Petition for Writ of Certiorari — Eliseo Carrillo, III, Petitioner v. United States

No.

IN THE SUPREME COURT OF THE UNITED STATES

ELISEO CARRILLO, III,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Respectfully submitted,

Steve Hershberger, Attorney at Law

Texas State Bar # 09543950

600 No. Marienfeld St., Ste 1035

432-570-4014

Attorney for Petitioner

QUESTION PRESENTED FOR REVIEW

Whether the District Court deprived the Petitioner of liberty within the terms of 18 U.S.C.

3583 (c) and (d) by upward departing in re-sentencing Petitioner to incarceration in the United

States Bureau of Prisons without consideration to Petitioner’s mental health factors.

TABLE OF CONTENTS

Question Presented for Review

Table of Contents

Table of Authorities

Opinion Below

Jurisdiction

Constitutional and Statutory Provisions Involved

Statement of the Case

Reasons for Granting the Writ

Conclusion

Prayer for Relief

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TABLE OF AUTHORITIES

CASES

UNITED STATES SUPREME COURT

Calder v. Bull, 390 Dall. (3 U.S.) 381 (1798).......cccccccececsecssccceceseeseeeeesettsees 9

Gozlon-Peretz_v. United States, 498 U.S. 395 (1991).....cc.ccccccccseeeeesseesseesees 7

North Carolina v. Pearce, 395 U.S. 711 (1969)........cccceccecececccccecseecceerecstnsees 9

Puckett v. United States, 556 U.S. 129 (2009)........cce.cccceeeeeccceeseeececeeseececcess 8

Johnson v. United States, 529 U.S. 53 (CLU0) 7,8

United States v. Booker, 543 U.S. 270 (2005)........cccccccccececeeeseeeessrstsceeeeeeesess 8

United States v. Olano, 507 U.S. 725 (1993)...........cceccssseseeeeeeeeeeeececeeceeecssees 9

UNITED STATES COURT OF APPEALS

United States v. Ellis, 720 F.3d 220 (5" Cir. 2013) wna iisanseneveummenseapysswenneusteneenees 9

United States v. Garza, 706 F.3d 655 (5" Cir. 2013)... eee cece eee ceeeceeeeeeeeeeeeeneees 9

United States v. Goodwin, 717 F.3d 511 (7 Cir. 2013), cert. denied -U.S.-, 134

S.Ct. 334 (2013)... eee ecceeececeeseccueeceeusscsteeccuecceseecssuesesssecssesecseecess 7

Federal

18 U.S.C, sec. 3583.00... eee ceccccsecceeaescecusccceucecseeecausessuececssececuecceseccess 7

18 U.S.S.G. sec. 7B1.4(a)

Fed.R.Crim.P. 32.1

IN THE SUPREME COURT OF THE UNITED STATES

ELISEO CARRILLO, II,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

TO THE HONORABLE JUSTICES OF THE UNITED STATES SUPREME COURT:

The Petitioner, ELISEO CARRILLO, II, Appellant in the United States Court of Appeals for

the Fifth Circuit and the Defendant in Case No. P-18-CR-423, submits this Petition for Writ of

Certiorari and respectfully prays that a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Fifth Circuit entered on or about August 18, 2021.

OPINION BELOW

On or about August 18, 2021, the United States Court of Appeals for the Fifth Circuit entered

its Opinion affirming the verdict guilty returned against Petitioner. A copy of the Opinion is

attached as Appendix A.

The District Court’s Criminal Judgment is attached as Appendix B.

JURISDICTION

Jurisdiction of this Court is invoked under Title 28, United States Code sec. 1254(a).

5.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution states, in pertinent part to the

case sub judice:

No person...shall be deprived of life, liberty, or property, without due process of law...

18 U.S.C. sec. 3583(d) provides, in part: The Court may order, as a further condition of

supervised release, to the extent that such condition-

(2) involves no greater deprivation of liberty than is reasonably necessary for the

purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); ...

STATEMENT OF THE CASE

The underlying punishment in this case was too harsh, such to the degree it violates

both the Fifth Amendment to the Constitution and 18 U.SC. sec. 3583(d) Petitioner, while a

resident at a resident re-entry center, was sentenced to 24 months incarceration for jumping over

a fence and retrieving a handball.

Petitioner had been serving a term of supervised release arising from a conviction in the

United States District Court, Western District of Texas. in P-18-CR-423.

