Petition for Writ of Certiorari — Ronald David McCalister, Jr., Petitioner v. United States

Supreme Court briefNov 12, 2021

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No. ______________

In the

Supreme Court of the United States

___________

Ronald David McCalister, Jr.,

Petitioner,

United States of America,

Respondent.

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

Christopher Curtis

Assistant Federal Public Defender

Federal Public Defender’s Office

Northern District of Texas

819 Taylor Street, Room 9A10

Fort Worth, TX 76102

(817) 978-2753

Chris_Curtis@fd.org

QUESTIONS PRESENTED

Whether this Court should recognize a “miscarriage of justice”

exception to waivers of appeal in plea agreements?

PARTIES TO THE PROCEEDING

Petitioner is Ronald David McCalister, Jr., who was the Defendant-Appellant

in the court below. Respondent, the United States of America, was the PlaintiffAppellee in the court below.

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDING .............................................................................. ii

INDEX TO APPENDICES ........................................................................................... iv

TABLE OF AUTHORITIES .......................................................................................... v

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

STATUTORY AND RULES PROVISIONS .................................................................. 2

LIST OF PROCEEDINGS BELOW .............................................................................. 5

STATEMENT OF THE CASE ....................................................................................... 6

REASONS FOR GRANTING THIS PETITION ........................................................... 8

This Court should decide whether to recognize a “miscarriage of

justice” exception to waivers of appeal. ............................................................. 8

CONCLUSION............................................................................................................. 16

iii

INDEX TO APPENDICES

Appendix A Judgment and Opinion of Fifth Circuit

Appendix B Judgment and Sentence of the United States District Court for the

Northern District of Texas

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Descamps v. United States,

133 S. Ct. 2276 (2013) ............................................................................................ 14

Garza v. Idaho,

––– U.S. ––––, 139 S.Ct. 738 (2019) ........................................................................ 9

Ibarra v. Texas Employment Com’n,

823 F.2d 873 (5th Cir. 1987) .................................................................................... 9

United States v. Adkins,

743 F.3d 176 (7th Cir. 2014) .................................................................................... 8

United States v. Baramdyka,

95 F.3d 840 (9th Cir.1996) ....................................................................................... 9

United States v. Brown,

232 F.3d 399 (4th Cir.2000) ..................................................................................... 8

United States v. Burns,

770 F. App’x 187 (5th Cir. 2019)(unpublished) ....................................................... 8

United States v. Escalante,

933 F.3d 395 (5th Cir. 2019) .................................................................................. 15

United States v. Ford,

688 F. App’x 309 (5th Cir. 2017) (unpublished) ...................................................... 8

United States v. General,

278 F.3d 389 (4th Cir.2002) ................................................................................. 4, 9

United States v. Guillen,

561 F.3d 527 (D.C. Cir. 2009) .............................................................................. 8, 9

United States v. Guzman,

707 F.3d 938 (8th Cir. 2013) .................................................................................... 8

United States v. Johnson,

347 F.3d 412 (2d Cir 2003) ....................................................................................... 8

United States v. Khattak,

273 F.3d 557 (3d Cir.2001) ....................................................................................... 8

United States v. Leal,

933 F.3d 426 (5th Cir. 2019) .................................................................................... 9

United States v. Olano,

507 U.S. 725 (1993) ................................................................................................ 16

United States v. Powell,

574 F. App’x 390 (5th Cir. 2014) (unpublished) ...................................................... 8

United States v. Ronald David McCalister,

850 Fed. App’x. 277 (5th Cir. June 15, 2021) .......................................................... 7

United States v. Shockey,

538 F.3d 1355 (10th Cir. 2008) ................................................................................ 8

United States v. Teeter,

257 F.3d 14 (1st Cir.2001) .................................................................................... 8, 9

United States v. Wikkernink,

841 F.3d 327 (5th Cir. 2016) ............................................................................ 14, 15

Federal Statutes

18 U.S.C. 2243(a) ......................................................................................................... 15

18 U.S.C. 2426(b) ......................................................................................................... 15

18 U.S.C. § 1591 ....................................................................................................... 4, 12

18 U.S.C. § 2241(c) ..................................................................................... 12, 13, 14, 15

18 U.S.C. § 2243 ........................................................................................................... 13

