Petition for Writ of Certiorari — Quinton Deairre Gardner, Petitioner v. United States

No. ________________

In The Supreme Court of the United States

QUINTON DEAIRRE GARDNER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

KEVIN L. BUTLER

Federal Public Defender

Northern District of Alabama

DEANNA LEE OSWALD

Assistant Federal Defender

TOBIE J. SMITH*

Appellate Attorney

*Counsel of Record

505 20th Street North

Suite 1425

Birmingham, Alabama 35203

(205) 208-7170

Counsel for Petitioner

QUESTION PRESENTED

The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), is a recidivistsentencing law that requires federal courts to determine the “maximum term of

imprisonment” prescribed for a prior state conviction. For many Alabama offenses—

including convictions essential to the ACCA enhancement here—sentencing judges

are bound by the state’s Presumptive Sentencing Standards, which means they must

impose sentences within the ranges prescribed by that law. Five courts of appeals

have held that such sentencing regimes in other states prescribe the “maximum term”

that ACCA and other federal criminal laws refer to.

The Eleventh Circuit split from its sister circuits, holding that Alabama’s

presumptive standards do not prescribe the maximum term. It held instead that

higher statutory limits are the relevant maximums, even though Alabama law would

have required the State to charge and prove an aggravating fact to a jury before a

state court could sentence above the presumptive range.

Mr. Gardner asks the Court to grant certiorari to resolve the circuit split over

this question:

Where a state structured-sentencing regime sets mandatory legal limits on

courts’ sentencing power, is the upper limit of the structured-sentencing range

the “maximum term of imprisonment . . . prescribed by law,” 18 U.S.C.

§ 924(e)(2)(A)?

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

i

TABLE OF CONTENTS

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

List of Parties .................................................................................................................. i

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

Table of Authorities ...................................................................................................... iv

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

Opinion Below ................................................................................................................ 1

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

Statutory Provision Involved ........................................................................................ 1

Introduction ................................................................................................................... 2

Statement of the Case ................................................................................................... 4

Reasons for Granting the Petition .............................................................................. 10

I.

Federal laws respect states’ policy judgments by incorporating state

sentencing limits.......................................................................................... 12

A.

Definitions in ACCA and other federal criminal laws incorporate

state-law sentencing maximums ........................................................... 12

B.

Rodriquez and Carachuri-Rosendo held that federal law refers to

the maximum for a defendant’s particular conviction .......................... 13

II.

Five courts of appeals have held that a state structured-sentencing

law prescribes the legal maximum if it sets mandatory limits on

sentencing courts’ discretion ....................................................................... 14

III.

The Eleventh Circuit’s decision places it on the wrong side of a circuit

split over an important question of federal criminal law .......................... 19

Conclusion .................................................................................................................... 20

APPENDIX A: Opinion of Court of Appeals (11th Cir. May 27, 2022) ...................... 1a

ii

APPENDIX B: Order Denying Petition for Rehearing (11th Cir. July 22, 2022) ... 16a

iii

TABLE OF AUTHORITIES

Federal and State Cases

Page(s)

Burgess v. United States, 553 U.S. 124 (2008) ........................................................... 13

Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010)............................................. passim

Clark v. State, 166 So. 3d 147 (Ala. Crim. App. 2014) ........................................... 6, 19

Hyde v. State, 185 So. 3d 501 (Ala. Crim. App. 2015) ........................................ 3, 4, 20

McCarthy v. United States, 135 F.3d 754 (11th Cir. 1998) .................................... 9, 11

Miller v. Florida, 482 U.S. 423 (1987) .......................................................................... 9

United States v. Brooks, 751 F.3d 1204 (10th Cir. 2014) ..................................... 15–17

United States v. Dozier, 949 F.3d 322 (7th Cir. 2020) .......................................... 17–18

United States v. Gardner, 34 F.4th 1283 (11th Cir. 2022) ............................. 1, 1a–15a

United States v. Haltiwanger, 637 F.3d 881 (8th Cir. 2011) ................................ 17–18

United States v. Haymond, 139 S. Ct. 2369 (2019) ...................................................... 2

United States v. Pruitt, 545 F.3d 416 (6th Cir. 2008)........................................... 14, 17

United States v. Rockymore, 909 F.3d 167 (6th Cir. 2018) .................................. 15–16

United States v. Rodriquez, 553 U.S. 377 (2008) ................................................. passim

United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) ..................................... 15–17

United States v. Smith, 448 F. App’x 340 (4th Cir. 2011) .......................................... 16

United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019) .................... 15–18

United States Code

Page(s)

18 U.S.C. § 922(g)(1) ................................................................................................ 8, 12

18 U.S.C. § 924(e).................................................................................................. passim

iv

18 U.S.C. § 1030(e)(10) ................................................................................................ 12

