Opposition Brief — Brendon Janis, Petitioner v. United States

No. 21-68

In the Supreme Court of the United States

BRENDON JANIS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

BRIAN H. FLETCHER

Acting Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

ROSS B. GOLDMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

Whether the supervised-release condition recommended in Sentencing Guidelines § 5D1.3(c)(12) impermissibly delegates judicial authority or is unconstitutionally vague.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States Court of Appeals (8th Cir.):

United States v. Janis, No. 20-1077 (Apr. 27, 2021)

United States District Court (D. S.D.):

United States v. Janis, No. 17-cr-50076 (Jan. 6, 2020)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 6

Conclusion ................................................................................... 14

TABLE OF AUTHORITIES

Cases:

Braxton v. United States, 500 U.S. 344 (1991) ............... 6, 13

Crawford v. Littlejohn, 963 F.3d 681 (7th Cir. 2020) ......... 12

Gundy v. United States, 139 S. Ct. 2116 (2019).................... 8

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) ................................................................. 11

Longoria v. United States, 141 S. Ct. 978 (2021) ............... 14

Mistretta v. United States, 488 U.S. 361 (1989) ................... 8

Robertson v. United States, 141 S. Ct. 298 (2020) .......... 6, 13

United States v. Bickart, 825 F.3d 832 (7th Cir.

2016) ............................................................................... 12, 13

United States v. Boles, 914 F.3d 95 (2d Cir.),

cert. denied, 139 S. Ct. 2659 (2019) ............................... 9, 12

United States v. Cabral, 926 F.3d 687 (10th Cir. 2019) ....... 9

United States v. Gallo, 20 F.3d 7 (1st Cir. 1994) ................ 11

United States v. Gibson, 998 F.3d 415 (9th Cir.

2021) ..................................................................... 4, 10, 11, 13

United States v. Greco, 938 F.3d 891 (7th Cir. 2019) ......... 12

United States v. Hull, 893 F.3d 1221 (10th Cir. 2018) ....... 11

United States v. Paul, 274 F.3d 155 (5th Cir. 2001),

cert. denied, 535 U.S. 1002 (2002) ..................................... 11

United States v. Peterson, 248 F.3d 79 (2d Cir. 2001) ....... 12

(III)

IV

Cases—Continued:

Page

United States v. Robertson, 948 F.3d 912 (8th Cir.),

cert. denied, 141 S. Ct. 298 (2020) ..................... 5, 6, 7, 8, 10

United States v. Thompson, 777 F.3d 368

(7th Cir. 2015)........................................................................ 4

United States v. Williams, 840 F.3d 865

(7th Cir. 2016)........................................................................ 7

United States v. Williams, 553 U.S. 285 (2008) ................. 11

Whitman v. American Trucking Ass’ns, Inc.,

531 U.S. 457 (2001)................................................................ 8

Statutes, guidelines, and rule:

18 U.S.C. 922(g)(3) ............................................................... 1, 2

18 U.S.C. 3553(a) ..................................................................... 3

18 U.S.C. 3583(d) ..................................................................... 2

18 U.S.C. 3583(d)(1) ................................................................. 3

18 U.S.C. 3583(d)(2) ................................................................. 3

18 U.S.C. 3583(d)(3) ................................................................. 3

18 U.S.C. 3583(e) ..................................................................... 7

18 U.S.C. 3602(c) ...................................................................... 7

18 U.S.C. 3603 ........................................................................ 10

21 U.S.C. 841(a)(1) ............................................................... 1, 2

21 U.S.C. 841(b)(1)(A) ......................................................... 1, 2

21 U.S.C. 846 ........................................................................ 1, 2

28 U.S.C. 994(a)(2)(B) ............................................................. 3

United States Sentencing Guidelines:

§ 5B1.4 (1987) ........................................................................ 3

§ 5B1.4(a)(13) (1987) ......................................................... 3, 4

§ 5D1.3(c) ............................................................................... 3

§ 5D1.3(c)(12) ...................................................... 4, 6, 8, 9, 12

App. C Supp., Amend. 803 (Nov. 1, 2016) ........................... 4

Fed. R. Crim. P. 32(c) ............................................................. 7

V

Miscellaneous:

Page

Federal Bureau of Prisons, Find an inmate,

https://www.bop.gov/inmateloc (Register

Number 17134-273) .............................................................. 6

In the Supreme Court of the United States

No. 21-68

BRENDON JANIS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-10a)

is reported at 995 F.3d 647.

