Petition for Writ of Certiorari — Cody Andrew Anderson, Petitioner v. United States

No.__________

_________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

CODY ANDREW ANDERSON, PETITIONER

V.

UNITED STATES OF AMERICA

_____________

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________

PHILIP J. LYNCH

Law Offices of Phil Lynch

17503 La Cantera Parkway

Suite 104-623

(210) 378-3114

LawOfficesofPhilLynch@satx.rr.com

Counsel of Record for Petitioner

____________________________________________________________

i

QUESTION PRESENTED FOR REVIEW

Whether appellate review of a sentence imposed after the

revocation

of

a

defendant’s

supervised-release

term

is

for

reasonableness, as United States v. Booker, 543 U.S. 220 (2005),

Kimbrough v. United States, 552 U.S. 85 (2007) and Holguin-Hernandez

v. United States, 140 S. Ct. 762 (2020) indicate or is, as the Fifth Circuit

held, merely to see if the sentence is plainly unreasonable.

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .............................................. i

TABLE OF AUTHORITIES .................................................................... ii

PARTIES TO THE PROCEEDINGS .......................................................1

OPINION BELOW ....................................................................................2

JURISDICTION OF THE

SUPREME COURT OF THE UNITED STATES ...................................2

FEDERAL STATUTORY PROVISION INVOLVED...............................2

STATEMENT ............................................................................................2

REASONS FOR GRANTING THE WRIT................................................8

CONCLUSION ........................................................................................12

APPENDIX

United States v. Anderson,

(5th Cir. May 6, 2022)

iii

TABLE OF AUTHORITIES

Cases

Page

Dean v. United States,

137 S. Ct.1170 (2017) .............................................................................11

Gall v. United States,

552 U.S. 38 (2007) ..............................................................................8. 11

Holguin-Hernandez v. United States,

140 S. Ct. 762 (2020) ...................................................................... i, 8, 11

Kimbrough v. United States,

552 U.S. 85 (2007) ........................................................................... i 8, 11

United States v. Booker,

543 U.S. 220 (2005) ..........................................................i, 2, 8, 9, 10, 11

United States v. Cotton,

399 F.3d 913 (2d Cir. 2005) ...............................................................9, 10

United States v. Crudup,

461 F.3d 433 (4th Cir. 2006) ..............................................................8, 10

United States v. Fleming,

397 F.3d 95 (2d Cir. 2005) .................................................................9, 10

United States v. Kippers,

685 F.3d 491 (5th Cir. 2012) ....................................................................7

United States v. Mathena,

23 F.3d 87 (5th Cir. 1994) ........................................................................9

United States v. Miller,

634 F.3d 841 (5th Cir. 2011) ..............................................................7, 10

United States v. Miqbel,

444 F.3d 1173 (9th Cir. 2006) .................................................................. ?

United States v. Nobles,

195 Fed. Appx. 265 (5th Cir. 2006)..........................................................9

United States v. Patlan,

31 F.4th 552 (7th Cir. 2022) ..................................................................11

iv

United States v. Richardson,

2021 WL 5492979 (4th Cir. 2021)..........................................................11

United States v. Santa-Soler,

985 F.3d 93 (1st Cir. 2021) ....................................................................11

United States v. Sweeting,

437 F.3d 1105 (11th Cir. 2006) ................................................................9

Statutes

18 U.S.C. § 3231 ........................................................................................5

18 U.S.C. § 3742 ..............................................................................2, 8, 10

21 U.S.C. § 841(a)(1) .................................................................................5

21 U.S.C. § 841(b)(1)(B) ............................................................................5

21 U.S.C. § 846 ..........................................................................................5

28 U.S.C. § 1254(1)....................................................................................2

Rule

Supreme Court Rule 13.1 .........................................................................2

1

No.__________

IN THE SUPREME COURT OF THE UNITED STATES

_____________

CODY ANDREW ANDERSON, PETITIONER

V.

UNITED STATES OF AMERICA

_____________

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________

Cody Anderson asks that a writ of certiorari issue to review the opinion and

judgment entered by the United States Court of Appeals for the Fifth Circuit on May

6, 2022.

PARTIES TO THE PROCEEDING

The caption of the case names all the parties to the proceedings in the court

below.

2

OPINION BELOW

The unpublished opinion of the court of appeals is appended to this petition.

JURISDICTION OF THE SUPREME COURT OF

THE UNITED STATES

The opinion and judgment of the court of appeals were entered on May 6, 2022.

