Amicus Curiae Brief — Raymond Rodriguez-Rivera, Petitioner v. United States

No. 21-0143

In the Supreme Court of the United States

________________

RAYMOND RODRÍGUEZ-RIVERA,

Petitioner,

v.

UNITED STATES OF AMERICA.

________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

________________

BRIEF OF NATIONAL ASSOCIATION FOR

PUBLIC DEFENSE AND THE FLORIDA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AS AMICI

CURIAE SUPPORTING PETITIONER

________________

Emily Hughes

CO-CHAIR, NAPD AMICUS

COMMITTEE

Boyd Law Building

Iowa City, IA 52242

Counsel for NAPD

Diana L. Johnson

407 N. Laura Street

Jacksonville, FL 32202

Counsel for FACDL

September 2, 2021

J. Carl Cecere

Counsel of Record

CECERE PC

6035 McCommas Blvd.

Dallas, TX 75206

(469) 600-9455

ccecere@cecerepc.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Table of authorities ............................................................. II

Interest of amici curiae ....................................................... 1

Introduction and summary of argument .......................... 2

Argument ............................................................................. 6

I.

Resolving the meaning of “conspiring” in

§ 4B1.2(b) of the Sentencing Guidelines is an

issue of utmost importance. ........................................ 6

II. This case also implicates important questions

about the proper development of federal

criminal law. .................................................................. 9

III. This Court must answer these questions when

the Sentencing Commission cannot speak for

itself. ............................................................................ 17

Conclusion .......................................................................... 18

(I)

TABLE OF AUTHORITIES

Cases:

Borden v. United States,

141 S. Ct. 1817 (2021) ..................................................... 10

Braxton v. United States,

500 U.S. 344 (1991) ......................................................... 18

Esquivel-Quintana v. Sessions,

137 S. Ct. 1562 (2017) ......................................... 10, 11, 12

Johnson v. United States,

559 U.S. 133 (2010) ..................................................... 4, 12

Quarles v. United States,

139 S. Ct. 1872 (2019) ..................................................... 10

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ..................................................... 10

Shular v. United States,

140 S. Ct. 779 (2020) ............................................... passim

Stinson v. United States,

508 U.S. 36 (1993) ............................................................. 3

Stokeling v. United States,

139 S. Ct. 544 (2019) ....................................................... 10

Taylor v. United States,

495 U.S. 575, 598 (1990) ......................................... passim

United States v. Davis,

139 S. Ct. 2319 (2019) ..................................................... 11

United States v. García-Santana,

774 F.3d 528 (9th Cir. 2014) .............................................. 3

United States v. Martínez-Cruz,

836 F.3d 1305 (10th Cir. 2016) .................................... 3, 16

(II)

III

Cases—continued:

United States v. McCollum,

885 F.3d 300 (4th Cir. 2018) .............................................. 7

United States v. Newhouse,

919 F. Supp. 2d 955 (N.D. Iowa 2013) ............................. 9

United States v. Norman,

935 F.3d 232 (4th Cir. 2019) .............................................. 7

United States v. Rivera-Constantino,

798 F.3d 900 (9th Cir. 2015) ............................................ 14

United States v. Sanbria-Bueno,

549 F. App’x 434 (6th Cir. 2013) ..................................... 14

United States v. Shabani,

513 U.S. 10 (1994) ............................................................. 4

United States v. Stitt,

139 S. Ct. 399 (2018) ....................................................... 10

United States v. Tabb,

949 F.3d 81 (2d Cir. 2020) ............................................... 14

United States v. Whitley,

737 F. App’x 147 (4th Cir. 2018) (per curiam) ................ 7

Statutes:

The Armed Career Criminal Act, 18 U.S.C. §§

924(c) ................................................................................ 11

924(e)................................................................................ 10

924(e)(1) ........................................................................... 12

924(e)(2)(B)...................................................................... 12

924(e)(2)(A)(ii) ..................................................... 10, 11, 13

IV

Statutes—continued:

Financial Institutions Reform, Recovery, and

Enforcement Act of 1989, Pub. L. No. 101-73,

103 Stat. 183, 501, sec. 961(m) ....................................... 15

Immigration and Nationality Act, 8 U.S.C. §§

16(b) ................................................................................. 11

1101(a)(43)(A).................................................................. 10