JURISDICTION

The judgment of the court of appeals was entered on

April 27, 2021. The petition for a writ of certiorari was

filed on July 15, 2021. The jurisdiction of this Court is

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

STATEMENT

Following a jury trial in the United States District

Court for the District of South Dakota, petitioner was

convicted of conspiring to distribute a controlled substance, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A)

and 846, and possessing a firearm as a prohibited person, in violation of 18 U.S.C. 922(g)(3). Pet. App. 11a12a. He was sentenced to 180 months of imprisonment,

(1)

2

to be followed by five years of supervised release. Id.

at 13a-15a. The court of appeals affirmed. Id. at 1a-10a.

1. In 2015, petitioner and others participated in an

extensive conspiracy to distribute methamphetamine in

South Dakota. See Gov’t C.A. Br. 4-7. One confidential

informant later testified that he purchased methamphetamine from petitioner 50 to 60 separate times. Id.

at 4. A co-conspirator testified she purchased “8-balls

of methamphetamine” from petitioner “so many times

[that she] could not remember,” but “she knew it had

been at least 10 times.” Id. at 6. Another co-conspirator

described a time when petitioner hid drugs and guns

from police at a hotel. Id. at 5. And another testified

that petitioner sent him to meet “the ‘big homies,’ drug

suppliers from California, to pick up drugs.” Ibid.

In 2017, law enforcement officers executed search

warrants for petitioner’s home and car and found drugs,

guns, and drug-trafficking paraphernalia inside. Gov’t

C.A. Br. 3. A federal grand jury charged petitioner with

conspiring to distribute methamphetamine, in violation

of 21 U.S.C. 841(a)(1) and (b)(1)(A) and 846, and possessing firearms as a prohibited person, in violation of

18 U.S.C. 922(g)(3). Pet. App. 2a. The jury found petitioner guilty on both counts. Ibid. The district court

sentenced him to 180 months of imprisonment, to be followed by five years of supervised release. Id. at 13a15a.

2. Under 18 U.S.C. 3583(d), a sentencing court may

impose any condition of supervised release that “it considers to be appropriate,” as long as three requirements

are satisfied. First, the condition must be “reasonably

related” to the nature and circumstances of the offense

and the history and characteristics of the defendant,

and to the objectives of deterring criminal conduct;

3

protecting the public from further crimes; and providing needed training, medical care, or effective correctional treatment. 18 U.S.C. 3583(d)(1) (incorporating

factors set forth in 18 U.S.C. 3553(a)). Second, the condition must involve “no greater deprivation of liberty

than is reasonably necessary” to deter criminal conduct

and to protect the public. 18 U.S.C. 3583(d)(2). Finally,

the condition must be “consistent with any pertinent

policy statements” of the U.S. Sentencing Commission.

18 U.S.C. 3583(d)(3); see 28 U.S.C. 994(a)(2)(B) (directing the Sentencing Commission to issue policy statements regarding conditions of supervised release).

Shortly after its creation, the Sentencing Commission issued a list of standard conditions of supervised

release. Sentencing Guidelines § 5B1.4 (1987). Those

standard conditions included (and still include), for example, requirements that a defendant report to a probation officer in keeping with the probation officer’s instructions, answer all questions posed by the probation

officer, notify the probation officer of changes in residence or employment, and refrain from criminal or

other specified activities. See ibid.; Sentencing Guidelines § 5D1.3(c) (current version).

Standard Condition 13 of the initial list of standard

conditions provided that, “as directed by the probation

officer, the defendant shall notify third parties of risks

that may be occasioned by the defendant’s criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and

to confirm the defendant’s compliance with such notification requirement.” Sentencing Guidelines § 5B1.4(a)(13)

(1987). Over time, several courts criticized that recommended condition on vagueness grounds, noting in particular that the condition could leave a defendant

4

“guessing as to whom he would need to notify and what

he would need to tell them.” United States v. Gibson,

998 F.3d 415, 422 (9th Cir. 2021) (describing earlier decision); see, e.g., United States v. Thompson, 777 F.3d

368, 379 (7th Cir. 2015).

