Petition for Writ of Certiorari — Raul Ambriz-Villa, Jr., Petitioner v. United States

No. ______

IN THE

Supreme Court of the United States

___________________________________________________________

RAUL AMBRIZ-VILLA, JR,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

______________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

______________________________________________________________

DAVID L. BRENGLE

Assistant Federal Public Defender

650 Missouri Ave.

East St. Louis, IL 62201

(618) 482-9050

(618) 482-9057 fax

David_Brengle@fd.org

Counsel for Petitioner

QUESTIONS PRESENTED

1. During a traffic stop, does the Fourth Amendment place any limit on the extent and

manner of questioning by police regarding matters not related to the mission of the traffic stop, if

the additional questioning does not prolong the traffic stop?

2. On appellate review of a within-guidelines sentence for substantive reasonableness, is

a Circuit court permitted to determine whether a reasoned weighing of 18 U.S.C. § 3553(a)

factors rebuts the appellate presumption of reasonableness?

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TABLE OF CONTENTS

Questions Presented ......................................................................................................................... i

Table of Contents ............................................................................................................................ ii

Table of Authorities ....................................................................................................................... iii

Petition for a Writ of Certiorari .......................................................................................................1

Decision Below ................................................................................................................................1

Jurisdictional Statement ...................................................................................................................1

Constitutional Provisions Involved ..................................................................................................1

Statement of the Case.......................................................................................................................2

Reasons for Granting the Writ .........................................................................................................6

1. During a traffic stop, does the Fourth Amendment place any limit on the extent and

manner of questioning by police regarding matters not related to the mission of the traffic stop, if

the additional questioning does not prolong the traffic stop?

A. Seventh Circuit’s holding conflicts with Supreme Court precedent ...............................6

B. Clarifying the limits on police questioning during a traffic stop is important ................9

2. On appellate review of a within-guidelines sentence for substantive reasonableness, is

a Circuit court permitted to determine whether a reasoned weighing of 18 U.S.C. § 3553(a)

factors rebuts the appellate presumption of reasonableness?

A. Seventh Circuit’s holding conflicts with Supreme Court precedent .............................10

B. Maintaining substantive reasonableness review is important .......................................11

Conclusion .....................................................................................................................................12

INDEX TO APPENDIX

Exhibit 1 United States Court of Appeals for the Seventh Circuit Opinion

(Mar. 14, 2022) ............................................................................................................... Appendix 1

Exhibit 2 United States Court of Appeals for the Seventh Circuit Denial of Petition for Rehearing

and Rehearing En Banc (Apr. 12, 2022) ......................................................................... Appendix 6

Exhibit 3 United States District Court for the Southern District of Illinois, Denial of Motion to

Suppress (Aug. 31, 2020)................................................................................................ Appendix 7

Exhibit 4 United States District Court for the Southern District of Illinois Final Judgment and

Conviction (Feb. 25, 2021) ........................................................................................... Appendix 16

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TABLE OF AUTHORITIES

Cases:

Ambriz-Villa, 28 F.4th 786, 791-92 (7th Cir. 2022) .......................................................... 1,3,4,5,11

Arizona v. Johnson, 555 U.S. 323 (2009) .......................................................................................8

Berkemer v. McCarty, 468 U.S. 420 (1984) .............................................................................6,7,9

Gall v. United States, 552 U.S. 38 (2007) .....................................................................................10

Muehler v. Mena, 544 U.S. 93 (2005) ............................................................................................8

Olaniyi v. D.C., 876 F. Supp. 2d 39 (D.D.C. 2012) ........................................................................9

Rita v. United States, 551 U.S. 338 (2007) ............................................................................3,10,11

Rodriguez v. United States, 575 U.S. 348 (2015) ...........................................................................8

Terry v. Ohio, 392 U.S. 1 (1968) ...........................................................................................6,7,8,9

United States v. Booker, 543 U.S. 220 (2005) ......................................................................3,10,11

United States v. Everett, 601 F.3d 484 (6th Cir. 2010) ...................................................................9

United States v. Hensley, 469 U.S. 221 (1985) ............................................................................6,7

