Opposition Brief — Angel Santiago-Gonzalez, Petitioner v. Florida

No. 20-7495

IN THE

Supreme Court of the United States

_______________

ANGEL SANTIAGO-GONZALEZ,

v.

STATE OF FLORIDA,

_______________

Petitioner,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Florida

_______________

BRIEF IN OPPOSITION

_______________

ASHLEY MOODY

Attorney General of

Florida

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

The Capitol – PL-01

Tallahassee, FL

32399-1050

Phone: (850) 414-3300

amit.agarwal@

myfloridalegal.com

AMIT AGARWAL

Solicitor General

*Counsel of Record

JEFFREY PAUL DESOUSA

Chief Deputy Solicitor

General

Counsel for Respondent

i

QUESTION PRESENTED

Petitioner Angel Santiago-Gonzalez was convicted

of first-degree murder. After he waived the right to a

penalty-phase jury, the trial court found the existence

of four aggravating circumstances beyond a

reasonable doubt and concluded that those

aggravators were sufficient to warrant the death

penalty, outweighed the mitigating circumstances,

and that death was the appropriate sentence.

On appeal, Petitioner argued for the first time that

the trial court committed “fundamental error” in not

applying the beyond-a-reasonable-doubt standard to

its findings as to the sufficiency and weight of the

aggravating circumstances. The Florida Supreme

Court rejected that claim. This Court’s decision in

Hurst v. Florida, 577 U.S. 92 (2016), it explained, did

not require that the findings at issue here—that

“sufficient aggravating factors exist” and that those

factors “outweigh the mitigating circumstances”—be

made beyond a reasonable doubt. In McKinney v.

Arizona, this Court subsequently confirmed that

“weighing

of

aggravating

and

mitigating

circumstances” is not an element of capital murder.

140 S. Ct. 702, 708 (2020).

The question presented is:

Whether the Florida Supreme Court erred, as a

matter of federal law, in rejecting Petitioner’s

unpreserved claim of fundamental error.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ..........................................i