On or about December 30, 2020, an United States Probation Officer filed a Petition for

Warrant or Summons for Offender Under Supervision. The Government filed an Amended

Motion for Revocation of Supervised Release (ROA.86-87).

Specifically, the Government alleged broadly that the Petitioner failed to follow the rules

at a residential re-entry center. Factually, the Government alleged Petitioner was written up at the

facility for jumping over a fence. The Government alleged that on December 04, 2020,

Petitioner submitted a urine sample that was not warm. Petitioner insisted the sample was urine

and left. Lastly, the Government alleged that Petitioner admitted using a synthetic marijuana on

December 07, 2020.

The United States District Court, Western Disitiet of Texas, held a Hearing on February 03,

2021; Fed.R.Crim.P. 32.1. At the hearing, Petitioner pleaded “true” to the allegations in the

Amended Motion for Revocation of Supervised Release. The District Court upwardly departed

from a sentencing guideline of three to nine months to 24 months (ROA.105).

After the District Court entered an Order Revoking Supervised Release and Resentencing of

Defendant, Petition filed a Notice of Appeal (ROA.89), appealing the Order to the United States

Court of Appeals for the Fifth Circuit. The United States Court of Appeals affirmed.

REASON FOR GRANTING THE WRIT

The District Court erred by imposing punishment involving a greater deprivation of liberty

than is reasonably necessary to achieve the goal of deterrence, incapacitation and rehabilitation.

United States v. Goodwin, 717 F.3d 51 1, 522 (7 Cir. 2013), cert. denied -U.S-, 134 S.Ct.

334 (2013).

With the Sentencing Reform Act of 1984, Congress eliminated most forms of parole for a

system of supervised release. Johnson v. United States, 529 U.S. 53, 59-60 (2000). Post

confinement monitoring is overseen by the sentencing court, rather the Parole Commission.

Gozlon-Peretz, 498 U.S. 395, 400-401 ( 1991). The sentencing court is authorized to impose a

term of supervised release following imprisonment under 18 U.S.C. sec. 3583(a).

The offender is required to abide by certain conditions, some specified and some discretionary. 18 U.S.C. sec. 3583(d). Upon violation of a condition, the sentencing court may

revoke supervised release and require the person to serve in prison for all or part of a term.

18 U.S.C. sec.3583(e)(3).

The purpose of supervised release have been variously described as rehabilitation, deterrence, training, treatment, protection of the public and reduction of recidivisim. Johnson, 529

US. at 59-60. Supervised release was not intended to be imposed for the purposes of punishment or incapacitation, since those purposes have been served to the extent necessary by the

term of imprisonment. Id. at 59. It is the decompression stage between prison and full release.

Conditions of supervised release can not involve a greater deprivation of liberty than is reasonably necessary to achieve goals of deterrence, incapacitation and rehabilitation. Goodwin at 572.

A hearing was had in the United States District Court, Western District of Texas, sitting in

Midland, Texas. The District Judge read into the record the allegations from the Petition for

Warrant for Offender Under Supervision. Carrillo pleaded “true” to the allegations (ROA. 4).

Petitioner was originally convicted of the offense of Transportation of Illegal Aliens for

Financial Gain. The United States District Court for the Western District of Texas, Pecos

Division sentenced Petition on November 19, 2018, to 16-month incarceration and three years

of supervised release. Post-incarceration supervision started on or about November 06, 2020.

Previously, Petitioner had been referred to the residential re-entry center, known as Dismas

Charities in August 15, 2019. On December 25, 2020, Petitioner was residing at Dismas after

serving a sentence of incarceration.

On December 25, 2020, Petitioner was playing handball with other residents, when a ball

went over the wall. Petitioner jumped the wall, retrieved the ball and jumped back over the

wall (ROA.05. Petitioner was also reprimanded at Dismas for failing to submit a urine sample

(ROA.95). He was asked to leave the re-entry center.

The sentencing guideline in this case called for three to nine months incarceration. The

District Court upwardly departed to 24 months. That was plainly unreasonable, for the

District Court failed to address Petitioner’s mental health issues,

In employing the plainly unreasonable standard, the United States District Court must not

impose a greater imposition on liberty than was necessary to meet the objectives 18 U.S.C. sec.

3583. United States v. Olano, 507 U.S. 725 (1993); Puckett v. United States, 556 U.S. 129, 135

(2009).