1227(a)(2)(A)(iii) ........................................................ 10, 11

1229b(a)(3), (b)(1)(C) ...................................................... 11

15 U.S.C. § 77 ..................................................................... 16

18 U.S.C. §§

43(a)(2)(A) ....................................................................... 16

215 .................................................................................... 15

371 ................................................................................ 3, 16

656 .................................................................................... 15

657 .................................................................................... 15

1005 .................................................................................. 15

1006 .................................................................................. 15

1007 .................................................................................. 15

1014 .................................................................................. 15

1037(a)(5) ......................................................................... 16

1341 .................................................................................. 15

1343 .................................................................................. 15

1344 .................................................................................. 15

21 U.S.C. §§

841 .................................................................................... 14

846 ............................................................................ passim

V

Statutes—continued:

22 U.S.C. § 8809(b) ............................................................ 17

28 U.S.C. §§

991(a)................................................................................ 17

991(b)(1)(B). ...................................................................... 9

50 U.S.C. § 167k ................................................................. 16

U.S.S.G. §§

2K1.3(a)(1)-(2) ................................................................... 7

2K2.1 .................................................................................. 4

2K2.1(a)(1)-(4) ................................................................... 7

4B1.2 cmt. n.1. ............................................................... 3, 7

4B1.2(b).................................................................... passim

Other Authorities:

Black’s Law Dictionary (11th ed. 2019) ........................... 3

Wayne R. LaFave, Substantive Criminal Law

(3d ed. 2020) ...................................................................... 3

Model Penal Code § 5.03 ..................................................... 3

U.S. Sentencing Comm’n, Former

Commissioner Information,

https://tinyurl.com/3eaf5dcv .......................................... 17

U.S. Sentencing Comm’n, Quick Facts—Career

Offenders (Fiscal Year 2020) (USSC Quick

Facts), https://bit.ly/3gICl5u ........................................... 8

U.S.S.G., Guidelines Sentencing Table (2018

ed.), https://bit.ly/2Y86uVn.............................................. 8

In the Supreme Court of the United States

_______________

No. 21-0143

RAYMOND RODRÍGUEZ-RIVERA,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_______________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the First Circuit

________________

BRIEF OF NATIONAL ASSOCIATION FOR

PUBLIC DEFENSE AND THE FLORIDA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AS

AMICI CURIAE SUPPORTING PETITIONER

________________________

1

INTEREST OF AMICI CURIAE

The National Association for Public Defense

(NAPD) is an association of professionals dedicated to

securing the right to counsel and promoting equal access

1

Counsel for all parties received notice of amici curiae’s intent to

file this brief 10 days before its due date, and both Petitioner and

Respondent have consented to the filing of this brief. No counsel for

any party authored this brief in whole or in part, and no person or

entity other than the amici, their members, or their counsel made a

monetary contribution intended to fund the brief ’s preparation or

submission.

(1)

2

to justice in America’s criminal courts. NAPD brings together a wide range of professionals who play critical

roles in representing the accused. NAPD’s approximately 7,000 members include social workers, paralegals, legislative advocates, financial professionals, and administrative personnel, just to name a few categories.

The Florida Association of Criminal Defense

Lawyers (FACDL) is a non-profit statewide organization of criminal defense practitioners with twenty-eight

chapters and more than 2,000 members. FACDL strives

to be the unified voice of an inclusive criminal defense

community, to improve the criminal justice system at the

judicial, legislative, and executive levels, and to promote

the protection of the rights of individuals.

Amici have a deep interest in this case because resolution of the question presented will directly affect how

long many of their members’ clients will spend in prison.

NAPD also cares about this case because addressing the

question presented requires consideration of several

larger issues about interpreting federal laws that reference criminal offenses that are vitally important to the

proper development of federal criminal law more generally. And NAPD believes this Court must take them on

because the United States Sentencing Commission is

currently incapable of addressing them for itself because

it lacks a quorum of members.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The concept of criminal “conspiracy” appears many

times in criminal law, and it almost invariably requires

two things: an agreement to commit a crime and “an

overt act in furtherance of the plan.” See Wayne R.

LaFave, Substantive Criminal Law § 12.2(b) (3d ed.

