Petition for Writ of Certiorari — Ricky Parkerson, Petitioner v. United States

No. ____________

In the

Supreme Court of the United States

___________

RICKY PARKERSON,

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

___________

CHRISTOPHER A. CURTIS

Counsel of Record

FEDERAL PUBLIC DEFENDER’S OFFICE

NORTHERN DISTRICT OF TEXAS

819 TAYLOR STREET, ROOM 9A10

FORT WORTH, TEXAS 76102

(817) 978-2753

CHRIS_CURTIS @FD.ORG

QUESTIONS PRESENTED

1. Whether the Fifth Circuit’s practice of shifting the burden of production and proof

to the defendant at sentencing violates a defendant’s Due Process rights as well his

Sixth Amendment right to confrontation?

2. Whether substantive reasonableness review necessarily encompasses

some degree of reweighing the sentencing factors?

ii

PARTIES TO THE PROCEEDING

Ricky Parkerson is the petitioner, who was the defendant-appellant below. The

United States of America is the respondent, and was the plaintiff-appellee below.

iii

TABLE OF CONTENTS

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

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

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

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

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

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

STATUTORY AND CONSTITUTIONAL PROVISIONS............................................. 1

LIST OF PROCEEDINGS BELOW .............................................................................. 3

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

REASONS FOR GRANTING THIS PETITION ........................................................... 8

I.

THE COURT BELOW AND OTHER FEDERAL COURTS OF APPEALS

HAVE REACHED SUBSTANTIALLY DIFFERENT CONCLUSIONS

REGARDING WHO HAS THE BURDEN OF PRODUCTION AND THE

BURDEN OF PROOF AT SENTNCING ........................................................... 8

II.

THE COURT BELOW AND OTHER FEDERAL COURTS OF

APPEALS HAVE REACHED SUBSTANTIALLY DIFFERENT

CONCLUSIONS REGARDING THE APPROPRIATE LEVEL OF

DEFERENCE TO BE ACCORDED THE DISTRICT COURT IN

SUBSTANTIVE REASONABLENESS REVIEW ........................................... 14

CONCLUSION............................................................................................................. 18

iv

INDEX TO APPENDICES

Appendix A Judgment and Opinion of the United States Court of Appeals for the

Fifth Circuit

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

Northern District of Texas.

v

TABLE OF AUTHORITIES

Page(s)