18 U.S.C. § 3142(e)(3)(A) ............................................................................................. 12

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

18 U.S.C. § 3559(c)(2)(F)(ii) ......................................................................................... 12

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

21 U.S.C. § 802(44) .......................................................................................... 12, 13, 17

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

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

State Statutes

Page(s)

Ala. Code § 12-25-1 ........................................................................................................ 4

Ala. Code § 12-25-2(a) .................................................................................................... 4

Ala. Code § 12-25-34.2(b) ............................................................................................... 6

Ala. Code § 13A-5-6.................................................................................................. 9, 19

Ala. Code § 13A-5-9.............................................................................................. 5, 9, 19

Ala. Code § 13A-12-211.................................................................................................. 8

Ala. Code § 13A-12-213................................................................................ 5 & n.1, 7–8

Supreme Court Rules

Page(s)

Sup. Ct. R. 13.1 .............................................................................................................. 1

Sup. Ct. R. 13.3 .............................................................................................................. 1

United States Sentencing Guidelines

Page(s)

U.S.S.G. § 2L1.2 cmt. n.2............................................................................................. 17

U.S.S.G. § 4B1.2..................................................................................................... 12, 17

v

State Sentencing Standards

Page(s)

PRESUMPTIVE AND VOLUNTARY SENTENCING STANDARDS MANUAL (Ala.

Sent’g Comm’n 2013), https://sentencingcommission.alacourt.gov/media

/1064/2013-presumptive-manual.pdf ....................................................................... 7

PRESUMPTIVE AND VOLUNTARY SENTENCING STANDARDS MANUAL (Ala.

Sentencing Comm’n 2019), https://sentencingcommission.alacourt.gov

/media/1089/2019-presumptive-manual.pdf ...................................................... 7 n.2

Ala. Sent’g Comm’n, 2005 Annual Report (Feb. 2005), https://sentencing

commission.alacourt.gov/media/1043/2005-annual-report.pdf ........................... 4–6

Ala. Sent’g Comm’n, 2013 Report (Jan. 2013), https://sentencingcommission

.alacourt.gov/media/1106/2013-report_final.pdf ..................................................... 6

vi

PETITION FOR A WRIT OF CERTIORARI

Quinton Deairre Gardner respectfully petitions for a writ of certiorari to review

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

OPINION BELOW

The Eleventh Circuit’s opinion affirming Mr. Gardner’s sentence is reported at

34 F.4th 1283 and is included in Appendix A. Pet. App. 1a. The district court’s judgment is unreported.

JURISDICTION

The district court had jurisdiction under 18 U.S.C. § 3231. The Eleventh

Circuit had appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. It

affirmed Mr. Gardner’s sentence on May 27, 2022, Pet. App. 1a, and denied his petition for rehearing on July 22, 2022, id. at 16a. This petition is timely under Supreme

Court Rules 13.1 and 13.3. The Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

Section 924(e)(2)(A) of United States Code Title 18 defines a “serious drug

offense” as

(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et

seq.), the Controlled Substances Import and Export Act (21 U.S.C.

951 et seq.), or chapter 705 of title 46 for which a maximum term of

imprisonment of ten years or more is prescribed by law; or

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(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a

controlled substance (as defined in section 102 of the Controlled

Substances Act (21 U.S.C. 802)), for which a maximum term of

imprisonment of ten years or more is prescribed by law . . . .

INTRODUCTION

The Armed Career Criminal Act, like many federal recidivist-sentencing laws,

defines a predicate conviction in part by reference to the maximum sentence allowed

for it. But determining the applicable maximum isn’t always straightforward for

federal courts unfamiliar with states’ various sentencing schemes, and “[m]ore recent

legislative innovations have raised harder questions,” United States v. Haymond, 139

S. Ct. 2369, 2377 (2019). Several states have enacted structured-sentencing systems

that—like the Alabama Presumptive Sentencing Standards at issue here—set more

offender-specific limits that further cabin courts’ sentencing authority within broader

statutory parameters.

These frameworks are like the federal Sentencing Guidelines in that they

categorize offenders according to their criminal histories. But unlike the Guidelines,

they don’t involve courts in elaborate factfinding about conduct, and they’re

mandatory; a jury must find (or a plea must admit) any fact that would authorize an

upward departure. In Alabama, the legislature enacted the presumptive standards

to replace sentencing laws that had overfilled state prisons with inmates serving

exceptionally long sentences for nonviolent property and drug offenses. The state’s

policy reforms were deliberately mandatory, nullifying minimum prison terms for

such offenses and removing judges’ discretion to impose sentences approaching the

2

severe maximums previously authorized by statute. In cases where the presumptive

standards apply, including Mr. Gardner’s, a defendant “[is] not sentenced under [Alabama’s felony sentencing statutes]; rather, [he is] sentenced under the presumptive

sentencing standards.” Hyde v. State, 185 So. 3d 501, 510 (Ala. Crim. App. 2015).