A district court is directed by 18 U.S.C. sec. 3553(a)(3) and (a)(4)(B) to consider the kinds

of sentence available and the applicable sentencing range of the Guidelines or Commission

policy statements. United States v. Garza, 706 F.3d 655 (5" Cir. 2013). A special condition

must comport with the limits provided in 18 U.S.C. sec. 3583(a). Factors are (1) nature and

circumstances of the offense; (2) deterrence; (3) protection of the public; and (4) provision

for training, medical treatment and correctional treatment. A special condition must involve

no greater deprivation of liberty than is reasonably necessary to serve the purposes of section

3553; United States v. Ellis, 720 F.3d 220, 225 on Cir. 2013). The deprivation of liberty

implicates constitutional protection. See Calder v. Bull, 390 Dall. (3 U.S.) 386 (1798).

Here the special condition is a greater deprivation of liberty than in reasonably necessary

to serve it purposes. Accord United States v. Booker, 543 U.S. 270 (2005). The purpose of the

special condition is to provide mental health treatment. The District Court did not order

treatment through the Bureau of Prisons as part of his sentence. The special condition must

comport with the limits provided in 18 U.S.C. sec. 3583(a). The doubling of the condition in

unreasonable as it fails to accord the treatment provided in the Bureau of Prisons. North Carolina

v. Pearce, 395 U.S. 711 (1969).

Here, Petitioner had a criminal history score of “I” and three “C” violations (ROA.96). 18

USSG Ch. 7; Sec. 7B1.4(a). At the revocation hearing, defense counsel had urged Petitioner be

referred to Lifetime Recoveries (ROA.97-98). The assistant U.S. attorney advised the District

Court that Petitioner was ineligible for the treatment center, because he did not have a 90-day

supply medication. Mental condition as a factual issue was raised by the defense.

The District Court failed to consider Petitioner’s mental condition as a factor in re-sentencing

him. Therefore, the upward departure to 24 months was unreasonable.

Therefore, Petitioner requests that the United States Supreme Court grant this Petition for

Writ of Certiorari on the ground that the upward departure places a greater deprivation on

Petitioner’s liberty than is necessary. As such, the sentence of the United States District Court

was plainly unreasonable. Furthermore, there was error by the United States Court of Appeals

affirming. Petitioner request redress from this Court.

CONCLUSION

For the foregoing reasons, Petitioner respectfully submits that the Petition for Writ of

Certiorari should be granted and prays that the Order Revoking Supervised Release be reversed,

and the new sentence be vacated and the Petitioner be released from custody.

PRAYER FOR RELIEF

Petitioner, ELISEO CARRILLO, III, requests that the Petition for Writ of Certiorari be

granted for the reasons stated and that the sentence entered against him be vacated and such

other relief to which Petitioner would be entitled to receive in law or in equity.

Respectfully submitted,

Steve Hershberger, Attorney at Law

600 No. Marienfeld St., Ste. 1035

10.

Midland, TX 79701

432-570-4014

By: /s/ Steve Hershberger

Steve Hershberger

Texas State Bar # 09543950

Attorney for Petitioner

11.

APPENDIX A

(Opinion of the United States Court of Appeals, for the Fifth Circuit)

Case: 21-50136 Document: 00515983230 Page: 1 Date Filed: 08/18/2021

Gnited States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

August 18, 2021

No. 21-50136 Lyle W.C

yle W. Cayce

Summary Calendar Clerk

UNITED STATES OF AMERICA,

Plaintiff—Appellee,

versus

ELISEO CARRILLO, III,

Defendant —Appellant.

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Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:18-CR-423-2

eee

Before SOUTHWICK, OLDHAM, and WILSON, Circuit Judges.

PER CURIAM:*

Eliseo Carrillo, III appeals the 24-month sentence imposed on

revocation of his supervised release. He argues that the district court’s

upward departure from a guideline range of three to nine months to 24

months of imprisonment was unreasonable under the facts of this case. He

* Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5TH CrrcUIT RULE 47.5.4,

vase: ZI-9U150 — Document: 00515983230 Page:2 Date Filed: 08/18/2021

No. 21-50136

contends that the district court imposed a substantively unreasonable

revocation sentence by failing to properly consider his mental condition.