United States v. Morgan, 987 F.3d 627 (7th Cir. 2021) ...............................................................11

Constitution:

U.S. Const. amend. IV ................................................................................................ i,1,2,3,6,7,8,9

Federal Statutes:

18 U.S.C. § 3231 ..............................................................................................................................1

18 U.S.C. § 3553 ...................................................................................................... i,3,4,5,10,11,12

18 U.S.C. § 3742 .............................................................................................................................1

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

28 U.S.C. § 1291 ..............................................................................................................................1

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PETITION FOR A WRIT OF CERTIORARI

Petitioner Raul Ambriz-Villa respectfully petitions for a writ of certiorari to review the

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

DECISION BELOW

The Seventh Circuit’s decision is published at 28 F.4th 786 (7th Cir. 2022), and appears at

Appendix 1 to this Petition. The Seventh Circuit’s denial of Petitioner’s Petition for rehearing and

rehearing en banc (unpublished) is available on Westlaw, citation 2022 WL 1094627, and appears

at Appendix 6.

JURISDICTIONAL STATEMENT

The United States District Court for the Southern District of Illinois originally had

jurisdiction pursuant to 18 U.S.C. § 3231, which provides exclusive jurisdiction of offenses

against the United States. Petitioner timely appealed his conviction and sentence to the United

States Court of Appeals for the Seventh Circuit, pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a). The Seventh Circuit affirmed the judgment on March 14, 2022.

Petitioner’s Petition for Rehearing and Rehearing en banc was denied on April 12, 2022.

Petitioner seeks review of the Seventh Circuit’s published opinion affirming Appellant’s

conviction and sentence pursuant to 28 U.S.C. § 1254(1). This Petition is filed within 90 days of

the Seventh Circuit’s denial of Petitioner’s Petition for Rehearing and Rehearing en banc.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched, and the persons or things to be

seized.

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STATEMENT OF THE CASE

Petitioner seeks this Court’s review of the Seventh Circuit’s opinion affirming the denial

of his motion to suppress and the substantive reasonableness of his sentence.

A. Fourth Amendment. Petitioner’s motion to suppress involved a traffic stop. Trooper

Payton stopped Petitioner for crossing the white line as he drove on the highway. Payton

immediately directed Petitioner to sit next to him in his police car while Payton prepared a warning

citation, although he identified no particular safety concerns for doing so. Payton warned Petitioner

not to open the back door of the police car, because his drug dog was in the back seat.

While preparing the warning citation for crossing the white line, Payton questioned

Petitioner repeatedly and persistently about his personal life and travel plans, as well about whether

he had drugs or other illegal objects in his truck. The repetitive questions and moving Petitioner to

the police car did not extend the duration of the stop beyond the time necessary to prepare the

warning ticket. In arguing for suppression, Defense Counsel argued the manner and level of

intrusiveness of the stop were unreasonable under the Fourth Amendment, in light of the totality

of the circumstances.

In denying suppression, the District Court found Trooper Payton’s questions about matters

outside the mission of the traffic stop were permissible, and any later consent to search was not

tainted by an illegal stop. The District Court also found Appellant’s “circumspect behavior and

dubious story” gave Trooper Payton justification to extend the traffic stop after the he gave

Petitioner a warning ticket, before he asked Petitioner to agree to a dog sniff of his vehicle. The

District Court further found a reasonable person in Petitioner’s shoes would have felt free to leave

after Trooper Payton handed him the warning ticket.

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The Seventh Circuit upheld the denial of the motion to suppress. However, unlike the

District Court, it did not find Trooper Payton had reasonable suspicion that Petitioner was engaged

in any illegal activity beyond the traffic violation. The Seventh Circuit rejected Petitioner’s

argument that “the scope and manner of the stop was unreasonable because Trooper Payton asked

[Petitioner] repetitive and persistent questions not tailored to the reason for the initial stop while

he was in the confines of the patrol car.” However, the Seventh Circuit refused to consider whether

the intrusive questioning while Petitioner was in custody in the police car rendered the scope and

manner of the stop unreasonable. Rather, it held that, unless the additional questions extended the

time to address the mission of the stop the traffic citation, the level of intrusiveness of the traffic

stop could not violate the Fourth Amendment:

But Trooper Payton was permitted to ask Ambriz-Villa questions unrelated

to the reason for the stop without reasonable suspicion of other criminal activity,

even if the questioning was repetitive and persistent, so long as the questioning did

not prolong the duration of the stop, which Ambriz-Villa does not contest on appeal.