This Court’s decisions in United States v. Rodriquez and Carachuri-Rosendo v.

Holder provide valuable guidance for a federal court determining a state-law maximum: “the ‘maximum penalty’ . . . necessarily depends on state law,” Rodriquez, 553

U.S. at 387, and need not be the same for every violation of a criminal conduct statute

if state law doesn’t make it so, see id. at 386–88; Carachuri-Rosendo, 560 U.S. at 582.

Applying those principles, the Fourth, Sixth, Eighth, Ninth, and Tenth Circuits have

held that where structured-sentencing regimes set binding limits on state courts’

sentencing power, those limits define the relevant “maximum” for federal purposes.

No court of appeals had disagreed until the Eleventh Circuit’s decision in this case.

The decision below creates a genuine circuit split over an important federal

criminal-law question: whether a state structured-sentencing scheme prescribes the

maximum term of imprisonment if it (1) requires a jury finding of an aggravating fact

that would authorize a departure above the structured range, and (2) gives a

sentencing court no discretion to sentence above the range without such a finding.

Those are the features that courts of appeals have pointed to in holding that state

structured-sentencing laws prescribe legal maximums, and Alabama’s presumptive

standards share the same traits. The holding below directly conflicts with other

circuits’ decisions addressing analogous state regimes, and the Eleventh Circuit did

3

not distinguish Alabama’s laws from other states’. Instead it rested on the fact that

“Alabama law provides for upward departures”—a feature shared by other structured-sentencing systems that prescribe maximum sentences.

This circuit split has far-reaching implications, because references to state

maximums abound in federal sentencing laws that define the reach of severe criminal

consequences. The Court should grant certiorari to decide whether state structuredsentencing laws that set mandatory limits on courts’ sentencing power prescribe the

“maximum term of imprisonment” that ACCA incorporates.

STATEMENT OF THE CASE

1. Alabama’s Presumptive Sentencing Standards. In the past two decades,

the Alabama Legislature extensively revised the state’s sentencing laws to reform a

system that had filled Alabama prisons beyond capacity with nonviolent property and

drug offenders. A centerpiece of those reforms was Alabama lawmakers’ enactment

of Presumptive Sentencing Standards, which set binding legal limits on sentences for

nonviolent property and drug felonies. The state’s courts have held that for those

offenses, the presumptive standards supplanted the lengthy mandatory minimum

prison terms, and even lengthier maximums, that were permitted by state statute.

See Hyde, 185 So. 3d at 510.

Alabama’s sentencing-reform efforts began with lawmakers’ creation, in 2000,

of the Alabama Sentencing Commission to review and propose changes to the state’s

sentencing laws. Ala. Code §§ 12-25-1, 12-25-2(a). Early on, the Commission noted

the especially “harsh mandatory penalties” in the state’s habitual felony offender

4

statute, § 13A-5-9, which generally “does not take into consideration the classification

of prior convictions.” Ala. Sent’g Comm’n, 2005 Annual Report 31 (Feb. 2005),

https://sentencingcommission.alacourt.gov/media/1043/2005-annual-report.pdf. The

Commission flagged the law for further research and review. Id.

A particular focus of the Commission’s was the first-degree marijuana possession statute, Ala. Code § 13A-12-213.1 Mindful of “the large number of drug . . .

convictions and admissions to the penitentiary, the Commission . . . stud[ied]” the

state’s marijuana-possession statutes “and compare[d] the penalties authorized or

required with those of other jurisdictions.” 2005 Annual Report at 35. At the time, a

defendant convicted of possessing any quantity of marijuana “for other than personal

use,” § 13A-12-213(a)(1), could face recidivist enhancements setting a 15-year mandatory minimum and a maximum of life. §§ 13A-5-9(c)(1), 13A-12-213(b) (2005). The

Sentencing Commission found that “[t]he maximum punishment authorized in Alabama [was] greater than 47 jurisdictions” and that “only four other states, Arkansas,

Georgia, Mississippi and South Dakota . . . authorize up to 10 years of incarceration

as punishment for possession of 2.2 pounds or less of marijuana.” 2005 Annual Report

at 36.

The Commission’s 2005 Annual Report proposed voluntary sentencing

standards to encourage state courts to prioritize imprisonment of “the most

1 Three of Mr. Gardner’s four alleged ACCA predicate convictions were for first-degree

marijuana possession, which can be committed by possessing marijuana, in any

quantity, either “for other than personal use,” § 13A-12-213(a)(1), or for personal use

after a prior conviction of possession for personal use, § 13A-12-213(a)(2).