When a defendant properly preserves an objection to his revocation

sentence for appeal, the revocation sentence is reviewed under a “ plainly

unreasonable” standard. See 18 U.S.C. § 3742(a)(4); United States v, Miller,

634 F.3d 841, 843 (5th Cir. 2011). Unpreserved challenges are reviewed for

plain error. United States v, Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009). The

Supreme Court recently held that a defendant’s argument for a “specific

sentence” at a revocation hearing preserved his claim that the district court’s

higher sentence was unreasonably long. Holguin-Hernandez v. United States,

140 S. Ct. 762, 764, 766 (2020). That case did not decide, however, “when a

party has properly preserved the right to make particular arguments

supporting its claim that a sentence is unreasonably long.” Jd. at 767; see also

id. (Alito, J., concurring) (noting that “we do not decide what is sufficient to

preserve any ‘particular’ substantive-reasonableness argument”).

It is unclear whether Carrillo argued for a “specific sentence” as

Flolguin-Hernandez uses that term. At one point in the hearing transcript,

Carrillo’s counsel requested placement in a drug-treatment program called

“Lifetime Recovery.” At another point in the transcript, Carrillo’s counsel

appeared to embrace the Possibility of a prison sentence: “If the Court

sentences him to a term of imprisonment in [the Bureau of Prisons, or

“BOP” ], I would urge the Court to consider a BOP recommendation where

there is a mental health treatment facility. Maybe the mental health treatment

can combine what benefit he would get out of Lifetime Recovery with what

is the situation with the mental health issues that he’s having.” But we need

not decide whether Carrillo Preserved his substantive unreasonableness

challenge because it fails under any standard of review.

vase: £1-9U150 — Locument: 00515983230 Page: 3 Date Filed: 08/18/2021

No. 21-50136

A revocation sentence is substantively unreasonable where the district

court did not take into account a factor that was entitled to significant weight,

gave significant weight to factors that were irrelevant or improper, or made a

clear error in judgment when balancing sentencing factors. United States v.

Warren, 720 F.3d 321, 332 (5th Cir. 2013). Contrary to Carillo’s contention,

the district court did consider his mental health in imposing the sentence,

noting the addition of the mental health treatment condition in December

2020, and recommending mental health treatment within the Bureau of

Prisons—as his counsel requested.

Carillo’s 24-month revocation sentence is above the policy statement

range of three to nine months but within the statutory maximum sentence of

24 months. We have routinely upheld the substantive reasonableness of

similar sentences. See United States v. Kippers, 685 F.3d 491, 500-01 (5th Cir.

2012) (affirming a revocation sentence that was the statutory maximum and

more than five times above the top of the guidelines range); Whitelaw, 580

F.3d at 265 (affirming a revocation sentence that was the statutory

maximum). Carillo therefore has shown no reversible error in his revocation

sentence.

The judgment of the district court is AFFIRMED.

APPENDIX B

(Order Revoking Supervised Release and Resentencing of Defendant, United States District

Court for the Western District of Texas)

Case 4:18-cr-00423-DC Document 172 Filed 02/08/21 Page 1 of 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

PECOS DIVISION

UNITED STATES OF AMERICA §

Plaintiff §

vs : Case No. P-18-CR-00423-DC

(2) ELISEO CARRILLO Il :

Defendant §

ORDER REVOKING SUPERVISED RELEASE and

RESENTENCING OF DEFENDANT

On this the February 3, 2021, came on to be heard the Government's Motion for Revocation of Supervised

Release granted by virtue of Judgment entered on March 6, 2020, in the above numbered and styled cause.

Defendant appeared in person and was represented by attorney of record, Steve Hershberger. The United

States was represented by Assistant United States Attorney, Brandi Young.

After reviewing the motion and the records in this case as well as hearing testimony and arguments of

counsel, the Court is of the opinion that said Defendant has violated the provisions of his Supervised Release and

that the ends of justice and the best interests of the public and of the Defendant will not be subserved by continuing

said Defendant on Supervised Release. Further, the Court is of the opinion that the Motion for Revocation of

Supervised Release should be, and it is hereby GRANTED.

IT IS THEREFORE ORDERED that the term of Supervised Release of Defendant named above granted

by the Judgment entered on March 6, 2020, and it is hereby REVOKED and SET ASIDE and the Defendant is

resentenced as follows:

The Defendant, ELISEO CARRILLO III, is hereby committed to the custody of the United States

Bureau of Prisons to be imprisoned for a term of Twenty-Four (24) months. No further Supervised Release

shall be imposed. The Court recommends defendant be placed at a federal facility outside of Texas.

The Clerk will provide the United States Marshal Service with a copy of this Order and a copy of

the Judgment entered on March 6, 2020, to serve as the commitment of the Defendant.

David Counts

United States District Judge

SIGNED this 8" day of February, 2021.