Petition for Writ of Certiorari — Jonathan Mark Brinda, Petitioner v. United States

No,

IN THE SUPREME COURT OF THE UNITED STATES

UNITED STATES OF AMERICA,

RESPONDANT,

V.

JONATHAN BRINDA,

PETITIONER.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OFAPPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Manuel B. Russ

340 21st Avenue North

Nashville, Tennessee 37203

(615) 329-1919

QUESTIONS PRESENTED

A. AFTER DETERMINING MR. BRINDA HAD VIOLATED THE

TERMS OF HIS SUPERVISED RELEASE, THE DISTRICT

COURT ERRED BY SENTENCING MR. BRINDA

EXCESSIVELY

BASED

ON

THE

STATUTORY

CONSIDERATIONS IN 18 U.S.C. §3553(a) AND IN IMPOSING

AN EXCESSIVE TERM OF SUPERVISED RELEASE.

TABLE OF AUTHORITIES

CASES

Gall v. United States, 128 S. Ct. 586, (2007)

PAGE

4, 6, 8, 12

Nelson v United States, 555 U.S. 350, (2009)............................................

9

Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203

(2007).....................................................................................

4

United States v. Bolds, 511 F.3d 568, (6th Cir.2007)

4, 9, 12

United States v. Booker, 543 U.S. 220, (2005)...........

8

United States v. Carty, 520 F.3d 984, (9th Cir. 2008)

5

United States v. Conatser, 514 F.3d 508, (6th Cir.2008)

12

United States v. Coppenger, 775 F.3d 799, (6th Cir. 2015)

5

United States v. Curry, 536 F.3d 571, (6th Cir. 2008)

5

United States v Gapinski, 561 F.3d 467, (6th Cir. 2009).............

10-11

United States v. Herrera—Zuniga, 571 F.3d 568, (6th Cir.2009)

12

United States v. Jackson, 408 F.3d 301, (6th Cir.2005)...............

10

United States v. Jones, 489 F.3d 243, (6th Cir. 2007)

6

United States v. Liou, 491 F.3d 334, (6th Cir. 2007)..

6

United States v. Pirosko, 787 F.3d 358, (6th Cir. 2015)

5

United States v. Tristan-Madrigal, 601 F.3d 629, (6th Cir.2010)

12

United States v. Webb, 403 F.3d 373, (6th Cir. 2005)

6

United States v. Smith, 516 F.3d 473, (6th Cir.2008)

6

ii

STATUTES

United States Code 18 § 3553

-7, 9-10, 12-13

APPENDICES

6th Circuit Court of Appeals Opinion

Appendix A

District Court Judgment

Appendix B

iii

I. OPINIONS BELOW

The reported opinion of the Court of Appeals for the Sixth Circuit and the

judgment of conviction in the United States District Court for the Eastern District of

Tennessee are attached to this petition as the Appendix.

II. JURISDICTION

The judgment of the Court of Appeals for the Sixth Circuit was entered on April

2nd, 2021. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(l), the

petitioner having asserted below and asserting in this petition the deprivation of

rights secured by the United States Constitution.

III.

STATUTORY PROVISIONS INVOLVED

This matter involves violations of the United States Code, specifically, 21 U.S.C.

§ 843(a)(6) and (d)(2), 21 U.S.C. § 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 922(g)(1).

IV.

STATEMENT OF THE CASE

A. Procedural Background

The matter was briefed for the Sixth Circuit Court of Appeals and, after

considering the matter on the briefs submitted, the Court issued an Opinion dated

April 2nd, 2021, denying all relief, which has been appended to this Petition below.

Mr. Brinda now makes this timely application.

B.

Statement of Facts

Mr. Brinda was alleged to have violated his supervised release and an

evidentiary hearing was conducted on November 20th, 2020, to determine his guilt as

well as any punishment that might be applicable if any violations were substantiated.

1

At that hearing, the Government called Mr. Reshard Montgomery of the United

States Probation office as a witness and he testified that Mr. Brinda was one of his

probationers and was considered to be on the “high-risk” caseload due to the nature

of his offense, the risk to re-offend and his previous revocations. (R. 96, Revocation

Hearing Transcript, PagelD# 382)

Mr. Montgomery stated Mr. Brinda was to

maintain a “risk book” related to thoughts he may have had about sex or sexualizing

minor children. (R. 96, Revocation Hearing Transcript, PagelD# 383) Mr. Brinda, as

a condition of his supervised release, was required to submit to polygraph

examinations when he was indicated as deceptive on an examination from February

of 2020 and admitted to brushing against a minor at a Walmart as well as having

sexual thoughts about underage girls to the polygraph examiner.1 (R. 96, Revocation

Hearing Transcript, PagelD# 384-385) Mr. Brinda later admitted this, as well as to

masturbating to thoughts of underage females, to Mr. Montgomery and admitted to

failing to document this properly to the probation office. (R. 96, Revocation Hearing

Transcript, PagelD# 385-386) Based on this, Mr. Brinda was prohibited from going

to the Walmart but was subsequently seen by law enforcement in Walmart on June

30th, 2020.