Federal Cases

California v. Green,

399 U.S. 149 (1970) ................................................................................................ 11

Crawford v. Washington,

541 U.S. 36 (2004) .................................................................................................. 11

Gall v. United States,

552 U.S. 38 (2007) ...................................................................................... 14, 15, 16

Kimbrough v. United States,

552 U.S. 85 (2007) .................................................................................................. 14

Morrissey v. Brewer,

408 U.S. 471 (1970) ................................................................................................ 12

Rita v. United States,

551 U.S. 338 (2007) .......................................................................................... 14, 16

United States v. Abu Ali,

528 F.3d 210 (4th Cir. 2008) .................................................................................. 15

United States v. Ameline,

409 F.3d 1073 (9th Cir. 2005) (en banc) ................................................................ 11

United States v. Ayala,

47 F.3d 688 (5th Cir. 1995) ...................................................................................... 9

United States v. Booker,

543 U.S. 220 (2005) ................................................................................................ 14

United States v. Campbell,

295 F.3d 398 (3d Cir. 2002) .................................................................................... 10

United States v. Cisneros-Gutierrez,

517 F.3d 751 (5th Cir. 2008) ............................................................................ 14, 16

United States v. Cotten,

650 Fed. Appx. 175 (5th Cir. 2016) (unpublished) ................................................ 16

United States v. Douglas,

667 Fed. Appx. 508 (5th Cir. 2016) (unpublished) ................................................ 17

vi

United States v. Elwood,

999 F.2d 814 (5th Cir. 1993) .................................................................................... 9

United States v. Funk,

534 F.3d 522 (6th Cir. 2008) .................................................................................. 15

United States v. Harris,

702 F.3d 226 (5th Cir. 2012) ................................................................................ 8, 9

United States v. Helmsley,

941 F.2d 71 (2d Cir. 1991) ...................................................................................... 10

United States v. Hernandez,

876 F.3d 161 (5th Cir. 2017) .................................................................................. 16

United States v. Johnson,

648 F.3d 273 (5th Cir. 2011) .................................................................................... 8

United States v. Jones,

531 F.3d 163 (2d Cir. 2008) .................................................................................... 15

United States v. Lang,

333 F.3d 678 (6th Cir. 2003) .................................................................................. 10

United States v. Levinson,

543 F.3d 190 (3d Cir. 2008) .................................................................................... 15

United States v. Malone,

828 F.3d 331 (5th Cir. 2016) .................................................................................. 16

United States v. Martinez,

584 F.3d 1022 (11th Cir. 2009) .............................................................................. 11

United States v. McCormick,

54 F.3d 214 (5th Cir. 1995) .................................................................................... 12

United States v. Mosqueda,

437 Fed. Appx. 312 (5th Cir. 2011) (unpublished) ................................................ 16

United States v. Mustread,

42 F.3d 1097 (7th Cir. 1994) .................................................................................. 10

United States v. O’Garro,

280 F. App’x 220 (3d Cir. 2008).............................................................................. 10

United States v. Ofray-Campos,

534 F.3d 1 (1st Cir. 2008) ....................................................................................... 15

vii

United States v. Ollison,

555 F.3d 152 (5th Cir. 2009) .................................................................................... 9

United States v. Parkerson,

984 F. 3d 1124 (5th Cir. 2021) ................................................................... 6, 7, 9, 15

United States v. Poor Bear,

359 F.3d 1038 (8th Cir. 2004) ................................................................................ 11

United States v. Price,

409 F.3d 436 (D.C. Cir. 2005) ................................................................................ 10

United States v. Prochner,

417 F.3d 54 (1st Cir. 2005) ..................................................................................... 10

United States v. Pugh,

515 F.3d 1179 (11th Cir. 2008) .............................................................................. 15

United States v. Rodriguez-Delma,

456 F.3d 1246 (10th Cir. 2006) .............................................................................. 10

United States v. Shy,

538 F.3d 933 (8th Cir. 2008) .................................................................................. 15

United States v. Turcios-Rivera,

583 Fed. Appx. 375 (5th Cir. 2014) ........................................................................ 17

United States v. Valdez,

453 F.3d 252 (5th Cir. 2006) .................................................................................. 10

United States v. Valencia,

44 F.3d 269 (5th Cir. 1995) .................................................................................... 10

United States v. Vital,

68 F.3d 114 (5th Cir. 1995) ...................................................................................... 9

United States v. Watts,

519 U.S. 148 (1997)(per curiam) .............................................................................. 8

United States v. Zuniga,

720 F.3d 587 (5th Cir. 2013) .................................................................................... 9

Federal Statutes

18 U.S.C. § 2250 ............................................................................................................. 4

18 U.S.C. § 3553 ........................................................................................................... 16

viii

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

18 U.S.C. § 3553(a)(2) .................................................................................................. 14

18 U.S.C. § 3553(a)(2)(6).............................................................................................. 16

18 U.S.C. § 3742(g) .................................................................................................... 2, 3

28 U.S.C. § 994 ........................................................................................................... 2, 3

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

U.S.S.G. § 2A3.5(a)(1) .................................................................................................... 4

Constitutional Provisions

U. S. CONST. amend. V ................................................................................... 3, 6, 10, 12

U.S. CONST. amend. VI .........................................................................................passim

ix

PETITION FOR A WRIT OF CERTIORARI

Ricky Parkerson seeks a writ of certiorari to review the judgment of the United

States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The Fifth Circuit’s opinion is published and is reprinted in the appendix. See

United States v. Ricky Parkerson, 984 F.3d 1124 (5th Cir. Jan. 12, 2021).