5

dangerous and violent offenders” and consider alternative sentences for nonviolent

offenders. Id. at v, 15. The standards’ voluntary character allowed sentencing courts

the discretion to impose lengthier sentences applying statutory sentencing enhancements. Id. at 15–16. But soon, the Sentencing Commission began to transition from

a voluntary framework for nonviolent offenses to a mandatory, or “presumptive,”

regime. The Commission added new “procedures that are needed in a presumptive

sentencing structure,” Ala. Sent’g Comm’n, 2013 Report 2 (Jan. 2013), https://

sentencingcommission.alacourt.gov/media/1106/2013-report_final.pdf. One notable

change involved the departure procedure. The Commission provided a jury right for

a finding of an aggravating factor to authorize an upward departure, because the

finding would “increase[ ] the maximum penalty the trial court may impose,” id. at 3

(citing Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S.

296 (2004)).

With those procedural safeguards added, the Alabama Legislature enacted the

presumptive standards in 2012. See Ala. Code § 12-25-34.2(b) (directing that “[t]he

voluntary sentencing standards . . . as applied to nonviolent offenses shall become

presumptive sentencing standards effective October 1, 2013”). Thereafter, offenses

covered by the presumptive standards were, “according to the expressed intent of the

legislature, . . . required to be sentenced under the presumptive sentencing standards.” Clark v. State, 166 So. 3d 147, 151 (Ala. Crim. App. 2014). Alabama courts no

longer had the power to impose sentences outside the presumptive range; they were

“required to sentence the offender under the presumptive sentencing standards,” id.

6

After that change, Alabama courts could “depart[ ] from the presumptive

sentencing recommendations,” Ala. Code § 12-15-34.2(b), “only upon a finding of

aggravating . . . factors,” PRESUMPTIVE AND VOLUNTARY SENTENCING STANDARDS

MANUAL 22 (Ala. Sentencing Comm’n 2013), https://sentencingcommission.alacourt

.gov/media/1064/2013-presumptive-manual.pdf (emphasis added). 2 Enumerated factors include traditional aggravating elements like “the defendant played a major role

in the crime as the leader, organizer, recruiter, manager, or supervisor”; “[t]he victim

was particularly vulnerable due to age, infirmity, or reduced physical capacity”; and

“[t]he commission of the offense created a substantial risk to human health or safety

or a danger to the environment.” Id. at 26. Alabama courts can’t make sua sponte

findings of aggravating factors and depart on their own. Instead, “[t]he prosecutor

shall give the defendant notice of aggravating factors,” and “[t]he defendant is

entitled to a jury trial” and finding of “pro[of] beyond a reasonable doubt that an

aggravating factor exists.” Id. at 24. If no aggravator is proved—or admitted by a

defendant who pleads guilty—then the court has no authority to depart. See id.

2. Predicate State Convictions and Sentences. The district court enhanced

Mr. Gardner’s sentence under ACCA because it concluded that he had four prior

convictions for “serious drug offenses” under 18 U.S.C. § 924(e)(2)(A): three convictions for first-degree unlawful possession of marijuana, in violation of Ala. Code

2 The original, 2013 manual is cited here because it was in force for Mr. Gardner’s

relevant Alabama convictions. The current (2019) manual does not differ in any

respect discussed here, though; it is online at https://sentencingcommission

.alacourt.gov/media/1089/2019-presumptive-manual.pdf.

7

§ 13A-12-213, and one for unlawful distribution of a controlled substance (also

marijuana), in violation of Ala. Code § 13A-12-211.

When Mr. Gardner pleaded guilty to two of the possession charges, the statecourt judge told him “you are pleading under the presumptive guidelines, and I show

that that range of punishment as for this case and the other case that you’re pleading

on is 13 to 32 months . . . .” Later in the hearing, the judge asked, “[I]n each case to

the charge unlawful possession of marijuana in the first degree and under the

presumptive sentencing guidelines, how do you plead?” Mr. Gardner pleaded guilty

to both counts. Sentencing records likewise stated that the presumptive standards

applied, that no aggravating factor had been alleged or proved to support a departure,

and that the imprisonment range was 13 to 32 months. The court imposed a 24-month

suspended sentence for each count.

Mr. Gardner also pleaded guilty to the distribution offense, and it too was

governed by the presumptive standards, which prescribed an imprisonment range of

30 to 104 months. As with the possession convictions, the distribution conviction did

not include any aggravating factor to authorize a departure. Mr. Gardner was

sentenced to a seven-year “split” sentence, under which he would serve two years in

custody and the remaining five years would be suspended during a three-year

probation term following his release.

3. Federal Conviction and Sentence. A presentence report concluded that the

ACCA enhancement did not apply to Mr. Gardner’s conviction for violating 18 U.S.C.

§ 922(g)(1). The government objected, arguing that four of his prior convictions were

8

ACCA serious drug offenses because they were state offenses “for which a maximum

term of imprisonment of ten years or more is prescribed by law,” § 924(e)(2)(A)(ii). 3

Mr. Gardner responded that under Alabama law, the term of imprisonment for three

of the prior offenses was prescribed by the presumptive standards and was less than

10 years. The district court sided with the government and held that ACCA applied.