TABLE OF AUTHORITIES...................................... iii

STATEMENT .............................................................. 1

REASONS FOR DENYING THE PETITION ............ 7

I. The Petition Is Untimely ..................................7

II. This Case Is a Poor Vehicle for Resolving

Petitioner’s Question Presented ......................8

III.The Decision Below Does Not Conflict with

This Court’s Precedents ................................. 11

IV. The Decision Below Is Correct ....................... 14

CONCLUSION .......................................................... 22

iii

TABLE OF AUTHORITIES

Cases

Alleyne v. United States,

570 U.S. 99 (2013)............................................ 12, 16

Apprendi v. United States,

530 U.S. 466 (2000).................................... 12, 13, 20

Bailey v. State,

998 So. 2d 545 (Fla. 2008) .......................................9

California v. Carney,

471 U.S. 386 (1985)................................................ 18

Card v. State,

803 So. 2d 613 (Fla. 2001) .......................................9

Clemons v. Mississippi,

494 U.S. 738 (1990).......................................... 21-22

Daniels v. State,

121 So. 3d 409 (Fla. 2013) .......................................8

Eddings v. Oklahoma,

455 U.S. 104 (1982)................................................ 15

Garzon v. State,

980 So. 2d 1038 (Fla. 2008) .....................................8

Harrell v. State,

894 So. 2d 935 (Fla. 2005) .......................................9

Hurst v. Florida,

577 U.S. 92 (2016)...................................i, 1, 3, 4, 13

In re Winship,

397 U.S. 358 (1970).................................... 11, 12, 19

Jimenez v. U.S. Dist. Court for S. Dist. of Fla., Miami

Div.,

84 S. Ct. 14 (1963).............................................. 8, 14

Kansas v. Carr,

577 U.S. 108 (2016).................................... 11, 18, 19

Kansas v. Marsh,

548 U.S. 163 (2006)................................................ 19

iv

Madden v. Texas,

498 U.S. 1301 (1991)................................................7

Matton Steamboat Co. v. Murphy,

319 U.S. 412 (1943).............................................. 7, 8

McCray v. New York,

461 U.S. 961 (1983)................................................ 18

McKinney v. Arizona,

140 S. Ct. 702 (2020)...................................... passim

Oregon v. Ice,

555 U.S. 160 (2009)................................................ 22

Penry v. Texas,

515 U.S. 1304 (1995)................................................7

Proffitt v. Florida,

428 U.S. 242 (1976).................................... 20, 21, 22

Ring v. Arizona,

536 U.S. 584 (2002)...................................... 1, 13, 22

Rogers v. State,

285 So. 3d 872 (Fla. 2019) ................................. 6, 14

Sanford v. Rubin,

237 So. 2d 134 (Fla. 1970) .......................................9

Smiley v. State,

295 So. 3d 156 (Fla. 2020) ................................. 8, 10

State v. Poole,

297 So. 3d 487 (Fla. 2020) ........................... 2, 14, 18

State v. T.G.,

800 So. 2d 204 (Fla. 2001) .......................................9

United States v. Gabrion,

719 F.3d 511 (6th Cir. 2013).................................. 21

Williams v. State,

209 So. 3d 543 (Fla. 2017) ................................. 9, 10

Statutes

18 U.S.C. § 3553(a) .................................................... 20

Fla. Stat. § 775.082(1) (2010) ......................................1

v

Fla. Stat. § 921.141(2)(a) (2017) .................................2

Fla. Stat. § 921.141(2)(a)-(c) (2010) ............................1

Fla. Stat. § 921.141(2)(b) .............................................3

Fla. Stat. § 921.141(2)(b)(2) ...................................... 15

Fla. Stat. § 921.141(2)(b)(2)(c) .................................. 21

Fla. Stat. § 921.141(2)(b)(2)(a) .................................. 18

Fla. Stat. § 921.141(3)(a)(2) ...................................... 21

1

STATEMENT

1. In Hurst v. Florida, 577 U.S. 92 (2016), this

Court held that Florida’s capital sentencing scheme

violated the Sixth Amendment in light of Ring v.

Arizona, 536 U.S. 584 (2002). Under Florida law, the

maximum sentence a capital felon could receive based

on a conviction alone was life imprisonment. Hurst,

577 U.S. at 95. Capital punishment was authorized

“only if an additional sentencing proceeding

‘result[ed] in findings by the court that such person

shall be punished by death.’” Id. (quoting Fla. Stat.

§ 775.082(1) (2010)). At that additional sentencing

proceeding, a jury would render an advisory verdict

recommending for or against the death penalty, and

in making that recommendation was instructed to

consider whether sufficient aggravating factors exist,

whether mitigating circumstances exist that outweigh

the aggravators, and, based on those considerations,

whether death is an appropriate sentence. Fla. Stat.

§ 921.141(2)(a)-(c) (2010).

This Court struck down that scheme in Hurst.

Observing that it had previously declared invalid

Arizona’s capital sentencing scheme because the jury

there did not make the “required finding of an

aggravated

circumstance”—which

exposed

a

defendant to “a greater punishment than that

authorized by the jury’s guilty verdict”—the Court

held that that criticism “applie[d] equally to

Florida’s.” Hurst, 577 U.S. at 98 (quoting Ring, 536

U.S. at 604). “Florida’s sentencing scheme, which

required the judge alone to find the existence of an

aggravating

circumstance,

[was]

therefore

unconstitutional.” Id. at 103.

2

In response to Hurst and the Florida Supreme

Court’s subsequent interpretation of that decision, the

Florida Legislature repeatedly amended Section

921.141 to comply with those rulings. As relevant

here, the amended law requires the jury, not the

judge, to “determine if the state has proven, beyond a

reasonable doubt, the existence of at least one

aggravating factor.” Fla. Stat. § 921.141(2)(a) (2017).

If the jury concludes that no aggravating factor has

been proven, the defendant is “ineligible” for the death

penalty. Id. § 921.141(2)(b)1. If on the other hand the

jury unanimously finds at least one aggravator, the

defendant is “eligible for a sentence of death.” Id.

§ 921.141(2)(b)2. In that event, the jury must make a

sentencing recommendation based on a weighing of

three considerations: first, “[w]hether sufficient

aggravating factors exist”; 1 second, “[w]hether

aggravating factors exist which outweigh the

mitigating circumstances found to exist”; and third,

based on the other two considerations, “whether the

defendant should be sentenced to life imprisonment

1 As construed by the Florida Supreme Court, “it has always

been understood that . . . ‘sufficient aggravating circumstances’

means ‘one or more.’” State v. Poole, 297 So. 3d 487, 502 (Fla.

2020) (citing cases). Any “suggestion that ‘sufficient’ implies a

qualitative assessment of the aggravator—as opposed simply to

finding that an aggravator exists—is unpersuasive and contrary

to this decades-old precedent.” Id. at 502–03 (disapproving prior

case holding that “the existence of an aggravator and the

sufficiency of an aggravator are two separate findings, each of

which the jury must find unanimously,” and explaining that,

“[u]nder longstanding Florida law, there is only one eligibility

finding required: the existence of one or more statutory

aggravating circumstances”).

3

without the possibility of parole or to death.”

§ 921.141(2)(b)2.a-c.

By assigning to the jury those latter three findings,

the Florida Legislature granted capital defendants

procedural protections beyond what Hurst required.

See Hurst, 577 U.S. at 103 (requiring a jury to find

“the existence of an aggravating circumstance”); see

also id. at 105–06 (Alito, J., dissenting) (“[T]he Court’s

decision is based on a single perceived defect, i.e., that

the jury’s determination that at least one aggravating

factor was proved is not binding on the trial judge.”).

Neither Section 921.141 nor the standard jury

instructions require that the jury undertake those

determinations by any particular standard of proof.

2. While an inmate in a Florida prison, Petitioner

Angel Santiago-Gonzalez stabbed a fellow inmate,

Donald Burns, sixty-four times, killing him. Pet. App.

