston.’”

Pet. App. at 7. 2

The citation notified Mr. Guevara Salamanca that he had a right to an

attorney, but while he was still in custody in Virginia and without the assistance of counsel,

South Carolina revoked his probation and imposed a five-year prison sentence.

Id.

This

procedure “no doubt” violated his right to due process, as he was entitled to an opportunity

to be heard.

Id. at 3, 5.

And, because he did not receive adequate notice, he “did not have

the opportunity to pursue direct or collateral attacks on his South Carolina sentence.” Id.

at 7.

Even South Carolina has since held that this process violates due process. Id. (citing

Osbey v. State, 825 S.E.2d 48, 51 (S.C. 2019)).

Sixteen years later, Mr. Guevara Salamanca pled guilty in federal court to illegally

reentering the United States after a prior removal and conviction for an aggravated felony.

(Judgment, R. 40, PageID #104.)

The United States Probation Office completed its

Presentence Investigation Report (“PSR”), in which it noted that the South Carolina sentence

was imposed in absentia.

(PSR, R. 23, PageID #50-51.) When determining his guideline

range the district court relied upon this prior, unconstitutionally imposed South Carolina

2

The dissenting judge accurately set forth the factual background in her opinion.

4

sentence to increase both his guideline base offense level and his criminal history category.

Pet. App. at 3.

The South Carolina sentence had the impact of increasing his range from

70-87 months to a range of 130-162 months. 3

Id.

Mr. Guevara Salamanca had a criminal

history that lacked significant violence and was marked instead by numerous theft-related

offenses.

(PSR, R. 23, PageID #49-53.)

At sentencing the government noted the

unusually high guideline range, but objected to a downward variance, and the district court

sentenced him to 130 months of incarceration.

(Sent. TR, R. 46, Page ID# 343-44, 348.)

Mr. Guevara Salamanca appealed, arguing that the South Carolina revocation

proceedings violated his constitutional rights to be heard and to be represented by counsel,

so the prior state sentence could not be used to nearly double his current guideline range.

(Opening Br., App. R. 19; Reply, App. R. 28.) He made it clear that he was not challenging

the underlying South Carolina conviction, only use of the revocation and five-year sentence

imposed in his absence to increase his current guideline range.

(Opening Br., App. R. 19

at 5-6, 15-17); see also Pet. App. at 7-8 (recognizing that he “challenge[d] only the use of

his sentence as a predicate for the Guideline enhancement, not the constitutionality of his

underlying conviction).

He argued first that he was improperly denied counsel under

Custis v. United States, 511 U.S. 485 (1994) and Gagnon v. Scarpelli, 411 U.S. 778 (1973),

but the fact that he was completely denied any opportunity to be heard was even more

concerning.

(Opening Br., App. R. 19 at 14-15, 21-22, 24-27; Reply, App. R. 28 at 11-12.)

He also argued that even if Custis and Scarpelli did not require that the South Carolina

3

The South Carolina conviction caused a 10-point increase in Mr. Guevara Salamanca’s

base offense level under U.S.S.G. § 2L1.2(b)(2)(A) and it caused his criminal history

category to increase from a level V to a level VI. (PSR, R. 23, PageID #47-48, 50, 53, 56.)

5

sentence be excluded from his guideline calculation, the district court procedurally and

substantively erred by allowing the plainly unconstitutional prior sentence to have such a

drastic impact on his sentence. (Opening Br., App. R. 19 at 24-27; Reply, App. R. 28 at 1112.) Had the district court not considered the five-year state revocation sentence, Mr.

Guevara Salamanca’s guideline range would have been only 70-87 months, well below the

130-month sentence he received.

Pet. App. at 3.

In a divided opinion, the panel affirmed.

The majority concluded that even though

South Carolina clearly violated his due process rights, and even though such a violation is

“unacceptable,” the district court did not plainly error by relying upon it to increase Mr.

Guevara Salamanca’s current federal sentence.

Id.

Specifically, the majority found that

this Court in Custis held that a prior sentence “may be collaterally attacked at federal

sentencing only if the state procured that judgment in violation of the defendant’s right to

counsel under Gideon v. Wainwright, 372 U.S. 335 (1963).” Id. at 3-4 (citing Custis, 511

U.S. 485, 496-97 (1994)).

