Petition for Writ of Certiorari — Carlos Benitez Penalosa, Petitioner v. United States

No. 21-

IN THE SUPREME COURT OF THE UNITED STATES

CARLOS BENITEZ-PENALOSA,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LARS ROBERT ISAACSON **

Hawai'i Bar No. 5314

1100 Alakea Street, 20% Floor

Honolulu, HI 96813

Phone: (808) 497-3811

Fax: (866) 616-2132

bal Counsel of Record

QUESTION PRESENTED FOR REVIEW

Did the Ninth Circuit err when it failed to find that a sentencing error can

amount to a “miscarriage of justice” allowing appellate review even if

there is a plea agreement containing an appellate waiver?

A. Because there is a circuit split as to the definition of circumstances

warranting the disregard of an appellate waiver, this Court should

grant certiorari.

B. Because there is a circuit split as to how allegations of circumstances

warranting the disregard of an appellate waiver are addressed, this

Court should grant certiorari.

C. Because unobjected to guideline error is “plain error” and because

“plain error” is indistinguishable from “miscarriage of justice,”

guideline error should be held to be a miscarriage of justice allowing

disregard of appellate waiver.

PARTIES

Carlos Benitez-Penalosa is the petitioner. The United States of America is

the respondent.

TABLE QF CONTENTS

Index to Appendices: x. wc... sess csmuseenevenvcessavsscevnsavexesuaneensaveasezenasovasw mamennesecouesereamtenaesmerens Vv

Table of Authorities siscscscc-aucvavsessess cuss cssessennsunrvetenvesonrasssnnnssasopncseenaesrasavemearroevmennesss vi

Opmion Below..........:.-:0.ce0rc0 dis cae een ER Tee EE STOR NST INTENT 2

Jurisdictional Statement... sis .ccssesovcavessessevorsevensescsnsvensennvsvsnvvesessereooserooescecdoosnaasnssevecess 2

Constitutional and Statutory ProviSions.............::ccsccecesseeeceneeeecesecneereensecesceecenseeeenaeees 2

Statement of the Case............0.a00 means amen aeremranaeen 4

Reasons for Granting the WYit.............::ccsccssecscscessessesesseecseecessenseecensersaeeeneeseceteneeetsensee 8

Argument

I. Did the Ninth Circuit err when it failed to find that a sentencing error can

amount to a “miscarriage of justice” allowing appellate review even if

there is a plea agreement containing an appellate waiver? ..............:c08 8

D. Because there is a circuit split as to the definition of circumstances

warranting the disregard of an appellate waiver, this Court should

E. Because there is a circuit split as to how allegations of circumstances

warranting the disregard of an appellate waiver are addressed, this

Court should grant certiorari. ..........ccesceeceeeesceeecennereeeeeesceeanereeetseeseeees 18

F. Because _unobjected to guideline error is “plain error” and because

“

‘plain error” is indistinguishable from “miscarriage of justice,”

guideline error should be held to be a miscarriage of justice allowing

Conclusion. ...........:ccccssssccerescecerssssecsssenecsssnecesecesesneecesreceseensetessteesensnasecaneaesaeaaasecseetensaee 24

iv

INDEX TO APPENDICES

Appendix A Judgment and Opinion of Ninth Circuit

Appendix B Judgment of the Ninth Circuit denying rehearing en banc

TABLE OF AUTHORITIES

CASES

Name Page

Baxstrom v. Herold, 383 U.S. 107 (1966) 18

DeRoo v. United States, 223 F.3d 919 (8th Cir. 2000) 14,17

Garza v. Idaho, 1389 S. Ct. 738 (2019) 8, 9, 16

In re Garner, 664 F. App’x 441 (6 Cir. 2016) 17

Johnson v. United States, 1385 S. Ct. 2552 (2015) 17

Molina-Martinez v. United States, 186 S. Ct. 1838 (2016) 21

Nguyen v. United States, 5389 U.S. 69 (2003) 24

Rosales-Mireles v. United States, 1388 S. Ct. 1897 (2018) 22, 23

State v. Dye, 291 Neb. 989, 870 N.W.2d 628 (2015) 9

United States v. Adams, 780 F.3d 1182 (D.C. Cir. 2015) 15, 16

United States v. Adams, 814 F.3d 178 (4th Cir. 2016) 10, 15

United States v. Andis, 333 F.3d 886 (8th Cir. 2008) 10, 14, 19

United States v. Barnes, 953 F.3d 3838 (5th Cir. 2020) 9, 18, 15, 16,

17

United States v. Bernal-Arias, No. 17-10013 (9th Cir. Nov. 17, 2017) 10

United States v. Bey, 825 F.3d 75 (15 Cir. 2016) 17

United States v. Black, 201 F.3d 1296 (10th Cir. 2000) 14, 10

United States v. Bolinger, 940 F.2d 478 (9t» Cir. 1991) (Nelson, C.J., 22

dissenting in part)

United States v. Brown, 232 F.3d 399 (4th Cir. 2000) 9, 14,15

United States v. Cabezas, No. 18-10258 (11th Cir. Dec. 5, 2019) 12

United States v. Cabrera-Rivera, 893 F.3d 14 (1st Cir. 2018) 23

United States v. Caruthers, 458 F.3d 459 (6th Cir. 2006) 14

United States v. Chambers, 646 F. App'x 213 (3d Cir. 2016) 20, 21

United States v. Cornette, 932 F.3d 204 (4th Cir. 2019) 17

United States v. Cudjoe, 634 F.3d 1163 (10tb Cir. 2011) 13

United States v. Del Valle-Cruz, 785 F.3d 48 (1st Cir. 2015) 20

United States v. Julian Zapata Espinoza, No. 17-3088 (per curium) 10

(D.C. Cir. September 18, 2020)