2, 6. Prison officials discovered the crime when they

responded to Burns’ cell and found Burns lying on the

floor with both his hands and feet bound, id. at 2,

“brutally stabbed.” Id. at 20; see also id. at 2.

Petitioner was still holding the knife and refused to

immediately relinquish it. Id. at 2.

After being read his Miranda rights, Petitioner

told a corrections officer that he had asked to be

moved into Burns’ cell so that Burns could help with

Petitioner’s legal matters. Id. at 4–5. According to

Petitioner, after they were together in Burns’ cell for

two to three hours, Burns started “acting funny” and

at some point touched Petitioner’s buttocks

underneath his boxer shorts. Id. at 5. Petitioner

observed that Burns’ penis was erect and became

irate. Id. Over the course of several minutes,

4

Petitioner formed his plan to attack Burns and ripped

his bedsheet into multiple pieces. Id. He admitted: “I

said, I’m going to kill this man. I just blamed him. I

wanted to tie him, I want to knock him over. I tied him

up and I’m going to kill him and that’s what I did. Just

punch him somewhere in the eyes, somewhere in the

head.” Id.

After punching Burns, Petitioner tied him up with

the torn bedsheet. Id. Petitioner remarked to

investigators: “He trying, he was, I just hold him down

just to keep him, I punched around, all around the

neck and head. I tried to stab him in the face, in the

eye, heart, chest, back, and hand. I just black out, I

just, I had been on psyche medication for a long time,

just all my anger, everything, I just come out. I just

black out.” Id. Petitioner recalled thinking, “the

mother fucker has to die, he’s going to die.” Id. Burns

succumbed to his wounds nearly six months later. Id.

at 6.

3. Petitioner pled guilty to first-degree murder and

waived the right to a jury during the penalty phase.

Id. at 6, 17, 22. His penalty phase was therefore

conducted solely before a judge.

At that proceeding, the trial court heard testimony

about the facts of the murder along with various

aggravating and mitigating circumstances. Among

other things, the State proved that Petitioner had

committed multiple prior violent felonies, including

an armed robbery during which he “shot the victim in

the abdomen while taking her necklace” and an

attempted escape from the Seminole County Jail

during which he smuggled a firearm into the facility

5

and used it to kidnap and rob a correctional officer. R.

4308–09 (Sentencing Order).

Petitioner did not ask the trial court—in making

its findings as to sufficiency and weight—to apply the

beyond-a-reasonable-doubt standard of proof. In fact,

his proposed verdict form cited the beyond-areasonable-doubt standard in reference to the

required finding of an aggravating circumstance yet

did not ask the judge to apply that burden of proof to

the sufficiency and weight findings. See R. 4125–34;

see also Tr. 1134, 1202–03 (defense counsel explaining

that, though not requested by the court, the defense

would “submit a verdict form”). 2

In its nearly 40-page sentencing order, the trial

court concluded that death was the appropriate

sentence. R. 4342; see also Pet. App. 11. It found the

following four aggravating circumstances beyond a

reasonable doubt: (1) the capital felony was

committed by a person previously convicted of a felony

and under sentence of imprisonment; (2) prior violent

felony; (3) the capital felony was especially heinous,

atrocious, or cruel (HAC); and (4) the murder was

committed in a cold, calculated, and premeditated

2 At most, Petitioner argued in 2016—two years before his

penalty phase and before he waived the right to a jury—that

Florida’s death penalty statute was unconstitutional because it

did not expressly require the jury to unanimously find beyond a

reasonable doubt the sufficiency and weight of the aggravators.

See R. 97, 148–63. But Petitioner later professed the belief that

his waiver of the right to a jury rendered those arguments

“moot,” 10/10/18 Tr. 7, and the trial court denied his motions to

declare the statute invalid. R. 294, 298. The trial court did not

address—and was never asked to—what burden of proof, if any,

would apply to sufficiency and weight.

6

manner without any pretense of moral or legal

justification (CCP). R. 4307–13; Pet. App. 11. It

assigned each of these aggravators either “great

weight” or “very great weight.” Pet. App. 11. And it

found that “the aggravating circumstances in this

case far outweigh the mitigating circumstances.”

R. 4341; Pet. App. 20.

4. On appeal, Petitioner asked the Florida

Supreme Court to reverse for a new penalty phase

because the trial court failed to find the sufficiency

and weight of the aggravators beyond a reasonable

doubt, which he alleged was a “fundamental error.”

Initial Br., Santiago-Gonzalez v. State, No. SC18-806,

at *60 (Apr. 1, 2019). Under Florida law, the

fundamental error doctrine is a basis for reversing

due to unpreserved but egregious trial court errors.

The Florida Supreme Court rejected that claim. Pet.

App. 19–20. It explained that, under its most recent

pronouncements, those findings are “[not] elements.”

Id. Thus, “these determinations are not subject to the

beyond a reasonable doubt standard of proof.” Id. at

20 (quoting Rogers v. State, 285 So. 3d 872, 885–86

(Fla. 2019)).

5. Several months before the Florida Supreme

Court’s decision, this Court decided McKinney v.