It then concluded that probationers generally do not have a

constitutional right to counsel, except in special circumstances as explained in Scarpelli,

circumstances it found did not arise here.

Id. at 4 (citing Scarpelli, 411 U.S. 778 (1973)).

It also concluded that there was nothing unreasonable in the district court’s reliance on the

plainly unconstitutional South Carolina conviction, and thus the sentence was not

procedurally unreasonable. Id. at 4-5.

The dissenting judge, however, concluded that Custis did not dictate the result here

because the Custis Court was concerned with protecting the finality of state court judgments

and the lack of efficiency in requiring district courts at sentencing to conduct broad ranging

6

inquiries to determine whether partial deprivations of constitutional rights occurred far in

the past (such as ineffective assistance of counsel claims).

Id. at 5-7.

By contrast, here

Mr. Guevara Salamanca did not seek to collaterally attack the judgment, but only the

sentence, and thus no finality concerns arise.

Id. at 5-6.

This difference is important,

because in Custis the Court interpreted the language in the Armed Career Criminal Act, a

statute written by Congress, whereas here Mr. Guevara Salamanca challenges a guideline

written by the Sentencing Commission. Id. at 6.

This matters, Judge Stranch concluded,

not only because the plain language of the two provisions differs (with the ACCA looking

to prior convictions to enhance a sentence, but the guideline here looking to prior sentences

to enhance a sentence), but because “the unique composition and responsibilities of the

Sentencing Commission give rise to serious concerns about a disruption of the appropriate

balance of governmental power among the coordinate Branches.” Id. (quoting Mistretta v.

United States, 488 U.S. 361, 384 (1989)).

She also explained that Mr. Guevara Salamanca’s case is distinguishable from Custis

because he suffered a complete deprivation of his right to access counsel in addition to a

complete deprivation of his most fundamental due process rights to notice and an opportunity

to be heard.

Id. at 7.

This complete deprivation of the right to be heard was obvious from

the face of the record, and thus unlike Custis, did not require a searching, time consuming,

and onerous inquiry into a murky factual evaluation of whether counsel provided effective

representation.

Id. Judge Stranch also explained that the right to counsel, whether from

Gideon or Scarpelli, is grounded in the due process right to be heard, and that the majority

opinion applied an “illogical rule—whereby violations of the building-block ‘right to be

7

heard’ cannot be collaterally attacked but derivative violations of the ‘right to counsel’ can

be . . . .”

Id. at 8.

Thus, she noted that even if Mr. Guevara Salamanca did not have a

right to counsel at the violation hearing (which he clearly did), the district court still erred in

concluding that Mr. Guevara Salamanca could not collaterally attack a prior sentence that

plainly violated his right to appear and be heard.

Id.

Judge Stranch also articulated why Mr. Guevara Salamanca had a right to counsel at

the revocation hearing.

Id.

She noted that Scarpelli explains that at a revocation hearing,

“‘[p]resumptively,’ counsel should be provided when a party is informed of a right to

counsel; when the party is incapable of representing himself; or when, even where a violation

is uncontested, a probationer could present mitigating facts that are complex or otherwise

difficult to develop or present.” Id. (citing Scarpelli, 411 U.S. at 790). Here counsel was

required because (1) South Carolina notified him of his right to an attorney; (2) he was

incapable of representing himself as he was incarcerated in Virginia; and (3) his mitigation

strategy required a deep understanding of the complex collateral consequences of his

immigration status, convictions and sentences. Id. (citing Scarpelli, 411 U.S. at 790).

His

ability to effectively advocate for a mitigated sentence is particularly important here, she

explained, because had he received a sentence of less than 13 months, his federal sentence

would not have been nearly doubled under the guidelines. U.S.S.G. § 4A1.1(a)-(c) & cmt.

(n.2); id. § 2L1.2(b)(2)(A) & cmt. (n.3); see also Pet. App. at 8 (“This complicated mitigation

issue is significant, because, again, the validity of the length of the sentence, not the

constitutionality of the underlying conviction, is at issue[.]”).