United States v. Fairley, No. 17-60812 (5th Cir. Aug. 21, 2018) 19

United States v. Feichtinger, 105 F.8d 1188 (7th Cir. 1997) 14, 15

United States v. Ford, 641 F. App'x 650 (8th Cir. 2016) (per curiam) 17

United States v. Hahn, 359 F.3d 1815 (10t Cir. 2004) 19

United States v. Harris, 628 F.3d 1203 (9th Cir. 2011) 7,10

vi

United States v. Hernandez, 242 F.3d 110 (2d Cir. 2001) 16

United States v. Hodges, 259 F.3d 655 (7th Cir. 2001) 16

United States v. Howard, 402 F. App'x 776 (4th Cir. 2010) 18

United States v. Hower, 442 F, App'x 213 (6th Cir. 2011) 15

United States v. Howle, 166 F.3d 1166 (11th Cir. 1999) 17

United States v. Hurtado, 667 F. App’x 291 (10 Cir. 2016) 17

(per curiam)

United States v. Johnson, 541 F.3d 1064 (11th Cir. 2008) 14, 15

United States v. Khattak, 273 F.3d 557 (8d Cir. 2001) 10,12

United States v. Leal, No. 20-10790 (5th Cir. Mar. 24, 2021) 13

United States v. Lee, 464 F. App'x 457 (6th Cir. 2012) 11

United States v. Ligon, 461 F. App'x 582 (9th Cir. 2011) 10

United States v. Martinez, 143 F.8d 1266 (9th Cir. 1998) 7

United States v. Matthews, No. 12-5183 (6th Cir. Aug. 16, 2013) 11

United States v. Medina-Carrasco, 815 F.3d 457 (9th Cir. 2015) 7, 9, 18

United States v. Melancon, 972 F.2d 566 (5 Cir. 1992)(Parker, D.J., 22

concurring specially)

United States v. Mutschler, 152 F. Supp. 3d 1332 (W.D. Wash. 2016) 22

United States v. Nulf, 978 F.3d 504 (7th Cir. 2020) 11

United States v. O'Farrill-Lépez, 991 F.3d 45 (1st Cir. 2021) 10

United States v. Pabon, 819 F.3d 26 (1st Cir. 2016) 23

United States v. Portillo-Palencia, No. 20-10493 (5th Cir. Dec. 9, 11

2020)

United States v. Puentes-Hurtado, 794 F.3d 1278 (11% Cir. 2015) 9, 16

United States v. Rich, No. 18-4828 (4th Cir. Apr. 9, 2019) 13

United States v. Riggi, 649 F.3d 148 (2d Cir. 2011) 11

United States v. Ruiz-Gonzalez, 427 F. App'x 22 (1st Cir. 2011) 15

United States v. Rodriguez-Rivera, 518 F.3d 1208 (10th Cir. 2008) 10

United States. v. Shedrick, 493 F.3d 292 (8d Cir. 2007) 16

United States v. Smith, 344 F.3d 479 (6th Cir. 2003) 9

United States v. Teeter, 257 F.3d 14 (1st Cir. 2001) 12, 21

United States v. Torres, 828 F.3d 1113 (Qt Cir. 2016) 17

United States v. Valdez, 964 F.8d 117 (1st Cir. 2020) 21

United States v. Wall, 230 F. Supp. 3d_771 (E.D. Mich. 2017) 14

United States v. Williams, 597 F. App'x 99 (8d Cir. 2015) 14

United States v. Yemitan, 70 F.3d 746 (2d Cir. 1995) 15, 16

STATUTES

Statute Page

18 U.S.C. § 3553(a) 15, 16

21 U.S.C. § 841 4

21U.8.C § 846 4

28 U.S.C. § 1254(1) 2

9th Cir. R. 27-10 7

98th Cir. Gen. Ord. 6.11 7

Federal Rule of Criminal Procedure 52(b) 21

No. 21-

IN THE SUPREME COURT OF THE UNITED STATES

CARLOS BENITEZ-PENALOSA,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner, Carlos Benitez-Penalosa, respectfully petitions for a writ of

certiorari to review the judgment of the United States Court of Appeals for the

Ninth Circuit.

OPINION BELOW

The opinion of the United States Court of Appeals for the Ninth Circuit

opinion is captioned as United States of America v. Carlos Benitez-Penalosa, No. 19-

10357 (9th Cir. 2020). A copy of the opinion is attached as Appendix A. A Motion

for Rehearing En Banc was denied on April 27, 2021. A copy of that decision is

attached as Appendix B.

JURISDICTIONAL STATEMENT

The judgment and opinion of the United States Court of Appeals for the

Ninth Circuit were filed on December 15, 2020. [Appendix A]. Defendant’s Motion

for Rehearing En Banc was denied on April 27, 2021 [Appendix B]. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1) and is timely pursuant to this

Court’s March 19, 2020 Order extending filing deadlines.

CONSTITUTIONAL AND STATUTORY PROVISION INVOKED

Implicated in this case are the Fifth Amendment to the United States

Constitution, which provides in relevant part that:

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

crime, unless on a presentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; . . . nor be deprived of

life, liberty, or property without due process of law ....

Also implicated is Section 1 of the Fourteenth Amendment to the

United States Constitution:

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

The remainder of the statutory and regulatory provisions are set out in the

appendices.

STATEMENT OF THE CASE

On February 8, 2019, an Information was filed charging Petitioner Carlos

Benitez-Penalosa with one count of violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B), attempt to possess with the intent to distribute heroin, a Schedule I

controlled substance, all in violation of 21 U.S.C § 846. A plea agreement was

entered into and provided certain factual stipulations concerning the actions of Mr.

