Petition for Writ of Certiorari — Justice Towan Roundtree, Petitioner v. United States

No. ______________

IN THE

SUPREME COURT OF THE UNITED STATES

JUSTICE TOWAN ROUNDTREE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Jeremy A. Thompson, Esquire

Assistant Federal Public Defender

Counsel of Record

1901 Assembly Street, Suite 200

Columbia, South Carolina 29201

Telephone No.: 803.765.5077

Email: Jeremy_Thompson@fd.org

QUESTION PRESENTED

Whether a Guidelines error is harmless when the district judge issues an

alternative sentence by stating that she would impose the same sentence even if she

was wrong in her Guidelines calculations?

ii

PARTIES TO THE PROCEEDING

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

RELATED CASES

(1) United States v. Roundtree, No. 3:19-CR-424-CMC, U.S. District Court for the

District of South Carolina. Judgment entered Dec. 6, 2019.

(2) United States v. Roundtree, No. 19-4949, U.S. Court of Appeals for the Fourth

Circuit. Judgment entered Oct. 14, 2020.

iii

TABLE OF CONTENTS

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

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

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

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

DECISIONS BELOW .................................................................................................... 1

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

FEDERAL RULE OF CRIMINAL PROCEDURE INVOLVED................................... 1

INTRODUCTION .......................................................................................................... 2

STATEMENT OF THE CASE....................................................................................... 4

REASONS FOR GRANTING THE PETITION ............................................................ 6

A.

B.

The Circuits Have Taken Markedly Different Approaches to Alternative

Sentence Cases in the Absence of Firm Guidance from this Court. ............ 7

1.

This Court’s Precedents do not Answer the Question Presented. ........... 7

2.

The Majority of Circuits Require More from the District Judge than an

Alternative Sentence. ................................................................................ 8

3.

The Minority View—Adopted by the Fourth Circuit—Finds Guidelines

Errors Harmless When the District Judge Issues an Alternative

Sentence. .................................................................................................... 9

The Majority View Is the Better Approach. ................................................ 11

CONCLUSION............................................................................................................. 13

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Chavez-Meza v. United States, 585 U.S. ___, 138 S. Ct. 1959 (2018) ........................ 11

Gall v. United States, 552 U.S. 38 (2007) ................................................. 2, 6, 7, 11, 12

Molina-Martinez v. United States, 578 U.S. ___, 136 S. Ct. 1338 (2016) ................ 7, 8

Rita v. United States, 551 U.S. 338 (2007) ................................................................... 6

Rosales-Mirales v. United States, 585 U.S. ___, 138 S. Ct. 1897 (2018) ...................... 8

United States v. Acevedo-Hernández, 898 F.3d 150 (1st Cir. 2018)............................. 3

United States v. Anderson, 517 F.3d 953 (7th Cir. 2008) ....................................... 3, 10

United States v. Bah, 439 F.3d 423 (8th Cir. 2006).................................................. 2, 3

United States v. Gomez-Jimenez, 750 F.3d 370 (4th Cir. 2014)............................. 3, 10

United States v. Howard, 773 F.3d 519 (4th Cir. 2014) ............................................. 10

United States v. Ibarra-Luna, 628 F.3d 712 (5th Cir. 2010) ........................................ 9

United States v. Icaza, 492 F.3d 967 (8th Cir. 2007).................................................... 8

United States v. Kamper, 748 F.3d 728 (6th Cir. 2014) ............................................... 3

United States v. Keene, 470 F.3d 1347 (11th Cir. 2006) ......................................... 3, 10

United States v. Langford, 516 F.3d 205 (3rd Cir. 2008) ............................................. 8

United States v. Montgomery, 969 F.3d 582 (6th Cir. 2020) ........................................ 3

United States v. Munoz-Camarena, 631 F.3d 1028 (9th Cir. 2011) ......................... 3, 8

United States v. Pena-Hermosillo, 522 F.3d 1108 (10th Cir. 2008) ......................... 3, 9

United States v. Roundtree, 825 F. App’x 136 (4th Cir. 2019) ..................................... 1

United States v. Savillon-Matute, 636 F.3d 119 (4th Cir. 2011)................................ 10

United States v. Seabrook, 968 F.3d 224 (2nd Cir. 2020)..................................... 2, 3, 9

v

United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017).......................................... 2, 9

United States v. Tavares, 705 F.3d 4 (1st Cir. 2013) .................................................. 10