Arizona, 140 S. Ct. 702 (2020). There, the Court

confirmed that, under Ring and Hurst, a jury must

find the fact of an aggravating factor but need not

weigh the aggravating and mitigating circumstances

or make the ultimate sentencing decision. Id. at 707.

Those determinations may instead constitutionally be

made by a judge. In other words, the weight of the

aggravators, like the sufficiency of the aggravators, is

7

not an element of capital murder under Apprendi and

its progeny. See id.

REASONS FOR DENYING THE PETITION

I.

The Petition Is Untimely.

A petitioner seeking review of a judgment entered

after March 18, 2020 has 150 days from entry of the

judgment to file a certiorari petition. See Sup. Ct. R.

13.1 & 13.3, modified by 589 U.S ___ (Mar. 19, 2020).

Petitioner seeks review of a judgment rendered on

September 17, 2020. See Pet. 2. His filing period thus

ended on February 15, 2021. Id. As Petitioner

concedes, his Petition is 11 days late. Id. (“[T]his

Petition should have been timely filed on or before

February 15, 2021.”). And he did not move for an

extension “within the period sought to be extended.”

See Sup. Ct. R. 30.2.

This Court’s filing rules apply just as much to

capital petitioners as they do non-capital petitioners.

See, e.g., Penry v. Texas, 515 U.S. 1304, 1305–06

(1995) (Scalia, J., in chambers) (denying a capital

petitioner’s motion to extend the time to file a petition

for writ of certiorari); see also Madden v. Texas, 498

U.S. 1301, 1304–05 (1991) (Scalia, J., in chambers)

(noting that capital cases have not “been made a

generic exception to” the Court’s filing rules). That is

for good reason. Deadlines for appeal “set a definite

point of time when litigation shall be at an end, unless

within that time the prescribed application has been

made; and if it has not, to advise prospective appellees

that they are freed of the appellant’s demands.”

Matton Steamboat Co. v. Murphy, 319 U.S. 412, 415

(1943). If capital petitioners could seek blank-check

8

extensions unbound by this Court’s rules and

procedures, they “could prolong indefinitely the

appeal period,” occupying finite State resources and

delaying long-sought closure for their victims. See id.

Simply

put,

“[a]t

some

point

all litigation must end.” Jimenez v. U.S. Dist. Court

for S. Dist. of Fla., Miami Div., 84 S. Ct. 14, 19 (1963)

(Goldberg, J., in chambers). Because Petitioner has

offered no reason for accepting the untimely Petition

beyond counsel’s negligence, the Court should deny

certiorari on this basis alone.

II.

This Case Is a Poor Vehicle for Resolving

Petitioner’s Question Presented.

Petitioner conceded below, in a portion of his brief

addressing appellate preservation, that his beyond-areasonable-doubt claim “must be reviewed for

fundamental error”—an acknowledgment that he

failed to preserve it at trial. Initial Br., SantiagoGonzalez v. State, No. SC18-806, at *60 (Apr. 1, 2019).

That procedural default makes this case a poor

vehicle.

1. Under Florida law, jury instructions “are subject

to the contemporaneous objection rule and, ‘absent an

objection at trial, can be raised on appeal only if

fundamental error occurred.’” Daniels v. State, 121 So.

3d 409, 417 (Fla. 2013) (quoting Garzon v. State, 980

So. 2d 1038, 1042 (Fla. 2008)). Fundamental error, in

the capital context, is that rare error which “reaches

down into the validity of the trial itself to the extent

that the jury’s recommendation of death could not

have been obtained without the assistance of the

alleged error.” Smiley v. State, 295 So. 3d 156, 172

9

(Fla. 2020) (citing Card v. State, 803 So. 2d 613, 622

(Fla. 2001)). Florida’s appellate courts apply the

fundamental error doctrine “very guardedly,” Sanford

v. Rubin, 237 So. 2d 134, 137 (Fla. 1970), and place

upon the complaining party the “high burden” of

establishing that the unpreserved error was

fundamental. Williams v. State, 209 So. 3d 543, 558

(Fla. 2017) (quoting Bailey v. State, 998 So. 2d 545,

554 (Fla. 2008)).

Underlying Florida’s procedural default doctrine

are the State’s important interests in preventing

gamesmanship and ensuring trial judges are apprised

of their mistakes before it is too late to correct them,

thereby avoiding costly retrials. See, e.g., Harrell v.

State, 894 So. 2d 935, 940–41 (Fla. 2005) (“[T]he

contemporaneous objection rule serves to avert the

gamesmanship of allowing errors to go undetected

and uncorrected and thus preventing the appellate

court from reviewing an actual decision of the trial

court.”); State v. T.G., 800 So. 2d 204, 210 (Fla. 2001).

Both interests are implicated here.

At trial, Petitioner failed to object on the ground he

would later raise in the Florida Supreme Court.

Indeed, his proposed verdict form required the judge

to find beyond a reasonable doubt each of the

aggravating circumstances but said nothing about

that standard as applied to the sufficiency and

weighing determinations, or as applied to the

ultimate decision of life or death. See R. 4125–34.