JURISDICTION

The Fifth Circuit issued its written judgment on January 12, 2021. (Appendix

A). The 90-day deadline for filing a petition for writ of certiorari provided for in

Supreme Court Rule 13 has been extended to 150 days from the date of the lower

court judgment by order of this Court on March 19, 2020. This Court has jurisdiction

to review the judgment under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Title 18, 3553(a) of the United States Code provides:

(a) Factors to be considered in imposing a sentence. The court

shall impose a sentence sufficient, but not greater than necessary, to

comply with the purposes set forth in paragraph (2) of this subsection.

The court, in determining the particular sentence to be imposed, shall

consider –

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

and characteristics of the defendant;

(2) the need for the sentence imposed –

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

respect for the law, and to provide just punishment for the

offense;

(B) to afford adequate deterrence to criminal conduct;

1

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

defendant; and

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional

treatment in the most effective manner . . .

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established

for—

(A) the applicable category of offense committed by the

applicable category of defendant as set forth in the

guidelines –

(i) issued by the Sentencing Commission pursuant to

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

subject to any amendments made to such guidelines

by act of Congress (regardless of whether such

amendments have yet to be incorporated by the

Sentencing Commission into amendments issued

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

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

effect on the date the defendant is sentenced; or

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

release, the applicable guidelines or policy statements

issued by the Sentencing Commission pursuant to section

994(a)(3) of title 28, United States Code, taking into

account any amendments made to such guidelines or policy

statements by act of Congress (regardless of whether such

amendments have yet to be incorporated by the Sentencing

Commission into amendments issued under section 994(p)

of title 28);

(5) any pertinent policy statement –

(A) issued by the Sentencing Commission pursuant to

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

any amendments made to such policy statement by act of

Congress (regardless of whether such amendments have

2

yet to be incorporated by the Sentencing Commission into

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

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

on the date the defendant is sentenced.

(6) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct; and

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

The Fifth Amendment to the United States Constitution provides the following:

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall private property be

taken for public use, without just compensation.

The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime

shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

LIST OF PROCEEDINGS BELOW

1. United States v. Ricky Parkerson, 3:18-CR-00517-B-1, United States District Court

for the Northern District of Texas, Dallas Division. Judgement and sentence entered

on July 10, 2019.

2. United States v. Ricky Parkerson, CA No.19-10780, Court of Appeals for the Fifth

Circuit. Judgment affirmed on January 12, 2021.

3

STATEMENT OF THE CASE

I.

Facts and Proceedings in District Court

In District Court

On October 10, 2018, Ricky Parkerson (Parkerson) was named in a one-count

indictment, charging him with the offense of Failure to Register as a Sex Offender, a

violation of 18 U.S.C. § 2250. (ROA.6).

On March 12, 2019, Parkerson pleaded guilty to the one-count indictment,

without a plea agreement. See (ROA.28-36). Parkerson signed a factual resume which

appears to have established the elements of the offense. See (ROA.28-33).

The Pre-sentence report (PSR) set the base offense level and adjusted offense

level at 16, pursuant to U.S.S.G. §2A3.5(a)(1). (ROA.101). The PSR reduced the

offense level by three levels for acceptance of responsibility, resulting in a total

offense level 13. (ROA.101). Parkerson had a criminal history score of 5 and thus was

in criminal history category III. (ROA.105). At a total offense level 13 and a criminal

history category III, his advisory imprisonment range was 18-24 months. (ROA.113).

The PSR found grounds for an upward variance or departure, based upon the

defendant’s criminal history score under-representing the seriousness of his criminal

history – which included two sexual assault convictions that were the basis of his

requirement to register as a sex offender -- and also based upon conduct in which

Parkerson was accused but not convicted of abducting his niece by using a box cutter.