It sentenced Mr. Gardner to 15 years’ imprisonment, the ACCA mandatory minimum,

§ 924(e)(1).

4. Affirmance by the Eleventh Circuit. Mr. Gardner appealed his sentence,

and the Eleventh Circuit affirmed. The court of appeals held that it was bound by its

prior decision, in McCarthy v. United States, 135 F.3d 754 (11th Cir. 1998), that

ACCA’s “categorical approach” to defining predicates includes a categorical “maximum,” 135 F.3d at 757. McCarthy held that under Florida law, “[t]he only true

maximum sentence for the offense category is the statutory maximum,” not the

state’s advisory sentencing guidelines, id., because Florida law gives sentencing

courts the discretion to depart above the guidelines range, see Miller v. Florida, 482

U.S. 423, 426 (1987), cited in McCarthy, 135 F.3d at 756. Applying that precedent

here, the court of appeals held that Alabama statutes (§§ 13A-5-6 and 13A-5-9), not

the presumptive standards, prescribe the maximum term of imprisonment, explaining, “Like Florida’s guidelines in McCarthy, Alabama’s guidelines permit upward

departures,” Pet. App. 12a. The court therefore held that the maximum was ten years

3 ACCA requires three or more predicate convictions for the enhancement to apply.

§ 924(e)(1).

9

or more for Mr. Gardner’s marijuana offenses: “twenty years for the unlawful

possession offenses and life imprisonment for the unlawful distribution offense.” Id.

at 15a.

REASONS FOR GRANTING THE PETITION

The Court should grant review to resolve the five-to-one circuit split over

whether a state structured-sentencing system’s mandatory limits on sentencing

courts’ discretion are the maximum sentence that the Armed Career Criminal Act

and other federal criminal laws incorporate. ACCA requires that a serious drug

offense carry a maximum of at least ten years’ imprisonment—rather than the mere

greater-than-one-year maximum required for violent felonies—to ensure that only

especially serious drug felonies are ACCA predicates. In most states, possessing a

modest amount of marijuana, even with intent to distribute, does not trigger that

type of penalty. But until recently, Alabama law authorized unusually severe

penalties for convictions like Mr. Gardner’s.

Over the past two decades, however, Alabama lawmakers have worked

deliberately to ensure that the state’s prisons have enough space for violent offenders

and aren’t overwhelmed by nonviolent property and drug offenders. To accomplish

that, the state legislature enacted Presumptive Sentencing Standards that set

binding limits on judges’ sentencing power. For three of Mr. Gardner’s alleged ACCA

predicate offenses, the presumptive standards meant that a prison term of ten years

or more would have violated Alabama law. Such a sentence would have been authorized only if (a) Mr. Gardner had a more extensive criminal history that increased the

10

presumptive range or (b) the State alleged and proved to a jury an additional

aggravating fact. Neither was true for his convictions, so the longest sentence prescribed for two of his convictions was 32 months, and for a third, 104 months.

The Eleventh Circuit followed its 1998 McCarthy precedent to a conclusion

that is not faithful to this Court’s intervening decisions in United States v. Rodriquez

and Carachuri-Rosendo v. Holder. Those decisions establish that federal-law references to the maximum penalty for an offense do not require an across-the-board,

“categorical” maximum for all violations of a given conduct statute. “Congress chose

to defer to the state lawmakers’ judgment” about the seriousness of an offense, and

where state sentencing parameters vary according to offenders’ or offenses’ characteristics, the federal-law effect may likewise vary. Rodriquez, 553 U.S. at 388.

Since Carachuri-Rosendo, five circuits have held that binding structuredsentencing limits like Alabama’s set the maximum that federal law looks to. But the

Eleventh Circuit disagreed, concluding that the outer statutory bounds were the

prescribed maximums even though Alabama law did not permit courts to impose such

lengthy terms. Those conclusions conflict with other circuits’ interpretations of

federal-law definitions incorporating state-law maximums. The split concerns a certworthy question, because severe criminal consequences depend on federal courts’

determinations of state maximums. This Court should grant review to decide the

matter.

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I.

Federal laws respect states’ policy judgments by incorporating state

sentencing limits.

A.

Definitions in ACCA and other federal criminal laws incorporate

state-law sentencing maximums.