3

2020). That two-element approach requiring an overt act

in furtherance of the conspiracy is what the casebooks

teach. Ibid. It is the definition recorded in Eleventh Edition of Black’s Law Dictionary (11th ed. 2019). It is the

conception that the Model Penal Code embraces for all

but the most serious crimes.2 It is the law in the “‘vast

majority of the States’ criminal codes” plus those of “the

District of Columbia, Guam, Puerto Rico, and the Virgin

Islands”—40 of 54 jurisdictions by one count. United

States v. Martínez-Cruz, 836 F.3d 1305, 1310-1311 (10th

Cir. 2016) (quoting United States v. García-Santana, 774

F.3d 528, 534-535 (9th Cir. 2014)). And it is also the version adopted in the general conspiracy provision of the

federal criminal code. 18 U.S.C. § 371. That two-element

concept of conspiracy is the paradigm drilled into every

first-year law student.

Yet that was not the version of conspiracy that the

First Circuit adopted in interpreting the United States

Sentencing Guidelines’ definition of “controlled substance offense[s].” U.S.S.G. § 4B1.2(b). The United

States Sentencing Commission’s “authoritative” Commentary to the Guidelines, Stinson v. United States, 508

U.S. 36, 38 (1993), defines “controlled substance offense”

to “include” three classic inchoate crimes: “the offenses

of aiding and abetting, conspiring, and attempting to

commit” controlled substance offenses. U.S.S.G. § 4B1.2

cmt. n.1.

2

Model Penal Code § 5.03(5) (“No person may be convicted of

conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is

alleged and proved to have been done by him or by a person with

whom he conspired.”).

4

The Commentary did not define the term “conspiring.” And when federal courts are faced with such a term

in a federal law (or rule with the force of law) that “refers generally to an offense without specifying its elements,” Shular v. United States, 140 S. Ct. 779, 783

(2020), this Court has directed them to apply a “categorical approach” to determine its elements by reference to

the “generic, contemporary meaning” of the offense.

Taylor v. United States, 495 U.S. 575, 598, 600 (1990).

But the court below opted against Taylor’s categorical approach in determining the definition of conspiracy

referenced in § 4B1.2(b)’s controlled-substance offense

provision. And it gave no weight to the obvious, generic,

near-universal contemporary paradigm definition of the

offense in determining the definition of the term. Instead, it concluded that “the offense” of “conspiring”

referenced in § 4B1.2(b) did not reference an offense at

all, but instead referred to “conduct.” Pet. App. 13a. And

based on that conclusion, it stripped an essential element

from the concept of conspiracy.

The court of appeals held that a prior conspiracy

conviction falls within § 4B1.2(b) even if it does not require the defendant to take any overt action in furtherance of the conspiracy. Taking part in its planning is

enough. And it determined that Petitioner’s prior conviction under the Controlled Substance Act’s conspiracy

provision, 21 U.S.C. § 846, satisfied § 4B1.2(b), and enhanced Petitioner’s sentence under U.S.S.G. § 2K2.1,

although § 846 contains no “overt act” requirement,

United States v. Shabani, 513 U.S. 10, 15 (1994). Pet.

App. 6a, 12a.

The court below concluded this result was dictated

by two of this Court’s decisions: Johnson v. United

States, 559 U.S. 133 (2010) and Shular v. United States,

5

both of which found federal laws to reference “conduct”

not “offenses,” and therefore determined Taylor’s categorical approach to be unhelpful in interpreting them.

Pet. App. 8a, 10a, 11a. But the court drew exactly the

wrong lessons from these two cases. Both reinforce the

same principle that the question whether federal law

references “conduct” or an “offense” depends upon an

examination of text. And the text of the Guidelines gave

every indication that the Commission meant exactly

what it said in referencing “the offense” of “conspiring”

in § 4B1.2(b)—that it was referencing an offense.

The court below threw that text right out the window,

resolving the case instead on suppositions about what

the Sentencing Commission must have been trying to

accomplish with the text. The court gave dispositive

weight to the notion that “it would be odd indeed if the

definition of a controlled substance offense excluded the

only form of conspiracy prohibited by the [federal] Controlled Substances Act itself” in § 846. Pet. App. at 8a.