Benitez-Penalosa and the purity of drugs seized in regard to the case. The plea

agreement also contained an appellate waiver provision:

13. The defendant is aware that he has the right to appeal his conviction

and the sentence imposed. The defendant knowingly waives the right to

appeal, except as indicated in subparagraph "b" below, his conviction and any

sentence within the Guidelines range as determined by the Court at the

time of sentencing, and any restitution order imposed, or the manner in

which the sentence or restitution order was determined, on any ground

whatsoever, in exchange for the concessions made by the prosecution in this

Agreement. The defendant understands that this waiver includes, but is not

limited to, the right to assert any constitutional challenges to the defendant's

conviction and guilty plea on appeal or collateral review, including any

arguments that the statute or statutes to which the defendant is pleading

guilty are unconstitutional, and any claims that the statement of facts

provided in this Agreement is insufficient to support the defendant's guilty

plea.

a. The defendant also waives the right to challenge his conviction or

sentence or the manner in which it was determined in any collateral

attack, including, but not limited to, a motion brought under Title 28,

United States Code, Section 2255, except that the defendant may make

such a challenge (1) as indicated in subparagraph "b" below, or (2) based

on a claim of ineffective assistance of counsel.

b. If the Court imposes a sentence greater than specified in the guideline

range determined by the Court to be applicable to the defendant, the

defendant retains the right to appeal the portion of his sentence greater

than specified in that guideline range and the manner in which that

4

portion was determined and to challenge that portion of his sentence in a

collateral attack.

The court asked Petitioner if he understood that he was knowingly waiving

his right to appeal or challenge his conviction except as indicated in the language of

the waiver, to which he replied, “yes.” The district court continued: “And that

language states you may appeal any sentence greater than the guidelines range

determined by the Court at the time of sentencing, but only for that portion of your

sentence that is greater than the specified guideline range, and the same is true

with any—with regard to any collateral attacks on your sentence. Do you

understand that?” Benitez-Penalosa responded “Yes.”!

Petitioner made two objections to the application of the Federal Sentencing

Guidelines: In paragraph 8 of the Plea Agreement, the parties stipulated that the

amount of heroin in a controlled buy on October 9, 2018, amounted to 908 grams.

This was the only drug amount mentioned in the plea agreement. However, the

draft PSR included an additional 1,000 grams of heroin that Petitioner allegedly

delivered to another party in August of 2018 at the Pacific Marina Inn in Honolulu,

Hawaii as reported by a cooperating defendant. Petitioner argued that there was

1 The court also discussed with the parties its concern over the language of plea

agreement that the Petitioner would be “waiving his right to appeal the

constitutionality of the statute of which he has been convicted.” As a result of this

concern, before sentencing the parties entered into a stipulation that modified the

appeal waiver provision in the MOPA, namely inserting that Defendant waived “all

legally waivable claims.” The language of subparagraphs (a), (b), and (c) was not

changed.

insufficient and unreliable evidence justifying the additional 1000 grams of heroin

included in Petitioner’s drug totals and his base level under U.S.8.G. 92D1.1 should

be 28. The final PSR rejected his arguments, and calculated 1908 grams of heroin

for a base level of 30.

Petitioner also objected to the inclusion of one criminal history point to the

conviction in 2015 for driving while license suspended. Paragraph 49 of the draft

PSR calculated a criminal history score of 7, which, by one point, placed Petitioner

in criminal history category IV. Evidence produced to the court at sentencing and

more clearly as an exhibit to the motion for reconsideration, showed that

Petitioner’s driver’s license was issued on June 29, 2017 which showed that he did

not have a suspended license in 2015, this point should not have been added to his

criminal history point total. On September 30, 2019, the trial court denied these

objections and imposed a sentence of eighty-four months incarceration.?

Petitioner timely appealed and argued that (1) appellate waiver should not be

enforced; (2) the drug amounts were wrongly decided; (3) the criminal history points

were wrongly calculated and (4) the trial court wrongly denied Defendant's Rule 35

2 On October 11, 2019, the trial court also denied the Petitioner’s post-conviction

Rule 35 motion, noting that the submission of a clearer copier of Petitioner’s driver's

license did not correct an “obvious” sentencing error, and that “the date on the

driver's license was immaterial to the Court’s sentencing decision” as “regardless on

the date on the driver’s license found in [Petitioner’s] possession at the time of the

arrest, there was sufficient evidence to conclude in May of 2015 of Driving After

License Suspension.”

motion for reconsideration. On November 25, 2020, the Government filed a motion

to dismiss Petitioner’s appeal, arguing that the appeal waiver should be upheld in

this case. On December 15, 2020, a panel of the Ninth Circuit dismissed Petitioner’s

appeal with the following one-page order:

Appellee’s motion to dismiss this appeal in light of the valid appeal waiver

(Docket Entry No. 29) is granted. See United States v. Harris, 628 F.3d 1203,

1205 (9th Cir. 2011) (knowing and voluntary appeal waiver whose language

encompasses the right to appeal on the grounds raised is enforceable).

Contrary to appellant’s argument, applying the waiver to his claims that his

Guidelines range was miscalculated does not result in a miscarriage of

justice. See United States v. Medina-Carrasco, 815 F.3d 457, 462 (9th Cir.

2015) (applying sentencing appeal waiver to claim that the Guidelines range

was incorrectly calculated); United States v. Martinez, 143 F.3d 1266, 1271

(9th Cir. 1998) (“When a plea agreement expressly waives a defendant's right

to appeal a sentence, the waiver extends to an appeal based on an incorrect

application of the sentencing guidelines.”).

On December 29, 2020, Petitioner filed his “Petition for Rehearing En Banc”

requesting the Ninth Circuit affirm that it applies a “miscarriage of justice”

exception to an appellate wavier in an otherwise valid plea agreement and to apply

this standard to the present case. On April 27, 2021, the Ninth Circuit issued the

following order: “We treat appellant’s “Petition for Rehearing En Banc” (Docket

Entry No. 33) as a motion for reconsideration en banc. So treated, the motion is

denied on behalf of the court. See 9th Cir. R. 27-10; 9th Cir. Gen. Ord. 6.11.”

REASON FOR GRANTING THE WRIT

I. Did the Ninth Circuit err when it failed to find that a sentencing error can

amount to a “miscarriage of justice” allowing appellate review even if

there is a plea agreement containing an appellate waiver?