(ROA.114-115). The PSR also listed as a basis for an upward departure or variance

4

the opinion of a Texas Department of Criminal Justice (TDCJ) doctor that Parkerson

presented a high risk of recidivism. (ROA.115).

Parkerson’s attorney filed objections to the PSR’s suggestion that there were

grounds that warranted an upward departure or variance. (RAO.116-121).

Parkerson’s attorney objected to the sentencing court relying on the PSR to establish

the fact of the uncharged conduct of abducting his niece. The PSR merely set forth

that Parkerson’s niece reported to police that she had picked up Parkerson to give

him a ride. At some point during this incident, they wound up on foot in a field near

Seagoville. When the niece refused to cross a fence with Parkerson, he allegedly

pulled a box cutter out of his pocket. The niece ran back to her car and got away. See

(ROA.99). Parkerson’s attorney objected to the reliability of these facts, pointing out

that these allegations resulted in no charges being filed, and that none of these facts

were corroborated or verified. (ROA.117).

Parkerson’s attorney also objected to the district court relying on the assertion

in the PSR that a psychologist with the TDCJ opined that Parkerson was a high risk

to commit another sex offense. See (ROA.116-121) and (ROA.111,115). As an

attachment to the objections, and as evidence showing that Parkerson was only a low

to moderate risk at most, Parkerson’s attorney attached a Static 99 test that showed

Parkerson was not a high risk of committing another sex offense, according to the

test. (ROA.138). The defendant showed that the TDCJ psychologist’s opinion that

Parkerson was a high risk was contrary to Parkerson’s actual test results and did not

meet the standard of sufficient indicia of reliability. (ROA123-138).

5

At the sentencing hearing, Parkerson’s attorney re-urged and argued these

same objections. See (ROA.75-84). The district court overruled both objections.

(ROA.80,84). The district court adopted the facts and conclusions in the PSR.

(ROA.84,153). The district court imposed a sentence of 120 months, an upward

variance of essentially 100 months above the advisory range of 18-24 months.

(ROA.88).

On Appeal

On appeal, Parkerson argued that the district court’s basis for an upward

variant sentence -- the unverified statements in the PSR that Parkerson had

abducted his niece and the unreliable opinion that Parkerson was a high risk for

recidivism – where not sufficiently reliable to support the variance. See United States

v. Parkerson, 984 F. 3d 1124, 1126 (5th Cir. 2021). Parkerson also argued that relying

on the uncorroborated, unverified conclusory statements in the PSR, without

affording Parkerson the right to cross examine the alleged complainant, violated his

Sixth Amendment right to confrontation. Parkerson argued further that the Fifth

Circuit’s practice of relying on unverified and uncorroborated facts in the PSR and

shifting the burden to the defendant to disprove these facts violates his Fifth

Amendment Due process rights. Finally, Parkerson argued that the statutory

maximum sentence of 120 months, an extreme upward variance from the advisory

imprisonment range of 18-24 months, was a substantively unreasonable sentence.

Parkerson requested that the court of appeals conduct some degree of re-weighing of

the sentencing factors to determine if the sentence was unreasonable.

6

The court of appeals found that “the factual account contained in the PSR bears

sufficient indicia of reliability to justify its consideration at sentencing.” Id. at 1129.

The court concluded “that the niece’s account, as reflected in the relevant passage of

the PSR, bears sufficient indicia of reliability to meet this court’s standard for

consideration at sentencing.” Id. at 1130. The court did not address the argument

that its practice of accepting statements in the PSR as sufficiently reliable unless the

defendant shows the information to be unreliable, shifts the burden of production,

persuasion and proof to the defendant in violation of his due process rights. Nor did

the court address the argument that relying on the unverified statements in the PSR

violated Parkerson’s Sixth Amendment rights to confrontation.

The Court of appeals affirmed the substantive reasonableness of the sentence

without conducting any weighing of the sentencing factors, simply stating “Under

these circumstances, it is not our role to second-guess the district court’s exercise of

its sound discretion, and accordingly we find no error,” and “it would be inappropriate

of us to second-guess the district court’s application of the § 3553(a) factors.” Id. at

1132.

