Opposition Brief — Frank Sanchez, Petitioner v. United States

No. 22-6386

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________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

FRANK SANCHEZ, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

JOHN-ALEX ROMANO

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether the district court violated petitioner’s Fifth and

Sixth Amendment rights in considering conduct at issue in a charge

that a jury did not find beyond a reasonable doubt, but that the

court found by a preponderance of the evidence, in determining his

sentence.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 22-6386

FRANK SANCHEZ, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-7a) is

reported at 42 F.4th 970.

JURISDICTION

The judgment of the court of appeals was entered on August 3,

2022.

A petition for rehearing was denied on September 22, 2022

(Pet. App. 8a).

The petition for a writ of certiorari was filed

on Dec 20, 2022.

The jurisdiction of this Court is invoked under

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

2

STATEMENT

Following a jury trial in the United States District Court

for the District of South Dakota, petitioner was convicted of

abusive sexual contact with a child in Indian country, in violation

of 18 U.S.C. 1153, 2244(a)(1), and 2246(3).

Judgment 1.

He was

sentenced to 87 months of imprisonment, to be followed by five

years of supervised release.

affirmed.

1.

The court of appeals

Pet. App. 1a-7a.

In 2006, petitioner sexually molested his then-nine-

year-old daughter, J.S.

¶¶ 11-12.

Judgment 2-3.

Presentence Investigation Report (PSR)

On one occasion, outside of Marty, South Dakota, J.S.

and petitioner were sleeping in the same bed when petitioner

started to kiss J.S., touched her vagina over her underwear, and

moved her hand onto his penis over his underwear.

PSR ¶ 11; see

Pet. App. 2a; 6/22/22 Trial Tr. 114; 6/24/22 Trial Tr. 423.

On a

second occasion, in Wagner, South Dakota, petitioner climbed into

bed with J.S. and moved her hand onto his penis over his underwear.

PSR ¶ 12; see Pet. App. 2a.

Those incidents were first reported

to law enforcement in 2019.

PSR ¶ 13.

J.S.’s half-sister, S.K.M., similarly reported in 2019 that

petitioner had sexually molested her in 1996, when she was ten

years old.

PSR ¶¶ 7-8, 13.

On two occasions in Lake Andes, South

Dakota, while S.K.M.’s mother was at work, petitioner entered

S.K.M.’s bedroom and touched her vagina with his hand.

see Pet. App. 2a; 6/24/22 Trial Tr. 423.

PSR ¶ 7;

In another incident in

3

a vehicle around the same time, petitioner pulled S.K.M. onto his

lap against his erect penis.

PSR ¶ 8.

Also in 2019, a woman named G.D. reported that petitioner had

sexually molested her in 1984, when she was six years old.

PSR

¶ 14; see 6/23/22 Trial Tr. 211. Petitioner entered G.D.’s bedroom

one night, “placed his hands inside her underwear and placed his

finger in her vagina.”

2.

PSR ¶ 14.

In December 2019, a federal grand jury in the District

of South Dakota returned an indictment charging petitioner with

one count of aggravated sexual abuse of a child under the age of

12 in Indian country, in violation of 18 U.S.C. 1153, 2241(c), and

2246(2); and two counts of abusive sexual contact of a child in

Indian country, in violation of 18 U.S.C. 1153, 2244(a)(1), and

2246(3). Indictment 1-2. One of the abusive-sexual-contact counts

was based on the first 2006 incident involving J.S.; the other

abusive-sexual-contact count and the aggravated-sexual abuse count

were based on the 1996 incidents involving S.K.M. in her bedroom.

Ibid.

At trial, the district court admitted (pursuant to Federal

Rules of Evidence 413 and 414) evidence of the second 2006 incident

involving J.S., the incident in the vehicle involving S.K.M., and

the 1984 incident involving G.D., all of which were uncharged.

Pet. App. 2a-3a; see Fed. R. Evid. 413, 414 (permitting evidence

of similar crimes in sexual-assault and child-molestation cases).

The jury found petitioner guilty on the count involving J.S., but

4

acquitted on the two counts involving S.K.M.

Verdict 1-2; see

Pet. App. 3a.

3.

The Probation Office’s presentence report recommended,

among other things, imposition of a five-level enhancement under

Section 4B1.5(b)(1) of the advisory Sentencing Guidelines.

¶ 38.

a

That provision applies when to a defendant who “engaged in

pattern

and

PSR

of

meets

activity

certain

involving

other

prohibited

requirements.

sexual

Sentencing

conduct”

Guidelines

§ 4B1.5(b).

The Guidelines Manual explains that the requisite

“pattern

activity”

of

exists

“if

on

at

least

two

separate

occasions, the defendant engaged in prohibited sexual conduct with

a minor.”

Sentencing Guidelines § 4B1.5 comment. n.4(B)(i).

Petitioner objected to the enhancement, claiming that its

application would violate his Fifth and Sixth Amendment rights by

enhancing his sentence based on conduct underlying the counts

involving S.K.M. on which the jury did not return a guilty verdict.