(R. 96, Revocation Hearing Transcript, PagelD# 387-388)

When

confronted about this, Mr. Brinda initially denied being in the Walmart, but later

admitted it to the probation office. (R. 96, Revocation Hearing Transcript, PagelD#

388-389)

1 The parties reference various pieces of information included in the violation petition that is contained in Docket

Entry 77, but the document was never explicitly made an exhibit to the evidentiary hearing.

2

After this, Mr. Brinda was placed on electronic monitoring and on August 2nd,

2020, on August 21st, and on September 18th, the probation office was notified that

his device had been “tampered” with, allegations that Mr. Brinda did not entirely

agree with, but did not wholly deny. (R. 96, Revocation Hearing Transcript, PagelD#

390-393) An examination of the device conducted at the request of the Government

showed no “internal damage” to the unit. (R. 96, Revocation Hearing Transcript,

PagelD# 393)

When cross-examined, Mr. Montgomery agreed that Mr. Brinda had expressed

to him in the past that he was depressed and had thoughts of suicide and he was

referred by probation for counseling based on that.

(R. 96, Revocation Hearing

Transcript, PagelD# 393-394) He agreed that Mr. Brinda cares for his father and

told him that, in the second incident from July of 2020, he had been taking his father

to Walmart. (R. 96, Revocation Hearing Transcript, PagelD# 394) Mr. Montgomery

explained that for a “strap tamper” to register with the electronic monitoring unit, it

would have to be moved “rigorously” and cell tower disruption would not cause this.

(R. 96, Revocation Hearing Transcript, PagelD# 395) He elaborated that being out

of range of the monitoring device would also fail to trigger a “strap tamper” alert. (R.

96, Revocation Hearing Transcript, PagelD# 396-397)

Various photos of the monitoring device were displayed to the Court and the

Government’s attorney alleged that various markings indicated attempts by Mr.

Brinda to tamper with the device. (R. 96, Revocation Hearing Transcript, PagelD#

398-399; Ex. #l)

3

Mr. Brinda’s counsel proffered various statements and evidence to the Court

without objection by the Government. He informed the Court that Mr. Brinda was

his father’s caretaker and, since his incarceration for these violations, his father had

to be hospitalized multiple times. He also informed the Court that Mr. Brinda is

seeking disability benefits for his own health issues and he suffers from depression

and suicidal thoughts. (R. 96, Revocation Hearing Transcript, PagelD# 399-400)

Mr. Brinda allocuted at the hearing. He indicated that he had manipulated

the strap of the device due to discomfort caused by bug bites he got during his work.

(R. 96, Revocation Hearing Transcript, PagelD# 406-407) He also informed the Court

that his father was 89 years old and in need of care and he had various medical issues,

including being tested for potential prostate cancer, that he had to deal with. (R. 96,

Revocation Hearing Transcript, PagelD# 407)

STANDARDS OF REVIEW

A district court’s sentencing decisions are reviewed for abuse of discretion. See

Gall v. United States, 552 U.S. 38, 49 (2007). A sentence imposed by the District

Court after the revocation of supervised release is likewise reviewed for procedural

and substantive reasonableness under the same abuse-of-discretion standard. United

States v. Bolds, 511 F. 3d 568, 578 (6th Cir. 2007).

Sentences imposed by the District Court are reviewed for reasonableness, and

only a procedurally erroneous or substantively unreasonable sentence will be set

aside. See Gall, 552 U.S. at 46; Rita v. United States, 551 U.S. 338, 351 (2007). A

sentence is procedurally unreasonable if the district court “failed to calculate the

4

Guidelines range properly; treated the Guidelines as mandatory; failed to consider

the factors prescribed at 18 U.S.C. § 3553(a); based the sentence on clearly erroneous

facts; or failed to adequately explain the sentence.” United States v. Coppenger, 775

F.3d 799, 803 (6th Cir. 2015).