7

REASONS FOR GRANTING THE PETITION

I. THE COURT BELOW AND OTHER FEDERAL COURTS OF APPEALS

HAVE REACHED SUBSTANTIALLY DIFFERENT CONCLUSIONS

REGARDING WHO HAS THE BURDEN OF PRODUCTION AND THE

BURDEN OF PROOF AT SENTNCING.

A. The Fifth Circuit has created an almost impossible burden on the

defendant to rebut assertions in the PSR.

The due process clause requires that a district court’s sentencing

determinations be supported by information bearing reasonable indicia of

reliability. See United States v. Johnson, 648 F.3d 273, 277 (5th Cir. 2011)

(cautioning that “without sufficient indicia of reliability, a court may not factor in

prior arrests when imposing a sentence. This comports with the due process

requirement that sentencing facts must be established by a preponderance of the

evidence.”) (citing United States v. Watts, 519 U.S. 148, 156 (1997)(per curiam)).

Factual findings pertaining to the defendant’s prior criminal conduct, like findings

about the instant offense or relevant conduct, must also be based on reasonably

reliable information. See United States v. Harris, 702 F.3d 226 at 231 (5th Cir.

2012) (“If the factual recitation [about an unadjudicated arrest] lacks sufficient

indicia of reliability, then it is error for the district court to consider it at

sentencing—regardless of whether the defendant objects or offers rebuttal

evidence.”).

However, the Fifth Circuit has repeatedly held that, “Generally, a PSR bears

a sufficient indicia of reliability to be considered as evidence by the sentencing judge

8

in making factual determinations.” United States v. Zuniga, 720 F.3d 587, 591 (5th

Cir. 2013); quoting Harris, 702 F.3d at 230; and United States v. Elwood, 999 F.2d

814, 817-18 (5th Cir. 1993).

Having declared that a PSR bears a sufficient indicia of reliability for factual

determinations at sentencing, the Fifth Circuit has also reasoned that if a PSR

bears a sufficient indicia of reliability, then the “defendant bears the burden of

demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the

sentencing court may properly rely on the PSR and adopt it.” Zuniga, 720 F.3d at

591, quoting United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009); and United

States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).

There simply is no question that the Fifth Circuit has developed a practice

and a policy and procedure in which information in a PSR is considered reliable

unless rebutted by the defendant, and “rebuttal evidence must consist of more than

a defendant’s objection; it requires a demonstration that the information is

‘materially untrue, inaccurate or unreliable.’” Zuniga, 720 F.2d at 591; quoting

Harris, 702 F.3d at 230. See also United States v. Vital, 68 F.3d 114, 120 (5th Cir.

1995). The court below in Mr. Parkerson’s case engaged in the same practice. See

United States v. Parkerson, 984 F.3d 1124, 1128-29 (5th Cir. 2021).

The result of this practice is that the PSR author can simply include any

factual assertion in the PSR, and even if the defendant objects to the reliability of

the source of the information, the government can – and often does – simply rely on

the PSR without presenting any verifying or corroborating information. This

9

practice violates Parkerson’s Fifth Amendment due process rights and his Sixth

Amendment right to confrontation.

B. The circuits are in conflict.

In addition to the Fifth Circuit, several other circuit courts, have imposed on

the defendant the burden of production when he objects to facts set forth in a PSR.

See United States v. Prochner, 417 F.3d 54, 65-66 (1st Cir. 2005); United States v.

O’Garro, 280 F. App’x 220, 225 (3d Cir. 2008); United States v. Campbell, 295 F.3d

398, 406 (3d Cir. 2002); United States v. Valencia, 44 F.3d 269, 274 (5th Cir. 1995);

United States v. Lang, 333 F.3d 678, 681-682 (6th Cir. 2003); United States v.

