Opposition Brief — Jayren Jakar Wynn, Petitioner v. United States

No. 21-5714

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

JAYREN JAKAR WYNN, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

PAUL T. CRANE

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether

the

court

of

appeals

correctly

determined

that

petitioner’s prior conviction for conspiring to distribute cocaine

base (crack cocaine), in violation of 21 U.S.C. 841(a)(1) and

(b)(1)(B) and 846, is a “controlled substance offense” under

Section 4B1.2(b) of the advisory Sentencing Guidelines.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (D. Conn.):

United States v. Wynn, No. 18-cr-203 (Feb. 6, 2020)

United States Court of Appeals (2d Cir.):

United States v. Wynn, No. 20-588 (Apr. 1, 2021)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 21-5714

JAYREN JAKAR WYNN, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. A1-A8) is not

published in the Federal Reporter but is reprinted at 845 Fed.

Appx. 63.

JURISDICTION

The judgment of the court of appeals was entered on April 1,

2021.

A petition for rehearing was denied on April 22, 2021 (Pet.

App. B1).

The petition for a writ of certiorari was filed on

September 17, 2021.

The jurisdiction of this Court is invoked

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

2

STATEMENT

Following a guilty plea in the United States District Court

for the District of Connecticut, petitioner was convicted of

possessing

a

firearm

as

922(g)(1) and 924(a)(2).

a

felon,

in

violation

Pet. App. C1.

of

18

U.S.C.

He was sentenced to 78

months of imprisonment, to be followed by three years of supervised

release.

1.

from

a

Ibid.

The court of appeals affirmed.

Id. at A1-A8.

In July 2018, a loaded semi-automatic pistol was seized

vehicle

petitioner

was

driving.

Plea

Agreement

11.

Petitioner admitted the firearm was his.

Ibid.

Petitioner knew

that

of

felony

he

had

previously

been

convicted

prohibited from possessing a firearm.

a

and

was

Ibid.

Petitioner pleaded guilty to one count of possessing a firearm

as a felon, in violation of 18 U.S.C. 922(g)(1) and 924(a)(2).

18-cr-203 Docket Entry No. 46 (Aug. 30, 2019).

the

Probation

Office

determined

that,

Before sentencing,

pursuant

to

Sentencing

Guidelines § 2K2.1(a)(2) (2018), petitioner had a base offense

level of 24, because petitioner committed the “the instant offense

subsequent to sustaining at least two felony convictions of either

a

crime

of

Presentence

violence

or

Investigation

a

controlled

Report

Guidelines § 2K2.1(a)(2) (2018).

(PSR)

¶

substance

offense.”

17;

Sentencing

see

In particular, the Probation

Office determined that petitioner’s prior state conviction for

assault in the first degree qualified as a crime of violence and

that his prior federal conviction for conspiring to possess cocaine

3

base with intent to distribute, in violation of 21 U.S.C. 841(a)(1)

and (b)(1)(B) and 846, qualified as a controlled substance offense.

PSR ¶¶ 17, 31, 32; see 12-cr-206 Judgment (D. Conn. Jan. 12, 2015).

Petitioner objected to the application of Guidelines Section

2K2.1(a)(2) on the theory that his prior conviction for conspiring

to possess cocaine base with intent to distribute was not a

“controlled substance offense” under the Guidelines.

A3; see id. at A2-A3.

Pet. App.

An Application Note to Sentencing Guideline

§ 2K2.1 provides that for purposes of Section 2K2.1 “controlled

substance offense” “has the meaning given that term in § 4B1.2(b)

and Application Note 1 of the Commentary to § 4B1.2.”

Guidelines § 2K2.1, comment. (n.1)

Sentencing

(2018) (emphasis omitted).

Section 4B1.2 of the Guidelines defines a “controlled substance

offense” as

an offense under federal or state law, punishable by

imprisonment for a term exceeding one year, that prohibits

the manufacture, import, export, distribution, or dispensing

of a controlled substance (or a counterfeit substance) or the

possession of a controlled substance (or a counterfeit

substance) with intent to manufacture, import, export,

distribute, or dispense.

Id. § 4B1.2(b).

4B1.2

states

Application Note 1 in the commentary to Section

that

the

term

“‘controlled

substance

offense’

include[s] the offense of aiding and abetting, conspiring, and

attempting to commit such [an] offense[].”

Id. § 4B1.2, comment.

(n.1) (emphasis omitted).

Petitioner contended that his prior conviction for conspiring

to possess cocaine base with intent to distribute was not a

4

controlled substance offense under the Guidelines, asserting that

the text of Section 4B1.2(b) does not include conspiracy offenses.

See, e.g., Sent. Tr. 21-27.

The district court overruled that

objection and adopted the presentence report’s calculations at

sentencing.

Id. at 50.

Based on those calculations, petitioner’s

advisory guidelines range was 70 to 87 months of imprisonment.

