Petition for Writ of Certiorari — Agustin Madrid, aka Augustin Madrid, Petitioner v. United States

No. ______________

In the

Supreme Court of the United States

___________

Agustin Madrid,

also known as Augustin Madrid,

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

___________

Adam Nicholson

Assistant Federal Public Defender

Federal Public Defender’s Office

Northern District of Texas

525 S. Griffin Street, Suite 629

Dallas, TX 75202

(214) 767-2746

Adam_Nicholson@fd.org

QUESTIONS PRESENTED

1.

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

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

unreasonableness?

ii

PARTIES TO THE PROCEEDING

Petitioner is Augustin Madrid, who was the Defendant-Appellant in the court

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

court below.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................ ii

PARTIES TO THE PROCEEDING ............................................................................. iii

INDEX TO APPENDICES ............................................................................................ v

TABLE OF AUTHORITIES ......................................................................................... vi

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

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

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

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

LIST OF PROCEEDINGS BELOW .............................................................................. 2

STATEMENT OF THE CASE....................................................................................... 3

REASONS FOR GRANTING THIS PETITION ......................................................... 10

I.

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

United States may apply to claims of procedural reasonableness. ................. 10

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

iv

INDEX TO APPENDICES

Appendix A Judgment and Opinion of Fifth Circuit

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

Northern District of Texas

v

TABLE OF AUTHORITIES

Cases

Page(s)

Atl. Sounding Co. v. Townsend, 496 F.3d 1282 (11th Cir. 2007) ............................. 17

Braxton v. United States, 500 U.S. 344 (2001) ......................................................... 17

Cutter v. Wilkinson, 544 U.S. 709, n. 7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) . 11

Gall v. United States, 552 U.S. 38 (2007) ............................................................. 5, 10

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

(11th Cir.2003) ...................................................................................................... 17

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

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

Hutto v. Davis, 454 U.S 370 (1982) ...................................................................... 17-18

In re Holsey, 589 Fed. Appx. 462 (11th Cir. 2014) .................................................... 17

Kimbrough v. United States, 552 U.S. 85 (2007) ......................................................... 5

Martin v. Medtronic, Inc., 254 F.3d 573 (5th Cir.2001) ........................................... 17

Matter of Henry, 944 F.3d 587 (5th Cir. 2019) ......................................................... 16

Moore v. Tangipahoa Parish School Board, 921 F.3d 545 (5th Cir. 2019) .............. 16

Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) ..... 9

Tapia v. United States, 564 U.S. 319, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011) ...... 11

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

(5th Cir. 2012) .................................................................................................. 16-17

United States v. Abney, 957 F.3d 241 (D.C. April 24, 2020) .................................... 13

United States v. Alcala, 668 F. App’x 83 (5th Cir. 2016) ........................................ 6, 7

United States v. Archer, 531 F.3d 1347 (11th Cir. 2008) ......................................... 17

United States v. Cuddington, 812 F. App'x 241 (5th Cir. 2020) .............................. 12

United States v. Dominguez-Alvarado, 695 F.3d 324 (5th Cir. 2012) ...................... 12

United States v. Finnesy, 953 F.3d 675 (10th Cir. 2020) .......................................... 13

United States v. Gonzalez-Cortez, 801 Fed. Appx. 311 (5th Cir. 2020) .................... 12

United States v. Lynn, 592 F.3d 572 (4th Cir. 2010) ................................................ 15

United States v. Madrid, 823 F. App’x 282 (5th Cir. Sept. 30, 2020) .................... 1, 2

United States v. Molina, 469 F.3d 408 (5th Cir. 2006) ............................................... 6

United States v. Pruitt, 502 F.3d 1154 (10th Cir. 2007) ............................................. 5

United States v. Rivera, 819 Fed. Appx. 139 (July 20, 2020) ................................... 15

United States v. Sanders, 820 F. App'x 932 (11th Cir. 2020) ................................... 12

vi

United States v. Warren, 720 F.3d 321 (5th Cir. 2013) .............................................. 9