Mustread, 42 F.3d 1097, 1102 (7th Cir. 1994); United States v. Rodriguez-Delma,

456 F.3d 1246, 1253 (10th Cir. 2006). In these circuits, a district court may adopt

the factual findings of a presentence report “without further inquiry” absent

competent rebuttal evidence offered by the defendant. United States v. Valdez, 453

F.3d 252, 230 (5th Cir. 2006); see also Prochner, 417 F.3d at 66; Lang, 333 F.3d at

681-682; Mustread, 42 F.3d at 1102; Rodriguez-Delma, 456 F.3d at 1253.

However, the D.C., Second, Eighth, Ninth, and Eleventh Circuits have all

rejected this reasoning. In each of these cases, an objection to facts stated in a PSR

shifts the burden of production to the government to produce additional supporting

evidence. See United States v. Price, 409 F.3d 436, 444 (D.C. Cir. 2005) (“the

Government may not simply rely on assertions in a presentence report if those

assertions are contested by the defendant.”); United States v. Helmsley, 941 F.2d 71,

98 (2d Cir. 1991) (“If an inaccuracy is alleged [in the PSR], the court must make a

10

finding as to the controverted matter or refrain from taking that matter into

account in sentencing. If no such objection is made, however, the sentencing court

may rely on information contained in the report.”); United States v. Poor Bear, 359

F.3d 1038, 1041 (8th Cir. 2004) ("If the defendant objects to any of the factual

allegations . . . on which the government has the burden of proof, such as the base

offense level. . . the government must present evidence at the sentencing hearing to

prove the existence of the disputed facts."); United States v. Ameline, 409 F.3d 1073,

1085-86 (9th Cir. 2005) (en banc)(“However, when a defendant raises objections to

the PSR, the district court is obligated to resolve the factual dispute, and the

government bears the burden of proof . . . . The court may not simply rely on the

factual statements in the PSR. “); United States v. Martinez, 584 F.3d 1022, 1026

(11th Cir. 2009) (“It is now abundantly clear that once a defendant objects to a fact

contained in the [PSR], the government bears the burden of proving the disputed

fact by a preponderance of the evidence.”).

Parkerson contends that a rule that shifts the burden of production to the

defendant to rebut facts that have simply found their way into the PSR violates Due

Process. Parkerson also contends that the practice of shifting the burden to rebut

factual assertions in the PSR violated his Sixth Amendment right to right to

confrontation. Cross-examination represents “the greatest legal engine ever

invented for the discovery of truth.” California v. Green, 399 U.S. 149, 158 (1970).

And the “[i]nvolvement of government officers in the production of testimony with

an eye toward trial presents unique potential for prosecutorial abuse.” Crawford v.

11

Washington, 541 U.S. 36, 56, n.7 (2004). The text of the Sixth Amendment broadly

provides the right of confrontation “[i]n all criminal prosecutions,” without

limitation to the ascertainment of guilt or innocence. U.S. Const. Amendment VI.

Finally, this Court, as well as the Fifth Circuit, have recognized in the revocation

context a limited right to challenge unreliable hearsay evidence. See Morrissey v.

Brewer, 408 U.S. 471, 489 (1970); United States v. McCormick, 54 F.3d 214, 221 (5th

Cir. 1995). Revocation and sentencing present comparable liberty interests, and

ought to afford comparable due process protections – in both cases, the defendant’s

primary liberty interest has been extinguished by criminal conviction, but prison

time nonetheless depends on the outcome. In Mr. Parkerson’s case, The Fifth and

Sixth Amendments should have compelled live testimony, or at least verification

and corroboration sufficient to establish that the facts objected to satisfied the

reliability requirement.

C. Mr. Parkerson’s case presents an excellent vehicle to decide this

question.