In response to that criticism, the Sentencing Commission in 2016 amended the recommended condition in

an effort to remove any “potential ambiguity in how the

condition is * * * phrased.” Sentencing Guidelines

App. C Supp., Amend. 803 (Nov. 1, 2016). The revised

language states:

If the probation officer determines that the defendant poses a risk to another person (including an organization), the probation officer may require the defendant to notify the person about the risk and the

defendant shall comply with that instruction. The

probation officer may contact the person and confirm

that the defendant has notified the person about the

risk.

Sentencing Guidelines § 5D1.3(c)(12). Unlike the previous version of the recommended condition, which stated

that “the defendant shall notify third parties of risks

that may be occasioned by the defendant’s criminal

record or personal history or characteristics,” id.

§ 5B1.4(a)(13) (1987), the current version requires only

that the defendant “comply with [an] instruction” by the

probation officer “to notify” an identified person of an

identified risk, id. § 5D1.3(c)(12).

3. At sentencing in this case, the district court imposed all of the recommended standard conditions of supervised release. Pet. App. 17a-19a. Petitioner objected to imposition of the condition in Sentencing

Guidelines § 5D1.3(c)(12) on the theory that it would unconstitutionally delegate judicial authority to the pro-

5

bation officer and was unconstitutionally vague. Pet.

App. 29a-32a. The court, however, found no unlawful

delegation of judicial authority to the probation officer

because “the decision * * * as to whether or not there

should be a sanction” remained “a judicial determination.” Id. at 30a. The court noted that “if a probation

officer determined that [petitioner] violated standard

condition No. 12, a document would be provided to [the

court], setting out the circumstances of that” asserted

violation “and asking for a determination of what type

of action, if any, should be taken.” Ibid. The court explained that there would then be “a judicial determination as to the handling of these standard conditions before any sanction is imposed,” and that the probation

officer would accordingly not have authority to impose

any sanction. Ibid.; see ibid. (“Everything goes back to

the sentencing judge.”).

The court of appeals affirmed. Pet. App. 1a-10a. Relying on its prior decision in United States v. Robertson,

948 F.3d 912 (8th Cir.), cert. denied, 141 S. Ct. 298

(2020), the court explained that the challenged condition

was not unconstitutionally vague “because the probation officer will identify and communicate the risk to [a

defendant] before [the defendant] has a duty to inform

another person of that risk.” Pet. App. 9a (quoting Robertson, 948 F.3d at 920). The court added that, “if there

is genuine confusion about what the condition requires,

[a defendant] may ask questions of his probation officer,

who is statutorily required to instruct him as to the conditions specified by the sentencing court.” Ibid. (quoting Robertson, 948 F.3d at 920) (brackets, ellipsis, and

internal quotation marks omitted). The court also explained that the condition does not constitute “an impermissible delegation of authority” to the probation

6

officer because the district court gave no “ ‘affirmative

indication that it will not retain ultimate authority over

all of the conditions of supervised release.’ ” Id. at 10a

(quoting Robertson, 948 F.3d at 919).

ARGUMENT

Petitioner renews (Pet. 8-30) his contention that the

standard condition of supervised release recommended

by the Sentencing Commission in Sentencing Guidelines § 5D1.3(c)(12) is unconstitutional. As an initial

matter, petitioner is not scheduled to be released from

federal prison until 2031, so the condition will not have

any effect on him for the next decade, and he will have

an opportunity to challenge the condition if it remains

in place and has the potential to cause him practical

harm upon his release. In any event, the court of appeals correctly determined that petitioner’s constitutional claims lack merit; his allegations of a circuit conflict are overstated; and if any meaningful circuit conflict were to develop, the Sentencing Commission could

amend the condition to address concerns raised by the

courts—as it recently did. See pp. 3-4, supra; cf. Braxton v. United States, 500 U.S. 344, 348 (1991). This

Court recently denied review of the decision that the

court of appeals relied on in this case, see Robertson v.

United States, 141 S. Ct. 298 (2020) (No. 19-8608), and

review is unwarranted here as well.