8

Finally, Judge Stranch found that if nothing else, the 130-month sentence was

procedurally unreasonable because, even though the PSR indicated the revocation occurred

in absentia, “the [district] court gave no consideration to the South Carolina due process

violations.” Id. She explained that the “procedural reasonableness doctrine is the backstop

that ensures sentences do not violate the basic due process requirements,” and therefore,

even if the district court correctly included the South Carolina sentence in its guideline

calculation, it still plainly erred by issuing a sentence based on the plainly unconstitutional

five-year South Carolina sentence.

Id.

Because the question here goes to the heart of the

due process clause it is of exceptional importance.

certiorari review.

9

Mr. Guevara Salamanca requests

REASONS FOR GRANTING OF THE WRIT

The panel majority, the dissenting judge, and Mr. Guevara Salamanca agree there “was

no doubt a violation of his right to due process under the Constitution . . . .” when South

Carolina sentenced him to five years in prison without affording him the opportunity to be

heard. Pet. App. at 3; id. at 5 (Stranch, J., dissenting). South Carolina now agrees that its

procedure violated the Constitution. Osbey v. State, 825 S.E.2d 48, 51 (S.C. 2019). The

panel majority acknowledged that South Carolina’s actions were “unacceptable,” but it

concluded that it was nonetheless proper for the district court to rely upon the plainly

unconstitutional five-year sentence to nearly double Mr. Guevara Salamanca’s instant

sentence for illegal reentry. Id. This was error, requiring the attention of this Court.

The Sixth Circuit has expanded Custis beyond its intended reach, in conflict with the

holdings of Gagnon v. Scarpelli, 411 U.S. 778 (1973); United States v. Tucker, 404 U.S.

443, 447 (1972); Lackawanna Cty. Dist. Attorney v. Coss, 532 U.S. 394, 405-06 (2001));

and Daniels v. United States, 532 U.S. 374, 383 (2001). In addition, the Sixth Circuit has

undercut the strength of the due process clause, and undermined the fairness, integrity and

public reputation of judicial process by allowing a known, clear violation of Mr. Gruevara

Salamanca’s most basic due process rights to again cause him to serve an extra five years in

prison. The federal courts should not turn a blind eye to glaring violations of an individual’s

most basic due process rights, and thereby sanction the repeated use of such violations to

curtail an individual’s liberty.

The panel majority concluded that a violation of the right to counsel is the only due

process violation that can be collaterally attacked at a subsequent sentencing, and that Mr.

Guevara Salamanca did not have a right to counsel at his revocation hearing. Pet. App. at

10

3-4. But this conclusion ignores the fact that Mr. Guevara Salamanca did not suffer a partial

deprivation, such ineffective assistance of counsel (as alleged in Custis), but instead suffered

a complete deprivation of all his fundamental due process rights in addition to the absence

of counsel. Id. at 7 (Stranch, J., dissenting). It also glosses over the fact that probationers

are entitled to counsel when (1) a party is notified of his right to an attorney; (2) he is

incapable of representing himself; or (3) even if the violation is uncontested, where his

mitigation strategy is complex or otherwise difficult to develop. Id. at 8 (Stranch, J.,

dissenting) (citing Scarpelli, 411 U.S. at 790). Mr. Guevara Salamanca had a right to

counsel that South Carolina curtailed. That alone is sufficient to disregard its five-year

revocation sentence today.

But, he was also wholly prevented from appearing and

presenting either a defense or information in mitigation—which also means he had no real

ability to attack the validity of the conviction either through direct appeal or collaterally.

While Custis rightly holds that sentencing courts should not be required to hold

complete collateral attack hearings as part of a current sentencing for claims that a party

previously suffered a partial deprivation of a due process right, it cannot mean that a

complete deprivation of one’s rights to notice, to appear, and to be heard should be ignored.

See Custis, 511 U.S. at 487. That would turn the logic of Custis on its head, and hold the

derivative right to counsel above the fundamental “building-block” due process rights which

are the very reason the right to counsel is so precious. Id. at 485, 494-95 (the right to

counsel is unique “because of our oft-stated view that ‘[t]he right to be heard would be, in

many cases, of little avail if it did not comprehend the right to be heard by counsel’” (quoting

Powell v. Alabama, 287 U.S. 45, 68-69 (1932)).