A. Because there is a circuit split as to the definition of circumstances

warranting the disregard of an appellate waiver, this Court should grant

certiorari.

While the term “appellate waiver” is a “useful shorthand” for clauses in plea

agreements, “it can misleadingly suggest a monolithic end to all appellate rights. In

fact, however, no appeal waiver serves as an absolute bar to all appellate

claims.” Garza v. Idaho, 139 S. Ct. 738, 744 (2019). “Separately, all jurisdictions

appear to treat at least some claims as unwaiveable. Most fundamentally, courts

agree that defendants retain the right to challenge whether the waiver itself is valid

and enforceable—for example, on the grounds that it was unknowing or

involuntary. Consequently, while signing an appeal waiver means giving up some,

many, or even most appellate claims, some claims nevertheless remain.” Id. at 745.

In Garza, this Court held that when an attorney failed to file a notice of appeal

despite the defendant's express instructions to do so, prejudice in regard to the

Sixth Amendment right to effective assistance of counsel is presumed regardless of

whether a defendant has signed an appeal waiver. Id. at 749-750. Beyond its

holding in Garza, the Supreme Court has not defined the contours of further

exceptions to an appeal waiver, nor specifically recognized a “miscarriage of justice”

exception to appellate waiver.3 As referenced in Garza, Circuits have generally held

that an appeal waiver will not be upheld if the language of the plea agreement does

not encompass the defendant’s right to appeal and the plea agreement was not

entered into knowing and voluntarily. However, beyond this, the Circuits are split

as to what standard and circumstances allow appellate waivers not to be enforced.

3 See Garza, 139 S. Ct. at 745 n.6. (“... Lower courts have also applied exceptions

for other kinds of claims, including ‘claims that a sentence is based on race

discrimination, exceeds the statutory maximum authorized, or is the product of

ineffective assistance of counsel.’ . . . see also, e.g., United States v. Puentes-

Hurtado , 794 F.3d 1278, 1284 (CA11 2015) (‘[A]ppellate review is also permitted

when a defendant claims that the government breached the very plea agreement

which purports to bar him from appealing or collaterally attacking his conviction

and sentence’); State v. Dye,291 Neb. 989, 999,870 N.W.2d 628, 6384 (2015)

(holding that appeal waivers are subject to a ‘miscarriage of justice’ exception). We

make no statement today on what particular exceptions may be required”).

4 See United States v. Brown, 232 F.3d 399, 403 (4th Cir. 2000)(“These cases

establish that, with two exceptions, a defendant may not appeal his sentence if his

plea agreement contains an express and unqualified waiver of the right to appeal,

unless that waiver was unknowing or involuntary”); United States v. Barnes, 953

F.3d 383, 386 (5th Cir. 2020)(“We consider "(1) whether the waiver was knowing

and voluntary and (2) whether the waiver applies to the circumstances at hand,

based on the plain language of the agreement”); United States v. Smith, 344 F.3d

479, 483 (6th Cir. 2003) “For a plea agreement to be constitutionally valid, a

defendant must have entered into the agreement knowingly and voluntarily”);

United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir. 1997)(‘A waiver of

appeal rights can only be upheld if it is voluntarily made”); United States v. Medina-

Carrasco, 815 F.3d 457, 461 (9th Cir. 2015)(‘A waiver of appellate rights ‘is

enforceable if (1) the language of the waiver encompasses his right to appeal on the

grounds raised, and (2) the waiver is knowingly and voluntarily made’ ”)(citation

omitted).

The First, Third, Fourth, Eighth, Tenth and D.C. Circuits have expressly

approved of a “miscarriage of justice” exception to appellate waiver.’ The Ninth

Circuit seemingly has adopted a “miscarriage of justice” exception, but there is

within-circuit authority to the contrary.6 The Sixth Circuit has “implicitly adopted”

a “miscarriage of justice” exception to appellate waiver.”

5 See United States v. O'Farrill-Lépez, 991 F.3d 45, 49 (1st Cir. 2021)(“The premise

on which this contention rests is unimpugnable: we long have recognized a

miscarriage-of-justice exception to the enforcement of appeal waivers”); United

States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001)(“We hold that waivers of appeals

are generally permissible if entered into knowingly and voluntarily, unless they

work a miscarriage of justice”); United States v. Adams, 814 F.3d 178, 182 (4th Cir.

2016)(“We will refuse to enforce an otherwise valid waiver if to do so would result in

a miscarriage of justice”); United States v. Andis, 333 F.3d 886, 891 (8th Cir.

2003)(“Assuming that a waiver has been entered into knowingly and voluntarily, we

will still refuse to enforce an otherwise valid waiver if to do so would result in a

miscarriage of justice”); United States v. Rodriguez-Rivera, 518 F.3d 1208, 1216

(10th Cir. 2008)(“A waiver of appellate rights in a plea agreement cannot be

enforced if doing so would result in a miscarriage of justice”)(citation omitted);

United States v. Julian Zapata Espinoza, No. 17-3088 at *2 (per curium)(D.C. Cir.

September 18, 2020)(“An otherwise valid appeal waiver does not bar a claim of

ineffective assistance of counsel in connection with agreeing to the waiver, nor will

we enforce it ‘if the sentencing court’s failure in some material way to follow a

prescribed sentencing procedure results in a miscarriage of justice’ ”) (citation

omitted).