See Sentencing Tr. 17-18.

The government responded that “[J.S.’s]

testimony

two

alone,

those

sexual

abuse

incidents

that

she

testified about -- that’s enough for the pattern enhancement to

apply.”

Id. at 18.

The government “also sa[id] the Court can

find that [S.K.M.’s] testimony on two or three occasions -- that

also establishes the pattern,” and “[s]o does [G.D.’s] testimony

about the one time [petitioner] sexually abused her.”

The

district

court

overruled

petitioner’s

Ibid.

objection

and

applied the five-level enhancement, stating that “I find here that

5

there were two instances with [J.S.]” and that “I also believe

that the evidence has shown by a preponderance of the evidence

that there was sexual -- prohibited sexual conduct with [S.K.M.]

and with [G.D.].”

Sentencing Tr. 19; see id. at 18-19.

With the five-level enhancement, petitioner’s total offense

level was 27, with a resulting advisory guideline range of 70 to

87 months of imprisonment.

Sentencing Tr. 47.

The district court

sentenced petitioner to a within-guidelines term of 87 months of

imprisonment, to be followed by five years of supervised release.

Id. at 55-56.

The district court explained that “in deciding your sentence

today, because it’s such a breach of trust to engage in this

conduct with your daughter, I think a sentence at the top end of

your guideline range of 87 months is appropriate here.” Sentencing

Tr. 55.

The court further explained to petitioner that “more than

to anyone else, as a dad you owe a duty to protect your daughter,

to keep her safe, to make sure that she stays a bright light.

here you did not fulfill that duty.

* * *

I listened to you

today, and you accept no responsibility for what happened.

was no apology to your daughter.”

4.

other

the

court

There

Id. at 54.

The court of appeals affirmed.

things,

And

rejected

Pet. App. 1a-7a.

petitioner’s

Among

constitutional

challenge to “the district court’s consideration of acquitted

conduct at sentencing,” observing that “our precedent forecloses

this argument.”

Id. at 7a.

6

ARGUMENT

Petitioner

contends

(Pet.

4-11)

that

the

district

court

violated his Fifth Amendment right to due process and his Sixth

Amendment right to trial by jury by relying for sentencing purposes

on the two sexual acts against S.K.M. underlying counts that the

jury did not find beyond a reasonable doubt.

This Court, however,

has upheld a district court’s authority to consider conduct that

the court finds by a preponderance of the evidence, but that a

jury did not find beyond a reasonable doubt, in fashioning an

appropriate sentence.

And as petitioner correctly acknowledges

(Pet. 7-8 & n.2, 11), every federal court of appeals with criminal

jurisdiction has recognized that authority.

In any event, this

case would be an unsuitable vehicle in which to address the

question presented because the record does not clearly establish

that the district court actually relied on acquitted conduct in

sentencing petitioner.

This Court has repeatedly denied petitions

for writs of certiorari in cases raising the question presented,

and it should follow the same course here.*

*

Several pending petitions for writs of certiorari seek

review of similar issues. See, e.g., McClinton v. United States,

No. 21-1557 (filed June 10, 2022); Luczak v. United States, No.

21-8190 (filed May 12, 2022); Shaw v. United States, No. 22-118

(filed Aug. 1, 2022); Karr v. United States, No. 22-5345 (filed

Aug. 10, 2022); Bullock v. United States, No. 22-5828 (filed Oct.

11, 2022); Cain v. United States, No. 22-6212 (filed Nov. 28,

2022). The Sentencing Commission has recently proposed amendments

to the Sentencing Guidelines addressing the use of acquitted

conduct at sentencing.

See 1/18/23 Letter from Elizabeth B.

Prelogar, Solicitor General, to Scott S. Harris, Clerk, McClinton,

supra (No. 21-1557).

7

1.

For the reasons set forth in the government’s brief in

opposition to the petition for a writ of certiorari in McClinton

v. United States, No. 21-1557, a copy of which is being served on

petitioner’s counsel, petitioner’s constitutional challenges to

the use of acquitted conduct at sentencing do not warrant this

Court’s review.

See Br. in Opp. at 7-16, McClinton, supra (No.

21-1557) (filed Oct. 28, 2022).

As this Court explained in United States v. Watts, 519 U.S.

148 (1997) (per curiam), in addressing judicial factfinding under

the

then-mandatory

federal

Sentencing

Guidelines,

“a

jury’s

verdict of acquittal does not prevent the sentencing court from

considering conduct underlying the acquitted charge, so long as

that conduct has been proved by a preponderance of the evidence,”

id. at 157.

1557).

See Br. in Opp. at 7-11, McClinton, supra (No. 21-

Petitioner’s attempt (Pet. 7-8) to characterize Watts as

an inapposite double-jeopardy case lacks merit.

The clear import of Watts is that sentencing courts may take

acquitted conduct into account at sentencing without offending the

Constitution.

incompatible

See

with

519

U.S.

at

petitioner’s

157.