* * * And it makes no difference that Ambriz-Villa was in the patrol car during the

questioning. Trooper Payton was permitted to ask Ambriz-Villa to sit in the patrol

car while he wrote the warning. * * * What matters is that Trooper Payton’s

questioning did not prolong the duration of the traffic stop. We agree with the

district court that the scope and manner of the stop did not violate Ambriz-Villa’s

Fourth Amendment rights.

United States v. Ambriz-Villa, 28 F.4th 786, 790 (7th Cir. 2022). The Seventh Circuit went on to

find that because the stop was not illegal, Petitioner’s consent to search was not tainted. Id.

B. Substantive reasonableness. Appellate courts reviewing a sentence for substantive

reasonableness must “determine whether the sentence ‘is unreasonable’ with regard to § 3553(a).”

United States v. Booker, 543 U.S. 220, 261 (2005). In addition, 18 U.S.C. § 3553(a) factors “guide

appellate courts, as they have in the past, in determining whether a sentence is unreasonable.” Id.

Courts of Appeals may apply a nonbinding, rebuttable, appellate presumption of reasonableness.

Rita v. United States, 551 U.S. 338, 347 (2007).

3

On appeal, Petitioner argued the District Court’s within-Guidelines sentence “was outside

the bounds of a reasonable balancing of the § 3553(a) factors.” United States v. Ambriz-Villa, 28

F.4th 786, 791 (7th Cir. 2022). Specifically, Defense Counsel argued in his brief, “Even

considering the District Court’s sentencing analysis, no weighing of sentencing factors within the

bounds of reason supports the conclusion that more than the ten-year minimum is necessary to

serve the goals of [sentencing],” and a “168 month sentence is unreasonable when measured

against § 3553(a) factors, rebutting the presumption of reasonableness.”

Defense Counsel cited Petitioner’s considerable, favorable sentencing factors. Appellant

was 49 years old, in criminal history category I, with no substance abuse problems. He was

devoted to his wife and children, and sacrificed his own education when he was young so his

siblings could go to school. He and his wife operated a food truck at a farmers’ market in their

local community for the previous three years. He regularly performed extra work without pay to

ensure the success of the market. Because of these things, he had an excellent reputation in the

community. Petitioner’s motive for his offense was to support his family and his children’s

education. After Petitioner’s arrest, his son had to drop out of college to work to support the family.

Defense Counsel further argued the District Court’s justification for a within-guidelines

sentence was weak. The District Court characterized Petitioner’s motivation to support his

family as merely a financial motive, which was common for many crimes. The District Court

reasoned prior punishment did not deter Petitioner; Defense Counsel argued the failure of a

single thirty-day term of imprisonment to deter Petitioner provided little support for the

conclusion that fourteen years, as opposed to ten years, was the shortest term necessary to serve

the goals of sentencing, in light of other mitigating factors. Also, although the District Court

emphasized Petitioner was involved in transporting three times the drug quantity necessary for

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his base offense level, there was no evidence Petitioner played a part in determining the drug

amount or purity of the drugs he transported.

In affirming on appeal, the Seventh Circuit refused to review whether a reasoned

weighing of sentencing factors rebutted the presumption of reasonableness. Rather, it found it

had no power to determine whether the District Court’s weighing of sentencing factors was

beyond the bounds of reason:

Ambriz-Villa may rebut [the reasonableness] presumption only by

showing that his sentence does not comport with the § 3553(a) factors. * * * To

this end, Ambriz-Villa stresses to us that he has strong factors in favor of

mitigation. But we do not re-weigh the factors on appeal. Rather, our review is

limited to ensuring the sentence is “logical and consistent” with the factors. * * *

Here, the district court considered the § 3553(a) factors, concluding the facts did

not “warrant a variance below the Guidelines range.” The judge noted that

Ambriz-Villa was moving a considerable quantity of drugs—nearly three times

the amount required to establish a baseline offense—and that prior community

supervision had not successfully deterred his criminal conduct. The district court

logically applied the factors, and to hold otherwise would require us to first weigh

the facts differently. That we will not do.