United States v. Vonn, 535 U.S. 55 (2002) .................................................................... 8

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

United States v. Zuk, 874 F.3d 398 (4th Cir. 2017) .................................................... 10

Williams v. United States, 503 U.S. 193 (1992)................................................ 2, 6, 7, 8

Statutes

18 U.S.C. § 922(g) .......................................................................................................... 4

18 U.S.C. § 3553(a) ........................................................................................................ 8

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

Rules

Federal Rule of Criminal Procedure 52(a) ........................................................ 1, 2, 6, 7

U.S.S.G. § 3E1.1(b) .................................................................................................... 4, 5

U.S.S.G. § 4B1.1........................................................................................................... 11

vi

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Justice Towan Roundtree (“Roundtree”), respectfully prays that a

writ of certiorari issues to review the opinion and judgment of the United States

Court of Appeals for the Fourth Circuit in Case No. 19-4949, entered on October 14,

2020.

DECISIONS BELOW

The Fourth Circuit panel issued its unpublished opinion on October 14, 2020,

affirming the judgment of the United States District Court for the District of South

Carolina. This opinion can be found at United States v. Roundtree, 825 F. App’x 136

(4th Cir. 2019), and is attached as App. 1A-3A. Roundtree did not file a petition for

rehearing or rehearing en banc.

JURISDICTION

The Fourth Circuit issued its opinion and entered its judgment on October

14, 2020. App. 1A-3A. This Court has jurisdiction under 28 U.S.C. § 1254(1). On

March 19, 2020, this Court extended the time within which to file a petition for writ

of certiorari to 150 days. This petition is filed within 150 days of October 14, 2020.

FEDERAL RULE OF CRIMINAL PROCEDURE INVOLVED

The question presented involves Federal Rule of Criminal Procedure 52(a),

which provides: “Any error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.” Fed. R. Crim. P. 52(a).

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INTRODUCTION

This Court has held that a misapplication of the Guidelines is subject to

harmless error analysis on appellate review pursuant to Fed. R. Crim. P. 52(a). See

Williams v. United States, 503 U.S. 193, 204 (1992). This Court has also held that

district judges must properly calculate the Guidelines and explain their sentences,

with a more detailed explanation required the further the district judge departs

from the applicable Guidelines range. Gall v. United States, 552 U.S. 38, 49-50

(2007).

This case presents the common scenario where a district judge has tried to

“insulate its sentence from our review by commenting that the Guidelines range

made no difference to its determination when the record indicates that it did.”

United States v. Seabrook, 968 F.3d 224, 233-234 (2nd Cir. 2020). Such a statement

by a district judge during sentencing has been referred to as an “alternative

sentence.” United States v. Bah, 439 F.3d 423, 430 (8th Cir. 2006). The circuits

below have given differing answers when confronted with an alternative sentence

on how to square harmless error and the need for a district court to explain its

sentence.

The majority view has held that “it is not enough for the district court to say

the same sentence would have been imposed but for the error.” United States v.

Tanksley, 848 F.3d 347, 353 (5th Cir. 2017). Instead, the district court must comply

with Gall and “state its justifications with enough specificity” to provide enough

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context for effective appellate review. Seabrook, 968 F.3d at 235. The Second, Third,

Fifth, Eighth, Ninth, and Tenth Circuits are in accord. 1

The minority view, in contrast, uniformly finds procedural errors harmless

when “the district court has expressly stated in a separate and particular

explanation that it would have reached the same result” had it not erred. United

States v. Gomez-Jimenez, 750 F.3d 370, 383 (4th Cir. 2014). Consequently, if the

judge issues an alternative sentence, then these circuits will affirm the sentence

unless the sentence is substantively unreasonable. Id. at 382. The First, Fourth,

Seventh, and Eleventh Circuits are in accord. 2 The Fourth Circuit applied this

approach to affirm Roundtree’s sentence. See App. 2A-3A.

This Court’s review is warranted because of the frequency in which this issue

occurs, and the differing approaches adopted by the circuits. This Court should

grant certiorari to impose uniformity among the lower courts. This Court should

then conclude, like the majority of circuits to consider the issue, that a Guidelines

error is not harmless simply because a district judge issued an alternative sentence.

See Seabrook, 968 F.3d at 233-234; United States v. Zabielski, 711 F.3d 381,

389 (3rd Cir. 2013); Bah, 439 F.3d at 430-431 (8th Cir. 2006); United States v.