In the present case, the author of the PSR merely took an incident report that

was made to the police and paraphrased the information in the PSR. Neither a

statement of the complainant or even the incident report were made a part of the

record. The record does not reflect that the PSR writer even talked to the officer

taking the report or the individual who filed the complaint. No charges were filed,

and of course there were no convictions based upon the information. Parkerson’s

trial attorney objected to the district court relying on the information. (ROA.116-

12

121). There is no question that the district court relied on the information as a basis

for the upward variance. (ROA.80,84,153).

The district court also relied upon an opinion from a psychologist with the

Texas Department of Criminal Justice (TDCJ) that Parkerson presented a high risk

of committing another sex offense. Parkerson’s attorney objected to this information

in the PSR and attached the result of a Static 99 test showing that Parkerson was

not a high risk of committing another sex offense, but was actually found to be a low

to moderate risk. (ROA.116-121,123-138). Accordingly, Parkerson presented

evidence showing that the TDCJ Psychologist’s opinion that was included in the

PSR was unreliable. However, the district court relied on the unreliable opinion,

although the court claimed to give it no more weight than the reliable Static 99 test

results.

The result of all of this was Parkerson received a statutory maximum

sentence of 120 months, essentially 100 months above the advisory imprisonment

range of 18-24, based upon information that was not shown to be sufficiently

reliable beyond the simple fact that it found its way into the PSR. With regard to

one piece of information, the psychologist’s opinion, Parkerson actually met his

burden to show that the information was not reliable. Yet, the government

presented nothing to verify or corroborate the facts that were objected to.

13

II. THE COURT BELOW AND OTHER FEDERAL COURTS OF

APPEALS HAVE REACHED SUBSTANTIALLY DIFFERENT

CONCLUSIONS REGARDING THE APPROPRIATE LEVEL OF

DEFERENCE TO BE ACCORDED THE DISTRICT COURT IN

SUBSTANTIVE REASONABLENESS REVIEW.

A. The circuits are in conflict.

The length of a federal sentence is determined by the district court’s

application of 18 U.S.C. §3553(a). United States v. Booker, 543 U.S. 220, 261 (2005).

A district court must impose a sentence that is adequate, but no greater than

necessary, to achieve the goals set forth in 18 U.S.C. §3553(a)(2). See 18 U.S.C.

§3553(a)(2). The district court’s compliance with this requirement is reviewed for

reasonableness. See Rita v. United States, 551 U.S. 338, 359. (2007).

In Gall v. United States, 552 U.S. 38 (2007), this Court emphasized that all

federal sentences, “whether inside, just outside, or significantly outside the

Guidelines range” are reviewed on appeal “under a deferential abuse-of-discretion

standard.” Gall, 552 U.S. at 41. It expanded further on this theme in Kimbrough v.

United States, 552 U.S. 85 (2007), holding that district courts enjoyed the power to

disagree with policy decisions of the Guidelines where those decisions were not

empirically founded. See Kimbrough, 552 U.S. at 109.

Nonetheless, the courts of appeals have taken divergent positions regarding

the extent of deference owed district courts when federal sentences are reviewed for

reasonableness. The Fifth Circuit flat-out prohibits “substantive second-guessing of

the sentencing court.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 767 (5th Cir.

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2008). In Mr. Parkerson’s case, the Fifth Circuit affirmed the sentence, specifically

stating “Under these circumstances, it is not our role to second-guess the district

court’s exercise of its sound discretion, and accordingly we find no error,” and “it

would be inappropriate of us to second-guess the district court’s application of the §

3553(a) factors.” Parkerson, 984 F.3d at 1132.

This approach contrasts sharply with the position of several other courts of

appeals. The Second Circuit has emphasized that it is not the case that “district

courts have a blank check to impose whatever sentences suit their fancy.” See United

States v. Jones, 531 F.3d 163, 174 (2d Cir. 2008). The Eleventh and Third Circuits

have likewise read Gall to “leave no doubt that an appellate court may still overturn

a substantively unreasonable sentence, albeit only after examining it through the

prism of abuse of discretion, and that appellate review has not been extinguished.”

United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008); accord United States v.