11

The Sixth Circuit erred by allowing the complete due process deprivations Mr.

Guevara Salamanca suffered to be repeated by enhancing his current sentence with a prior

sentence he received without notice, without the ability to appear or to be heard, and without

the right to counsel. Because a ruling in favor of Mr. Guevara Salamanca will lead directly

to relief, this case presents the Court with a good vehicle to address how federal courts should

treat prior sentences procured by a state in complete absence of the fundamental protections

of due process. The Court should grant certiorari to address this overstep.

12

ARGUMENT

A district court violates due process when it increases a term of incarceration based on

a prior state sentence imposed in absentia, without the opportunity to appear and be

heard, and without the assistance of counsel.

A sentencing court cannot, in compliance with due process, rely upon a prior

conviction that was procured in the absence of counsel (or a valid waiver thereof) as a basis

for the instant sentence imposed.

Tucker, 404 U.S. at 449-50 (remanding sentence for

reconsideration when the trial judge, when setting the defendant’s sentence, explicitly relied

on two prior convictions imposed in violation of the right to counsel); Burgett v. Texas, 389

U.S. 109, 115 (1967) (“To permit a conviction obtained in violation of Gideon v. Wainwright

to be used against a person either to support guilt or enhance punishment for another offense

is to erode the principle of [Gideon.]” (internal citation omitted)).

This is true even if the

defendant is actually guilty of the underlying offense, as the current sentencing court might

impose a lesser sentence “if he had known that the respondent had already been

unconstitutionally imprisoned for [a number of years].” Tucker, 404 U.S. at 449 n.8.

The right to counsel is so fundamental that a conviction obtained in violation of this

right amounts to a “jurisdictional defect.”

Custis, 511 U.S. at 496.

As a result, a

defendant in a federal sentencing proceeding facing the enhanced fifteen-year mandatory

minimum of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), has a right to

collaterally attack the validity of previous state convictions used to enhance his sentence

when the prior convictions were obtained in violation of his right to counsel.

Id. at 487.

This right to counsel is so precious not in its own right, but because it ensures that the most

basic requirements of due process—the right to notice, to appear, and to be heard—are

preserved.

Id. at 494-95 (the right to counsel is unique “because of our oft-stated view that

13

‘[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the

right to be heard by counsel’”); Powell, 287 U.S. at 69 (if “a state or federal court were

arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it

reasonably may not be doubted that such a refusal would be a denial of a hearing, and,

therefore, of due process in the constitutional sense”); id. at 72 (“the right to have counsel

appointed, when necessary, is a logical corollary from the constitutional right to be heard by

counsel”); Gideon, 372 U.S. at 339, 341-45 (the Sixth Amendment’s right to counsel is

incorporated through the Fourteenth Amendment’s due process clause); Pet. App. at 8

(Stranch, J., dissenting).

Mr. Guevara Salamanca had a right to counsel when South Carolina imposed the

five-year revocation sentence. Pet. App. at 8 (Stranch, J., dissenting).

In Scarpelli, the

Court explained that while there is not a blanket rule requiring counsel in every revocation

hearing, under many circumstances the appointment of counsel is constitutionally required.

411 U.S. at 786-91.

Those circumstances include “when a party is informed of a right to

counsel; when the party is incapable of representing himself; or when, even where a violation

is uncontested, a probationer could present mitigating facts that are complex or otherwise

difficult to develop or present.” Pet. App. at 8 (Stranch, J., dissenting) (citing Scarpelli,

411 U.S. at 790).

Here, each of these three circumstances were present, so counsel was

constitutionally required for Mr. Salamanca Guevara.

Id. (Stranch, J., dissenting).

The

citation with which South Carolina served him explicitly notified him that he was entitled to

counsel.

Id. (Stranch, J., dissenting).

He was incapable of representing himself at the

hearing because he was incarcerated in a different state at the time.

dissenting).

Id. (Stranch, J.,

And his mitigation strategy required the expertise of someone who understood

14

and could explain the collateral consequences of his conviction on both his immigration

status and any future criminal liability. Id. (Stranch, J., dissenting).

Not only were these three circumstances present, but the minimum requirements of

due process protections were absent.