United States v. Zuniga–Salinas, 945 F.2d 1302 (5th Cir.1991) ............................. 17

Statutes

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

21 U.S.C. § 841 ............................................................................................................. 3

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

Rules

Fed. R. Crim. P. 32 ..................................................................................................... 14

Fed. R. Crim. P. 51 ........................................................................................... 1, 10, 14

Miscellaneous

Def.’s Sentencing Mem. and Mot. for Downward Variance, United States v. Madrid,

No. 4:19-CR-273-P (N.D. Tex. Jan. 16, 2020)(ECF No. 25) ........................................ 4

Gov’t’s Resp. to Def.’s Sentencing Mem. and Mot. for Variance, United States v.

Madrid, No. 4:19-CR-00273-P-1 (N.D. Tex. Jan. 22, 2020) (ECF No. 28) ............ 6

United States Sentencing Guidelines

USSG § 2D1.1 .............................................................................................................. 5

USSG § 4B1.1 ............................................................................................................... 3

vii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Augustin Madrid seeks a writ of certiorari to review the judgment

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

OPINIONS BELOW

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

v. Madrid, 823 F. App’x 282 (5th Cir. Sept. 30, 2020)(unpublished). It is reprinted in

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

as Appendix B.

JURISDICTION

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

2020. On March 19, 2020, the Court extended the 90-day deadline to file a petition

for certiorari to 150 days. The Court has jurisdiction pursuant to 28 U.S.C. §1254(1).

RELEVANT RULE PROVISION

Federal Rule of Criminal Procedure 51 reads as follows:

Preserving Claimed Error

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

court are unnecessary.

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

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

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

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

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

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

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

Evidence 103.

1

LIST OF PROCEEDINGS BELOW

1. United States v. Augustin Madrid, 4:19-CR-273-P, United States

District Court for the Northern District of Texas. Judgment and

sentence entered on Judgment entered January 28, 2020.

(Appendix B).

2. United States v. Augustin Madrid, 823 F. App’x 282 (5th Cir. Sept.

30, 2020), CA No. 20-10101, Court of Appeals for the Fifth Circuit.

Judgment affirmed on September 30, 2020. (Appendix A).

2

STATEMENT OF THE CASE

On August 21, 2019, Agustin Madrid (“Madrid”) was charged by indictment

with possession of a controlled substance with intent to distribute, in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(C). (Record in the Court of Appeals, at 12–13). The

indictment alleged that on or about August 20, 2019, Madrid knowingly and

intentionally possessed with intent to distribute a mixture and substance containing

a detectable amount of methamphetamine. (Record in the Court of Appeals, at 12).

After signing a factual resume stipulating that he had possessed methamphetamine

with the intent to distribute it to others when he was arrested on August 20, 2019,

(Record in the Court of Appeals, at 26–27), Madrid pled guilty at a rearraignment.

(Record in the Court of Appeals, at 54–84).

The Presentence Report

Madrid’s Presentence Report (“PSR”) determined that, based on the instant

offense, Madrid’s total offense level was 29, (Record in the Court of Appeals, at 107–

08), and his criminal history score was 7. (Record in the Court of Appeals, at 112).

However, the PSR determined that Madrid was a career offender under the

provisions of USSG § 4B1.1(b). (Record in the Court of Appeals, at 107–08). While

this determination did not affect Madrid’s offense level because the enhanced offense

level was the same as that resulting from calculations based on Madrid’s offense

conduct, (Record in the Court of Appeals, at 107–08), the career offender

enhancement raised Madrid’s Criminal History Category to VI. (Record in the Court

of Appeals, at 112). As a result, the PSR concluded that Madrid’s Guideline

3

imprisonment range was 151 to 188 months. (Record in the Court of Appeals, at 116).

There were no objections to the PSR. (Record in the Court of Appeals, at 87).