That procedural default makes this case a poor

vehicle for resolving the federal constitutional

question Petitioner presents for this Court’s review.

Not only should Petitioner not be rewarded for his

10

failure to object at trial, but the narrow issue in this

case, as Petitioner conceded below, is whether the

trial court’s failure to apply the beyond-a-reasonabledoubt standard was “fundamental error” under

Florida law.

2. Even if the state trial court erred in not sua

sponte instructing itself in a manner Petitioner did

not ask for—and that no court has ever deemed

necessary—any such determination from this Court

would not affect Petitioner’s sentence. That is because

Petitioner cannot meet his “high burden,” under

Florida law, of showing that “the [judge’s]

recommendation of death could not have been

obtained without the assistance of the alleged error,”

Smiley, 295 So. 3d at 172; see Williams, 209 So. 3d at

558.

Of particular relevance, ample record evidence

supports the trial court’s determination that the

aggravators were sufficient and “far outweighed” the

mitigators. Petitioner tied up his cellmate and

stabbed him sixty-four times, admitting later to

investigators that the murder was premeditated. And

Petitioner was sentenced to death based on four

aggravators: (1) murder committed while under

sentence of imprisonment; (2) prior violent felony,

(3) HAC, and (4) CCP. As the Florida Supreme Court

explained, three of those factors—prior violent felony,

HAC, and CCP—have repeatedly been identified “as

among the weightiest” in Florida’s death penalty

scheme. Pet. App. 19.

Not only can Petitioner not demonstrate prejudice

under his unique facts, the better view is that “[i]t

would [have] mean[t] nothing” to say that certain

11

“value call[s]”—like whether aggravators outweigh

mitigators and whether the defendant deserves

mercy—must be found “beyond a reasonable doubt,”

see Kansas v. Carr, 577 U.S. 108, 119 (2016).

In short, Petitioner cannot show fundamental

error under state law, and therefore would not be

entitled to any relief even if his federal constitutional

claim had merit. See Stephen M. Shapiro et al.,

Supreme Court Practice § 4.4(f) (10th ed. 2013)

(observing that “certiorari may be denied” where the

question presented is “irrelevant to the ultimate

outcome of the case”).

III.

The Decision Below Does Not Conflict

with This Court’s Precedents.

Petitioner does not assert that his question

presented implicates a division among the lower

courts. See Pet. 10–19. Instead, he claims that the

Florida Supreme Court’s decision “conflicts with this

Court’s opinions in Apprendi, Ring, Alleyne, and

Hurst.” Id. at 13; see id. at 10–17. Petitioner is

incorrect.

The cases he cites do not conclude that the beyonda-reasonable-doubt standard applies to non-factual

determinations intended to guide the jury’s

sentencing recommendation. To the contrary, those

cases evince this Court’s understanding that that

standard of proof is limited to factual findings. By its

terms, In re Winship applies the beyond-a-reasonabledoubt standard only to “the factfinder.” 397 U.S. 358,

363–64 (1970); see also id. (referencing “the trier of

fact”). The Due Process Clause, the Court there held,

“protects the accused against conviction except upon

12

proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is

charged.” Id. at 364; see also Alleyne v. United States,

570 U.S. 99, 103 (2013) (“Any fact that, by law,

increases the penalty for a crime is an ‘element’ that

must be submitted to the jury and found beyond a

reasonable doubt.”).

Consistent with Winship, this Court in Apprendi

expressly and repeatedly explained that the beyonda-reasonable-doubt standard of proof applies to

“facts.” For example, the Court:

•

required the States to “adhere to the basic

principles undergirding the requirements of

trying to a jury all facts necessary to constitute

a statutory offense, and proving those facts

beyond reasonable doubt,” Apprendi v. United

States, 530 U.S. 466, 483–84 (2000);

•

referenced the jury’s “assessment of facts,” id.

at 490 (quotation marks omitted);

•

described the “novelty of a legislative scheme

that removes the jury from the determination

of a fact that, if found, exposes the criminal

defendant to a penalty exceeding the maximum

he would receive if punished according to the

facts reflected in the jury verdict alone,” id. at

482–83 (emphasis omitted); and

•

explained that “constitutional limits exist to

States’ authority to define away facts necessary

to constitute a criminal offense” and “a state

scheme that keeps from the jury facts that

‘expos[e] [defendants] to greater or additional

13

punishment’ may raise serious constitutional

concern.” Id. at 486 (internal citation omitted).

Thus, Apprendi did not hold that the beyond-areasonable-doubt standard should be extended to nonfactual normative judgments of the kind at issue here,

and this Court’s statements concerning that standard

of proof undermine rather than support Petitioner’s

claim.