Levinson, 543 F.3d 190, 195-196 (3d Cir. 2008). These cases conform to the consensus

among the federal circuits that it remains appropriate to reverse at least some federal

sentences after Gall as substantively unreasonable. See United States v. OfrayCampos, 534 F.3d 1, 44 (1st Cir. 2008); United States v. Abu Ali, 528 F.3d 210, 269

(4th Cir. 2008); United States v. Funk, 534 F.3d 522, 530 (6th Cir. 2008); United States

v. Shy, 538 F.3d 933 (8th Cir. 2008).

These approaches cannot be squared. The Fifth Circuit understands Gall to

prohibit substantive second guessing; the majority of other circuits have issued

opinions that understand their roles as to do precisely that, albeit deferentially.

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B. The present case is the appropriate vehicle.

The present case is an appropriate vehicle to consider this conflict. Mr.

Parkerson’s advisory imprisonment range was 18-24 months. The sentencing court

imposed a statutory maximum sentence of 120 months. The sentencing court could

not have imposed a more severe upward variance. However, the Fifth Circuit almost

ignored the argument that the sentence was unreasonable, simply stating it would

be inappropriate to second-guess the sentence.

Title 18 U.S.C. § 3553(a) requires that, “[t]he court shall impose a sentence

sufficient, but not greater than necessary, to comply with the purposes set forth in

paragraph (2) of this subsection.” Section 3553(a) also requires a district court to

consider, “[T]he need to avoid unwarranted sentencing disparities among defendants

with similar records who have been found guilty of similar conduct . . .” 18 U.S.C. §

3553(a)(2)(6). This Court has instructed courts of appeals to review a district court’s

compliance with Section 3553 by the “reasonableness” standard. See Rita, 551 U.S.

at 359; and Gall, 552 U.S. at 41.

The Fifth Circuit has made it clear that it prohibits “substantive secondguessing of the sentencing court.” United States v. Cisneros-Gutierrez, 517 F.3d at

767. The Fifth Circuit has simply refused to conduct any reasonableness review by

re-visiting the weighing of sentencing factors. See United States v. Malone, 828 F.3d

331, 342 (5th Cir. 2016); United States v. Hernandez, 876 F.3d 161, 167 (5th Cir.

2017); United States v. Cotten, 650 Fed. Appx. 175, 178 (5th Cir. 2016) (unpublished);

United States v. Mosqueda, 437 Fed. Appx. 312, 312 (5th Cir. 2011) (unpublished);

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United States v. Turcios-Rivera, 583 Fed. Appx. 375, 376-377 (5th Cir. 2014); United

States v. Douglas, 667 Fed. Appx. 508, 509 (5th Cir. 2016) (unpublished).

The problem in this case, and the reason this Court should grant review, is

that the Petitioner received no reasonableness review from the court of appeals. Mr.

Parkerson fully preserved the sentencing issue at the trial court and presented this

issue for abuse of discretion – or reasonableness – review on appeal. The Fifth Circuit

affirmed the sentence without conducting any kind of reasonableness analysis or

weighing of the sentencing factors. Accordingly, the outcome of the case likely turns

on an appellate court’s refusal to engage in meaningful review of the reasonableness

of a criminal sentence. Review is warranted to address the practice of the Fifth Circuit

to refuse to apply the reasonableness review required by this Court, and to resolve

the division in the circuit courts in applying reasonableness review.

CONCLUSION

For all the foregoing reasons, the Petition for a writ of certiorari should be

granted.

Respectfully submitted this 11th day of June, 2021.

Respectfully submitted,

/s/ Christopher A. Curtis

CHRISTOPHER A. CURTIS

COUNSEL OF RECORD

FEDERAL PUBLIC DEFENDER’S OFFICE

NORTHERN DISTRICT OF TEXAS

819 TAYLOR STREET. ROOM 9A10

FORT WORTH, TEXAS 76102

(817) 978-2753

Chris_curtis@fd.org

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