Id. at 51; see PSR ¶ 58.

The district court sentenced petitioner

to 78 months of imprisonment, to be followed by three years of

supervised release.

2.

Sent. Tr. 53; Pet. App. C1.

The court of appeals affirmed in an unpublished, per

curiam summary order.

Pet. App. A1-A8.

The court rejected

petitioner’s challenge to the application of Section 2K2.1(a)(2),

in which he asserted that his prior conviction for conspiring to

possess cocaine base with intent to distribute was not a controlled

substance offense under the Guidelines.

Br. 11-34.

Id. at A3-A5; Pet. C.A.

Specifically, petitioner contended that the court

“should disregard Application Note 1 because it improperly expands

the bounds of the plain text of Section 4B1.2(b).”

Pet. App. A4.

The court observed that petitioner’s argument was “foreclosed by

[its] precedents.”

Ibid. (citing United States v. Richardson, 958

F.3d 151, 154 (2d Cir.), cert. denied, 141 S. Ct. 423 (2020);

United States v. Tabb, 949 F.3d 81, 88 (2d Cir. 2020), cert.

denied, 141 S. Ct. 2793 (2021); United States v. Jackson, 60 F.3d

128, 133 (2d Cir.), cert. denied, 516 U.S. 980 (1995), 516 U.S.

1130, and 516 U.S. 1165 (1996)).

5

ARGUMENT

Petitioner

district

court

renews

erred

his

in

contention

calculating

(Pet.

his

4-10)

advisory

that

the

Sentencing

Guidelines range based on an enhancement that applies to defendants

who commit certain firearm offenses after “sustaining at least two

felony convictions of either a crime of violence or a controlled

substance offense.”

Sentencing Guidelines § 2K2.1(a)(2) (2018).

In particular, petitioner contends (Pet. 4-10) that his prior

conviction for conspiracy to possess cocaine base with intent to

distribute is not a “controlled substance offense,” as that term

is

defined

in

Sentencing

Guidelines

§

4B1.2(b),

because

Application Note 1 impermissibly expands the definition set forth

in the text of Section 4B1.2(b) to include inchoate offenses like

conspiracy.

writs

of

This Court has recently denied multiple petitions for

certiorari

raising

similar

challenges,

including

a

petition seeking review of circuit precedent on which the summary

order below relies.

See United States v. Tabb, 949 F.3d 81 (2d

Cir. 2020), cert. denied, 141 S. Ct. 2793 (2021) (No. 20-579); see

also, e.g., United States v. Wiggins, 840 Fed. Appx. 498 (11th

Cir.) (per curiam), cert. denied, 142 S. Ct. 139 (2021) (No. 208020); United States v. Kendrick, 980 F.3d 432 (5th Cir. 2020),

cert. denied, 141 S. Ct. 2866 (2021) (No. 20-7667); United States

v. Broadway, 815 Fed. Appx. 95 (8th Cir. 2020), cert. denied, 141

S. Ct. 2792 (2021) (No. 20-836).

here.

It should follow the same course

6

As explained at pages 9 to 27 of the government’s brief in

opposition in Tabb, petitioner’s challenge to the validity of

Application Note 1 is inconsistent with the text, context, and

design of the Sentencing Guidelines § 4B1.2(b) and its commentary,

see Br. in Opp. at 9-13, Tabb, supra (No. 20-579); is not supported

by either Kisor v. Wilkie, 139 S. Ct. 2400 (2019), or other

precedent of this Court, see Br. in Opp. at 13-17, Tabb, supra

(No. 20-579); and is based on an incorrect understanding of

Application Note 1 and its history, see id. at 18-23.* In addition,

the same Application Note to Sentencing Guidelines § 2K2.1 that

incorporates the challenged definition of “controlled substance

offense”

in

Section

4B1.2(b)

also

explicitly

incorporates

“Application Note 1 of the commentary to § 4B1.2.”

Sentencing

Guidelines § 2K2.1, comment. (n.1) (2018) (emphasis omitted).

And

in any event, the United States Sentencing Commission has already

begun the process of addressing the recent disagreement in the

courts of appeals over the validity of Application Note 1 to

Section 4B1.2.

See Br. in Opp. at 23-25, Tabb, supra (No. 20-

579); see also, e.g., Longoria v. United States, 141 S. Ct. 978,

979 (2021) (Sotomayor, J., respecting the denial of the petition

for a writ of certiorari) (observing, with respect to another

Guidelines

dispute,

that

the

“Commission

should

have

the

opportunity to address [the] issue in the first instance, once it

We have served petitioner with a copy of the government’s

brief in opposition in Tabb.

*

7

regains a quorum of voting members”) (citing Braxton v. United

States, 500 U.S. 344, 348 (1991)).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

PAUL T. CRANE

Attorney

DECEMBER 2021