This Court’s cases applying Apprendi to the capital

sentencing context likewise did not hold that the Due

Process Clause requires the jury to determine, beyond

a reasonable doubt, that normative considerations

support the imposition of the death penalty. In Ring,

for example, this Court explained that “[c]apital

defendants, no less than noncapital defendants . . .

are entitled to a jury determination of any fact on

which the legislature conditions an increase in their

maximum punishment.” 536 U.S. at 589. So too in

Hurst, where this Court reiterated that the

sentencing scheme in Ring violated the defendant’s

right to have “a jury find the facts behind his

punishment.” 577 U.S. at 98; see also id. at 94 (“The

Sixth Amendment requires a jury, not a judge, to find

each fact necessary to impose a sentence of death.”).

In sum, the decision below does not conflict with

this Court’s precedents. None of the cases Petitioner

cites held that a jury (or here, a judge) must find

beyond a reasonable doubt that aggravating factors

outweigh mitigating circumstances or are sufficient to

warrant the imposition of capital punishment; and

still less did those cases hold that a trial court

commits fundamental error under Florida law if it

does not sua sponte provide itself some such

14

instruction. What is more, the reasoning of those

cases expressly ties the beyond-a-reasonable-doubt

standard to factfinding of a kind not at issue here—

and thus undermines rather than supports

Petitioner’s claim.

IV.

The Decision Below Is Correct.

In rejecting Petitioner’s claim of fundamental

error, the Florida Supreme Court explained that

Petitioner failed to show error. See Pet. App. 19–20.

The court was right to hold the sufficiency and

weighing determinations are not “elements,” see id. at

19, and its opinion correctly applied this Court’s

precedents to Florida’s capital sentencing scheme.

1. As the Florida Supreme Court has explained,

the penalty phase findings at issue here—whether the

aggravators are sufficient and whether those

aggravators outweigh the mitigators—“are not

elements of the capital felony of first-degree murder.”

Rogers v. State, 285 So. 3d 872, 885 (Fla. 2019), cert.

denied Rogers v. Florida, 141 S. Ct. 284 (Oct. 5, 2020);

see also State v. Poole, 297 So. 3d 487, 503–13 (Fla.

2020), cert denied Poole v. Florida, No. 20-250 (Jan.

11, 2021). “Rather, they are findings required of a

jury: (1) before the court can impose the death penalty

for first-degree murder, and (2) only after a conviction

or adjudication of guilt for first-degree murder has

occurred.” Rogers, 285 So. 3d at 885 (emphases in

original). That is, they are sentencing factors intended

to make the imposition of capital punishment less

arbitrary by guiding the exercise of the judge and

jury’s discretion within the applicable sentencing

range.

15

The plain text of Florida’s death-penalty statute

supports that reading:

If the jury . . . [u]nanimously finds at least one

aggravating factor, the defendant is eligible for

a sentence of death and the jury shall make a

recommendation to the court as to whether the

defendant shall be sentenced to life

imprisonment without the possibility of parole

or to death.

Fla. Stat. § 921.141(2)(b)(2).

2. In light of this Court’s recent decision in

McKinney v. Arizona, 140 S. Ct. 702 (2020),

Petitioner’s contrary argument fails on its own terms.

Petitioner frames the constitutional question as

whether the sufficiency and weighing of aggravators

can be characterized as the “functional equivalents” of

elements. See Pet. i, 1, 10–19. But Petitioner does not

cite—let alone address—McKinney, which rejected

the theory that a jury must weigh aggravators and

mitigators, and thus made clear that a determination

that aggravators outweigh mitigators is not an

“element” of capital murder for purposes of Apprendi

and its progeny.

In McKinney, a capital defendant challenged his

death sentence because the sentencing judge had

failed to consider his posttraumatic stress disorder as

a mitigating factor, thereby violating Eddings v.

Oklahoma, 455 U.S. 104 (1982) (holding that a capital

sentencer may not refuse as a matter of law to

consider relevant mitigating evidence). On remand

from the Ninth Circuit, the Arizona Supreme Court

performed its own de novo weighing of the

16

aggravators and mitigators, including the defendant’s

PTSD, and upheld the sentence. McKinney, 140 S. Ct.

at 706. In the state supreme court’s independent

judgment, the balance of the aggravators and

mitigators warranted the death penalty. Id.

On certiorari review, the defendant argued that “a

jury must resentence him” because a court “could not

itself reweigh the aggravating and mitigating

circumstances.” Id. This Court rejected that claim.

“Under Ring and Hurst,” the Court explained, “a jury

must find the aggravating circumstance that makes

the defendant death eligible.” Id. at 707.

“[I]mportantly,” however, “in a capital sentencing

proceeding just as in an ordinary sentencing

proceeding, a jury (as opposed to a judge) is not

constitutionally required to weigh the aggravating

and mitigating circumstances or to make the ultimate

sentencing decision within the relevant sentencing

range.” Id.; see also id. at 708 (explaining that “Ring

and Hurst did not require jury weighing of

aggravating and mitigating circumstances”).