6 See United States v. Harris, 628 F.3d 1203, 1205 (9th Cir. 2011)(“Generally,

appellate courts ‘retain[] subject matter jurisdiction over [an] appeal by a defendant

who has signed an appellate waiver.' . . . Absent some miscarriage of justice,

however, ‘we will not exercise that jurisdiction to review the merits of[an] appeal if

we conclude that [the defendant] knowingly and voluntarily waived’ the right to

bring the appeal”)(citations omitted). But see United States v. Ligon, 461 F. App'x

582, at *3 (9th Cir. 2011)(“This court does recognize certain exceptions to valid

appellate waivers, .., but a nebulous ‘miscarriage of justice’ exception is not among

them”); United States v. Bernal-Arias, No. 17-10013, at *2 (9th Cir. Nov. 17,

2017)(‘We also reject Bernal-Arias's call to ignore the appeal waiver to prevent a

10

The Second Circuit does not use the term “miscarriage of justice,” but holds that

an exception to the enforcement of plea agreement occurs where there is a “violation

of a fundamental right.”8 The Seventh Circuit similarly has rejected the use of the

term “miscarriage of justice” and instead recognizes a “set of exceptional situations

in which waiver does not foreclose appellate review.”? The Fifth Circuit has held

that it is “unnecessary to address” if it will adopt a “miscarriage of justice” exception

to the enforcement of a plea agreement.!° The Eleventh Circuit has rejected a

“miscarriage of justice” exception.!!

‘miscarriage of justice. Even assuming this court recognized such an exception to

the enforceability of an appeal waiver, it does not apply here”).

7 See United States v. Matthews, No. 12-5188, at *10-11 (6th Cir. Aug. 16,

2013)(“Although we have never expressly recognized the miscarriage -of-justice

exception to the enforcement of appellate waivers in a published decision, we have

implicitly recognized it in several unpublished decisions. See United States v.

Lee, 464 F. App'x 457, 458 (6th Cir. 2012) (per curiam) (enforcing appellate waiver

in part because doing so ‘will not result in a miscarriage of justice’)[ ]”).

8 See United States v. Riggi, 649 F.8d 148, 147-48 (2d Cir. 2011)(“A violation of a

fundamental right warrants voiding an appeal waiver’).

9 See United States v. Nulf, 978 F.3d 504, 507 (7th Cir. 2020)(“Along the way to that

holding, we noted that some circuits decline to enforce appeal waivers if doing so

would result in a "miscarriage of justice." Id. at 910. But we did not adopt a general

miscarriage-of-justice exception for this circuit. To the contrary, we reiterated our

circuit's longstanding recognition of only a limited set of exceptional situations in

which waiver does not foreclose appellate review[ ]”).

10 See United States v. Portillo-Palencia, No. 20-10493, at *6 (5th Cir. Dec. 9, 2020)

(“Notwithstanding his valid appeal waiver, Portillo-Palencia contends that this

court should join six other circuits in adopting a miscarriage-of-justice exception to

the waiver and reach the merits of his appeal... . But we conclude that it is

unnecessary to address whether this court should adopt such an exception because,

11

In deciding whether it will not enforce an appeal waiver, the First and Third

Circuits “choose not to earmark specific situations,” but consider “certain factors to

consider” before "reliev[ing] the defendant of the waiver": [T]he clarity of the error,

its gravity, its character (e.g., whether it concerns a fact issue, a sentencing

guideline, or a statutory maximum), the impact of the error on the defendant, the

impact of correcting the error on the government, and the extent to which the

defendant acquiesced in the result.” United States v. Khattak, 278 F.3d 557, 563 (3d

Cir. 2001) citing to United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001). The

Teeter court noted, “This category is infinitely variable, but, by way of illustration,

we would include within it situations in which appellants claim that their sentences

were based on constitutionally impermissible factors (say, race or ethnicity),.., or

that the plea proceedings were tainted by ineffective assistance of counsel[ ]” Teeter,

257 F.3d at 25, n.9. Further, “we do not think that a waiver should be construed to

bar an appeal if the trial court imposes a sentence exceeding the maximum penalty

permitted by law, ... or one that violates a material term of the plea agreement[.]”

Id. at 25, n.10.

in any event, Portillo-Palencia has failed to show a miscarriage of justice in this

case”),

1 See United States v. Cabezas, No. 18-10258, at *11 (11th Cir. Dec. 5, 2019)(“To the

extent that Cabezas argues that a miscarriage of justice would result from

enforcement of his sentence appeal waiver, we have not adopted a ‘miscarriage of

justice’ exception”).

12

Other Circuits do not employ a factor-driven individual case analysis, but rather

list certain situations that they deem worthy to warrant relief from appellate

waiver. The Tenth Circuit defines a “miscarriage of justice” as being "(1) the

district court relied on an impermissible factor such as race; (2) ineffective

assistance of counsel in connection with the negotiation of the waiver renders the

waiver invalid; (3) the sentence exceeds the statutory maximum; or (4) the waiver is

otherwise unlawful." United States v. Cudjoe, 634 F.3d 1163, 1167 (10th Cir. 2011)

(internal quotations and citations omitted). More restrictively, the Fourth Circuit

has noted that it has “applied the miscarriage of justice exception only to allow

review of sentences imposed ‘in excess of the maximum penalty provided by statute

or based on a constitutionally impermissible factor such as race,’... and for a valid

claim of actual innocence[ ]” United States v. Rich, No. 18-4828, at *2-3 (4th Cir.

Apr. 9, 2019)(citations omitted).

At perhaps the furthest end of the spectrum, the Fifth Circuit that has declined

to adopt a “miscarriage of justice” exception to an appellate waiver, and held, “We

have recognized only two exceptions to the general rule that knowing and voluntary

appellate and collateral-review waivers are enforceable: first, ineffective assistance

of counsel,. . . and second, a sentence exceeding the statutory maximum.” United

States v. Barnes, 953 F.3d 388, 388-89 (5th Cir. 2020). See also United States v.

Leal, No. 20-10790, at *2 (5th Cir. Mar. 24, 2021)(“Moreover, we decline to consider

an appeal waiver exception for challenging an illegal sentence”).