18 U.S.C. § 2243(a) ...................................................................................................... 14

18 U.S.C. § 2243(c) ....................................................................................................... 15

18 U.S.C. § 2256(8) ........................................................................................................ 3

18 U.S.C. § 2422(b) ........................................................................................................ 6

18 U.S.C. § 2426 ........................................................................................................... 12

18 U.S.C. § 2426(b)(1)(A) ......................................................................................... 3, 12

18 U.S.C. § 2426(b)(1)(B) ......................................................................................... 3, 12

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

U.S.S.G. § 2G1.3 ............................................................................................................ 6

U.S.S.G. § 4B1.5 ....................................................................................................passim

State Statutes

Tex. Penal Code § 22.021 ............................................................................................. 12

Tex. Penal Code § 22.041 ............................................................................................. 14

Constitutional Provisions

U. S. CONST. amend. V ................................................................................................... 2

Other Authorities

Restatement (Second) of Contracts, § 153 (1981) ......................................................... 9

vii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Ronald David McCalister, Jr., seeks a writ of certiorari to review the

judgment of the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals is located within the Federal Appendix at

United States v. Ronald David McCalister, Jr., 850 Fed. Appx. 277 (5th Cir. June 15,

2021) (unpublished). It is reprinted in Appendix A to this Petition. The district court’s

judgment and sentence is attached as Appendix B.

JURISDICTION

The panel opinion and judgment of the Fifth Circuit were entered on June 15,

2020. The 90-day deadline for filing a petition for writ of certiorari provided for in

Supreme Court Rule 13 has been extended to 150 days from the date of the lower

court judgment by order of this Court on March 19, 2020. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

STATUTORY AND RULES PROVISIONS

The Fifth Amendment to the United States Constitution provides:

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 shall any person be subject for the same offence to

be twice put in jeopardy of life or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be deprived of life, liberty, or property,

without due process of law;

This Petition also involves U.S.S.G. §4B1.5. The relevant portions of that

Guideline and commentary state the following:

(a) In any case in which the defendant’s instant offense of

conviction is a covered sex crime, §4B1.1 (Career Offender) does not

apply, and the defendant committed the instant offense of conviction

subsequent to sustaining at least one sex offense conviction:

(1) The offense level shall be the greater of:

(A) the offense level determined under Chapters Two and

Three; or

(B) the offense level from the table below decreased by the

number of levels corresponding to any applicable

adjustment from §3E1.1 (Acceptance of Responsibility):

Offense

Maximum

Statutory

Offense

Level

(i) Life

(ii) 25 years or more

(iii) 20 years or more, but less

than 25 years

(iv) 15 years or more, but less

than 20 years

Offense

Maximum

Statutory

Offense

Level

(v) 10 years or more, but less

than 15 years

(vi) 5 years or more, but less

than 10 years

(vii) More than 1 year, but less

than 5 years

12.

(2) The criminal history category shall be the greater of: (A) the

criminal history category determined under Chapter Four, Part

A (Criminal History); or (B) criminal history Category V.

...

Commentary

Application Notes:

...

3. Application of Subsection (a).—

(A) Definitions.—For purposes of subsection (a):

...

(ii) “Sex offense conviction” (I) means any offense described in

18 U.S.C. § 2426(b)(1)(A) or (B), if the offense was perpetrated

against a minor; and (II) does not include trafficking in, receipt

of, or possession of, child pornography. “Child pornography”

has the meaning given that term in 18 U.S.C. § 2256(8).

18 U.S.C. § 2426(b)(1)(A) and (B) provide the following:

(b)Definitions.—In this section—

(1) the term “prior sex offense conviction” means a conviction for

an offense—

(A) under this chapter, chapter 109A, chapter 110, or

section 1591; or

(B) under State law for an offense consisting of conduct

that would have been an offense under a chapter referred

to in subparagraph (A) if the conduct had occurred within

the special maritime and territorial jurisdiction of the

United States; and

(2) the term “State” means a State of the United States, the

District of Columbia, and any commonwealth, territory, or

possession of the United States.