Because the Sixth Amendment permits the

“weigh[ing] [of] aggravating and mitigating” evidence

by judges, id. at 707, the determination that

aggravators outweigh mitigators cannot be considered

an “element” of the offense. And because that

determination is not an element, it is not subject to

the beyond-a-reasonable-doubt standard. See Alleyne,

570 U.S. at 107 (“The touchstone for determining

whether a fact must be found by a jury beyond a

reasonable doubt is whether the fact constitutes an

‘element’ or ‘ingredient’ of the charged offense.”). In

other words, McKinney rejects an essential premise of

17

Petitioner’s argument: that the weighing of

aggravators and mitigators is either an “element” or

the “functional equivalent” of an element. See Pet. i,

1, 10–19.

The outcome is not different simply because

Florida has chosen to assign (in cases where the right

to a penalty-phase jury has not been waived) the

weighing determination to the jury, rather than the

judge as it constitutionally could have. If the Sixth

Amendment permits a judge to determine whether

aggravators outweigh mitigators, and further permits

the judge to make that determination by some lesser

standard (or none at all), nothing prevents the State

from re-allocating that task to the jury by the same

standard of proof. Any contrary theory would punish

States for being more generous in extending

procedural protections to capital defendants by

forcing them to extend all available procedural

protections. But because the weight of the aggravators

is not an element of a capital offense, that

determination need not be found by a jury and,

correspondingly, need not be found beyond a

reasonable doubt. See McKinney, 140 S. Ct. at 707–

08. 3

Even if it were unclear whether McKinney disposes of

claims like Petitioner’s, any such doubt provides an additional

basis for denying review. Because McKinney post-dated the

decision below, the Florida Supreme Court did not analyze its

applicability. This Court therefore lacks the benefit of a reasoned

lower court analysis of a critical issue germane to Petitioner’s

claim: whether and to what extent McKinney’s holding that a

jury need not determine that aggravators outweigh mitigators

impacts the related question whether such normative

determinations must be made beyond a reasonable doubt. Thus,

3

18

Finally, the statutory requirement that the jury

weigh, among other considerations, “[w]hether

sufficient

aggravating

factors

exist,”

§ 921.141(2)(b)(2)(a), adds nothing to Petitioner’s

argument. As construed by the Florida Supreme

Court, “it has always been understood that . . .

‘sufficient aggravating circumstances’ means ‘one or

more.’” Poole, 297 So. 3d at 502 (citing cases). Put

differently, “[u]nder longstanding Florida law, there

is only one eligibility finding required: the existence of

one or more statutory aggravating circumstances.” Id.

And it is undisputed that, in this case, that

requirement was satisfied when the judge found

multiple aggravating circumstances beyond a

reasonable doubt. See Pet. App. 11.

3. For reasons this Court has already explicated, it

would make little sense to apply the beyond-areasonable-doubt

standard

to

normative

determinations of the kind at issue here. In Carr, this

Court “doubt[ed]” that it is “even possible to apply a

standard of proof to the mitigating-factor

determination.” 136 S. Ct. at 642. The Court reasoned

that “[i]t is possible to do so for the aggravating-factor

determination,” on the one hand, because the

McKinney, at a minimum, shows that further percolation is

warranted before this Court steps in to resolve the claim

Petitioner raised for the first time on appeal. See California v.

Carney, 471 U.S. 386, 400 n.11 (1985) (Stevens, J., dissenting)

(“The process of percolation allows a period of exploratory

consideration and experimentation by lower courts before the

Supreme Court ends the process with a nationally binding

rule.”); McCray v. New York, 461 U.S. 961, 963 (1983) (Stevens,

J., respecting denial of certiorari) (explaining that percolation

“allow[s] . . . the issue [to] receive[] further study” in the lower

courts “before it is addressed by this Court”).

19

existence of an aggravator “is a purely factual

determination.” Id. Whether mitigation exists, on the

other hand, “is largely a judgment call”—or “perhaps

a value call”—just as the “ultimate question whether

mitigating circumstances outweigh aggravating

circumstances is mostly a question of mercy.” Id.

Thus, “[i]t would mean nothing . . . to tell the jury that

the defendants must deserve mercy beyond a

reasonable doubt; or must more-likely-than-not

deserve it.” Id.

The beyond-a-reasonable-doubt standard ensures

that the prosecution must “persuad[e] the factfinder

at the conclusion of the trial of [the defendant’s] guilt

beyond a reasonable doubt.” Winship, 397 U.S. at 364.

This safeguard preserves the “moral force of the

criminal law” because it does not “leave[] people in

doubt whether innocent men are being condemned.”

Id. at 364. But sufficiency and weighing do not go to

whether the defendant is guilty of a capital offense—

that question is answered when the jury finds the

existence of an aggravated first-degree murder. See

McKinney, 140 S. Ct. at 707; Kansas v. Marsh, 548

U.S. 163, 175–76 (2006). Sufficiency and weighing

instead go to the appropriateness of the penalty. That

is, they are normative judgments, not facts.

A fact is “something that has actual existence” or,

perhaps more appropriately in this context, is “a piece

of information presented as having objective reality.”

“Fact,”

Merriam-Webster’s

Dictionary,

https://www.merriam-webster.com/dictionary/fact.