This petition is filed within 90 days after the entry of judgment. See Supreme Court

Rule 13.1. The Court has jurisdiction to grant certiorari under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

Section 3742 of Title 18 of the U.S. Code provides in pertinent part, after the

decision in United States v. Booker, 543 U.S. 220 (2005), that:

(a) Appeal by a Defendant.—A defendant may file a notice of appeal in the

district court for review of an otherwise final sentence if the sentence—

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines;

or

(3) is greater than the sentence specified in the applicable guideline range to the

extent that the sentence includes a greater fine or term of imprisonment, probation,

or supervised release than the maximum established in the guideline range, or

includes a more limiting condition of probation or supervised release under section

3563(b))6 or (b)(11) than the maximum established in the guideline range or

3

(4) was imposed for an offense for which there is no sentencing guideline and is

plainly unreasonable.

(b) Appeal by the Government.—The Government may file a notice of appeal in the

district court for review of an otherwise final sentence if the sentence—

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines;

(3) is less than the sentence specified in the applicable guideline range to the extent

that the sentence includes a lesser fine or term of imprisonment, probation, or

supervised release than the minimum established in the guideline range, or

includes a less limiting condition of probation or supervised release under section

3563(b)(6) or (b)(11) 1 than the minimum established in the guideline range or

(4) was imposed for an offense for which there is no sentencing guideline and is

plainly unreasonable.

The Government may not further prosecute such appeal without the personal

approval of the Attorney General, the Solicitor General, or a deputy solicitor general

designated by the Solicitor General.

...

(f) Decision and Disposition.—If the court of appeals determines that—

4

(1) the sentence was imposed in violation of law or imposed as a result of an

incorrect application of the sentencing guidelines, the court shall remand the case

for further sentencing proceedings with such instructions as the court considers

appropriate;

(2) the sentence is outside the applicable guideline range and the district

court failed to provide the required statement of reasons in the order of judgment

and commitment, or the departure is based on an impermissible factor, or is to an

unreasonable degree, or the sentence was imposed for an offense for which there is

no applicable sentencing guideline and is plainly unreasonable, it shall state

specific reasons for its conclusions and—

(A) if it determines that the sentence is too high and the appeal has been

filed under subsection (a), it shall set aside the sentence and remand the case for

further sentencing proceedings with such instructions as the court considers

appropriate, subject to subsection (g);

(B) if it determines that the sentence is too low and the appeal has been filed

under subsection (b), it shall set aside the sentence and remand the case for further

sentencing proceedings with such instructions as the court considers appropriate,

subject to subsection (g);

(3) the sentence is not described in paragraph (1) or (2), it shall affirm the

sentence.

5

STATEMENT

Petitioner Cody Anderson pleaded guilty to a methamphetamine conspiracy

offense in 2015. See 21 U.S.C. §§ 841(a) and (b)(1)(B), 846.1 The district court

sentenced him to a 60-month term of imprisonment and a 4-year term of supervised

release.

In May 2021, a probation officer petitioned for revocation of Anderson’s

supervised-release term. Anderson had been arrested by state officers during an

argument he had in a Walmart parking lot. The state decided not to file charges,

leading the federal government to abandon the revocation petition. In August 2021,

however, another petition to revoke was filed. This one alleged that Anderson had

tested positive for drug use and had admitted possessing methamphetamine.

A hearing was held on this revocation petition. The district read the two

allegations of the petition to Anderson and asked him whether the allegations were

true. Anderson admitted that they were. The prosecutor read a factual basis for the

revocation that stated that Anderson had twice in August 2021 tested positive for

amphetamine use and had admitted drug use to his probation officer.

After accepting Anderson’s pleas of true, the district court determined that the

revocation sentence range under the advisory policy statements in Chapter 7 of the

U.S. Sentencing Guidelines was to 18 to 24 months’ imprisonment. Defense counsel

1 The district court exercised jurisdiction under 18 U.S.C. § 3231.

6

told the district court that Anderson felt embarrassed and ashamed to have failed in

his obligations. Counsel observed that Anderson had been released onto supervision

in November 2018 and had complied with his no-intoxicants conditions until his

August 2021 relapse into drug use. Counsel argued that drug treatment was the

proper response to the violation, but that, if the court chose to impose an

imprisonment term, the appropriate sentence would be the low end of-the range

suggested by the guidelines’ policy statements, 18 months.

Anderson explained the circumstances of his relapse to the district court. He

had been sober for years, but the stress of the suicide of his ex-partner‒and mother

of his children‒had weighed heavily upon him, especially as he was living on the

property where the death occurred. Anderson told the court that he was working at a

job he had held for some time, but had allowed himself to get complacent about his

recovery. That complacency, combined with worries about his new wife’s drug use,

led him into a situation where he was offered methamphetamine. Anderson knew he

had let his children down by relapsing. He expressed a wish to be allowed to go back

to work and back to taking care of his family.