The substantive reasonableness of a sentence is

reviewed under an abuse-of-discretion standard. United States v. Curry, 536 F.3d

571, 573 (6th Cir. 2008). A sentence may be substantively unreasonable if the

sentencing court “imposed a sentence arbitrarily, based on impermissible factors, or

unreasonably weighed a pertinent factor.” Coppenger, 775 F.3d at 803. “Sentences

within a defendant’s Guidelines range are presumptively substantively reasonable.”

United States v. Pirosko, 787 F.3d 358, 374 (6th Cir. 2015). Once the district court

determines the proper sentence for an individual defendant, the district court must

sufficiently explain the sentence to permit meaningful appellate review.

United

States v. Carty, 520 F.3d 984, 992(9th Cir. 2008) (en banc).

SUMMARY OF ARGUMENT

The District Court erred when it failed to adequately account for the

sentencing factors outlined in 18 U.S.C. §3553(a) when crafting Mr. Brinda’s

individual sentence of nine months imprisonment after determining he had violated

his supervised release. The District Court further erred when it imposed a 10-year

period of supervised release following his custodial sentence.

5

ARGUMENT

A. AFTER DETERMINING MR. BRINDA HAD VIOLATED THE

TERMS OF HIS SUPERVISED RELEASE, THE DISTRICT COURT

ERRED BY SENTENCING MR. BRINDA EXCESSIVELY BASED ON

THE STATUTORY CONSIDERATIONS IN 18 U.S.C. §3553(a) AND IN

IMPOSING AN EXCESSIVE TERM OF SUPERVISED RELEASE

The reasonableness of a district court's sentence “has both substantive and

procedural components.”

United States v. Jones, 489 F.3d 243, 250 (6th Cir. 2007).

This Court’s inquiry into the reasonableness of the sentence requires a review “into

both ‘the length of the sentence’ and ‘the factors evaluated and the procedures

employed by the district court in reaching its sentencing determination.’” United

States v. Liou, 491 F.3d 334, 338 (6th Cir. 2007) (quoting United States v. Webb, 403

F.3d 373, 383 (6th Cir. 2005)). When the Court conducts this review, it should “‘first

ensure that the district court committed no significant procedural error’ and ‘then

consider the substantive reasonableness of the sentence imposed under an abuse-ofdiscretion standard.’” United States v. Smith, 516 F.3d 473, 476 (6th Cir.2008)

Cquoting Gall, 128 S.Ct. at 597). Prior panels of this Court have concluded, when

reviewing the sentencing decisions of the district court, “[a] district judge act[s]

unreasonably by, for example, selecting the sentence arbitrarily, basing the sentence

on impermissible factors, failing to consider pertinent §3553(a) factors, or giving an

unreasonable amount of weight to any pertinent factor.” Webb, 403 F.3d at 385.

United States Code 18 § 3553 provides the District court with guidance when

sentencing a defendant. §3553 outlines numerous considerations that the District

6

court must take into account when formulating a sentence. §3553(a) instructs the

District court that, when crafting a sentence, it “shall impose a sentence sufficient,

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

(2) of this subsection”. The Code goes further in §3553 to promulgate the following

factors for determining a just sentence, stating:

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;

(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.

In addition to the above considerations listed, the District court must also take into

consideration, “any pertinent policy statement” that is in effect at the time of the

sentencing.

Further, the District court must be aware of “the need to avoid

unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct” when arriving at a decision on a sentence for a

particular defendant. The District court should use the appropriate range of the

offense and the appropriate category of defendant as defined by the sentencing

guidelines, but the District court may depart from the specified guidelines if and

when:

[T]he court finds that there exists an aggravating or mitigating circumstance of a

kind, or to a degree, not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result in a sentence different

from that described. In determining whether a circumstance was adequately taken

7

into consideration, the court shall consider only the sentencing guidelines, policy

statements, and official commentary of the Sentencing Commission

Once the District Court has arrived at a sentence for a particular defendant, the

state in open court the reasons for its

court must “at the time of sentencing

imposition of the particular sentence” so the parties will know the court’s reasoning

behind the decision reached. If the District Court determines that the sentence shall

be “of the kind, and within the range, described in subsection (a)(4), and that range

exceeds 24 months” then the court must inform the parties of “the reason for imposing

a sentence at a particular point within the range”. Similarly, if the District Court

crafts a sentence that “is not of the kind, or is outside the range, described in

subsection (a)(4)” the court must state “the specific reason for the imposition of a

sentence different from that described, which reasons must also be stated with

specificity”.

The United States Sentencing Commission has promulgated guidelines to

assist courts in formulating appropriate sentences for individual defendants based on

a myriad of considerations. The District court is no longer bound by the guidelines

produced by the Sentencing Commission when making a sentencing determination.