1. As a threshold matter, certiorari is unwarranted

because the questions presented will take on practical

importance, if ever, only after petitioner concludes his

term of imprisonment—which is currently scheduled

for October 20, 2031. See Federal Bureau of Prisons,

Find an inmate, https://www.bop.gov/inmateloc (Register Number 17134-273). In the roughly ten years between now and then, the law governing supervised

7

release might change; the Sentencing Commission

might amend the recommended condition, as it did in

2016, see pp. 3-4, supra; or the probation officer might

decline to require petitioner to notify anyone of a risk

that he presents. If the condition ever has the potential

to cause petitioner any practical harm, moreover, he can

seek modification of the condition. 18 U.S.C. 3583(e);

see Fed. R. Crim. P. 32(c). Accordingly, no need exists

to review his challenge at this time. Cf. United States

v. Williams, 840 F.3d 865, 865 (7th Cir. 2016) (per curiam) (affirming district court decision to deny as premature a motion to revise conditions of supervised release

where the defendant had 14 years of incarceration remaining because “the governing law * * * may change

between now and then,” and the defendant could raise

claims regarding his supervised release later).

2. In any event, petitioner’s constitutional arguments lack merit and do not warrant further review.

a. Although probation officers are Judicial Branch

officials, see 18 U.S.C. 3602(c), the court of appeals accepted that a “ ‘special condition of supervised release’ ”

is “an impermissible delegation” of authority to a probation officer if “ ‘the district court gives an affirmative

indication that it will not retain ultimate authority over

all of the conditions of supervised release.’ ” Pet. App.

10a (quoting Robertson, 948 F.3d at 919). It nevertheless correctly found no impermissible delegation because the district court here never abdicated its ultimate authority to enforce the challenged condition,

much less empowered the probation officer to punish

petitioner or otherwise undertake any action that would

curtail his liberty interest without the court’s approval.

To the contrary, the district court made clear at sentencing that “the decision as to what should be done, as

8

to whether or not there should be a sanction or that enhanced supervision or special condition should be applied * * * is a judicial determination” made by the

court—not one “made by the * * * United States probation officer.” Id. at 30a (brackets omitted). As a result, “[e]verything goes back to the sentencing judge.”

Ibid.; see id. at 10a (court of appeals echoing that reasoning, which it endorsed in Robertson, 948 F.3d at 919).

Petitioner asserts that the condition recommended

by Sentencing Guidelines § 5D1.3(c)(12) is unconstitutional because it provides no “intelligible principle” to

which probation officers are “directed to conform.” Pet.

29 (quoting Mistretta v. United States, 488 U.S. 361, 372

(1989)). To the extent that this Court’s “intelligible

principle” doctrine for delegations from the Legislative

Branch to the Executive Branch applies in this circumstance, the directive here readily qualifies as an intelligible principle under this Court’s nondelegationdoctrine decisions. See, e.g., Gundy v. United States,

139 S. Ct. 2116, 2129 (2019) (plurality opinion) (citation

omitted); Whitman v. American Trucking Ass’ns, Inc.,

531 U.S. 457, 472 (2001); Mistretta, 488 U.S. at 372. The

instruction that a probation officer “may require the defendant to notify [a] person about [a] risk” if the officer

“determines that the defendant poses a risk to [that]

person,” Sentencing Guidelines § 5D1.3(c)(12), provides

just as much, if not more, specificity as other delegations that this Court has upheld—including statutes

authorizing agencies “to regulate in the ‘public interest,’ ” to “set ‘fair and equitable prices,’ ” or to adopt airquality standards that “are ‘requisite to protect the

public health.’ ” Gundy, 139 S. Ct. at 2129 (plurality

opinion) (citations omitted).

9

Petitioner contends (Pet. 12) that the court of appeals’ rejection of his delegation claim conflicts with the

Tenth Circuit’s decision in United States v. Cabral, 926

F.3d 687 (2019). But the decision in Cabral was limited

to invalidating the “risk-notification condition, as imposed by the district court” in that case. Id. at 699 (emphasis added). The Tenth Circuit emphasized that the

district court in Cabral had “express[ly] * * * refus[ed]

to limit” the potential breadth of Standard Condition 12,

and had instead “emphatically opened the door to

boundless scenarios implicating various liberty interests,” including family relationships and potential employment. Id. at 698. Here, in contrast, the district

court made clear that it did not “want to limit people’s

liberty interests * * * unless there is a proper basis in

the record to do so.” 1/3/20 Sent. Tr. 34. The court of

appeals thus had no need to address how it would approach a situation like the one in Cabral, and Cabral

likewise had no need to consider how it would approach

a situation like the one here.