Munoz-Camarena, 631 F.3d 1028, 1030-1031 (9th Cir. 2011); United States v. PenaHermosillo, 522 F.3d 1108, 1117-1118 (10th Cir. 2008).

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2 See United States v. Acevedo-Hernández, 898 F.3d 150, 172 (1st Cir. 2018);

United States v. Anderson, 517 F.3d 953, 966 (7th Cir. 2008); United States v. Keene,

470 F.3d 1347, 1349 (11th Cir. 2006). In an order denying panel rehearing, the

Sixth Circuit has criticized a district judge making such a statement as “part of its

standard sentencing colloquy,” United States v. Montgomery, 969 F.3d 582, 583 (6th

Cir. 2020) (Moore, J.), but has otherwise been in accord with the minority approach.

See, e.g., United States v. Kamper, 748 F.3d 728, 743-744 (6th Cir. 2014).

3

STATEMENT OF THE CASE

Law enforcement recovered a firearm from Roundtree’s person during a patdown stemming from a traffic stop. Thereafter, the government charged Roundtree

with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g).

Roundtree unsuccessfully sought to suppress the evidence of the firearm and

entered an unconditional guilty plea to the firearm offense.

Prior to Roundtree’s sentencing, the government stated that it would not

move to afford Roundtree the benefit of the third level for acceptance of

responsibility pursuant to U.S.S.G. § 3E1.1(b). Roundtree then objected to the

government’s refusal to request the additional level. Roundtree’s Guidelines range

was 77-96 months’ imprisonment based on an offense level of 22 and a criminal

history category of V. See App. 15A, ll. 5-9. Had he received the additional reduction

in offense level pursuant to § 3E1.1(b), his Guidelines range would have been 70-87

months’ imprisonment.

At sentencing, the government asserted that “we essentially litigated this

entire case for that suppression motion.” App. 8A, ll. 10-11. The government further

argued that Roundtree was free to appeal the denial of his suppression motion. App.

9A, l. 4. The district court agreed on the latter point, stating that Roundtree “has,

as I understand it, entered what I would call a conditional plea of guilty subject to

his right to appeal the ruling on the suppression hearing.” App. 9A, ll. 6-9. The

district court, however, agreed with Roundtree that had he not entered a

conditional guilty plea, “then I would agree with you” that he should receive the

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reduction pursuant to § 3E1.1(b). App. 13A, ll. 16-18. The district court then

overruled Roundtree’s request to require the government move for the third level of

acceptance of responsibility, concluding that “the defendant who is preserving his

right to challenge the suppression of the weapon that is the basis for the charge

cannot be said to be entitled to the third level off for acceptance of responsibility.”

App. 14A, l. 23-15A, l. 2.

After hearing from the parties regarding the appropriate sentence, the

district court imposed a 77-month sentence. App. 20A, ll. 16-18. In so doing, the

district court stated that “[e]ven if the offense level were a 21, having received three

levels off for acceptance of responsibility, I would still give the same sentence.” App.

20A, ll. 21-23.

On appeal to the Fourth Circuit, Roundtree argued that the district court

erred in refusing to compel the government to move for the third level for

acceptance of responsibility. Specifically, he argued the district court erred by

concluding that Roundtree had preserved his Fourth Amendment challenge for

appeal even though he entered an unconditional guilty plea.

The Fourth Circuit issued an unpublished opinion, affirming Roundtree’s

sentence. App. 1A-3A. The Fourth Circuit did not “evaluat[e] the merits” of

Roundtree’s Guidelines challenge; instead, the Fourth Circuit concluded that any

error was harmless based on the alternative sentence and the substantive

reasonableness of the sentence. App. 2A-3A.

5

REASONS FOR GRANTING THE PETITION

This case presents the intersection of two different lines of this Court’s

federal sentencing jurisprudence. On the one hand, this Court requires that district

courts correctly calculate the Guidelines range and explain their sentences, with a

greater explanation required if a sentence outside the Guidelines range is chosen.

See Rita v. United States, 551 U.S. 338 (2007); Gall v. United States, 552 U.S. 38

(2007). On the other hand, erroneous Guidelines calculations can be harmless if “the

error did not affect the district court’s selection of the sentence imposed.” Williams,

503 U.S. at 203. The majority of circuits have concluded that Rita and Gall’s

requirement for a sentencing explanation trumps the harmless error inquiry when a

district judge imposes an alternative sentence. A minority of circuits have held the

opposite: an alternative sentence renders any Guidelines error harmless regardless

of the lack of explanation justifying the alternative sentence. This Court should

grant certiorari to review this important question and adopt the majority view

because the majority approach properly applies this Court’s sentencing

jurisprudence and has the better interpretation of Fed. R. Crim. P. 52(a).