Disliking the lack of symmetry between the scope of the

term “conspiring” in § 4B1.2(b)’s definition of controlled

substances offense and the scope of conspiracy in § 846,

the court assumed without evidence that the Commission would too. The court thus stretched a reference to

“conspiring” in § 4B1.2(b) applicable to a broad range of

conspiracy offenses to capture one particular conspiracy

offense. And it joined a number of other circuits that

have similarly followed purposive readings of

§ 4B1.2(b)’s Commentary to reach results at odds with

its plain text.

It is vital for this Court to step in and correct this

plainly erroneous result. Plenary review is essential to

rectify the circuit conflict and ensure the uniformity the

Guidelines intended. And the Court’s intervention is

6

needed to reverse an interpretation of § 4B1.2(b) that

subjects criminal defendants to much greater sentences,

for far less culpable conduct, than the Commission intended.

But perhaps most fundamentally of all, the Court

must intervene to halt the disturbing trend running

through decisions interpreting § 4B1.2(b) of allowing naked suppositions about what the Sentencing Commission

meant to overtake the text the Commission wrote. This

Court cannot tolerate this perverse inversion of lenity, in

which purpose expands the amount of time a person

must spend in prison beyond what plain text permits.

Plenary review is necessary to correct it. And it is even

more necessary when the Commission currently lacks a

quorum, has not had one in five years and is therefore

incapable of doing the job itself. Only this Court can

solve this problem.

The petition should be granted.

ARGUMENT

I.

Resolving the meaning of “conspiring” in

§ 4B1.2(b) of the Sentencing Guidelines is an

issue of utmost importance.

This case is suffused with important implications that

make it deserving of this Court’s review. First, of course,

is the fact that the basis for the court of appeals’ decision, which improperly tying the definition of “conspiring” referenced in § 4B1.2(b) to the scope of conspiracy

prohibited under § 846 of the Controlled Substances Act,

leads to results that are grossly unfair to federal defendants. And that unfairness ripples through all of federal

criminal sentencing.

7

A. As a result of the First Circuit’s decision, and

those on its side of the split, far more federal defendants’

sentences are subject to enhancement than the plain text

of § 4B1.2(b)’s Commentary permits. The single-element

concept of conspiracy the First Circuit adopted “‘criminalizes a broader range of conduct than that covered by

a generic conspiracy,’” and therefore brings a greater

number of prior convictions within § 4B1.2(b)’s scope

than if the court below had applied Taylor’s categorical

approach and adopted the familiar two-element version

of conspiracy instead. United States v. Whitley, 737 F.

App’x 147, 149 (4th Cir. 2018) (per curiam) (quoting

United States v. McCollum, 885 F.3d 300, 309 (4th Cir.

2018)); United States v. Norman, 935 F.3d 232, 237-238

(4th Cir. 2019) (same).

That expansion is not confined to prior controlled

substance offenses either. The Commentary’s reference

to “the offense” of “conspiring” also applies to the Guidelines’ definition of “crime[s] of violence.” U.S.S.G. §

4B1.2 cmt. n.1. And both categories of prior offenses—

“controlled substance offense” and “crime of violence”—

trigger sentencing enhancements in numerous areas of

the Guidelines, adding to sentences for firearm offenses

(U.S.S.G. § 2K2.1(a)(1)-(4)) and explosives offenses (id. §

2K1.3(a)(1)-(2)), and counting towards “Career Offender” enhancements too (id. § 4B1.1). The lower court’s

erroneous interpretation of the Commentary therefore

affects a broad swath of federal sentencing.

B. The resulting effects on individual sentences can

be arbitrary and severe. Omitting the requirement that

a defendant commit an overt act in furtherance of the

conspiracy means that defendants can see their sentences increased based on prior offenses for low-level conduct that did not even require the defendant to get off

8

the couch and is not even considered illegal in the vast

majority of jurisdictions.

Yet this low-culpability conduct can trigger massive

increases in a defendant’s sentence. Attaching hard

numbers to the effect is difficult, owing to the many variables that drive a sentence’s length under the Guidelines. But for Petitioner, it added six to eight months to

the top and bottom of his guidelines sentencing range.

Pet. App. 5a.