In Scarpelli, the Court emphasized that the right to a

final revocation hearing includes the right to the “minimum requirements of due process”

which includes the opportunity to be heard and to present evidence.

411 U.S. at 786;

accord Morrissey v. Brewer, 408 U.S. 471, 488 (1972) (the minimum protections of due

process require that an individual facing a parole revocation “have an opportunity to be heard

and to show, if he can, that he did not violate the conditions, or if he did, that circumstances

in mitigation suggest that the violation does not warrant revocation”).

While the existence

of these other due process protections will militate against also appointing counsel in some

circumstances, id., they were absent here. Mr. Guevara Salamanca did not receive adequate

notice, was prevented from appearing and had no opportunity to be heard.

The absence of these protections mattered. Had he been present, with counsel, he

could have advocated for less than five years.

Pet. App. at 8 (Stranch, J., dissenting).

His

lost ability to seek a lower sentence in the state proceeding is crucial because it is the length

of the South Carolina sentence that triggers the guideline enhancements.

Pet. App. at 8

(Stranch, J., dissenting) (“This complicated mitigation issue is significant because, again,

the validity of the length of the sentence, not the constitutionality of the underlying

conviction, is at issue here.”).

counsel.

Due process therefore required South Carolina to appoint

Id. (Stranch, J., dissenting). And, as noted on the citation it served him, South

Carolina had determined that probationers such as Mr. Guevara Salamanca had a right to

counsel, yet they failed to provide him one.

15

Pet. App. at 7, 8 (Stranch, J., dissenting).

Because South Carolina sentenced Mr. Guevara Salamanca to five years in prison in

violation of his right to counsel, he can collaterally attack that sentence during his federal

sentencing. 4

Even in the absence of a right to counsel, Custis does not permit the district court to

rely on the unconstitutional South Carolina sentence to increase Mr. Guevara Salamanca’s

federal sentence today.

While Custis held that a federal defendant may collaterally attack

a prior conviction solely on the ground that the conviction was procured in violation of the

right to counsel, 511 U.S. at 487, this pronouncement assumed that the prior conviction was

otherwise imposed in accordance with the fundamental due process rights to notice, to

appear, and to be heard.

Id. at 494-95.

The Court thus did not reach the question here—

whether a prior sentence imposed in clear violation of these most basic due process rights

can similarly be collaterally attacked at a later sentencing.

4

For purposes of the question presented here, any distinction between a sentence previously

imposed at an initial conviction (and thus subject to the Sixth Amendment right to counsel)

and a sentence imposed during revocation (and thus subject to the due process right to

counsel) is a distinction without a difference. Both the Sixth Amendment right to counsel

and the due process clause right to counsel are derived from the same due process concerns.

Under both, appointed counsel is required because “[t]he right to be heard would be, in many

cases, of little avail if it did not comprehend the right to be heard by counsel.” Custis, 511

U.S. at 494-95 (quoting Powell, 2897 U.S. at 68-69) (discussing the right to counsel under

the Sixth Amendment); Scarpelli, 411 U.S. at 788 (explaining that counsel is required under

the due process clause where necessary to ensure the defendant receives a fundamentally

fair hearing); see also Pet. App. 7-8 (Stranch, J., dissenting). Indeed, once triggered, the

rights are coextensive. Compare Gideon, 372 U.S. at 339, 341-45 (applying Sixth

Amendment right to counsel), with In re Gault, 387 U.S. 1, 40-41 (1967) (applying due

process clause right to counsel); see also United States v. Robertson, 40 F. App’x 933, 93940 (6th Cir. 2002) (remanding where the defendant’s sentence was enhanced by a prior

sentence which may have been procured in violation of her due process right to counsel).

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Here, it is readily apparent that Mr. Guevara Salamanca’s fundamental due process

rights were violated.

South Carolina now views the process it used as unconstitutional, and

the panel majority below agrees that the five-year sentence “was no doubt a violation of

[Guevara Salamanca’s] right to due process” because he was denied the ability to be heard.

Pet. App. at 3; Osbey, 825 S.E.2d at 51.

Thus, the Court’s concern in Custis that anything

other than the right to counsel would be too arduous to investigate during a later sentencing

is not present here. 511 U.S at 488; accord Pet. App. at 6 (Stranch, J., dissenting).