LIST OF PROCEEDINGS BELOW

1. United States v. Ronald David McCalister, Jr., 4:20-CR-00059-P-1, United States

District Court for the Northern District of Texas. Judgment and sentence entered on

June 18, 2020. (Appendix B).

2. United States v. Ronald David McCalister, 850 Fed. Appx. 277 (5th Cir. June 15,

2021), CA No. 20-10642, Court of Appeals for the Fifth Circuit. Judgment affirmed

on June 15, 2021. (Appendix A)

STATEMENT OF THE CASE

On February 27, 2020, Ronald David McCalister, Jr. (McCalister) was charged

in a one-count information with enticement of a child, a violation of 18 U.S.C. §

2422(b), a charge that carries a statutory range of punishment of 10 years to Life.

(ROA.17). As a part of a plea agreement, McCalister signed a waiver of indictment

(ROA.19), a factual resume (ROA.20-22), and a written plea agreement (ROA.141).

The written plea agreement provided that McCalister waived his right to appeal with

certain exceptions. (ROA.145).

After entering a guilty plea (ROA.23,51-120), a presentence report (PSR was

prepared. (ROA.149). Applying U.S.S.G. §2G1.3 and its enhancements, the PSR first

established an adjusted offense level of 30, which would have resulted in a total

offense level of 27, after adjusting for acceptance of responsibility. See (ROA.155). The

PSR also established that McCalister’s criminal history score was 4, resulting in a

criminal history category III. See (ROA.158). This would have resulted in an advisory

imprisonment range of 87-108 months, which would have been below the statutory

mandatory minimum of 10 years.

However, the probation officer applied the provisions of U.S.S.G. §4B1.5 based

upon McCalister having at least one previous sex offense conviction. (ROA.155). This

resulted in a base offense level of 37 and a total offense level of 34 after a three-level

adjustment for acceptance of responsibility. (ROA.155-156). Section 4B1.5 also

increased McCalister’s criminal history category to V. (ROA.158). At a total offense

level 34 and a criminal history category V, McCalister’s guideline advisory

imprisonment range was 235-293. (ROA.163).

McCalister filed objections to the PSR but did not object to the application of

U.S.S.G. §4B1.5. See (ROA.169-171). The district court imposed a sentence of 235

months imprisonment, a $5,000 special assessment, and a term of supervised release

of 15 years. (ROA.39-41,134-135).

On appeal, McCalister argued that the district court committed plain error

because his previous conviction did not qualify as a conviction for a sex offense under

Section 4B1.5. McCalister also argued that the appellate court should adopt a

miscarriage of justice exception to the waiver of appeal provision in McCalister’s

written plea agreement. The Fifth Circuit declined to adopt such an exception and

dismissed McCalister’s appeal under the waiver of appeal provision of the plea

agreement. See United States v. McCalister, 850 Fed. Appx. 277, 278 (5th Cir. June

15, 2021). The court also stated, without explanation or analysis, that McCalister

“failed to show that his challenge to the § 4B1.5 enhancement should be allowed to

proceed even if such an exception existed.” Id.

REASONS FOR GRANTING THIS PETITION

This Court should recognize a “miscarriage of justice” exception to

waivers of appeal.

A. Due Process and Fundamental Fairness requires that a

“miscarriage of justice” exception to waivers of appeal.

The Fifth Circuit has expressly reserved the question of whether “miscarriages

of justice” constitute an exception to appeal waivers. See United States v. Burns, 770

F. App'x 187, 191 (5th Cir. 2019)(unpublished)(“Burns contends that we could find

his waiver unenforceable under a miscarriage of justice exception. The Fifth Circuit

has declined to explicitly adopt or reject this exception.”)(citing United States v. Ford,

688 F. App'x 309, 309 (5th Cir. 2017) (unpublished), and United States v. Powell, 574

F. App'x 390, 394 (5th Cir. 2014) (unpublished)). And the court continued to decline

to adopt such an exception in Mr. McCalister’s case. See

However, most other circuits hold that a waiver of appeal cannot shield a

miscarriage of justice. See United States v. Teeter, 257 F.3d 14, 21–27 (1st Cir.2001);

United States v. Khattak, 273 F.3d 557, 559–63 (3d Cir.2001); United States v.

