Petition for Writ of Certiorari — Xavier Jamaal Orange, Petitioner v. United States

No. 21-__________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2021

_________________________________________

XAVIER ORANGE,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

_________________________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

__________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________

A. J. KRAMER

FEDERAL PUBLIC DEFENDER

LISA B. WRIGHT

ASST. FEDERAL PUBLIC DEFENDER

(Counsel of Record)

625 Indiana Avenue, NW

Suite 550

Washington, D.C. 20004

(202) 208-7500

QUESTION PRESENTED

Due to defense counsel’s deficiency, petitioner was sentenced based

on an incorrect Sentencing Guidelines range (57 months, using a range

of 46-57 months), after which the sentencing court recited that if it was

wrong in rejecting the defense calculation (37-46 months – also

incorrect), it would vary upwards to impose the same sentence. The

record is silent as to what sentence would have been imposed but for

counsel’s deficiency, that is, if the correct range (21-27 months) had

been considered.

This case presents the question whether under Molina-Martinez v.

United States, 578 U.S. 189 (2016), a defendant claiming ineffective

assistance of counsel at sentencing can establish prejudice from such a

Sentencing Guidelines error despite the sentence relying “in part” on

factors outside the Guidelines.

i

LIST OF PARTIES AND RELATED CASES

All parties appear in the caption and there are no related cases.

ii

TABLE OF CONTENTS

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

LIST OF PARTIES AND RELATED CASES .......................................... ii

TABLE OF AUTHORITIES ...................................................................... iv

OPINION BELOW .................................................................................... 1

JURISDICTION ........................................................................................ 2

STATUTES INVOLVED .......................................................................... 2

STATEMENT OF THE CASE .................................................................. 2

THE D.C. CIRCUIT’S RULING................................................................. 3

REASONS FOR GRANTING THE WRIT ............................................... 6

THE D.C. CIRCUIT IS INTERPRETING MOLINAMARTINEZ SO AS TO ALLOW ITS EXCEPTION TO

SWALLOW ITS RULE. ........................................................... 6

CONCLUSION ......................................................................................... 13

APPENDIX

Judgment below,

21 F.4th 162 (D.C. Cir. 2021) .................................................. 1

Order denying panel rehearing,

filed March 10, 2022............................................................... 10

Order denying rehearing en banc,

filed March 10, 2022............................................................... 11

iii

TABLE OF AUTHORITIES

Molina-Martinez v. United States,

578 U.S. 189 (2016) ................................................................. i, 4-12

Peugh v. United States,

569 U.S. 530 (2013) ..................................................................... 9, 11

Strickland v. Washington,

466 U.S. 668 (1984) ........................................................................... 4

United States v. Bah,

439 F.3d 423 (8th Cir. 2006) .............................................................. 9

United States v. Miller,

2022 WL 1920691 (D.C. Cir. May 31, 2022)..................................... 7

18 U.S.C. 3553(a)…………...……………………………………………2, 8, 11

iv

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2021

___________________________________

XAVIER ORANGE,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

____________________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________________________

PETITION FOR WRIT OF CERTIORARI

____________________________________

Xavier Orange respectfully petitions for a writ of certiorari to

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

District of Columbia Circuit in this case.

OPINION BELOW

The decision of the D.C. Circuit (Pet. App. 1) is reported at 21 F.4th

162 (D.C. Cir. 2021). The orders denying panel rehearing and rehearing

en banc are at Pet. App. 10-11.

1

JURISDICTION

The D.C. Circuit issued its judgment (Pet. App. 1) on December

28, 2021. Orders denying panel rehearing and rehearing en banc (Pet.

App. 10-11) were issued on March 10, 2022. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Under 18 U.S.C § 3553(a), a sentencing court “shall impose a

sentence sufficient, but not greater than necessary, to comply with the

purposes [of sentencing] set forth in [§ 3553(a)(2)].” Under § 3553(a)(4),

one of the factors that the court “shall consider” is “the sentencing range

established for . . . the applicable category of offense committed by the

applicable category of defendant as set forth in the guidelines . . . issued

by the Sentencing Commission . . . .”

STATEMENT OF THE CASE

Appellant Xavier Orange pled guilty to possessing two guns – one

seized from him during a car stop and one found in the kitchen of an

apartment. The final PSR recommended a range of 70-87 months, but

at sentencing the parties agreed there was no obliterated serial number,

2

bringing the range to 46-57 months. Defense counsel challenged the

extended-magazine enhancement on the ground that the magazine

found in the apartment’s bedroom was not his and, even if it were, it

had not been in “close proximity” to the gun in the kitchen as required.

Elimination of this enhancement would have brought the range down to

37-46 months. Defense counsel affirmatively conceded that Mr.

Orange’s prior conviction for attempted assault with a dangerous

weapon qualified as a “crime of violence.”

The court rejected defense counsel’s extended-magazine

arguments, found the Guidelines range to be 46-57 months, not 37-46

months, and sentenced Mr. Orange to 57 months, noting that “if I’m

wrong about the guideline range, I would still vary upwards to give you

this sentence” and providing reasons for this hypothetical variance.