And the effects on other criminal defendants could be

far worse, if the Sentencing Commission’s recent statistical survey of sentences for “career offenders” is any

guide. See U.S. Sentencing Comm’n, Quick Facts—

Career Offenders (Fiscal Year 2020) (USSC Quick

Facts), https://bit.ly/3gICl5u. As explained above, the

Guidelines’ “career offender” enhancement under

§ 4B1.1 is triggered by either a “controlled substance

offense” or “crime of violence,” both of which are subject

to the First Circuit’s impermissibly broad conspiracy

definition.

On average, almost half of those subject to a “career

criminal” enhancement see increases in both their final

offense levels and criminal history categories. U.S.S.C.

Quick Facts 1. Most defendants see their criminal offense categories increase from 23 to 31, ibid., which

more than doubles the top and bottom of the sentencing

range across all criminal offense categories. See

U.S.S.G., Guidelines Sentencing Table (2018 ed.),

https://bit.ly/2Y86uVn. And most see their criminal offense category increase two levels. See U.S.S.C. Quick

Facts 2. That can produce “staggering and mindnumbing” sentencing enhancements, which in one case

increased both the top and bottom end of a defendant’s

sentencing range almost four-fold, “from 70–87 months”

9

to “262 to 327 months.” United States v. Newhouse, 919

F. Supp. 2d 955, 958 (N.D. Iowa 2013). And that is just

one example.

C. This risk of substantial sentencing increases based

on low-level prior offenses created by the lower court’s

erroneous interpretation of § 4B1.2(b) cannot be tolerated. And these intolerable effects on criminal defendants’

sentences are made worse by the geographic arbitrariness resulting from the circuit conflict. One defendant

might receive an effective life sentence based on a prior

conspiracy offense in one federal court when the same

offense, based on the same conduct, would produce no

enhancement in another. And defendants in the circuits

that have not resolved the question—the Third and the

Eleventh—face the uncertainty of not knowing the effect

their prior offenses will have on their sentences at the

time they enter a plea. These inconsistencies and imbalances undermine the “certainty and fairness” the Sentencing Guidelines were meant to promote and create

the “unwarranted sentencing disparities” the Guidelines

were meant to combat. 28 U.S.C. § 991(b)(1)(B). This

Court’s review is therefore necessary to resolve the split

in the circuits and restore balance in federal sentencing.

II. This case also implicates important questions

about the proper development of federal criminal

law.

Beyond these immediate harmful effects of the First

Circuit’s erroneous interpretation of 4B1.2(b), which cry

out for this Court’s intervention, the Court needs to take

this case to set the development of federal criminal law

on the right course.

A. In recent years, this Court has devoted substantial time to the project of defining the ground rules for

10

applying Taylor and its categorical approach, taking on

seven different cases over the past five terms in pursuit

of that project. That includes the numerous times in

which the Court has stepped to provide guidance on how

Taylor’s categorical inquiry should be conducted.3 But it

also includes instances in which the Court has intervened to explain whether Taylor’s categorical approach

should be applied, and how to discern the dividing line

between an “offense” and “conduct” that controls the

inquiry.4

3

See Borden v. United States, 141 S. Ct. 1817, 1821, 1822 (2021)

(applying Taylor’s categorical approach in determining that a criminal offense that can be committed with a mens rea of recklessness

cannot qualify under the mandatory minimum for a “violent felony”

under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e));

Stokeling v. United States, 139 S. Ct. 544, 549, 550 (2019) (applying

the categorical approach in determining that “violent felony” in §

924(e) includes a state robbery offense that “requires the use of

force sufficient to overcome a victim’s resistance”); Quarles v. United States, 139 S. Ct. 1872, 1875 (2019) (applying Taylor’s categorical

definition of “burglary,” one form of “violent felony” satisfying §

924(e) and determining that it does not require the defendant to

have intent to commit a crime at the time of unlawful entry); United

States v. Stitt, 139 S. Ct. 399, 403-404, 405 (2018) (concluding that

Taylor’s generic categorical definition of burglary includes burglary

of a structure or vehicle that has been adapted to or is customarily

used for overnight accommodation); Esquivel-Quintana v. Sessions,

137 S. Ct. 1562, 1567-1568 (2017) (applying Taylor’s categorical approach in determining that a state conviction did not constitute

“sexual abuse of a minor,” an “aggravated felony” making an alien

removable under the Immigration and Nationality Act, 8 U.S.C. §§

1101(a)(43)(A); 1227(a)(2)(A)(iii)).