And

its

reasoning

is

premise

that

consideration

of

acquitted conduct as part of sentencing contravenes the jury’s

verdict or punishes the defendant for a crime for which he was not

convicted.

1557).

See Br. in Opp. at 9-10, McClinton, supra (No. 21-

8

Petitioner’s suggestion (Pet. 5-6) that Watts is inconsistent

with

decisions

of

this

Court

concerning

the

constitutional

requirements necessary for applying a higher statutory sentencing

range -– such as Apprendi v. New Jersey, 530 U.S. 466 (2000),

Blakely v. Washington, 542 U.S. 296 (2004), United States v.

Booker, 543 U.S. 220 (2005), and Alleyne v. United States, 570

U.S. 99 (2013) -– likewise lacks merit.

McClinton, supra (No. 21-1557).

See Br. in Opp. at 9-10,

Petitioner’s 87-month sentence

lies within the default sentencing range for his offense and thus

does not violate Apprendi, Blakely, Booker, Alleyne, or any other

decision of this Court.

Petitioner acknowledges (Pet. 7-8 & n.2, 11) that no

2.

federal court of appeals has agreed with his position.

Instead,

every federal court of appeals with criminal jurisdiction has

recognized that a district court may consider acquitted conduct

for sentencing purposes.

supra (No. 21-1557).

court

decisions,

See Br. in Opp. at 11-12, McClinton,

Petitioner’s reliance (Pet. 10-11) on state-

including

the

Supreme

Court

of

Michigan’s

decision in People v. Beck, 939 N.W.2d 213 (2019), cert. denied,

140 S. Ct. 1243 (2020) (No. 19-564), and the Supreme Court of New

Jersey’s decision in State v. Melvin, 258 A.3d 1075 (2021), is

misplaced.

Beck is an outlier and its reasoning is tenuous, see

Br. in Opp. at 13-14, McClinton, supra (No. 21-1557); Melvin

expressly relied on state law, not federal law, see id. at 13; and

9

the other state decisions that petitioner cites either predate

Watts or do not cite Watts, see id. at 12-13.

This Court has repeatedly and recently denied petitions for

writs of certiorari challenging reliance on acquitted conduct at

sentencing.

See Br. in Opp. at 14-15, McClinton, supra (No. 21-

1557) (listing cases); see also Br. in Opp. at 14, Asaro v. United

States, 140 S. Ct. 1104 (2020) (No. 19-107) (listing additional

cases).

3.

The same result is warranted here.

At all events, this case would be an unsuitable vehicle

in which to review the question presented because the record does

not clearly establish that the district court actually relied on

acquitted conduct in sentencing petitioner.

As an initial matter, the jury’s acquittal on the counts

involving S.K.M. could have reflected only a finding of reasonable

doubt as to whether the incidents occurred in “Indian country,”

which petitioner disputed at trial and on appeal.

Pet. App. 3a-

4a; see 6/24/22 Trial Tr. 470-471 (petitioner’s oral motion for

judgment of acquittal); 6/24/22 Trial Tr. 623-626 (petitioner’s

closing argument disputing that the offenses took place in Indian

country and asserting, among other things, that maps of Indian

country from 2018 did not necessarily reflect Indian country

boundaries in 2006 or 1996).

But a prior occasion of prohibited

sexual conduct with a minor can establish a pattern of activity

under the advisory guidelines irrespective of where it took place.

See

Sentencing

Guidelines

§

4B1.5(b)

&

comment.

n.4(B)(ii).

10

Accordingly, even setting aside the different standards of proof,

the jury’s not-guilty verdict on the counts involving S.K.M. is

not

logically

inconsistent

or

incompatible

with

the

district

court’s application of the enhancement in reliance on the conduct

underlying those counts.

In

addition,

the

enhancement

was

justified

even

considering the acquitted conduct involving S.K.M.

Guidelines

specify

that

“a

prohibited

sexual

conduct”

pattern

for

of

The advisory

activity

purposes

of

without

involving

applying

the

enhancement is established “if on at least two separate occasions,

the defendant engaged in prohibited sexual conduct with a minor.”

Sentencing Guidelines § 4B1.5 comment. n.4(B)(i).

The evidence at

trial demonstrated, and the district court at sentencing found by

a

preponderance

of

the

evidence,

that

petitioner

engaged

in

prohibited sexual conduct with a minor on at least six separate

occasions: the three incidents involving S.K.M. in or around 1996,

the two 2006 incidents involving J.S., and the 1984 incident

involving

G.D.

See

Sentencing

Tr.

18-19.

Therefore,

even

disregarding the two incidents involving S.K.M. that underlay the

counts on which the jury found petitioner not guilty, petitioner

still would have “engaged in prohibited sexual conduct with a

minor” on more than the “two separate occasions” needed to apply

the

five-level

enhancement.

comment. n.4(B)(i).

Sentencing

Guidelines

§

4B1.5

11

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

JOHN-ALEX ROMANO

Attorney

MARCH 2022