Madrid’s Motion for Downward Variance

In advance of sentencing, Madrid filed a sentencing memorandum and motion

for downward variance. Def.’s Sentencing Mem. and Mot. for Downward Variance,

United States v. Madrid, No. 4:19-CR-273-P (N.D. Tex. Jan. 16, 2020), ECF No. 25

(“Motion for Downward Variance”). There, Madrid moved for the district court to

impose variant sentence the range calculated by the Guidelines. Id. at 1. Madrid

argued that “a sentence below the advisory Guideline range would be appropriate and

would reasonably capture the nature and circumstances of the offense.” Id. at 2.

Madrid argued that the methamphetamine-related drug guidelines were

arbitrary. Id. In support of this position, Madrid raised three points. First, he

contended that the methamphetamine Guidelines “erroneously equate increased

drug purity with increased culpability. Id. at 2–5. Second, he contended that “the

Drug Trafficking Guidelines were not based on empirical evidence, but rather,

statutory

directives,”

particularly

insofar

as

the

Guidelines

penalized

methamphetamine (actual) at a much greater rate than methamphetamine

(mixture). Id. at 2, 5–11. Third, he argued that “the Methamphetamine Guidelines

treat all three different chemical forms of methamphetamine–d-meth, l-meth, and dlmeth–equally, disregarding the vastly different degrees of harm associated with each

form.” Id. at 2.

4

In his second argument, Madrid asked the district court “to reject the

guidelines set forth in § 2D1.1 because they ‘do not exemplify the Commission’s

exercise of its characteristic institutional role,’ and they are not based on empirical

evidence, but rather statutory directives correlating to mandatory minimum

sentencing schemes.” Id. at 5 (quoting Kimbrough, 552 U.S. at 109). Madrid explained

that the initial drug trafficking guidelines were tied to statutory directives when first

implemented in 1987, although methamphetamine was not listed in the guidelines’

initial drug table. Id. However, after the Anti-Drug Abuse Act of 1988—which

penalized methamphetamine (actual) at a rate “ten times greater than”

methamphetamine

(mixture)—the

Sentencing

Commission

amended

the

methamphetamine Guidelines several times to include methamphetamine and would

ultimately leave methamphetamine trafficking offenses with base offense levels in

the Drug Quantity Table of § 2D1.1 that now “correspond to the [statutory]

mandatory minimum provisions.” Id. at 6.

In conclusion, Madrid argued for the court to grant a policy-based downward

variance:

The Guidelines here are to be treated merely as the Court’s

“starting point and the initial benchmark.” [Kimbrough v. United States,

552 U.S. 85, 108 (2007) (quoting Gall v. United States, 552 U.S. 38, 51

(2007).] Similar to the Supreme Court’s discussion in Kimbrough

regarding the crack cocaine guidelines, the meth guidelines “do not

exemplify the Commission’s exercise of its characteristic institutional

role,” and they were promulgated without taking account of “empirical

data and national experience’” [Kimbrough, 552 U.S. at 109 (2007)

(citing United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir. 2007)

(McConnell, J., concurring).] As a result, the Guideline range provided

5

in the PSR yields a sentence “greater than necessary to achieve §

3553(a)’s purposes. A downward variance is warranted in this case.

Id. at 9 (footnotes converted to inline citations).

The Government’s Response

The Government responded, opposing Madrid’s motion for a downward

variance. Gov’t’s Resp. to Def.’s Sentencing Mem. and Mot. for Variance, United States

v. Madrid, No. 4:19-CR-00273-P-1 (N.D. Tex. Jan. 22, 2020), ECF No. 28 (“Response”).

In one part, the Government argued that “The Fifth Circuit has already rejected the

Defendant’s drug quantity argument.” Id. at 3–4 (part II). In support of this premise,

the Government maintained that Molina’s argument regarding the disparity between

methamphetamine (actual) and methamphetamine (mixture) had “not been

persuasive in this Circuit.” Id. at 3. In support of its position, the government cited

United States v. Molina, 469 F.3d 408, 413 (5th Cir. 2006), as evidence that this Court

had ruled that the Guidelines’ actual/mixture discrepancy “was rational.” Id. at 3.

The Government also cited to United States v. Alcala, 668 F. App’x 83, 84 (5th Cir.