4

Shular, 140 S. Ct. at 782, 783-784 (declining to apply Taylor’s

categorical approach in determining the meaning of “serious drug

offense” under the ACCA, 18 U.S.C. § 924(e)(2)(A)(ii)); Sessions v.

Dimaya, 138 S. Ct. 1204, 1210-1211, 1216 (2018) (holding the “resid-

11

The Court needs to further clarify that line, although

it should have been clear already. After all, Shular instructed lower courts that determining whether a federal law references an offense or conduct requires looking

to “common-law history and widespread usage,” 140 S.

Ct. at 785, and Esquivel-Quintana reinforced the point

by referencing the relevance of “the normal tools of interpretation” in the inquiry, 137 S. Ct. at 1569.

Shular applied those text-based rules to determine

that ACCA’s reference to “an offense under State law,

involving manufacturing, distributing, or possessing

with intent to manufacture or distribute, a controlled

substance,” 18 U.S.C. § 924(e)(2)(A)(ii), described conduct, not offenses, because the terms manufacturing,

distributing, and possessing were “unlikely names for

generic offenses.” 140 S. Ct. at 785. Shular therefore left

no doubt that the determination whether a federal law

references an offense or conduct turns on whether the

law actually names a long-understood offense, like conspiracy, or conduct, like manufacturing. See Pet. 24-25.

That inquiry turns on text—the meaning of words and

their surrounding context—not purposive supposition in

conflict with the text. Johnson too drove that point

ual clause” in 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal

from the United States, 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1229b(a)(3),

(b)(1)(C), to be unconstitutionally vague, and rejecting the Government’s argument that the statute could be saved by interpreting it

to refer to “conduct” rather than an “offense” subject to the categorical approach); United States v. Davis, 139 S. Ct. 2319, 2323,

2326-2327 (2019) (applying Dimaya’s approach to hold that 18

U.S.C. § 924(c)’s residual clause, like the identical residual clause in

§ 16(b), is unconstitutionally vague because it requires an ordinarycase categorical approach to identifying a “crime of violence”).

12

home. When the Court found the categorical definition of

battery unhelpful in interpreting the phrase “physical

force” in ACCA’s definition of a “violent felony,” 18

U.S.C. §§ 924(e)(1), (e)(2)(B), it did so because the inquiry was textually confined to felonies while the generic

definition of battery is a misdemeanor. 559 U.S. at 138140, 141. The text, not abstract theorizing, controlled the

inquiry.

B. An appropriately text-focused inquiry should have

also resolved this case because all the textual clues in

§ 4B1.2(b) point in the same direction: that the Commission intended to adopt the familiar, widely accepted, twoelement conception of conspiracy when it referred to

“the offense” of “conspiring” in § 4B1.2(b). These start,

of course, with the fact that the comment uses the word

“offense” to describe the term, and the fact that it appeared in a list with other offenses. There is also the

Commentators’ use of the definite article “the” to suggest reference to a defined, well-understood thing, which

is further reinforced by the term “including,” which appears in front of the whole sequence of offenses listed in

the comment, suggesting that each referred to defined

things. And of course, there is the fact that the term

“conspiracy” enjoys as “widespread” a usage and as

much depth in “common-law history” as any term in

criminal law. Shular, 140 S. Ct. at 785. The familiar principles of textual interpretation required by Shular,

Johnson, and Esquival-Quintana therefore permit only

one inference: the Commission was referencing a defined thing, the offense of conspiracy, with its familiar

dual elements.

But apparently these principles need further reinforcing because the First Circuit rejected each of these

textual clues in concluding that § 4B1.2(b) referenced

13

conspiratorial conduct, not an offense. And it concluded

that Shular provided it invitation to do so. That is because the court below read Shular as imposing a rule of

proximity: It assumed that because Shular found ACCA’s definition of “serious drug offense,” 18 U.S.C. §

924(e)(2)(A)(ii), to reference conduct, anything close to

that statute would reference conduct too. The court noted that the Commentary’s use of “include[ ]” “is not so

far from” the word “involve[ ]” used in ACCA. Pet. App.