ACCA’s definition of a “serious drug offense” predicate requires that “a maxi-

mum term of imprisonment of ten years or more is prescribed by law” for a qualifying

state conviction. 18 U.S.C. § 924(e)(2)(A)(ii). Elsewhere, ACCA’s definition of a

“violent felony” predicate also incorporates state sentencing limits by requiring that

the prior conviction was “punishable by imprisonment for a term exceeding one year,”

§ 924(e)(2)(B). Other federal criminal laws contain similar references:



“punishable by imprisonment for more than one year,” 21 U.S.C. § 802(44);



“a maximum term of imprisonment of ten years or more is prescribed,” 18

U.S.C. § 3142(e)(3)(A);



“punishable by imprisonment for a term exceeding one year,” 18 U.S.C.

§ 922(g)(1); U.S.S.G. § 4B1.2(a), (b);



“punishable by a maximum term of imprisonment of 10 years or more,” 18

U.S.C. § 3559(c)(2)(F)(ii); and



“punishable by imprisonment for more than 1 year,” 18 U.S.C. § 1030(e)(10).

Those are just a few examples, but they are representative of others’ phrasing,

which varies little from provision to provision. The main difference is between laws

that set a “greater than” standard (“more than” or “exceeding” a certain term), which

tend to say “punishable by,” and those that set a “greater than or equal to” standard

(a certain term “or more”), which tend to refer to the “maximum.” Congress did the

same in ACCA. Compare § 924(e)(2)(A)(ii) (serious drug offense must have “a

maximum term of imprisonment of ten years or more . . . prescribed by law”), with

12

§ 924(e)(2)(B) (violent felony must be “punishable by imprisonment for a term

exceeding one year”). Despite the syntactic differences, all appear to point to the same

legal fact: the “maximum sentence” authorized for the offense. See Burgess v. United

States, 553 U.S. 124, 127 (2008) (construing “punishable by imprisonment for more

than one year” in 21 U.S.C. § 802(44)).

B.

Rodriquez and Carachuri-Rosendo held that federal law refers to

the maximum for a defendant’s particular conviction.

Whether a prison term of ten years or more was prescribed by law for Mr.

Gardner’s prior offenses is a federal question, but it largely has a state answer. See

Rodriquez, 553 U.S. at 388. “Congress presumably thought—not without reason—

that if state lawmakers provide that a crime is punishable by 10 years’ imprisonment,

the lawmakers must regard the crime as ‘serious,’ and Congress chose to defer to the

state lawmakers’ judgment.” Id.

That deference to state law means that if the sentencing range for a state

conviction varies according to offense or offender characteristics, then the applicable

maximum need not be the same for every violation of a criminal conduct statute. In

Rodriquez, the Court expressly rejected the idea of a categorical approach to determining maximum terms, finding “no connection” between the tasks of identifying

prior convictions’ elements and identifying their penalties. Id. at 387. There, the

Court held that the maximum term of imprisonment for the respondent’s Washington

state conviction for delivery of a controlled substance was ten years even though some

defendants would face a five-year maximum for the same conduct. Id. at 381, 384–

86. The respondent’s conviction included a recidivist enhancement that raised the

13

maximum to ten years, and the state’s policy judgment satisfied ACCA’s seriousness

requirement. Id. at 386–88.

Carachuri-Rosendo looked to Texas law to answer a similar federal question:

whether an alien’s drug-possession offense was “a crime for which the ‘maximum

term of imprisonment authorized’ is ‘more than one year’” under federal law. 560 U.S.

at 567 (quoting 18 U.S.C. § 3559(a)). Texas law, like Washington law in Rodriquez,

authorized an increased maximum for recidivist offenses. Id. at 571. But unlike Mr.

Rodriquez, Mr. Carachuri-Rosendo wasn’t convicted of a recidivist offense and thus

didn’t face an enhanced sentencing range. Id. That was crucial, the Court explained,

because the relevant maximum term depended on the facts the prior conviction

actually comprised. “[T]he defendant must . . . have been actually convicted of a crime

that is itself punishable” by the higher maximum, and “[t]he mere possibility that the

defendant’s conduct, coupled with facts outside of the record of conviction, could have

authorized a [longer term] is insufficient,” id. at 581–82 (second emphasis added).

II.

Five courts of appeals have held that a state structured-sentencing

law prescribes the legal maximum if it sets mandatory limits on

sentencing courts’ discretion.

Following Rodriquez and Carachuri-Rosendo, several courts of appeals have

held that narrowed structured-sentencing ranges define the maximum term for a

conviction, even if a different defendant’s conviction for the same conduct could

trigger a higher range. See, e.g., United States v. Pruitt, 545 F.3d 416, 424 (6th Cir.

2008) (“Rodriquez persuades us that it is necessary to consider the defendant’s

particular [structured-sentencing range]—and not merely the [range for a defendant

14

with the] worst prior record . . . —in determining whether a conviction was for an

offense ‘punishable’ by a term exceeding one year” under North Carolina law); United

States v. Brooks, 751 F.3d 1204, 1213 (10th Cir. 2014) (“[I]n light of CarachuriRosendo . . . , the maximum amount of prison time a particular defendant could have

received [under Kansas law] controls, rather than the amount of time the worst

imaginable recidivist could have received.”).