At the same time, the due process violation was so extensive and complete that it

also precluded any meaningful ability of Mr. Guevara Salamanca to directly or collaterally

attack the conviction.

Pet. App. at 6 (Stranch, J., dissenting).

Now, 16 years later, his

only available path for attacking the South Carolina sentence is to argue that it should not be

the basis for nearly doubling his current term of incarceration.

Id.

Because the due

process violation was so complete this is one of those “rare cases” where “no channel of

review was actually available” to him.

Daniels, 532 U.S. at 383; Lackawanna, 532 U.S. at

405-06; Pet. App. at 6 (Stranch, J., dissenting).

“When a defendant cannot ‘be faulted for

failing to obtain timely review of a constitutional claim,’ a collateral attack at sentencing

may be appropriate.” Pet. App. at 6 (Stranch, J., dissenting) (quoting Lackawanna, 532

U.S. at 405-06).

South Carolina’s five-year sentence can—and should—be collaterally

attacked at a current sentencing, and it should not have been relied upon to enhance Mr.

Guevara Salamanca’s federal sentence.

Id. (Stranch, J., dissenting) (“This exception

applies where a judgment is imposed without notice or an opportunity to be heard because

such a judgment ‘wants all the attributes of a judicial determination; it is judicial usurpation

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and oppression, and never can be upheld where justice is justly administered.’” (quoting

Powell, 287 U.S. at 64 (emphasis in Salamanca))).

Additionally, Custis was interpreting and applying the ACCA, which is a statute

written by Congress, whereas here the Court is addressing a guideline written by the

Sentencing Commission.

Congress in the ACCA emphasized that an individual is

deserving of an enhanced mandatory minimum if he has a prior conviction for a crime that

also meets a specific definition of either “violent felony” or “serious drug offense.” 18

U.S.C. § 924(e).

It matters not what sentence the individual actually received.

See id.

By contrast, here the Sentencing Commission is looking not to the fact of conviction, but to

the length of the sentence imposed.

Thus, the concerns the Court expressed in Custis

regarding the need to preserve the finality of state convictions does not arise here.

App. at 6 (Stranch, J., dissenting).

Pet.

And, the fact that Mr. Guevara Salamanca was deprived

of his ability to advocate for a lesser sentence when South Carolina precluded his rights to

notice, to appear, and to be heard are all the more momentous.

The fact that Custis addressed only the ACCA’s statutory mandatory minimum is

also important because it means the Court had no occasion to address the separate question

of whether reliance on a plainly unconstitutional prior sentence, procured in clear violation

of an individual’s most basic due process rights, is unreasonable.

A district court abuses

its discretion when it commits a “significant procedural error” or imposes a substantively

unreasonable sentence in light of the totality of the circumstances. Gall v. United States,

552 U.S. 38, 51 (2007).

It is an abuse of discretion to turn a blind eye to the prior, complete

deprivation of Mr. Guevara Salamanca’s due process rights and knowingly allow a clearly

unconstitutional prior sentence drive up his federal term of imprisonment.

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At bottom, Mr. Guevara Salamanca received 130-months (almost 11 years) in federal

prison.

Nearly half of that sentence is attributable to the unconstitutional South Carolina

sentence.

It was readily apparent to every member of the panel below that the procedures

used by South Carolina violated Mr. Guevara Salamanca’s most basic rights to appear and

be heard.

The South Carolina revocation sentence should not have been included in Mr.

Guevara Salamanca’s guideline calculation.

And at a minimum, it was an abuse of

discretion for the district court to use the plainly unconstitutional sentence as the sole basis

to add five years, and thereby nearly double, his federal sentence.

CONCLUSION

In consideration of the foregoing, Mr. Guevara Salamanca submits that the petition

for certiorari should be granted, the order of the Sixth Circuit Court of Appeals vacated, and

his case remanded for resentencing without consideration of the unconstitutional South

Carolina sentence.

Respectfully submitted,

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

By:_ /s/ Erin Rust

Erin P. Rust

Assistant Federal Community Defender

835 Georgia Avenue, Suite 600

Chattanooga, Tennessee 37402

(423) 756-4349

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