6

A.

The Circuits Have Taken Markedly Different Approaches to

Alternative Sentence Cases in the Absence of Firm Guidance

from this Court.

1.

This Court’s Precedents do not Answer the Question

Presented.

“[A] district court should begin all sentencing proceedings by correctly

calculating the applicable Guidelines range.” Gall, 552 U.S. at 49. If a district judge

“decides that an outside-Guidelines sentence is warranted, he must consider the

extent of the deviation and ensure that the justification is sufficiently compelling to

support the degree of the variance.” Id. at 50. “[A] major departure should be

supported by a more significant justification than a minor one.” Id.

When a district court errs in calculating the Guidelines, an appellate court

does not have to “remand every time a sentencing court might misapply a provision

of the Guidelines.” Williams, 503 U.S. at 202. Instead, “remand is required only if

the sentence was ‘imposed as a result of an incorrect application’ of the Guidelines.”

Id. at 202-203 (emphasis in original). Thus, “once the court of appeals has decided

that the district court misapplied the Guidelines, a remand is appropriate unless

the reviewing court concludes, on the record as a whole, that the error was

harmless.” Id. at 203.

This Court has not further refined the harmless error analysis in the context

of Guidelines errors. In the plain error context, however, see Fed. R. Crim. P. 52(b),

this Court has explained that “[t]here may be instances when, despite application of

an erroneous Guidelines range, a reasonable probability of prejudice does not exist.”

Molina-Martinez v. United States, 578 U.S. ___, 136 S. Ct. 1338, 1346 (2016). Such a

7

procedural error could be harmless when the “record may show … that the district

court thought the sentence it chose was appropriate irrespective of the Guidelines

range.” Id. Under normal circumstances, however, “[w]hen a defendant is sentenced

under an incorrect Guidelines range … the error itself can, and most often will, be

sufficient to show a reasonable probability of a different outcome absent the error.”

Id. at 1345. “In the ordinary case, proof of a plain Guidelines error that affects a

defendant’s substantial rights is sufficient to meet” a defendant’s burden “‘to

persuade the court that the error seriously affect[ed] the fairness, integrity or public

reputation of judicial proceedings.’” Rosales-Mirales v. United States, 585 U.S. ___,

138 S. Ct. 1897, 1909 n.4 (2018) (quoting United States v. Vonn, 535 U.S. 55, 63

(2002)). Consequently, this Court has not addressed the impact an alternative

sentence will have on the harmless error calculus and has only mentioned such

alternative sentences in passing in plain error cases.

2.

The Majority of Circuits Require More from the District

Judge than an Alternative Sentence.

In the wake of Williams, the circuits have diverged in their treatment of

alternative sentences. A majority of circuits require more than the issuance of an

alternative sentence to find harmless error.

The Second, Sixth, Eighth, Ninth, and Tenth Circuits require that a district

judge “determine a Guidelines range without the miscalculation error and explain

any variance from it based on [18 U.S.C. §] 3553(a) factors.” United States v.

Langford, 516 F.3d 205, 218 (3rd Cir. 2008) (citing United States v. Icaza, 492 F.3d

967, 971 (8th Cir. 2007)); see also Munoz-Camarena, 631 F.3d at 1031 (requiring

8

that a district judge’s alternative sentence must “flow from an initial determination

of the correct Guidelines range”); Pena-Mermosillo, 522 F.3d at 1118 (“[It] is hard

for us to imagine a case where it would be procedurally reasonable for a district

court to announce that the same sentence would apply even if correct guidelines

calculations are so substantially different, without cogent explanation.”) These

circuits require that this additional step be taken before they find a procedural

error harmless because “we cannot be certain that the court’s calculus would not

have been altered had it appreciated the full extent of the … variance [from the

proper Guidelines range] it was contemplating.” Seabrook, 968 F.3d at 234.

The Fifth Circuit, for its part, requires that the party seeking to uphold the

sentence “convincingly demonstrate[] both (1) that the district court would have

imposed the same sentence had it not made the error, and (2) that it would have

done so for the same reasons it gave at the prior sentencing.” United States v.

Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010). An alternative sentence, standing

alone, cannot suffice to convince the court that a “within-Guidelines sentence

imposed by the district court had nothing to do with the Guidelines calculation.”