13

These differences in these standards are important as it may result in the loss of

a defendant’s ability to appeal in compelling and deserving circumstances

warranting the disregard of an appellate waiver. For example, a common basis for

disregarding an appellate waiver is a trial court’s imposition of an “illegal

sentence”!2 and those sentences imposed in excess of the statutory limit.3 A

12 See United States v. Williams, 597 F. App'x 99, 4 n.3 (8d Cir. 2015)(“Since we

conclude that Judge Davis' sentence was not authorized by law, we reject the

Government's claim that Williams waived his right to appeal the sentence by failing

to object when the sentence was imposed”); United States v. Wall, 230 F. Supp. 3d

771, 774 (E.D. Mich. 2017)(“An illegal sentence is recognized as a basis for setting

aside an appeal waiver in [the Sixth] circuit”); DeRoo v. United States, 223 F.3d

919, 923 (8th Cir. 2000)(Appeal waivers “are not absolute. For example, defendants

cannot waive their right to appeal an illegal sentence[ ]”); United States v. Andis,

333 F.3d 886, 891-92 (8th Cir. 2003)(“[A] ‘sentence is illegal when it is not

authorized by the judgment of conviction or when it is greater or less than the

permissible statutory penalty for the crime’ ”)(citation omitted).

18 See United States v. Ruiz-Gonzalez, 427 F. App'x 22, 26 (1st Cir. 2011)(‘[W]e have

observed that a miscarriage of justice occurs . . . where the sentence exceeds the

maximum penalty permitted by law”);United States v. Brown, 232 F.3d 399, 403

(4th Cir. 2000)(“An express knowing waiver will not bar appeal of a sentence when

the sentence was . . . imposed in excess of the maximum penalty provided by law[{

|); United States v. Barnes, 953 F.3d 383, 388-89 (5th Cir. 2020)(“We have

recognized only two exceptions to the general rule that knowing and voluntary

appellate and collateral-review waivers are enforceable: first, ineffective assistance

of counsel, . . . and second, a sentence exceeding the statutory maximum”); United

States v. Caruthers, 458 F.3d 459, 472 (6th Cir. 2006)(“Thus, we agree with our

unanimous sister circuits that an appellate waiver does not preclude an appeal

asserting that the statutory-maximum sentence has been exceeded”); United States

v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir. 1997)(A waiver of appeal rights “will

not be enforced . . . if the judge sentenced a defendant in excess of the statutory

maximum sentence for the crime committed”); United States v. Black, 201 F.3d

1296, 1301 (10th Cir. 2000)(“[A] waiver may not be used to preclude appellate

review of a sentence that exceeds the statutory maximum”); United States v.

Johnson, 541 F.3d 1064, 1068 (11th Cir. 2008)(A defendant cannot “be said to have

14

number of Circuits also agree that a sentenced premised on an impermissible factor,

such as race, can be reviewed despite appellate waiver.!4 Other decisions have

indicated an appellate waiver may be invalid if “actual innocence of Defendant” is

waived his right to appellate review of a sentence imposed in excess of the

maximum penalty provided by statute[ ]”)(citation omitted); United States v.

Adams, 780 F.3d 1182, 1184 (D.C. Cir. 2015)(Appellate waiver not enforced if “the

sentence exceeds the statutory maximum[ ]”)(citation omitted).

14 See United States v. Ruiz-Gonzalez, 427 F. App'x 22, 26 (1st Cir. 2011)(‘[W]e have

observed that a miscarriage of justice occurs when a sentencing court considers a

constitutionally impermissible factor such as the defendant's race[ ]”);United States

v. Yemitan, 70 F.3d 746, 748 (2d Cir. 1995)(“Similarly, a sentence tainted by racial

bias could not be supported on contract principles, since neither party can be

deemed to have accepted such a risk or be entitled to such a result as a benefit of

the bargain”); United States v. Brown, 282 F.3d 399, 403 (4th Cir. 2000)(“An express

knowing waiver will not bar appeal of a sentence when the sentence was. . . based

on a constitutionally impermissible factor such as race”);United States v. Hower,

442 F. App'x 218, 2 (6th Cir. 2011)(“Hower's argument that his sentence is illegal is

without merit, as the sentence does not exceed the statutory maximum and is not

based on any constitutionally prohibited factor, nor will any miscarriage of justice

occur if the sentence is not reviewed”); United States v. Feichtinger, 105 F.3d 1188,

1190 (7th Cir. 1997)(A waiver of appeal rights “will not be enforced if a sentencing

judge relied on impermissible facts (such as a defendant's race)[ ]”); United States v.

Black, 201 F.3d 1296, 1801 (10th Cir. 2000)(Citing to Second Circuit authority, “a

sentence tainted by racial bias could not be supported on contract principles, since

neither party can be deemed to have accepted such a risk or be entitled to such a

result as a benefit of the bargain”)(citation omitted); United States v. Johnson, 541

F.3d 1064, 1068 (1]th Cir. 2008)(A defendant cannot “be said to have waived his

right to appellate review of a sentence . . . based on a constitutionally impermissible

factor such as race”)(citation omitted);United States v. Adams, 780 F.3d 1182, 1184

(D.C. Cir. 2015)(Appellate waiver not enforced if “the sentence is ‘colorably alleged

to rest upon a constitutionally impermissible factor, such as the defendant's race or

religion’ ”)(citation omitted).

15

proven’; when the court failed to advert 18 U.S.C. § 3553(a) factors at sentencing;!6

when there exists a colorable claim of ineffective assistance of counsel;!’ when there

15 See United States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016)(“A proper showing

of ‘actual innocence’ is sufficient to satisfy the ‘miscarriage of justice’ requirement”).

16 See United States v. Yemitan, 70 F.3d 746, 748 (2d Cir. 1995)(“We do not hold

that the waiver of appellate rights forecloses appeal in every circumstance... . At

some point, one that is not approached here, an arbitrary practice of sentencing

without proferred reasons would amount to an abdication of judicial responsibility

subject to mandamus, particularly since one purpose served by the requisite

statement of reasons is to facilitate collection of sentencing data, see S. Rep. No.

225, 98th Cong., lst Sess. 80 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3263”);

United States v. Adams, 780 F.3d 1182, 1183-84 (D.C. Cir. 2015)(Appellate waiver

not enforced if “the district court utterly fails to advert to the factors in 18 U.S.C. §

3553(a)[]’) (citation omitted).