Facts have their basis in observable truths about the

world. A fact either is or isn’t; although a person’s

perception of facts may be open to debate, facts are

20

objectively discernable. By contrast, normative

judgments are opinions. As such, they turn on the

subjective views of individual decisionmakers. In

short, they are questions involving discretion.

Consequently, a jury is not better situated to make

normative determinations than a judge. Indeed,

sufficiency and weighing no more need be conducted

by a jury than the traditional in-range sentencing

discretion performed by judges throughout the nation

countless times each day. As McKinney recognized,

Apprendi expressly reserved for judges the power to

exercise that type of discretion. McKinney, 140 S. Ct.

at 707 (“[T]his Court carefully avoided any suggestion

that ‘it is impermissible for judges to exercise

discretion—taking into consideration various factors

relating both to offense and offender—in imposing a

judgment within the range prescribed by statute.’”

(quoting Apprendi, 530 U.S. at 481)); see also Proffitt

v. Florida, 428 U.S. 242, 252 (1976) (plurality op.)

(“[I]t would appear that judicial sentencing should

lead, if anything, to even greater consistency in the

imposition . . . of capital punishment, since a trial

judge is more experienced in sentencing than a jury,

and therefore is better able to impose sentences

similar to those imposed in analogous cases.”).

4. Petitioner’s substantial expansion of the

Apprendi doctrine would have significant and

troubling practical implications, including for noncapital sentencing. The federal statute governing

criminal sentences, for example, provides that “[t]he

court shall impose a sentence sufficient, but not

greater than necessary, to comply with” certain

statutorily enumerated sentencing factors. 18 U.S.C.

21

§ 3553(a). Given that a federal sentence must, by

statute, be supported by a normative judgment that

the chosen sentence is “not greater than necessary” to

effectuate “the purposes set forth in” the statutory

sentencing factors, see id., must that “finding” be

made by a jury beyond a reasonable doubt? And if not,

why is that normative judgment any different than

the moral determination at issue here—i.e., that

aggravating

factors

outweigh

mitigating

circumstances? See United States v. Gabrion, 719 F.3d

511, 533 (6th Cir. 2013) (en banc).

Notably, Petitioner himself appears unwilling to

accept the practical consequences of his own theory.

Petitioner asks this Court to rule that two

determinations—sufficiency and weighing—must be

made beyond a reasonable doubt. But the statute also

provides that the trial court may not impose death

unless the jury further determines, based on those two

factors, that death is the appropriate sentence. See

Fla. Stat. § 921.141(2)(b)(2)(c), (3)(a)(2) (requiring the

jury to determine, based on sufficiency and weighing,

“whether the defendant should be sentenced to life

imprisonment without the possibility of parole or to

death,” and providing that the court may sentence the

defendant to death if, and only if, “the jury has

recommended a sentence of . . . [d]eath”). Petitioner

nevertheless does not go so far as to say that the jury’s

ultimate recommendation that “the defendant should

be sentenced to . . . death,” § 921.141(2)(b)(2)(c), must

be made beyond a reasonable doubt. And for good

reason: “Any argument that the Constitution requires

that a jury impose the sentence of death,” this Court

has explained, “has been soundly rejected by prior

decisions of this Court.” Clemons v. Mississippi, 494

22

U.S. 738, 745 (1990); see also McKinney, 140 S. Ct. at

707; Proffitt, 428 U.S. at 252 (plurality opinion).

Nor would Petitioner’s proposed extension of the

Apprendi doctrine necessarily redound to the benefit

of criminal defendants. If state laws like the one

Petitioner asks this Court to strike down—those that

seek to protect criminal defendants by reducing the

risk of arbitrariness and guiding a sentencing

authority’s discretion to impose particularly harsh

punishments—give rise to otherwise non-existent due

process problems, lawmakers may well respond by

repealing, rolling back, or declining to create such

protections in the first place. That is one reason why

this Court has “warned against wooden, unyielding

insistence on expanding the Apprendi doctrine far

beyond its necessary boundaries.” Oregon v. Ice, 555

U.S. 160, 172 (2009) (quotation marks omitted); see

Ring, 536 U.S. at 613 (Kennedy, J., concurring).

5. All of this explains why this Court has denied

certiorari in two cases presenting the identical issue,

see Rogers v. Florida, No. 19-8473; Bright v. Florida,

No. 20-6824, and in a case presenting the underlying

question whether the Sixth and Eighth Amendments

require that a jury find that the aggravators

outweighed the mitigators, see Poole v. Florida,

No. 20-250.

CONCLUSION

The petition for a writ of certiorari should be

denied.

23

Respectfully submitted,

ASHLEY MOODY

Attorney General of Florida

OFFICE OF THE

ATTORNEY GENERAL

State of Florida

The Capitol – PL-01

Tallahassee, FL

32399-1050

Phone: (850) 414-3300

amit.agarwal@

myfloridalegal.com

May 19, 2021

AMIT AGARWAL

Solicitor General

*Counsel of Record

JEFFREY PAUL DESOUSA

Chief Deputy Solicitor

General