In reaching that conclusion, courts have pointed to two distinguishing features

of structured-sentencing regimes that prescribe maximum terms of imprisonment.

First, sentencing courts are bound by the structured-sentencing range and have no

discretion to depart above it. See United States v. Simmons, 649 F.3d 237, 244 (4th

Cir. 2011) (en banc) (“[N]o circumstances exist under the Structured Sentencing Act

in which a North Carolina judge may ‘impose a sentence that exceeds the top’ of the

‘range’ set forth in the Act.” (quoting Rodriquez, 553 U.S. at 390)); United States v.

Rockymore, 909 F.3d 167, 170 (6th Cir. 2018) (“[Tennessee’s] specific ranges are mandatory; Tennessee courts ‘shall impose a sentence within the range of punishment,

determined by [the defendant’s criminal history].’” (some emphasis omitted) (quoting

Tenn. Code Ann. § 40-35-210(c))); Brooks, 751 F.3d at 1206 (“Kansas adopted new

sentencing provisions . . . eradicat[ing] the trial court’s discretion to sentence a

defendant to an upward departure [from the presumptive range] based on

aggravating factors.” (quoting United States v. Hill, 539 F.3d 1213, 1216 (10th Cir.

2008), abrogated by Carachuri-Rosendo, 560 U.S. at 563, as recognized in Brooks, 751

F.3d at 1205)); United States v. Valencia-Mendoza, 912 F.3d 1215, 1216 (9th Cir.

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2019) (“[I]n addition to providing statutory maximum terms, Washington law specified mandatory limits on criminal sentences.”).

Second, sentencing courts can acquire the power to impose a sentence above

the structured-sentencing range only if the State charges and proves an aggravating

fact. See Brooks, 751 F.3d at 1205 (“[U]pward departures are permitted where by

unanimous vote, the jury finds beyond a reasonable doubt that one or more specific

factors exist that may serve to enhance the maximum sentence. The state must seek

an upward departure sentence not less than thirty days prior to trial.” (quoting Hill,

539 F.3d at 1216)); Valencia-Mendoza, 912 F.3d at 1218 (“[U]nless one of the

statutorily specified aggravated circumstances was found, the sentencing court was

required to impose a sentence within the standard range.”); Rockymore, 909 F.3d at

170 (“If the state wants to pursue a higher sentence, it must file an advance notice,

and the court must then find beyond a reasonable doubt that the defendant belongs

in a higher range.”); Simmons, 649 F.3d at 240 (“[A] judge may select from the

aggravated range only if the State has provided a defendant thirty-days’ notice of its

intent to prove the necessary aggravating factors, and a jury has found beyond a

reasonable doubt (or the defendant has pled to) the existence of those factors.”

(citations omitted)).

Rockymore and United States v. Smith, 448 F. App’x 340 (4th Cir. 2011),

reached those conclusions in ACCA cases. See Rockymore, 909 F.3d at 170; Smith,

448 F. App’x at 342 (construing North Carolina law). Other circuit decisions arrived

at similar results under other federal provisions. See Brooks, 751 F.3d at 1206

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(determining whether conviction was “punishable by imprisonment for a term

exceeding one year,” U.S.S.G. § 4B1.2(a)); Pruitt, 545 F.3d at 419 (same); Simmons,

649 F.3d at 239 (determining whether conviction was “punishable by imprisonment

for more than one year,” 21 U.S.C. § 802(44)); United States v. Haltiwanger, 637 F.3d

881, 883 (8th Cir. 2011) (same); Valencia-Mendoza, 912 F.3d at 1216 (determining

whether conviction was “punishable by imprisonment for a term exceeding one year,”

U.S.S.G. § 2L1.2 cmt. n.2). Notably, despite differences in the provisions’ wording,

the courts of appeals focused on the same underlying concept, the maximum prison

term. Brooks, 751 F.3d at 1213 (“the maximum amount of prison time a particular

defendant could have received” (emphasis omitted)); Pruitt, 545 F.3d at 417 (“the

maximum punishment authorized for Pruitt’s prior offenses”); Simmons, 649 F.3d at

244 (“Simmons’s maximum punishment”); Haltiwanger, 637 F.3d at 883 (“the

maximum term of imprisonment to which [the defendant] was exposed”); ValenciaMendoza, 912 F.3d at 1216 (“the actual maximum term that Defendant could have

received” (emphasis omitted)).

The Seventh Circuit accepted the same principles in holding that Texas law

compelled a different result. In United States v. Dozier, 949 F.3d 322 (7th Cir. 2020),

the court considered whether a Texas conviction for possession of cocaine was “punishable by imprisonment for more than one year,” 21 U.S.C. § 802(44). See Dozier,

949 F.3d at 323. The offense was a “state jail felony” for which Texas law authorized

a prison term greater than one year, but the state-court judge had the discretion to

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treat it as a Class A misdemeanor for sentencing purposes and had accepted a written

plea agreement to do so. Id. at 324.