United States v. Ambriz-Villa, 28 F.4th 786, 792 (7th Cir. 2022).

On March 28, 2022, Defense Counsel filed a petition for rehearing or rehearing en banc,

which was denied on April 12, 2022.

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REASONS FOR GRANTING THE PETITION

1. During a traffic stop, does the Fourth Amendment place any limit on the extent

and manner of questioning by police regarding matters not related to the mission of the

traffic stop, if the additional questioning does not prolong the traffic stop?

A. Seventh Circuit holding conflicts with Supreme Court precedent. The panel’s holding

that police may ask unlimited non-traffic-stop-mission questions to a motorist, so long as the

traffic stop is not prolonged, conflicts with Berkemer v. McCarty, 468 U.S. 420, 439 (1984),

which limits even traffic-stop-mission-related questions to a “moderate number,” United States

v. Hensley, 469 U.S. 221, 235 (1985), which holds courts must ask whether the circumstances

“justified the length and intrusiveness of the stop and detention that actually occurred,” and

Terry v. Ohio, 392 U.S. 1, 28 (1968), which holds the manner of a seizure is a factor in the

reasonableness inquiry.

In Berkemer, this Court found police may question a defendant during a roadside traffic

stop without reading him his constitutional rights. Berkemer, 468 U.S. at 429. This Court

contrasted a roadside interrogation from a “stationhouse interrogation, which frequently is

prolonged, and in which the detainee often is aware that questioning will continue until he

provides his interrogators the answers they seek.” Id. at 436 (citation omitted). This Court further

explained a traffic stop is “not such that the motorist feels completely at the mercy of the police,”

and “the atmosphere surrounding an ordinary traffic stop is substantially less ‘police dominated’

than that surrounding the kinds of interrogation” requiring Miranda warnings. Id. at 436-39.

Rather, a traffic stop is more analogous to a “Terry stop.” See Terry v. Ohio, 392 U.S. 1, 88 S.Ct.

1868 (1968). Consequently,

“[T]he stop and inquiry must be ‘reasonably related in scope to the

justification for their initiation.’ ” Ibid. (quoting Terry v. Ohio, supra, 392 U.S., at

29, 88 S.Ct., at 1884.) Typically, this means that the officer may ask the detainee

a moderate number of questions to determine his identity and to try to obtain

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information confirming or dispelling the officer's suspicions. But the detainee is

not obliged to respond.

Berkemer v. McCarty, 468 U.S. 420, 438–40 (1984).

Hence, even for questioning related to the mission of the traffic stop, Berkemer and Terry

do not allow unlimited questioning, but restrict the questions to a moderate number, in

circumstances is more consistent with a typical roadside traffic stop than a stationhouse

interrogation. The Seventh Circuit’s holding that an officer may hold a defendant in his police

car and pepper him with an unlimited number of questions unrelated to the mission of a traffic

stop, many of which were accusatory, without reasonable suspicion of other criminal activity, so

long this questioning does not prolong the stop beyond the time it takes to issue a citation, cannot

be reconciled with Terry and Berkemer. The repetitive and probing questioning in close quarters

is more akin to a stationhouse interrogation then the typical limited roadside interrogation

contemplated by Berkemer.

This Court’s opinion in Hensley makes clear it is not just the length of the stop, but the

level of intrusiveness, which must be considered in determining the reasonableness of the stop

and questioning of an individual under the Fourth Amendment. Hensley held police may

objectively rely on a flyer from a different department, requesting that a suspect be stopped and

questioned, “if the police who issued the flyer or bulletin possessed a reasonable suspicion

justifying a stop . . . and if the stop that in fact occurred was not significantly more intrusive

than would have been permitted the issuing department.” Id. at 233. The opinion later explicitly

stated that reasonableness depends both on the length and the intrusiveness of the stop: “We hold

only that this flyer, objectively read and supported by a reasonable suspicion on the part of the

issuing department, justified the length and intrusiveness of the stop and detention that actually

occurred.” Id. at 235.