2016) (unpublished) as more recent evidence of this Court’s conclusion that the

disparity “is not irrational or arbitrary.” Id.

Notably, however, the Response made no attempt to argue that the district

court lacked the discretion to deviate from the Guideline sentencing range should the

district court hold a policy disagreement with the Guidelines’ methodology for

determining that range. See generally id. And the Government made no attempt to

disprove Madrid’s argument that the methamphetamine guidelines were not

empirically based. See generally id.

6

The Sentencing Hearing

At sentencing, the district court announced its tentative conclusion that

Madrid’s motion for downward variance “should be denied for the reasons set forth in

the Government’s response . . . .” (Record in the Court of Appeals, at 88). The court

explained, “It is my tentative finding, having read [the Government’s response] as

well as the Presentence Report and studying the facts of the case, also looking at such

cases as United States v. Molina from the Fifth Circuit and the United States v.

Alcala.” (Record in the Court of Appeals, at 88).

As defense counsel began explaining the Guidelines’ disparate treatment

between ice, methamphetamine (actual), and methamphetamine (mixture), (Record

in the Court of Appeals, at 88), the district court interrupted:

Just to give you a preview, I’m familiar with these arguments. I’ve seen

them before. I know that different judges here in this district . . . [take]

a different view than I do. Perhaps when I’ve been on the bench for thirty

years my view may change, but tentatively, I just don’t think it’s an area

that’s in my discretion. However, I understand the argument. It is a

factor that I will take into consideration when it comes to sentencing. So

I just want you to keep that in mind, but I do want to allow you to make

your argument, so go ahead.

(Record in the Court of Appeals, at 88–89) (emphasis added).

Then, after hearing arguments by both sides, (Record in the Court of Appeals,

at 89–92), the court announced its decision and the underlying rationale:

I will make my final ruling on the motion for sentencing variance—

downward sentencing variance based on what I have already said, based

on the arguments presented by the Government in [its Response], as

well as the facts in this case and my understanding of the current state

of the law, and I’m going to deny the Motion for Downward Variance.

7

(Record in the Court of Appeals, at 92) (emphasis added). The district court, however,

informed defense counsel that it would “keep [Madrid’s] arguments in mind” as it

determined a sentence. (Record in the Court of Appeals, at 92). Ultimately, the

district court sentenced Madrid to an imprisonment term of 188 months and imposed

a three-year term of supervised release. (Record in the Court of Appeals, at 96–97).

Madrid’s counsel objected to the sentence as being “greater than necessary

under the 3553(a) factors.” (Record in the Court of Appeals, at 99). But the district

court overruled Madrid’s objection. (Record in the Court of Appeals, at 99).

The Appeal

Madrid raised two issues on appeal. Relevant here, Madrid argued that his

sentence was procedurally unreasonable. Citing Holguin-Hernandez v. United States,

__U.S.__, 140 S.Ct. 762 (2020), Madrid argued that appellate review was for

reasonableness because he both “informed the court of the legal error at issue in an

appellate challenge” by advocating for a below-Guideline-range sentence before the

district court imposed a longer one and objected to the sentence being “greater than

necessary under he 3553(a) factors.”

The court of appeals, however, applied plain error review and affirmed the

district court’s decision in a brief opinion:

Agustin Madrid appeals his 188-month, within-guidelines range

sentence for possession with intent to distribute a mixture and

substance containing a detectable amount of methamphetamine. He

contends that the district court procedurally erred by determining, in

denying his motion for a downward variance, that it lacked discretion to

impose a downward variance based on a policy disagreement with the

Guidelines. Because Madrid did not object in the district court on that

8

specific ground, we review this issue for plain error. See United States

v. Warren, 720 F.3d 321, 332 (5th Cir. 2013).

In light of the entire record, it is neither clear nor obvious—but,

rather, subject to reasonable dispute—that the district court's comments

reflected a belief that it lacked discretion to impose a variant sentence

based on a policy disagreement with the drug Guidelines. See Puckett v.