United States v. Booker, 543 U.S. 220, 245-246 (2005). Nonetheless, the District

court must consider the sentencing guidelines and the principles outlined therein

when crafting a sentence for an individual defendant even if the court then chooses

to deviate from the guidelines. See Gall, 552 U.S. 38 (2007). The guidelines should

be viewed as “one factor among several” that must be considered in imposing an

8

appropriate sentence under § 3553(a). Nelson v United States, 555 U.S. 350, 352

(2009).

i. THE SENTENCE IS PROCEDURALLY UNREASONABLE

The District Court’s sentence in Mr. Brinda’s case was procedurally

unreasonable when it crafted his sentence and he is entitled to relief from his

sentence and his term of supervised release. In order to assure that the District court

has complied with procedural reasonableness when determining a specific sentence

for each individualized defendant, the reviewing Court should begin its analysis “with

a robust review of the factors evaluated and the procedures employed by the district

court in reaching its sentencing determination.” Bolds, 511 F.3d at 578. This review

should encompass an examination of whether the District court: “(l) properly

calculated the applicable advisory Guidelines range; (2) considered the other §

3553(a) factors as well as the parties' arguments for a sentence outside the Guidelines

range; and (3) adequately articulated its reasoning for imposing the particular

sentence chosen, including any rejection of the parties' arguments for an outsideGuidelines sentence and any decision to deviate from the advisory Guidelines range.”

Id. at 581.

Specifically, when reviewing the District Court's application of the § 3553(a)

factors, “there is no requirement ... that the district court engage in a ritualistic

incantation to establish consideration of a legal issue,” or that it “make specific

findings related to each of the factors considered.” Id. at 580. Nonetheless, in order

9

for a sentence from the District Court to be procedurally reasonable, “the record must

contain the District Court's rationale for concluding that the ‘sentence imposed is

sufficient but not greater than necessary, to comply with the purposes' of sentencing

set forth in 18 U.S.C. § 3553(a).” Id. at 580. In order to comply with procedural

reasonableness when crafting its sentence, the district court is required to provide an

“articulation of the reasons [why it] reached the sentence ultimately imposed.” United

States v. Jackson, 408 F.3d 301, 305 (6th Cir.2005).

In Mr. Brinda’s case, his counsel requested that the sentencing court focus on

Mr. Brinda’s need for continued therapy and the extreme length of Mr. Brinda’s term

of supervised release when determining his sentence and, essentially, asked for no

additional time in custody.2 (R. 96, Revocation Hearing, PagelD# 403-406) Previous

panels of this Court have note that “[F]or a sentence to be procedurally reasonable,

when a defendant raises a particular, non-frivolous argument in seeking a lower

sentence, the record must reflect both that the district judge considered the

defendant’s argument and that the judge explained the basis for rejecting it.” United

States v Gapinski, 561 F.3d 467, 474 (6th Cir. 2009). Mr. Brinda also spoke at his

revocation hearing and informed the district court that he had was scheduled to

undergo tests for prostate cancer and that his elderly father had serious health

problems of his own that needed Mr. Brinda’s attention. (R. 96, Revocation Hearing,

PagelD# 406-407)

Instead of focusing its attention on these legitimate “non-

frivolous” arguments for a lower sentence, particularly Mr. Brinda’s mental and

2 Mr. Brinda was initially placed on supervision for Life and has been on supervision continuously for the past eight

years since his initial release from his custodial sentence in 2012.

10

physical health, the District Court determined that its sentencing determination was

based on the perceived dishonesty of Mr. Brinda with his probation officer. Despite

telling Mr. Brinda that he had grave concerns about his conduct leading to actual

contact offenses with minors, the district court ordered incarceration rather than

refocusing on Mr. Brinda’s request for a renewed emphasis on treatment that will

help prevent him from acting on his impulses in the future. By failing to address his

need for rehabilitation during its sentencing determination, the District Court failed

to act as Gapinskiinstructs and did not address Mr. Brinda’s good faith, non-frivolous

request that his sentencing focus on treatment rather than incarceration. Further,

the District Court did not address Mr. Brinda’s mental or physical health treatment

needs which were certainly non-frivolous issues for the District Court’s consideration.

Based on the procedural unreasonableness of the District Court’s methodology

in crafting both the sentence and the term of supervised release, Mr. Brinda is

entitled to relief and a resentencing on this basis.

ii. THE SENTENCE IS SUBSTANTIVELY UNREASONABLE

In addition to the procedural error committed by the District Court in arriving

at Mr. Brinda’s sentence, the Court also arrived at a sentence that was substantively

unreasonable.