THE D.C. CIRCUIT’S RULING

Mr. Orange’s plea agreement permitted him to appeal on grounds

of ineffective assistance of counsel and he did so, arguing that his

counsel had made two errors at sentencing. First, his counsel should

have realized that, as a matter of law, the “crime of violence”

3

enhancement did not apply. Second, his counsel failed to recognize that

there was insufficient evidence that the gun in the kitchen was “capable

of accepting” the large capacity magazine found in the bedroom, as

required to apply the extended-magazine enhancement.

Either one of these objections would have brought Mr. Orange’s

range down to 37-46 months. Both of them together would have brought

the range down to 21-27 months.

The panel concluded that it need not consider the merits of either

of Mr. Orange’s deficiency claims because, even assuming both of his

claims were correct, he could not show prejudice, that is, a reasonable

probability that, using the correct Guidelines range of 21-27 months, his

sentence would have been less than 57 months.

The panel recognized that, under Molina-Martinez, in “‘most

cases’” in which a defendant demonstrates that his counsel’s deficient

performance caused the sentencing court to incorrectly calculate a

Guidelines range, the defendant “will have ‘demonstrated [the]

reasonable probability of a different outcome’” that is required under

Strickland v. Washington, 466 U.S. 668 (1984). Pet. App. 6 (quoting

4

Molina-Martinez, 578 U.S. at 200). But the panel concluded that the

exception contemplated in Molina-Martinez’s applied: “The court’s

reasons make ‘clear’ that it ‘based the sentence’ at least in part ‘on

factors independent of the Guidelines.’ [Molina-Martinez, 578 U.S. at

200].” Pet. App. 7-8 (emphasis added).

Orange protests that the district court’s analysis was

not wholly independent of the Guidelines, since it

ultimately selected a sentence within the calculated

range. Molina-Martinez, however, does not require

the government to show that the court’s decision was

completely independent of the Guidelines – only that

the court explained why the sentence was “appropriate

irrespective of the Guidelines range.” Id. When the court

offers such an explanation, as it did in this case, an

incorrect Guidelines range will not suffice to demonstrate

prejudice. Aside from the court’s alleged Guidelines error,

Orange offers no reason to suppose that he would have

received a lesser sentence had his attorney raised the

legal and evidentiary objections described above.

Pet. App. 8 (emphasis in original).

For these reasons, the panel affirmed Mr. Orange’s judgment

without considering whether either or both of his claimed Guidelines

errors were valid.

5

REASONS FOR GRANTING THE WRIT

THE D.C. CIRCUIT IS INTERPRETING MOLINAMARTINEZ SO AS TO ALLOW ITS EXCEPTION

TO SWALLOW ITS RULE.

Under Molina-Martinez, “in the ordinary case a defendant will

satisfy his burden to show prejudice by pointing to the application of an

incorrect, higher Guidelines range and the sentence he received

thereunder.” 578 U.S. at 201. This case presents the question of when

“unusual circumstances,” id., require more.

The proper scope of the exception contemplated in MolinaMartinez is an issue of exceptional importance because it determines

the circumstances under which Guidelines errors will be insulated from

appellate review. Under the panel’s decision, a sentence arrived at via

an incorrect Guidelines range is insulated from review for ineffective

assistance of counsel (or plain error) whenever a sentencing court

indicates that it based its sentence “at least in part” on factors

independent of the Guidelines range and that it would have given the

same sentence under some other, different range, without any

requirement that the court have said – or ever given any consideration

6

to – what it would have done under the correct range. Indeed, the D.C.

Circuit recently cited Orange as permitting judges to insulate their

incorrectly calculated sentences via blanket “recit[ations]” of an

alternative intent to vary upward.

The district court may sentence a defendant under the

Guidelines and, alternatively, recite that, if the Guidelines

range is incorrectly calculated, it would have instead

applied an upward variance and imposed the same sentence.

See United States v. Orange, 21 F.4th 162, 166 (D.C. Cir. 2021)

(district court calculated Guidelines range and explained “if

I’m wrong about the guideline range, I would still vary

upwards to give you this sentence”).

United States v. Miller, No. 20-3084, 2022 WL 1920691, *5 n.9 (D.C.

Cir. May 31, 2022).

Under the D.C. Circuit’s reasoning, the sentencing court’s

explanation of its willingness to vary 11 months from the (incorrect)

range urged by defense counsel satisfied the Molina-Martinez exception

by demonstrating that the court based its sentence “at least in part” on

“factors independent of the Guidelines.” Pet. App. 8. But the D.C.

Circuit’s “at least in part” language does not appear in Molina-Martinez

and entirely undermines this Court’s holding in that case.

7

The decision below says that the government need not show that

“the court’s decision was completely independent of the Guidelines.” Pet.