United States v. Hernandez, 242 F.8d 110, 113-14 (2d Cir. 2001)(“We have

suggested that a plea agreement containing a waiver of the right to appeal is not

enforceable where the defendant claims that the plea agreement was entered into

without effective assistance of counsel”); United States. v. Shedrick, 493 F.3d 292,

298 (8d Cir. 2007)(“Enforcing a collateral-attack waiver where constitutionally

deficient lawyering prevented Shedrick from understanding his plea or from filing a

direct appeal as permitted by his plea agreement would result in a miscarriage of

justice.In this context, we will exercise our jurisdiction to consider

Shedrick's ineffective-assistance-of -counsel claims”); United States v. Barnes, 953

F.3d 383, 388-89 (5th Cir. 2020)(“We have recognized only two exceptions to the

general rule that knowing and voluntary appellate and collateral-review waivers

are enforceable: first, ineffective assistance of counsel,. .. and second, a sentence

exceeding the statutory maximum”); United States v. Hodges, 259 F.3d 655, 659 n.3

(7th Cir. 2001)(“But a valid appellate waiver contained in a plea agreement does not

preclude a defendant's claim that the plea agreement itself was the product of

ineffective assistance of counsel”); United States v. Adams, 780 F.3d 1182, 1183

(D.C. Cir. 2015)(‘We will not enforce [an appellate] waiver, however, if ‘the

defendant makes a colorable claim he received ineffective assistance of counsel in

agreeing to the waiver| ]’ ”)(citation omitted).

16

is a failure to abide by the terms of the plea agreement;!§ the existence of “extreme

circumstances,”!® and challenges to sentences citing to Johnson v. United States,

185 S. Ct. 2552 (2015) where the ACCA’s residual clause was held to be

unconstitutional.2°

18 See Garza, 139 S. Ct. at 745 n.6 (“See also,e.g., United States v. Puentes-

Hurtado , 794 F.3d 1278, 1284 (CA11 2015) (‘[A]ppellate review is also permitted

when a defendant claims that the government breached the very plea agreement

which purports to bar him from appealing or collaterally attacking his conviction

and sentence’)”); DeRoo v. United States, 223 F.3d 919, 923 (8th Cir. 2000)(Appeal

waivers “are not absolute. For example, defendants cannot waive their right to

appeal... a sentence imposed in violation of the terms of an agreement”).

19 See United States v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999)(“A waiver of the

right to appeal includes a waiver of the right to appeal difficult or debatable legal

issues — indeed, it includes a waiver of the right to appeal blatant error”); Id. at

1169, n. 5 (“In extreme circumstances — for instance, if the district court had

sentenced Howle to a public flogging — due process may require that an appeal be

heard despite a previous waiver’).

20 See United States v. Barnes, 953 F.3d 383, 388 n.9 (5th Cir. 2020)(enforcing

appellate bar to Johnson challenge), citing cases on both sides of issue:

See, e.g. , United States v. Bey , 825 F.3d 75, 82-83 (1st Cir. 2016) (enforcing

appellate waiver to bar Johnson challenge, even after considering

"miscarriage of justice" exception); Sanford v. United States , 841 F.3d 578,

581 (2d Cir. 2016) (per curiam) ("Sanford’s collateral attack waiver therefore

bars the present motion because the waiver encompasses any challenge to his

sentence."); In re Garner , 664 F. App'x 441, 442 (6th Cir. 2016) ("[W]e must

deny Garner’s motion for the same reason he lost his direct appeal and his §

2255 action: Garner waived his right to challenge his sentence collaterally in

his plea agreement."); United States v. Ford , 641 F. App'x 650, 651 (8th Cir.

2016) (per curiam) (enforcing appeal waiver to bar

defendant's Johnson challenge); United States v. Hurtado , 667 F. App'x 291,

292 (10th Cir. 2016) (per curiam) ("The government unequivocally establishes

that the [Johnson -based] appeal falls within the scope of the waiver, the

waiver was knowing and voluntary, and enforcing the waiver will not result

in a miscarriage of justice."). But see [United States v.] Torres, 828 F.3d

17

A unified Circuit approach to those situations that justify the disregarding of

appellate waiver is necessary. For example, it makes no sense that in the Fifth

Circuit, one could be sentenced on the basis of that person’s race and the wavier of

appeal would presumably be upheld, but that same fact pattern would be rejected in

almost every other jurisdiction. As well, while the Eighth and Eleventh Circuits

would hold that appellate wavier can be disregarded if the Government breaches

the plea agreement, it is unclear if any other Circuit would so hold. Similar

vagarities in the holdings of the individual Circuits make it a matter of geographic

chance, not merit, if a Defendant can get relief from an appellate waiver. Such

disparate treatment is a violation of Defendant’s guarantee of equal protection and

due process under the law. See generally Baxstrom v. Herold, 383 U.S. 107, 111

(1966)(“[e]qual protection does not require that all persons be dealt with identically,

but it does require that a distinction made have some relevance to the purpose for

which the classification is made”).

B. Because there is _a circuit split as to how allegations of circumstances

warranting the disregard of an appellate waiver are addressed in motions to

dismiss, this Court should grant certiorari.

[1113,] at 1125 [9 Cir. 2016](refusing to enforce appeal waiver on the

ground that such waivers don’t apply "a defendant’s sentence is ‘illegal,’

which includes a sentence that ‘violates the Constitution’ "); United States v.

Cornetie , 932 F.3d 204, 210 (4th Cir. 2019) ("(W]Je may review Cornette’s

sentencing challenge [under Johnson ] notwithstanding the appeal waiver.").