13a. The court then assumed that the Commentary’s use

of a “formulation” of words with a rhythm similar to

ACCA’s somehow “reinforced” the idea that the Commentary referred to conduct. Pet. App. 11a-12a. And it

noted that the Commentary describing “the offense” of

conspiring in § 4B1.2(b) modified a definition of “controlled substance offense” that contained words like

ACCA’s—words like “manufacture” and distribution.

Pet. App. 12a. And even though “conspiring” was not

among those words, the court deemed its physical proximity to language like ACCA’s close enough to suggest it

referenced conduct.

That was a serious mistake. When it comes to the

familiar tools of textual construction, close is not good

enough. “Include” is not close to “involve.” They mean

completely different things. Pet. 29. And no matter how

physically close on the page “conspiring” might appear

to terms that Shular determined to reference conduct,

that proximity cannot make “conspiring” any less an offense, or any more conduct. The Court therefore needs

to clarify that Shular focuses on text—not as some obstacle to be blurred out of existence to create room for

speculation, but as the exclusive tool for determining

whether conduct qualifies as an offense and thereby becomes subject to Taylor’s categorical approach.

14

C. Yet perhaps even more importantly, the Court

must intervene to halt a troublesome trend among the

circuits on the First Circuit’s side of the split. These circuits unite around the notion that speculation about the

Commission’s aims trumps the Guidelines’ text. That

notion presents a serious threat to the separation of

powers and is especially pernicious when such speculation serves to deprive individuals of their liberty by adding substantially more time to a criminal sentence than

the law allows.

Worse, the circuits’ speculation about the Commission’s aims is bad speculation. It assumes the Commission desired for § 4B1.2 definition of conspiracy to match

the definition of conspiracy in § 846 of the Controlled

Substance Act.5 But the evidence suggests otherwise.

There is no reason to assume that the Commission

was guided by any particular statutory definition in

fashioning § 4B1.2, which adopts a definition of conspiracy designed to apply to a broad range of prior offenses.

For such a generic and broadly applicable sentencing

5

Pet. App. 8a (“[I]t would be odd indeed if the definition of a

controlled substance offense excluded the only form of conspiracy

prohibited by the [federal] Controlled Substances Act itself.”);

United States v. Tabb, 949 F.3d 81, 88 (2d Cir. 2020) (deeming it “patently evident” that that the Guidelines’ definition “was intended to

and does encompass Section 846 narcotics conspiracy”); United

States v. Rivera-Constantino, 798 F.3d 900, 904-905 (9th Cir. 2015)

(concluding it would have been “downright absurd” to believe the

Sentencing Commission excluded “a federal conviction for a drug

trafficking offense under federal law.” United States v. SanbriaBueno, 549 F. App’x 434, 438-439 (6th Cir. 2013) (concluding that the

Commission “expressly intended that a conviction under 21 U.S.C.

§ 846 for conspiracy to commit a federal drug offense proscribed by

§ 841” would qualify).

15

provision, it is far more natural to assume that Commission adopted the virtually universal generic version of

conspiracy that every law student understands. That after all, is the wisdom behind Taylor’s categorical approach.

And even if the Commission sought in drafting

§ 4B1.2’s Commentary to create symmetry between federal offenses and federal sentencing, there is no particular reason why it would latch onto federal drug offenses

as the paradigm that the Guidelines should emulate. After all, the word “conspiring” in § 4B1.2 Commentary does not refer only to “controlled substance offenses,” but applies to “crimes of violence” as well.

Nor is there any reason why the Commission would

pick § 846 as the end-all-be-all guide for defining a federal conspiracy. After all, while Congress has occasionally directed the Commission to fashion sentencing guidelines for particular conspiracy offenses, it has never requested the Commission do so for § 846.6 A Commission

6

In Section 961(m) of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub. L. No. 101-73, 103 Stat.

183, 501, Congress directed the commission to promulgate guidelines, or amend existing guidelines, to provide for a substantial period of incarceration for a violation of, or a conspiracy to violate, § 215

[receipt of commissions or gifts for procuring loans], 656 [theft, embezzlement, or misapplication by bank officer or employee], 657

[embezzlement by employees and agents of lending, credit, and insurance institutions], 1005 [unauthorized bank entries, reports, and

transactions], 1006 [fraudulent federal credit institution entries,

reports and transactions], 1007 [improper influence of Federal Deposit Insurance Corporation transactions], 1014 [false statements in

loan and credit applications and for crop insurance], 1341 [mail

fraud], 1343 [wire fraud], or 1344 [bank fraud] of title 18, United

States Code, that substantially jeopardizes the safety and soundness of a federally insured financial institution.