Adkins, 743 F.3d 176, 192–93 (7th Cir. 2014); United States v. Guzman, 707 F.3d 938,

941 (8th Cir. 2013); United States v. Shockey, 538 F.3d 1355, 1357 & n.2 (10th Cir.

2008); United States v. Guillen, 561 F.3d 527, 531 (D.C. Cir. 2009).

Other circuits exempt certain fundamental issues from a waiver, but without

using the “miscarriage” language. See United States v. Johnson, 347 F.3d 412 (2d Cir

2003)(appeal waiver cannot bar appeal of sentence that unconstitutionally considers

defendant’s

“status”);

United

States

Brown,

232

F.3d

399,

403

(4th

Cir.2000)(challenges to sentence based on race or sentence exceeding maximum

cannot be waived); United States v. General, 278 F.3d 389, 399 n. 4 (4th Cir.2002)

(Apprendi errors and lack of competence cannot be waived); United States v.

Baramdyka, 95 F.3d 840, 843 (9th Cir.1996) (“the waiver of a right to appeal may be

subject to certain exceptions such as claims involving a breach of the plea agreement,

racial disparity in sentencing among codefendants or an illegal sentence imposed in

excess of a maximum statutory penalty”).

Both this Court and the Fifth Circuit have agreed that “’no appeal waiver

serves as an absolute bar to all appellate claims.’” United States v. Leal, 933 F.3d 426,

431 (5th Cir. 2019)(quoting Garza v. Idaho, ––– U.S. ––––, 139 S.Ct. 738 (2019)).

This Court should hold that defendants may appeal a miscarriage of justice,

notwithstanding a waiver of appeal. As a matter of contract law, it is unlikely that

parties to the plea agreement contemplated leaving no remedy in the event of an

extreme injustice following the plea. The D.C. Circuit has concluded that “[b]y

waiving the right to appeal his sentence, the defendant does not agree to accept any

defect or error that may be thrust upon him by either an ineffective attorney or an

errant sentencing court.” Guillen, 561 F.3d at 530. After all, most “waivers are made

before any manifestation of sentencing error emerges,” so “appellate courts must

remain free to grant relief from them in egregious cases.” Teeter, 257 F.3d at 25.

This merely applies a general principle of contract law: that parties may avoid

an unconscionable contractual obligation premised on a fundamental mistake. See

Restatement (Second) of Contracts, Section 153 (1981); Ibarra v. Texas Employment

Com'n, 823 F.2d 873, 879 (5th Cir. 1987). Here, the defendant – and likely both

parties – bargained with the assumption that the sentence would not amount to a

miscarriage of justice.

B. Mr. McCalister’s case presents a good vehicle for the Court to

adopt a “miscarriage of justice” exception.

Mr. McCalister’s case presents a situation where his Guideline imprisonment

range was enhanced from 87-108 months to 235-293 months by applying the

sentencing enhancement in U.S.S.G. §4B1.5 for Mr. McCalister having a prior “sex

offense conviction,” that conviction being aggravated sexual assault of a child under

14 years of age. The problem is that the Texas offense of aggravated sexual assault

of a child younger than 14 does not meet the definition of “sex offense conviction.”

Texas Penal Code provides the offense of aggravated sexual assault as follows:

(a) A person commits an offense:

(1) if the person:

(A) intentionally or knowingly:

(i) causes the penetration of the anus or sexual organ of

another person by any means, without that person's

consent;

(ii) causes the penetration of the mouth of another person

by the sexual organ of the actor, without that person's

consent; or

(iii) causes the sexual organ of another person, without

that person's consent, to contact or penetrate the mouth,

anus, or sexual organ of another person, including the

actor; or

(B) regardless of whether the person knows the age of the child

at the time of the offense, intentionally or knowingly:

(i) causes the penetration of the anus or sexual organ of a

child by any means;

(ii) causes the penetration of the mouth of a child by the

sexual organ of the actor;

(iii) causes the sexual organ of a child to contact or

penetrate the mouth, anus, or sexual organ of another

person, including the actor;

(iv) causes the anus of a child to contact the mouth, anus,

or sexual organ of another person, including the actor; or

(v) causes the mouth of a child to contact the anus or

sexual organ of another person, including the actor; and

(2) if:

(A) the person:

(i) causes serious bodily injury or attempts to cause the

death of the victim or another person in the course of the

same criminal episode;

(ii) by acts or words places the victim in fear that any

person will become the victim of an offense under Section

20A.02(a)(3), (4), (7), or (8) or that death, serious bodily

injury, or kidnapping will be imminently inflicted on any

person;

(iii) by acts or words occurring in the presence of the victim

threatens to cause any person to become the victim of an

offense under Section 20A.02(a)(3), (4), (7), or (8) or to

cause the death, serious bodily injury, or kidnapping of any

person;

(iv) uses or exhibits a deadly weapon in the course of the

same criminal episode;

(v) acts in concert with another who engages in conduct

described by Subdivision (1) directed toward the same

victim and occurring during the course of the same

criminal episode; or

(vi) with the intent of facilitating the commission of the

offense, administers or provides to the victim of the offense

any substance capable of impairing the victim's ability to

appraise the nature of the act or to resist the act;

(B) the victim is younger than 14 years of age, regardless of

whether the person knows the age of the victim at the time of the

offense; or

Texas Penal Code § 22.021.

Accordingly, the Texas Penal Code provides for an offense of aggravated sexual

assault of a child younger than 14 when a person, regardless of consent and

regardless of any age differential, has sexual intercourse with someone younger than

14 years of age.

Title 18 U.S.C. § 2426 defines “prior sex offense conviction” as a conviction

under chapter 117, chapter 109A, chapter 110, or section 1591 under Title 18, or a

conviction under state law for conduct that would have been an offense under one of

these chapters or sections if it had occurred within the special maritime and

territorial jurisdiction of the United States. See 18 U.S.C. § 2426(b)(1)(A) and (B).

Combing through all of the provisions of chapter 117 (transporting for illegal

sexual activity), chapter 109A (sexual abuse), chapter 110 (sexual exploitation of

minors) and 18 U.S.C. § 1591 (sex trafficking), there are only two offenses under

which Mr. McCalister’s prior offense (aggravated sexual assault of a child younger

than 14) can fall, and those are the federal offense of aggravated sexual abuse, 18

U.S.C. § 2241(c) and sexual abuse of a minor or ward, 18 U.S.C. § 2243. The relevant

portion of § 2241 provides the following:

Whoever crosses a State line with intent to engage in a sexual act with a

person who has not attained the age of 12 years, or in the special maritime and

territorial jurisdiction of the United States or in a Federal prison, or in

any prison, institution, or facility in which persons are held in custody by

direction of or pursuant to a contract or agreement with the head of any

Federal department or agency, knowingly engages in a sexual act with another

person who has not attained the age of 12 years, or knowingly engages in a

sexual act under the circumstances described in subsections (a) and (b) with

another person who has attained the age of 12 years but has not attained the

age of 16 years (and is at least 4 years younger than the person so engaging),

or attempts to do so, shall be fined under this title and imprisoned for not less

than 30 years or for life. If the defendant has previously been convicted of

another Federal offense under this subsection, or of a State offense that would

have been an offense under either such provision had the offense occurred in a

Federal prison, unless the death penalty is imposed, the defendant shall be

sentenced to life in prison.

18 U.S.C. § 2241(c). The subsections (a) and (b) referred to above are provisions of the

statute that address sex by force, threat, and by administering drugs. There is no

indication that McCalister’s offense fell under those subsections of §2241. See

(ROA.156).

The Federal statute prohibiting sexual abuse of a minor, § 2243 provides the

following:

(a)Of a Minor.—Whoever, in the special maritime and territorial jurisdiction

of the United States or in a Federal prison, or in any prison, institution, or

facility in which persons are held in custody by direction of or pursuant to a

contract or agreement with the head of any Federal department or agency,

knowingly engages in a sexual act with another person who—

(1) has attained the age of 12 years but has not attained the age of 16 years;

and

(2) is at least four years younger than the person so engaging;

or attempts to do so, shall be fined under this title, imprisoned not more than

15 years, or both.