Petitioner also briefly states (Pet. 2) that the “Second Circuit has invalidated” the condition recommended by Sentencing Guidelines § 5D1.3(c)(12) “on

nondelegation * * * grounds.” But the decision he appears to invoke for that asserted conflict, United States

v. Boles, 914 F.3d 95 (2d Cir.), cert. denied, 139 S. Ct.

2659 (2019), did not mention the nondelegation doctrine.

Instead, as petitioner’s description of the decision recounts, the Second Circuit in Boles concluded that “the

‘risk’ condition is vague and affords too much discretion

to the probation officer.” Id. at 111; see Pet. 9-10.

b. Petitioner’s vagueness challenge also lacks merit.

Petitioner contends (Pet. 25-28) that the condition recommended by Sentencing Guidelines § 5D1.3(c)(12) is

10

vague because it provides too little guidance about what

kind of risks a defendant may be required to notify others about. That is, however, precisely the concern that

the Sentencing Commission resolved in revising the

prior Standard Condition 13. See pp. 3-4, supra. Unlike

that prior condition, which courts had read to require

defendants to guess about which risks they must notify

others about, the revised condition makes clear that the

probation officer must first “determine whether [a defendant] poses a risk to a particular person, and only

then” may the probation officer require a defendant “to

notify that person of the particular risk” that the probation officer has specified. Pet. App. 9a (quoting Robertson, 948 F.3d at 920). “[B]ecause the probation officer will identify and communicate the risk” to a defendant before the defendant “has a duty to inform another person of that risk,” the “ ‘scope of this condition

can be ascertained with sufficient ease.’ ” Ibid. (quoting

Robertson, 948 F.3d at 920). And if the defendant has

any confusion, he can ask his probation officer, who is

required by statute to provide information in response.

Ibid.; see 18 U.S.C. 3603.

Courts that had expressed vagueness concerns about

the prior language have accordingly recognized that the

revised language removes those concerns. For example, the Ninth Circuit, which had invalidated the prior

recommended condition as unconstitutionally vague, recently found “nothing unconstitutionally vague about”

the revised version. United States v. Gibson, 998 F.3d

415, 423 (2021). As the court explained, under the current condition (unlike the former one), “[t]he probation

officer”—not the defendant—“makes the determination

of the nature of the risk, and to whom the warning must

be given.” Ibid. “And, importantly, the probation

11

officer must give the probationer a specific instruction

and the probationer ‘must comply with that instruction.’ ” Ibid. The Tenth Circuit has similarly explained

that the revised condition is not unconstitutionally

vague because it “clearly and specifically states that [a

defendant] must provide notice” only “when required to

do so by his probation officer.” United States v. Hull,

893 F.3d 1221, 1224 (2018). The court found “no ambiguity in th[at] directive,” given that a defendant’s “obligation to notify third parties when so instructed by his

probation officer is clear from the terms of the condition

and can be understood by any ordinary person.” Ibid.

Petitioner suggests (Pet. 27-28) that, even if the revised condition ensures fair notice, it nevertheless fails

to provide adequate guidance to probation officers. To

the extent that argument is distinct from petitioner’s

flawed delegation challenge, see pp. 7-9, supra, it too

lacks merit. A criminal-law provision may be unconstitutionally vague if it is “so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304

(2008). But “perfect clarity and precise guidance have

never been required.” Ibid. (citation omitted); see

Holder v. Humanitarian Law Project, 561 U.S. 1, 19

(2010). That is particularly true of supervised-release

conditions, which “must inevitably use categorical

terms,” United States v. Paul, 274 F.3d 155, 167 (5th

Cir. 2001), cert. denied, 535 U.S. 1002 (2002), and accordingly should be read “in a commonsense way,”

United States v. Gallo, 20 F.3d 7, 12 (1st Cir. 1994).