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Hence, the Seventh Circuit’s holding that police making a traffic stop may question a

defendant without limit on any subject while he is confined in a police car, so long as the stop is

not extended beyond the time necessary to issue a traffic citation, is inconsistent with the above

precedent.

This Court’s holding in Rodriguez v. United States, 575 U.S. 348, 350 (2015) (citation

omitted) that “a traffic stop ‘become[s] unlawful if it is prolonged beyond the time reasonably

required to complete th[e] mission’ of issuing a warning ticket,” does not support a different

conclusion. Rodriguez and the precedent on which it relied did not include a challenge to the

manner or level of intrusiveness of a stop. Rodriguez addressed only, “whether the Fourth

Amendment tolerates a dog sniff conducted after completion of a traffic stop.” Id. Rodriguez

gave no indication that this Court’s holdings requiring that a traffic stop be reasonable not only

in length, but also in manner and level of intrusiveness, were overruled.

Nor is the Seventh Circuit’s holding supported by Arizona v. Johnson, 555 U.S. 323

(2009), which stated, “An officer's inquiries into matters unrelated to the justification for the

traffic stop, [the Supreme] Court has made plain, do not convert the encounter into something

other than a lawful seizure, so long as those inquiries do not measurably extend the duration of

the stop.” Id. at 333. Johnson involved a challenge to the frisk of a motorist during a Terry stop,

and did not involve a claim that an officer’s repetitive questioning about extraneous matters was

overly intrusive. In addition, Johnson relied on Muehler v. Mena, 544 U.S. 93 (2005), which

challenged a traffic stop only because officer’s inquired into the motorist’s immigration status;

no claim was made that the questioning was of such character and in such circumstances that

rendered the stop overly intrusive. Id. at 101. Neither Rodriguez, Johnson, nor Mena support an

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overruling of this Court’s precedent holding that the level of intrusiveness is a separate inquiry

from the length of the stop, in a Fourth Amendment reasonableness inquiry.

B Clarifying the limits on police questioning during a traffic stop is important. Courts in

at least two other Circuits, in addition to the Seventh, have wrongly construed this Court’s

precedent as permitting an officer’s interrogation about extraneous matters “to his heart’s

content” during a traffic stop, so long as the questioning does not prolong the stop. See United

States v. Everett, 601 F.3d 484, 492 (6th Cir. 2010) (“[A]n officer may ask unrelated questions to

his heart's content, provided he does so during the supposedly dead time while he or another

officer is completing a task related to the traffic violation.”); Olaniyi v. D.C., 876 F. Supp. 2d 39,

57 (D.D.C. 2012) (Same, quoting Everett).

This misinterpretation allows police to transform a traffic stop from a Terry-type stop, of

limited duration and scope, to an interrogation approaching that of a stationhouse interview;

defendants confined next to a police officer in his squad car and under the officer’s constant

scrutiny may be repeatedly asked accusatory questions every spare minute, so long as the

questioning ends when the citation is issued. Such practice, which is so unlike the typical public,

roadside detention contemplated in Berkemer, cannot be deemed categorically reasonable under

the Fourth Amendment. Without this Court’s correction of this matter, defendants in the Seventh,

Fourth, and D.C. Circuits, who are subjected to such atypical interrogation during a traffic stops,

will be precluded from obtaining review of their particular circumstances for reasonableness

under the Fourth Amendment.

9

2. On appellate review of a within-guidelines sentence for substantive

reasonableness, is a Circuit court permitted to determine whether a reasoned

weighing of 18 U.S.C. § 3553(a) factors rebuts the appellate presumption of

reasonableness?

A. Seventh Circuit holding conflicts with Supreme Court precedent. In United States v.

Booker, 543 U.S. 220 (2005), the Supreme Court excised the statutory provision that made the

United States Sentencing Guidelines mandatory, along with “the provision that sets forth standards

of review on appeal” for sentences. Id. at 259. The Booker Court then set a new standard of review

for sentences on appeal, finding the language and structure of the sentencing statute, and past

appellate practice, “imply a practical standard of review already familiar to appellate courts:

review for ‘unreasonable[ness].’” Id. at 261. The Booker Court directed appellate courts reviewing

a sentence for substantive reasonableness to “determine whether the sentence ‘is unreasonable’

with regard to § 3553(a),” emphasizing that 18 U.S.C. § 3553(a) factors “guide appellate courts,

as they have in the past, in determining whether a sentence is unreasonable.” Id.