18 U.S.C. §2243(a).

There should be no question that the categorical approach applies to

determining whether McCalister’s prior conviction for aggravated sexual assault is

an offense that qualifies as a “sex offense conviction” under §4B1.5. See United States

v. Wikkernink, 841 F.3d at 331-332. In making that determination, this Court must

compare the elements of McCalister’s conviction under Texas Penal Code § 22.041

with those in 18 U.S.C. § 2241(c) and 18 U.S.C. § 2243(a), and “the prior conviction

qualifies the defendant for a sentencing enhancement ‘only if the elements are the

same as or narrower than, those of the generic offense.’” Id. quoting Descamps v.

United States, 133 S. Ct. 2276, 2281, 2284 (2013).1

When comparing the Texas statute for which McCalister was convicted with

the only federal statutes that appear comparable to the Texas statute, it is undeniable

that the Texas statute is broader than the federal statute. Title 18 U.S.C. § 2241 (c)

It is not clear under Texas law whether “aggravated sexual assault of a child under 14” is divisible

or non-divisible from the other means of committing an aggravated sexual assault, such as to allow

the use of the “modified categorical approach.” However whether the Court applies the categorical

or modified categorical approach makes no difference in this case. McCalister is not disputing that

he was convicted of the “aggravated sexual assault of a child younger than 14 years” portion of

the statute. There really is no dispute that the underlying documents reflect that was the offense he

was convicted of. Even if the Court were to apply the modified categorical approach, it would

simply look to the charging documents to determine what portion of the statute the defendant was

convicted of and still compare the elements to see if the offense of conviction was broader. See

United States v. Wikkernink, 841 F.3d at 332.

criminalizes as an aggravated sexual assault when a person has consensual sex with

anyone who has not attained the age of 12. See 18 U.S.C. §§ 2241(c). Moreover, 18

U.S.C. 2243(a), the federal sexual abuse statute criminalizes consensual sex with a

person between the ages of 12 and 15 when the victim is at least four years younger

than the actor. Moreover, 18 U.S.C. § 2243(c) also provides for a defense if the

defendant reasonably believed the person had attained the age of 16 years.

The Texas statute allows for prosecution as an aggravated sexual assault

consensual sex with anyone who has not attained the age of 14. Moreover, the statute

contains no age differential, and no defense if the defendant believed the person was

16 years old. The Texas offense of aggravated sexual assault of a child younger than

14 is without question broader than both of the only two federal statutes that are

comparable to his offense of conviction.

McAlister’s prior offense does not meet the definition of “sex offense conviction”

under 18 U.S.C. 2426(b), and, therefore, does not meet the definition of “sex offense

conviction” under U.S.S.G. §4B1.5. Accordingly, McCalister’s prior conviction could

not be used a predicate offense to apply the sentencing enhancement in §4B1.5. See

United States v. Wikkerink, 841 F.3d at 332; see also United States v. Escalante, 933

F.3d 395, 402 (5th Cir. 2019) (Utah statute for sexual assault of a minor, which was

broader than the §2243 because it allowed for the prosecution without requiring the

government to prove the four-year age differential, could not be used as a predicate

offense for classifying a state offense as a tier II sex offense under SORNA).

This issue was not raised in the trial court. Therefore, the Fifth Circuit would

have to apply the plain error standard of review and would only be reversed if

McCalister could show. 1) error, 2) that is clear or obvious, 3) that affects substantial

rights, and 4) that affects the fairness, integrity or public reputation of judicial

proceedings. See United States v. Olano, 507 U.S. 725, 732 (1993). Finding a

“miscarriage of justice” exception to a waiver of appeal provision would allow the Fifth

Circuit to review the above error under the plain error standard. As argued in the

Fifth Circuit, McCalister contends that the error set forth above does satisfy the four

prongs of plain error.

CONCLUSION

Petitioner respectfully submits that this Court should grant certiorari to

review the judgment of the United States Court of Appeals for the Fifth Circuit.

Respectfully submitted this 12th day of November, 2021.

JASON D. HAWKINS

Federal Public Defender

Northern District of Texas

/s/ Christopher A. Curtis

Christopher Curtis

Assistant Federal Public Defender

Federal Public Defender's Office

819 Taylor Street, Room 9A10

Fort Worth, Texas 76102

Telephone: (978) 767-2746

E-mail: Chris_Curtis@fd.org

Attorney for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.