The language of the condition at issue here supplies

sufficient guidance by providing that a probation officer

may require notification if the officer “determines that

the defendant poses a risk to another person (including

12

an organization).” Sentencing Guidelines § 5D1.3(c)(12).

Although framed in generalized terms, it limits the probation officer’s authority to circumstances in which the

defendant is placing another person at risk of harm. Cf.

Crawford v. Littlejohn, 963 F.3d 681, 684 (7th Cir. 2020)

(distinguishing breadth from vagueness). That limitation is readily understandable and is controlled by the

district court’s own ultimate enforcement authority.

See, e.g., Pet. App. 9a-10a.

Petitioner observes (Pet. 9, 15, 23) that some courts

have deemed the revised language to still be too vague,

but those decisions do not create any conflict warranting this Court’s review. Petitioner points to the Second

Circuit’s decision in United States v. Boles, supra, but

that decision did not conclude that Standard Condition

12 in its entirety is unconstitutionally vague. Instead,

relying on its prior decision in United States v. Peterson, 248 F.3d 79 (2d Cir. 2001) (per curiam), the court

vacated the condition principally insofar as it would require notifications to the defendant’s employer about

his federal conviction. See Boles, 914 F.3d at 111-112.

Here, the district court stressed the importance of respecting petitioner’s liberty interests, see p. 9, supra,

and did not indicate that the condition would authorize

any such notifications to his employer.

The Seventh Circuit’s decision in United States v.

Greco, 938 F.3d 891 (2019), is likewise not in meaningful

conflict with the decision below. There, the defendant

and the government agreed that the condition imposed

was “likely unconstitutionally vague,” id. at 897, under

the Seventh Circuit’s prior decision in United States v.

Bickart, 825 F.3d 832 (2016). But Bickart involved language that was an amalgam of the prior language and

the revised language at issue here. See id. at 841. And

13

much of what concerned the court in Bickart—notably,

ambiguity in what aspects of a defendant’s “personal

history” and “characteristics” are subject to the notification requirement—is inapposite here, where the condition does not use those terms. Ibid. (citation omitted).

Petitioner also suggests (Pet. 21) that the decision

below is inconsistent with the Ninth Circuit’s decision

in United States v. Gibson, supra. But as petitioner

acknowledges (Pet. 2, 21), the Ninth Circuit—like the

court below—“upheld” the current recommended condition against a vagueness challenge. Petitioner observes that Gibson, relying on circuit precedent, stated

that the condition is limited to those risks “posed by the

defendant’s criminal record.” 998 F.3d at 422 (citation

and emphasis omitted). Although the court below did

not articulate that same limitation in rejecting petitioner’s vagueness challenge, no reason exists to view

the Eighth and Ninth Circuit decisions upholding the

condition as presenting a conflict warranting this

Court’s review. Indeed, review of the question is, if anything, even less warranted now than in October 2020—

when this Court denied a petition for a writ of certiorari

in Robertson v. United States, supra, the Eighth Circuit

decision that was the basis for the decision below—

because the Ninth Circuit has now clarified that its view

that the prior condition was invalid does not extend to

the revised language, see Gibson, 998 F.3d at 422-423.

3. To the extent that a narrow conflict might be seen

to exist among the circuits on either of petitioner’s questions presented, certiorari would remain unwarranted

because the Sentencing Commission could amend the

condition to address the concerns raised by the courts.

See Braxton, 500 U.S. at 348 (“Congress necessarily

contemplated that the Commission would periodically

14

review the work of the courts, and would make whatever

clarifying revisions to the Guidelines conflicting judicial

decisions might suggest.”). As noted, that is precisely

what the Commission did several years ago with respect

to this condition. See pp. 3-4, supra. The Commission

could do so again if meaningful circuit differences or

concerns persist. Cf. Longoria v. United States, 141

S. Ct. 978, 979 (2021) (statement of Sotomayor, J., respecting the denial of certiorari) (“The Sentencing

Commission should have the opportunity to address this

issue in the first instance, once it regains a quorum of

voting members.”).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

BRIAN H. FLETCHER

Acting Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

ROSS B. GOLDMAN

Attorney

OCTOBER 2021