United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266

(2009). The court expressly stated that it would take Madrid's policybased arguments into consideration in setting his sentence. And the

court explicitly based its denial of a variance on the arguments in the

Government's response to Madrid's motion, which addressed only the

merits of Madrid's policy-based contentions and made no reference to

the court's (lack of) discretion to grant a policy-based

variance. Accordingly, Madrid fails to demonstrate plain procedural

error. See id.

The judgment is AFFIRMED.

[App. A, at 1–2].

9

REASONS FOR GRANTING THE PETITION

I.

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

States may apply to claims of procedural reasonableness.

A.

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

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

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

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

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

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

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

courts:

must first ensure that the district court committed no significant

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

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

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

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

including an explanation for any deviation from the Guidelines range.

Id.

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

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

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

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

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

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

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

10

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

“reasonableness.” See id. at 766-767.

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

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

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

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

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

when a party has properly preserved the right to make particular

arguments supporting its claim that a sentence is unreasonably long.

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

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

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

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

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

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

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

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

punishment. 18 U.S.C. § 3553(a).

Id. at 767.

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

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

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

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

and

the

reasons

therefor.

“Procedural

reasonableness,”

like

“substantive

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

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

preserve error. Id. at 766-767.

11

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

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

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

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

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

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

undisturbed,

as

we

have

previously

held

in

at

least

one

unpublished

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

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

[Appx. A, at 1–2]. The court below accordingly adheres to its pre-Holguin-Hernandez

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

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

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

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

his sentence is reviewed for plain error.”).

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

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

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

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

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

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

12

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

13

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

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

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

nonetheless thought the case’s rationale governed:

In applying Holguin-Hernandez, we acknowledge distinctions

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

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

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

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

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

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

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

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

sentencing court's attention procedural errors in Sentencing Guidelines

calculations.

***

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

procedural right involved is a requisite of any sentencing and its

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

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

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

detailed objections to be effectively preserved under the first clause of

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

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

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

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

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

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

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

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

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

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

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

Id. at 248-24a9.

14

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

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

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

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

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

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

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

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

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

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

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

individualized explanation addressing those arguments, and thus preserves its

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

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

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

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

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

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

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

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

procedural error.

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B.

The conflict merits review.

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

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

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

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

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

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

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

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

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

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

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

of law.

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

face of intervening contrary Supreme Court authority unless that intervening

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

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

decision if such overruling is unequivocally directed by controlling Supreme Court

precedent.”)(internal quotations omitted); Moore v. Tangipahoa Parish School Board,

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

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

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

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

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

directed”). And it is joined in this defiant view of Supreme Court authority by the

Eleventh Circuit. See Atl. Sounding Co. v. Townsend, 496 F.3d 1282, 1284 (11th Cir.

2007), aff'd and remanded, 557 U.S. 404 (2009)(“ Under our prior panel precedent

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

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

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

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

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

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

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

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

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

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

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

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

announced in its decisions, overruling each one by one.

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

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

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

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

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

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

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

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

be ignored every time its guidance is not exact.

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

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

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

precedent.

C.

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

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

court to exercise its discretion to impose a sentence below the applicable Guideline

range, but the district court refused even to recognize its discretion to do so. See

(Record in the Court of Appeals, at 125). As in Holguin-Hernandez, the defendant’s

request likely called to mind an “overarching duty” of the district court, here, a duty

of the court to recognize the discretion it possessed in sentencing matters. Had the

court of appeals applied the lessons of Holguin-Hernandez outside its narrow context,

it may well have decided the standard of review differently.

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CONCLUSION

Petitioner respectfully submits that this Court should grant certiorari to

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

Respectfully submitted this 1st day of March, 2021.

JASON D. HAWKINS

Federal Public Defender

Northern District of Texas

/s/ Adam Nicholson

Adam Nicholson

Assistant Federal Public Defender

Federal Public Defender's Office

525 S. Griffin Street, Suite 629

Dallas, Texas 75202

Telephone: (214) 767-2746

E-mail: Adam_Nicholson@fd.org

Attorney for Petitioner

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