When reviewing a sentence for substantive reasonableness, this Court is

required to conduct an “inquiry into ... the length of the sentence and the factors

evaluated ... by the district court in reaching its sentencing determination.” United

11

States v. Herrera—Zuniga, 571 F.3d 568, 581 (6th Cir.2009) This portion of the

appellate Court’s review must focus on the statutory mandate that a sentence is

adequate, but not “‘greater than necessary’ to accomplish the sentencing goals

identified by Congress in 18 U.S.C. § 3553(a).” Id. at 590; see also United States v.

Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir.2010). (“The essence of a substantive­

reasonableness claim is whether the length of the sentence is ‘greater than necessary’

to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).”) “A sentence may be

considered substantively unreasonable when the district court selects a sentence

arbitrarily, bases the sentence on impermissible factors, or gives an unreasonable

amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d 508,

520 (6th Cir. 2008).

The inquiry by the appellate court into substantive

reasonableness “take[s] into account the totality of the circumstances, including the

extent of any variance from the Guidelines range.” Bolds, 511 F.3d at 581 (quoting

Gall, 552 U.S. at 51, 128 S.Ct. 586).

In the instant case, the trial court erred in the sentence imposed after the

violation of Mr. Brinda’s supervised release. The sentence imposed was greater than

necessary to achieve the goals of sentencing outlined above. Additionally, the District

Court erred when it imposed a term of ten years of supervised release as that term

was an excessive sentence for what is necessary to achieve the goals of sentencing.

Lastly, the district court placed an “unreasonable amount of weight” on a single

factor, Mr. Brinda’s perceived failure to be truthful with his probation officer. As cited

above, when determining a sentence, the District court must consider, pursuant to

12

§3553(a)(l), among other factors, “the history and characteristics of the defendant”

when tailoring a sentence to a specific defendant. Additionally, the sentence the

District court determines must be designed “to promote respect for the law

to

provide just punishment for the offense” and “to protect the public from further

crimes of the defendant”. §3553(a)(2). The district court informed Mr. Brinda, when

pronouncing its sentence, that it needed to “get your attention again” with an

incarceration sentence without referencing anything related to the potential benefit

of renewed or increased treatment for his admitted attraction to minors. The district

court’s sentence was arbitrary and it focused unreasonably on the interaction

between Mr. Brinda and his probation officer.

Further, the District Court’s decision to place Mr. Brinda on an additional ten

years of supervised release following his incarceration sentence was substantively

unreasonable. In Mr. Brinda’s previous two supervised release violation judgments,

the District Court had placed him on five years of supervised release after his

incarceration sentence had ended. (R. 69, Revocation Judgment, PagelD# 194, & R.

76, Revocation Agreed Order, PagelD# 221) The District Court’s decision, after this

revocation proceeding, to double the term of his supervised release was an arbitrary

decision and the District Court provided no specific reasoning for its decision. The

term of supervised release after Mr. Brinda’s incarceration sentence is also

substantively unreasonable and warrants relief.

13

The District Court, due to the arbitrariness of the sentence crafted and the

overreliance on a single factor, has created a sentence, and a term of supervised

release, that are substantively unreasonable because the sentence is greater than

necessary to achieve the purposes of sentencing. Mr. Brinda is entitled to relief from

both his sentence and the term of his supervised release on this independent basis in

addition to the procedural unreasonable of the district court’s sentencing.

This

matter should be remanded to the District Court for sentencing in accordance with

the sentencing guidelines.

CONCLUSION

For the aforementioned reasons, Mr. Brinda prays that this Honorable Court

will grant his request for a writ of certiorari in order to review the questions of

presented relating the various erroneous and prejudicial evidentiary and legal

rulings by the District Court, affirmed by the Circuit Court, that created reversible

error.

14

Respectfully submitted,

/s/ Manuel B. Russ

Manuel B. Russ

340 21st Avenue North

Nashville, Tennessee 37203

(615) 329-1919

CERTIFICATE OF SERVICE

I certify that the foregoing writ of certiorari and the accompanying appendix

has been served via electronic mail upon counsel for the Respondent, Assistant

United States Attorney Mr. Samuel Fitzpatrick, United States Attorney’s Office for

the Eastern District of Tennessee at Chattanooga, 1110 Market Street, Suite 515,

Chattanooga, TN 37402 and Ms. Elizabeth Prelogar, Acting Solicitor General of the

United States, Room 5614, Department of Justice, 950 Pennsylvania Avenue, N.W.,

Washington D.C. 20530-0001, this 28th day of June, 2021.

/s/ Manuel B. Russ

Manuel B. Russ

15