The district court revoked Anderson’s supervised-release term and sentenced

him to 36 months’ imprisonment. The court explained that it had imposed the

maximum sentence because Anderson had “disregarded the Court’s set conditions

even though the Court and your supervisory officer has exhausted all resources

available that I’m aware of.” The court also asserted that there was “repeated noncompliance with the terms of supervision and breach of the Court’s trust[.]” And it

7

asserted that Anderson had a “tendency toward recidivism and likelihood, of course,

to re-offend, almost certainty, the Defendant’s history and characteristics, and the

need to deter criminal conduct to protect the public from future crimes.”

Anderson appealed. He argued that, in the circumstances of his case,

imposition of the maximum 36-month sentence violated the parsimony principle of

18 U.S.C. § 3553(a) and thus the sentence was unreasonable. He pointed out that his

violations involved a drug relapse, and a maximum sentence did not offer any useful

response to that relapse. He further argued that he had done well on supervision for

nearly three years and had not violated the drug conditions of his release until his

August 2021 relapse

Anderson also highlighted the illogic in the district court justifying a maximum

sentence on the ground that all resources had been exhausted when Anderson had

not been in a situation warranting any resources, let alone exhausting them.

Similarly, the court’s rote invocation of recidivism and deterrence could not make the

sentence reasonable when the facts of the case did not show recidivism or a need for

deterrence. The Fifth Circuit reviewed the sentence under a plainly unreasonable

standard and affirmed it. Appendix at 2-3 (citing United States v. Miller, 634 F.3d

841, 843 (5th Cir. 2011) and United States v. Kippers, 685 F.3d 491, 500-01 (5th Cir.

2012)).

8

REASONS FOR GRANTING THE WRIT

THE COURT SHOULD GRANT CERTIORARI TO CLARIFY THE STANDARD OF

REVIEW THAT APPLIES TO REVOCATION SENTENCES.

.

In United States v. Booker, the Court held that the mandatory sentencing

guidelines scheme enacted by Congress violated the Sixth Amendment. United States

v. Booker, 543 U.S. 220, 234-44 (2005). The Court remedied the constitutional

infirmity by excising two portions of the statutes that implemented the mandatory

guideline system. The two portions were 18 U.S.C. § 3553(b)(1), which required a

district court to sentence within the guidelines-derived range and 18 U.S.C. § 3742(e),

which set standards of review for all sentences appealed, including those for which

no guidelines existed. Booker, 543 U.S. at 259. To fill the gap left by the excision of

§3742(e), the Court held that, going forward, sentences would be reviewed for

reasonableness. 543 U.S. at 260-63. The operation of this system of reasonableness

appellate review and the criteria that guide it has been delineated, explained, and

refined in several cases since Booker. See, e.g., Gall v. United States, 552 U.S. 38

(2007); Kimbrough v. United States, 552 U.S. 85 (2007); Holguin-Hernandez v.

United States, 140 S. Ct. 762 (2020).

Despite the Court’s elaboration of reasonableness review, a circuit split has existed

since shortly after Booker. The courts of appeals are divided over what standard of

review to apply to sentences imposed following the revocation of a defendant’s

supervised-release term. Compare United States v. Fleming, 397 F.3d 95, 99 (2d Cir.

2005) (review for reasonableness) with United States v. Crudup, 461 F.3d 433, 437

9

(4th Cir. 2006) (review for plain unreasonableness). This split means that, for two

decades now, revocation sentences have been reviewed differently in different

circuits. The difference is critical to those defendants in the plainly unreasonable

circuits, for, in practice, it is all but impossible to show that any sentence within the

statutory maximum is plainly unreasonable. See, e.g., United States v. Nobles, 195

Fed. Appx. 265 (5th Cir. 2006). The Court should decide which standard applies to

the review of revocation sentences. It should also clarify whether there is a

meaningful difference between reasonableness review and plainly unreasonable

review, as a third position taken by some of the courts of appeals is that

reasonableness review and review for plain unreasonableness are the same thing.

See, e.g., United States v. Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006); United

States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005).