Gall v. United States, 552 U.S. 38, 51 (2007) clarified review of a sentence was a two-step

process; an appellate court must “first ensure that the district court committed no significant

procedural error,” including “failing to consider the § 3553(a) factors,” and “failing to adequately

explain the chosen sentence.” Id. at 51. If the decision is “procedurally sound, the appellate court

should then consider the substantive reasonableness of the sentence imposed under an abuse-ofdiscretion standard.” Id. In Rita v. United States, 551 U.S. 338, 347 (2007), this Court held

appellate court could apply a nonbinding, rebuttable, appellate presumption of reasonableness on

substantive reasonableness review.

The Seventh Circuit’s decision narrows the substantive reasonableness review

contemplated by Booker, Gall, and Rita. Despite the directives that the presumption of

reasonableness be rebuttable and that substantive reasonableness be gauged by § 3553(a) factors,

10

the panel refused to consider Appellant’s argument that the reasonableness presumption was

rebutted by 18 U.S.C. § 3553(a) factors. The Panel stated, “our review is limited to ensuring the

sentence is ‘logical and consistent’ with the [3553(a)] factors,” and it could not consider whether

the district court’s weighing of such factors was beyond the bounds of reason. The Panel found

consideration of such argument would require it to “re-weigh” the 3553(a) factors on appeal,

which it would not do. Ambriz-Villa, 28 F.4th 786, 791-92 (7th Cir. 2022).

Booker includes no restriction on an appellate court’s authority to consider whether a

district court’s weighing of sentencing factors is outside the bounds of reason, resulting in a

sentencing determination that is an abuse of discretion. No other authority provides support for

the Seventh Circuit’s grafting such a restriction onto Booker’s directive to measure substantive

reasonableness against 3553(a) factors, and Rita’s directive to consider whether the presumption

of reasonableness is rebutted. Hence, the Seventh Circuit’s misinterpretation of this Court’s

precedent requires this Court’s attention.

B. Maintaining substantive reasonableness review is important. “In sentencing, as in other

areas, district judges at times make mistakes that are substantive. At times, they will impose

sentences that are unreasonable. Circuit courts exist to correct such mistakes when they occur.”

Rita, 551 U.S. at 354 (2007). “[S]ubstantive reasonableness occupies a range, not a point.” United

States v. Morgan, 987 F.3d 627, 632 (7th Cir. 2021). Leaving the Seventh Circuit’s decision in

tact will preclude correction of sentences which are substantively unreasonable, in that they are

premised on a weighing of sentencing factors beyond the bounds of reason, but the district court

explained his sentencing decision in a way that is consistent and logical with 3553(a) factors.

In Petitioner’s case, the district court’s explanation of his sentencing decision was logical

and consistent with 3553(a) factors, but his weighing of sentencing factors was beyond the bounds

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of reason and rebutted the presumption of reasonableness. The sentencing factors in Petitioner’s

case favoring leniency were extraordinarily strong, and the District Court’s justification for

rejecting the significance of those factors, and for his conclusion that a within guideline sentence

was warranted, was extraordinarily weak. Without this Court’s attention, defendants subjected to

sentences based on a weighing of sentencing factors that is beyond the bounds of reason will have

no avenue for substantive review of the error, so long as the district court lists some facts consistent

with 3553(a) factors to support his decision.

CONCLUSION

For the foregoing reasons, this Court should grant the petition for a writ of certiorari.

Dated: May 16, 2022

Respectfully submitted,

/s/ David L. Brengle

David L. Brengle

Counsel of Record

Assistant Federal Public Defender

Southern District of Illinois

650 Missouri Ave

E St. Louis, IL 62201

(618) 482-9050

(618) 482-9057 (fax)

David_Brengle@fd.org

Counsel for Petitioner

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