18

In the present case, a motion to dismiss was filed prior to merits consideration

by the panel of the Ninth Circuit assigned to Benitez-Penalosa’s case. The panel

granted this motion, determining only that waiver of appeal was valid, and made no

finding or evaluation of whether a “miscarriage of justice” occurred. See United

States v. Medina—Carrasco, 806 F.3d 1205, 1209 (9th Cir. 2015) (indicating that

waivers of appellate rights are enforceable if “the language of the waiver

encompasses [the] right to appeal on the grounds raised” and “the waiver is

knowingly and voluntarily made”). This circumvention of review of whether a

“miscarriage of justice” has occurred is not limited to the Ninth Circuit. See United

States v. Howard, 402 F. App'x 776, 777 (4th Cir. 2010)(Granting motion to dismiss

appeal without evaluation of “miscarriage of justice” claim, holding, “Furthermore,

enforcement of the valid waiver provision does not result in a miscarriage of

justice ”); United States v. Fairley, No. 17-60812, at *2 (5th Cir. Aug. 21, 2018)(“Our

review of the record shows that Fairley's appeal waiver was knowing and voluntary

and that, under the plain language of the plea agreement, the waiver applies to his

claims... . We decline to adopt the miscarriage of justice exception to appellate

waivers. The Government's motion to dismiss the appeal is GRANTED, and the

appeal is DISMISSED).

These dismissals do not consider whether an exception to enforcement to

appellate waiver is warranted prior to the defendant’s case being dismissed. A fairer

19

system has been implemented by the Eighth and Tenth Circuits, as stated by the

court in United States v. Hahn, 359 F.8d 1315 (10 Cir. 2004):

We find persuasive the Eighth Circuit's treatment of these principles and adopt,

with slight variation, the three-prong analysis announced in United States v.

Andis, 333 F.3d 886, 890-92 (8th Cir. 2008) (en banc). This analysis calls for the

court of appeals, in reviewing appeals brought after a defendant has entered into

an appeal waiver, to determine: (1) whether the disputed appeal falls within the

scope of the waiver of appellate rights; (2) whether the defendant knowingly and

voluntarily waived his appellate rights; and (3) whether enforcing the waiver

would result in a miscarriage of justice as we define herein. See id.

Id. at 1825. See also United States v. Del Valle-Cruz, 785 F.8d 48, 57 (1st Cir.

2015)(deciding whether appeal waiver would work a miscarriage of justice before

"proceed[ing] to consider the merits of the appeal" under abuse-of-discretion

standard).

Requiring a three-point evaluation throughout the Circuits prior to dismissal

would allow the Circuits to review each appeal similarly and to make sure no

appropriate cases deserving the disregard of appellate waiver to fall through the

cracks- i.e., especially egregious cases like sentences decided by race or sentences in

excess of the statutory maximum. The failure of the Circuits to treat appellants

equally again gives important rights to only those who happen to reside in a

favorable geographical area.

C. Because _unobjected to guideline error is “plain error” and because “plain

error” is indistinguishable from “miscarriage of justice.” guideline error

should be held to be a miscarriage of justice allowing disregard of appellate

waiver

20

Even the more lenient First and Third Circuits have rejected a claim of

guideline error as basis for a “miscarriage of justice” relief from appellate waiver.

See United States v. Valdez, 964 F.3d 117, 122 (1st Cir. 2020)(“The district court did

not make any erroneous calculations, let alone an error that would have made this

one of the ‘egregious cases’ that meets the miscarriage of justice standard”); United

States v. Chambers, 646 F. App'x 218, 6 (3d Cir. 2016)(“Even if the District Court

committed an error, claims relating to Sentencing Guideline calculations are exactly

the type of arguments to which a broad appellate waiver applies”).

Despite these and other cases, new decisions of this Court indicate that

sentencing error should be evaluated under the “miscarriage of justice” standards

applied by the Circuits. To begin, there is no indication that, in the correct case,

sentencing error could not fall under a “miscarriage of justice” umbrella. See Teeter,

257 F.3d at 25 (“Our basic premise, therefore, is that if denying a right of appeal

would work a miscarriage of justice, the appellate court, in its sound discretion, may

refuse to honor the waiver. As a subset of this premise, we think that the same

flexibility ought to pertain when the district court plainly errs in sentencing”).

In Molina-Martinez v. United States, 136 S. Ct. 1888 (2016), this Court held,

“The Guidelines' central role in sentencing means that an error related to the

Guidelines can be particularly serious. A district court that ‘improperly calculat[es]'

a defendant's Guidelines range, for example, has committed a ‘significant

procedural error.'” Id. at 1345-1346 (citation omitted). More recently, this Court

21

has held that "[iJn the ordinary case . . . the failure to correct a plain Guidelines

error that affects a defendant's substantial rights will seriously affect the fairness,

integrity, and public reputation of judicial proceedings." Rosales-Mireles v. United

States, 188 S. Ct. 1897, 1911 (2018). Such an error "is precisely the type of error

that ordinarily warrants [plain error] relief under Rule 52(b)." Id. at 1907.

Rosales-Mireles and Molina-Martinez emphasize and reinforce the

importance that an accurate guideline calculation is to a defendant facing

sentencing. Their holdings dovetail the concerns raised in numerous cases about

sentencing errors not being corrected due to appellate waivers. See United States v.

Mutschler, 152 F. Supp. 3d 1332, 13889 (W.D. Wash. 2016)(“The criminal justice

system is not improved by insulating from review either simple miscalculations or

novel questions of law”); United States v. Bolinger, 940 F.2d 478, 488 (9* Cir. 1991)

(Nelson, C.J., dissenting in part, because “a salient purpose of the Guidelines is to

reduce sentencing disparity and to create uniformity,” an appeal asserting that the

district court “misapplied the Guidelines . . . should not be barred by waiver”);

United States v. Melancon, 972 F.2d 566, 575 (5th Cir. 1992)(Parker, D.J.,

concurring specially)(“[W]Jaivers of the sort at issue in this case insulate from review

factual inadequacies in the presentence reports generated by nonjudicial probation

officers in Sentencing Guideline cases. Appellate review ensures that the record

adequately supports whatever factual findings the district court judge makes or

adopts’).

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