App. 8 (emphasis in original). But this Court contemplated an exception

to the “ordinary case” where it is clear that the sentence was “based” on

“factors independent of the Guidelines.” 578 U.S. at 200. Given that,

under § 3553(a), “factors independent of the Guidelines” (§ 3553(a)(1),

(2), (6)), are always considered, along with consideration of the

Guidelines range (§ 3553(a)(4)), Molina-Martinez can only be using

“independent” in the sense of completely independent. Indeed, this

Court’s alternative formulation of the exception – it might apply where

the record shows the court thought its sentence appropriate

“irrespective” of the Guidelines range (578 U.S. at 200) – likewise

carries the inference of complete independence from the correct range.

The D.C. Circuit was therefore wrong in reasoning that, once a

court explains that it would go outside a particular (incorrect)

Guidelines range to impose its sentence, and why, that sentence has

necessarily been imposed “irrespective” of the Guidelines. As this Court

said in Molina-Martinez, “‘Even if the sentencing judge sees a reason to

8

vary from the Guidelines, “if the judge uses the sentencing range as the

beginning point to explain the decision to deviate from it, then the

Guidelines are in a real sense the basis for the sentence.”’” 578 U.S. at

199 (quoting Peugh v. United States, 569 U.S. 530, 542 (2013)). Here,

the sentencing court was explaining its willingness to vary 11 months

from the (incorrect) alternative Guidelines range of 37-46 months urged

by defense counsel. The fact that a sentencing court is willing to

discount the Guidelines enough to vary to some degree in light of other

factors does not mean that the Guidelines are not still asserting their

gravitational pull. An expressed willingness to grant a small variance

from the “anchor” of a Guidelines range due to factors outside the

Guidelines (here, an 11-month variance from an incorrect range) does

not establish that the court has put the Guidelines aside entirely and

would impose whatever variance was necessary to get from the correct

Guidelines range to the sentence it arrived at using higher, incorrect

ranges (here, a 30-month variance). Cf. United States v. Bah, 439 F.3d

423, 431 (8th Cir. 2006) (identical alternative sentence cannot cover “any

and all potential guidelines calculation errors”; harmless error not

9

shown “where the identical alternative sentence was not based on a

correctly calculated advisory guidelines range”).

The panel concluded that “the record is not silent, and we can

readily conclude that the court would have imposed the same sentence

irrespective of the Guidelines” (Pet. App. 8), but “irrespective of the

Guidelines” means regardless of what the correct Guidelines range

might be. The district court did not suggest that it did not care what the

Guidelines were or that it was going to ignore altogether any

Sentencing Commission guidance in favor of other independent factors.

The sentencing court simply considered the appropriate sentence in

light of the (incorrect) alternative range advocated by defense counsel.

Defense counsel having affirmatively conceded that the court was right

about the crime of violence enhancement, the court had no reason to

consider, and as far as this record shows, did not consider, the (much

lower) correct range. All that is known is that the court would have

imposed 57 months of imprisonment if the correct range was between

37 months and 57 months (i.e., irrespective of whether it was 46-57

months or 37-46 months). The Molina-Martinez rule still applies with

10

respect to the actual correct range of 21-27 months: There is nothing to

suggest that the 57-month sentence was imposed irrespective of that

range and thus, under Molina-Martinez, there is a reasonable

probability that, had the court considered that range, it would have

imposed a sentence of less than 57 months.

Nor can a lack of prejudice be inferred from the sentencing court’s

statement that “[a]nything less than [the] sentence I’m imposing would

not be sufficient to comply with the purposes of sentencing.” (Pet. App.

7). Imposing the sentence “sufficient, but not greater than necessary” to

comply with the purposes of sentencing is simply the standard required

in every case, 18 U.S.C. § 3553(a), and importantly, the correct

Guidelines range is one of the factors to consider in determining that

“sufficient” sentence. See § 3553(a)(4). The whole point of MolinaMartinez is that, unless the sentencing court says otherwise, it is

reasonably probable that the “sufficient” sentence will change as the

Guidelines range changes. See 578 U.S. at 199 (“As this Court has

recognized, ‘when a Guidelines range moves up or down, offenders’

sentences [tend to] move with it.’”) (quoting Peugh, 569 U.S. at 544).

11

This Court in Molina-Martinez recognized that “[t]here may be

instances when, despite application of an erroneous Guidelines range, a

reasonable probability of prejudice does not exist” and gave as an

example the “unusual circumstance[]” in which the record shows that

the sentencing court thought its sentence was appropriate “irrespective

of” the Guidelines. 578 U.S. at 200-201. Asking only whether the court

based its sentence “at least in part” on factors independent of the

Guidelines, as the D.C. Circuit now does (Pet. App. 8), allows the

Molina-Martinez exception to swallow its rule. This case presents this

Court with the opportunity to define the limits of the rule set forth in

Molina-Martinez.

12

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

A.J. KRAMER,

FEDERAL PUBLIC DEFENDER

/s/

LISA B. WRIGHT

ASST. FEDERAL PUBLIC DEFENDER

(Counsel of Record)

625 Indiana Avenue, NW

Suite 550

Washington, D.C. 20004

(202) 208-7500

June 8, 2022

13