Tanksley, 848 F.3d at 353.

3.

The Minority View—Adopted by the Fourth Circuit—Finds

Guidelines Errors Harmless When the District Judge

Issues an Alternative Sentence.

In contrast to the majority of circuits, a significant minority comprised of the

First, Fourth, Seventh, and Eleventh Circuits has required little more than an

alternative sentence to find a Guidelines error harmless. The approach taken by

9

these circuits is a two-step inquiry: (1) whether the district court stated that it

would impose the same sentence; and (2) whether the sentence is substantively

reasonable. See United States v. Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011);

United States v. Tavares, 705 F.3d 4, 26-28 (1st Cir. 2013); Anderson, 517 F.3d at

966 (“Because the district judge would apply the same sentence, we now ask only

whether it is a reasonable one”); Keene, 470 F.3d at 1349. The Fourth Circuit has

specifically rejected any requirement that the district court properly calculate the

alternative sentence Guidelines range, as an alternative sentence satisfies “the first

element of the assumed error harmless inquiry … because the district court has

expressly stated in a separate and particular explanation that it would have

reached the same result.” Gomez-Jimenez, 750 F.3d at 383. The First Circuit has

adopted the same approach. Tavares, 705 F.3d at 28 (“We therefore conclude that

the district court’s failure to choose between the two proposed guidelines sentencing

ranges and determine definitively which applied is harmless error.”).

Consequently, in the Fourth Circuit, an alternative sentence will always

suffice to render any Guidelines error harmless unless the sentence is substantively

unreasonable. The substantive reasonableness step of the Savillon-Matute test is

toothless, however. The Fourth Circuit has only “on rare occasion” concluded that a

district court’s sentence was substantively unreasonable. United States v. Howard,

773 F.3d 519, 531 (4th Cir. 2014). Indeed, since the Fourth Circuit’s Howard

decision in 2014, Roundtree can identify only one published decision holding a

sentence substantively unreasonable: United States v. Zuk, 874 F.3d 398 (4th Cir.

10

2017). Therefore, the Fourth Circuit’s harmless error inquiry devolves into one test:

did the district judge issue an alternative sentence? If yes, then any procedural

error made by the district judge will be found harmless.

B.

The Majority View Is the Better Approach.

The majority approach effectuates this Court’s jurisprudence. While “a judge

[who] sentence[s] within the Guidelines range … often does not need to provide a

lengthy explanation,” Chavez-Meza v. United States, 585 U.S. ___, 138 S. Ct. 1959,

1964 (2018), this Court requires that “a major departure [from the Guidelines]

should be supported by a more significant justification than a minor one.” Gall, 552

U.S. at 50. The majority approach keeps Gall’s requirements because it necessitates

that the district court justify its alternative sentence. Under the minority approach,

however, alternative sentences need not comply with Gall.

Take, for example, a hypothetical defendant whose Guidelines range is 262327 months’ imprisonment because he is improperly classified as a career offender

pursuant to U.S.S.G. § 4B1.1. His Guidelines would be 151-188 months’

imprisonment absent the enhancement. A 262-month sentence is within the career

offender-enhanced Guidelines range but well beyond the non-career offenderenhanced range. If the district judge issues a 262-month alternative sentence, then

under the majority approach that sentence would be vacated because there was no

justification given for the significant departure from the Guidelines range. Under

the minority approach, the sentence would be upheld simply because the district

judge issued an alternative sentence.

11

The minority view, therefore, ignores Gall for the sake of harmless error

whereas the majority view harmonizes Gall and harmless error. Under the majority

approach, an alternative sentence can render any procedural error harmless only if

the district court’s alternative sentence complies with Gall, thereby giving both

lines of this Court’s jurisprudence full effect. The minority view would discard Gall

no matter the significance of the procedural error or degree of departure from the

appropriate Guidelines range. Therefore, this Court should grant certiorari and

adopt the majority view. Since the Fourth Circuit applied the minority view to the

district court’s alternative sentence below, its judgment should be vacated.

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CONCLUSION

For the foregoing reasons, this Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

s/ Jeremy A. Thompson

Jeremy A. Thompson

Assistant Federal Public Defender

Counsel of Record

Federal Public Defender’s Office

1901 Assembly Street, Suite 200

Columbia, South Carolina 29201

Telephone: 803.765.5077

Email: Jeremy_Thompson@fd.org

Columbia, South Carolina

March 12, 2021

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