The split that arose right after Booker stemmed primarily from the fact that

revocation sentences were never dictated by mandatory guidelines. The Sentencing

Commission did not promulgate guidelines pertaining to sentencing after revocation

of supervised release. Instead, it published non-binding policy statements about

revocation sentences and placed them in Chapter 7 of the Guidelines Manual. The

policy statements contained sentencing ranges that were based on a revokee’s

criminal history and the nature of his revocation violation. The district courts were

to consider these policy statements before imposing sentence upon revocation of

supervised release. See U.S.S.G. Ch.7, Pt.A.; see also United States v. Mathena, 23

F.3d 87, 91–92 (5th Cir. 1994).

10

To the courts of appeals that concluded after Booker that reasonableness review

did not apply to revocation sentences, this lack of applicable guidelines was crucial.

They pointed out that the excised § 3742(e) had not set a detailed standard of review

for non-guidelines sentences as it had for guideline sentences or for departure

sentences. Crudup, 461 F.3d at 337-38; Miller, 634 F.3d at 842-43. They also believed

it significant that, § 3742(a) that, in defining what sentences could be appealed,

stated that non-guidelines sentences could be appealed when they were plainly

unreasonable. Crudup, 461 F.3d at 337-38; Miller, 634 F.3d at 842-43; see also United

States v. Kizeart, 505 F.3d 672. 674 (7th Cir. 2007).

The courts that held that reasonableness review did apply to revocation

sentences thought that Booker had excised the standards of review for all sentences

and had instructed that sentences were to be reviewed for reasonableness. Fleming,

397 F.3d at 99; Cotton, 399 F.3d at 916. To these courts, the excision of the only

congressionally provided standards of review meant that one had to apply the

standard Booker had set: “However, once the Court in its Remedy Opinion excised

section 3742(e), which included subsection 3742(e)(4)'s standard of `plainly

unreasonable` for review of a sentence for which there is no guideline, the Court is

fairly understood as requiring that its announced standard of reasonableness now be

applied not only to review of sentences for which there are guidelines but also to

review of sentences for which there are no applicable guidelines.” Fleming, 397 F.3d

at 99. The Ninth Circuit reached the same conclusion. United States v. Miqbel, 444

11

F.3d 1173, 1177 & n.5 (9th Cir. 2006); see also United States v. Santa-Soler, 985 F.3d

93 (1st 2021) (reasonableness review).

The split persists to this day, even though the Court’s opinions subsequent to

Booker appear to require application of reasonableness review. Compare United

States v. Patlan, 31 F.4th 552, 556 (7th Cir. 2022) with United States v. Richardson,

2021 WL 5492979 (4th Cir. 2021). When a district court imposes a sentence after

revoking a term of supervised release, that sentence must accord with several factors

set out in 18 U.S.C. § 3553(a) that are incorporated by 18 U.S.C. § 3583, the revocation

statute. The most important of these factors, for revocation sentencing as for original

sentencings, is the “overarching” command of § 3553(a)(1) that a district court

“‘impose a sentence sufficient, but not greater than necessary’ to accomplish the

goals’” listed in subsection 3553(a)(2). Kimbrough v. United States, 552 U.S. 85, 101

(2007)); see also Dean v. United States, 137 S. Ct. 1170, 1175 (2017) (reaffirming

parsimony). Holguin-Hernandez teaches that, in applying the parsimony command

in revocation contexts, the question is the same as under Booker, Gall, and

Kimbrough: whether the sentence was greater than needed under the § 3553

parsimony clause. Holguin-Hernandez, 140 S. Ct. at 766 (in revocation sentencing

case, Court observed that proper question on review is reasonableness of sentence.

Holguin-Hernandez also reemphasized that the overarching principle through which

reasonableness is evaluated is the parsimony principle. 140 S. Ct. at 765-66.

None of this Court’s cases subsequent to Booker have prompted the circuits on

either side of the divide to reconsider the standard they apply to review of revocation

12

sentence. The Court’s guidance on the issue is necessary to do so. The Court’s

guidance will also ensure that review of revocation sentences through the federal

system is uniform. Anderson’s case presents a good vehicle for resolving the issue.

There is little about his case that calls for a sentence above the policy statement

suggested range of 18 to 24 months. He had a drug relapse after three clean years.

Nothing in the record suggests he was a danger or a likely recidivist criminal. Under

reasonableness review, a court might well conclude that the three-year sentence was

greater than necessary. Under the plainly unreasonable standard, the reviewing

court gives little weight to the parsimony principle and looks instead merely to the

statutory maximum. Thus, Anderson’s case demonstrates nicely how the circuit split

affects federal defendants in the different circuits.

Conclusion

FOR THESE REASONS, Petitioner asks that this Honorable Court grant a writ of

certiorari and review the judgment of the court of appeals.

/s/ PHILIP J. LYNCH

Counsel of Record for Petitioner

DATED: June 14, 2022.