16

appropriately taking its cues from Congress would have

never focused on § 846’s definition of conspiracy to the

exclusion of every conspiracy provision that Congress

actually directed it to consider.

And even when it comes to federal drug conspiracy

laws, there is no reason why the Commission would single out § 846, when 18 U.S.C. § 371, the general federal

conspiracy statute, also includes drug crimes as well as

non-drug federal crimes. And § 371 requires “proof of an

overt act.” United States v. Martinez-Cruz, 836 F.3d at

1313.

Finally, even if it was the Commission’s goal to line

up federal offenses and federal sentencing, it is doubtful

that it would have modeled the Guidelines on any singleelement definition of conspiracy adopted under any federal law, since most federal statutes employing a singleelement definition criminalize only “very narrow behavior” that would prove little use in crafting a broadly applicable rule of conspiracy. United States v. MartinezCruz, 836 F.3d at 1311 n.5.

For instance, the single-element federal statutes that

do not require an overt act for a conspiracy conviction

include such crimes as “conspiracy to falsely represent

oneself as the registrant of five or more Internet Protocol addresses and to initiate commercial electronic mail

messages from those addresses” (18 U.S.C. § 1037(a)(5)),

“conspiracy to furnish facilities or privileges to ships or

persons contrary to a presidential proclamation,” (15

U.S.C. § 77), “conspiracy to damage or interfere with the

operations of an animal enterprise by property damage”

(18 U.S.C. § 43(a)(2)(A)), “conspiracy to violate provisions regulating helium gas,” (50 U.S.C. § 167k), and

“conspiracy to violate statutory provisions or regulations

related to Iran freedom and counterproliferation,” (22

17

U.S.C. § 8809(b)). A Commission trying to develop a

generally applicable definition of conspiracy would not

have reached for a version applicable only to a statute

criminalizing conspiracy to steal helium gas.

This evidence overwhelmingly demonstrates that the

Commission had nothing like § 846’s definition of conspiracy in mind when it referenced § 4B1.2’s “offense” of

“conspiring.” And for the good of the criminal defendants subject to prior conspiracy offenses under § 4B1.2,

and the good of the separation of powers, this Court

needs to take this case to say so.

III. This Court must answer these questions when

the Sentencing Commission cannot speak for

itself.

It is vitally important that the Court intervene to answer these questions, because the Commission is currently incapable of answering them for itself. The Commission has lacked a quorum since 2018, and currently

has only one active member.7 And because only four

Commission members may come from the same political

party, 28 U.S.C. § 991(a), there are serious questions

about when—or if—a closely divided and polarized Senate would confirm enough members to allow the Commission to reconvene. That same statutorily imposed

gridlock will also make it hard for a reconvened Commission to reach a consensus on § 4B1.2’s scope. Accordingly, for the first time in its history, the Commission is

unable to act, and no one knows when it will be able to

act.

7

See U.S. Sentencing Comm’n, Former Commissioner Information, https://tinyurl.com/3eaf5dcv.

18

The Court has always stated that the Commission

should have an initial opportunity to clarify the Guidelines before federal courts step in to do so. See Braxton

v. United States, 500 U.S. 344, 348 (1991). But that traditional deference has always presupposed a Commission

that could act. Any principle favoring deference to the

Commission breaks down when no Commission exists.

The clients of amicus’s members should not be made to

wait for a resolution of § 4B1.2’s scope that the Commission may never be able to provide. It is therefore up to

this Court, and this Court alone, to address the question

presented and resolve the split in the circuits. And the

Court needs to grant the petition to do so.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

Emily Hughes

CO-CHAIR, NAPD AMICUS

COMMITTEE

Boyd Law Building

Iowa City, IA 52242

Counsel for NAPD

Diana L. Johnson

407 N. Laura Street

Jacksonville, FL 32202

Counsel for FACDL

September 2, 2021

J. Carl Cecere

Counsel of Record

CECERE PC

6035 McCommas Blvd.

Dallas, TX 75206

(469) 600-9455

ccecere@cecerepc.com

Counsel for Amici Curiae