The Seventh Circuit held that a discretionary decision about the type of

punishment did not change the maximum lawful term. Id. at 328. In reaching that

conclusion, the court distinguished (1) Carachuri-Rosendo (unlike Mr. CarachuriRosendo, who was “convicted of [a] misdemeanor[ ] that could have been prosecuted

as [a] felon[y] but w[as] not . . . Dozier was convicted of a two-year state jail felony

but received a misdemeanor-length sentence,” id. at 327); (2) Valencia-Mendoza

(Washington law imposed binding limits on sentencing authority, but the Texas provision in Dozier “is discretionary, not mandatory,” id.); and (3) Haltiwanger (whereas

the Kansas court in Haltiwanger was bound by a seven-month sentencing cap, in

Dozier the Texas court exercised its “discretion to . . . impos[e] a misdemeanor-length

term of confinement,” id. at 328).

In short, the Fourth, Sixth, Eighth, Ninth, and Tenth Circuits have reached

consistent conclusions in this area, and the Seventh Circuit accepted them as correct:

Rodriquez and Carachuri-Rosendo require federal sentencing courts to consider the

contours of state law in determining the maximum sentence for a given defendant’s

prior conviction. And a structured-sentencing regime sets the legal maximum if it

imposes binding limits on courts’ sentencing discretion and does not authorize a

sentence above those limits without proof of additional facts.

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III.

The Eleventh Circuit’s decision places it on the wrong side of a circuit

split over an important question of federal criminal law.

In this case, the Eleventh Circuit reached a conclusion that cannot be squared

with other circuits’ applications of Rodriquez and Carachuri-Rosendo to state structured-sentencing laws. Alabama’s Presumptive Sentencing Standards have the same

legal traits that other courts of appeals cited in Kansas’s, North Carolina’s, Tennessee’s, and Washington’s laws. The presumptive standards “are . . . adopted by the

legislature,” Clark, 166 So. 3d at 151 (citing Ala. Code § 12-25-34(d)), and have the

force of law. They bind Alabama sentencing courts, which “[are] required to sentence

. . . offender[s] under the presumptive sentencing standards” where they apply, id. at

151—and they applied in three of Mr. Gardner’s alleged predicate convictions, see

Pet. App. 5a.

The Eleventh Circuit held that Alabama’s presumptive standards did not

prescribe the maximum terms of imprisonment for Mr. Gardner’s convictions because

“Alabama’s guidelines permit upward departures,” Id. at 12a. But the same is true

under the structured-sentencing laws of Kansas, North Carolina, Tennessee, and

Washington. Also the same is the fact that Alabama courts have no discretion to

depart from the presumptive range, and they can acquire that power only if an

aggravating factor is charged by the State and “proved to a jury beyond a reasonable

doubt or admitted by the defendant,” id. at 9a—which did not happen in Mr.

Gardner’s prior convictions, see id. at 5a–6a. The Eleventh Circuit’s reasoning led it

to conclude that the applicable maximum terms were set by Alabama Code sections

13A-5-6 and 13A-5-9, directly contrary to Alabama courts’ own interpretation of the

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state’s laws. See Hyde, 185 So. 3d at 510 (“Hyde was not sentenced under either § 13A5-6 or § 13A-5-9; rather, Hyde was sentenced under the presumptive sentencing

standards.” (emphasis added) (citing Ala. Code § 12-25-34.2)).

The Eleventh Circuit’s decision is not faithful to Rodriquez and CarachuriRosendo, and it places that court’s law on the wrong side of a circuit split over an

important federal question. Severe criminal penalties ride on federal sentencing

courts’ determinations of state-law maximums, and there is no reason to expect the

Eleventh Circuit to revisit its precedents unless this Court directly decides this dispute. This case is an excellent vehicle, because the question was squarely presented

and thoroughly addressed below. The Court should grant certiorari to resolve the

matter and ensure that uniform principles guide the courts of appeals in applying

federal definitions to state structured-sentencing laws.

CONCLUSION

For the foregoing reasons, Mr. Gardner prays that this Court grant a writ of

certiorari to the Eleventh Circuit Court of Appeals.

Respectfully submitted this, the 20th day of October, 2022.

KEVIN L. BUTLER

Federal Public Defender

Northern District of Alabama

DEANNA LEE OSWALD

Assistant Federal Public Defender

TOBIE J. SMITH

Appellate Attorney

Federal Public Defender’s Office

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Northern District of Alabama

505 20th Street North, Suite 1425

Birmingham, Alabama 35203

(205) 208-7170

Tobie_Smith@fd.org

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