Reply Brief — James Clark, III, Petitioner v. United States

No.

22-6881

IN THE

SUPREME COURT OF THE UNITED STATES

JAMES CLARK, III,

PETITIONER,

vs.

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

__________________________________________________________________

REPLY IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

__________________________________________________________________

Doris A. Randle-Holt

Federal Public Defender for the

Western District of Tennessee

M. Dianne Smothers

Assistant Federal Public Defender

Attorneys for Petitioner

200 Jefferson, Suite 200

Memphis, Tennessee 38103

E-mail: Dianne_Smothers@fd.org

(901) 544-3895

TABLE OF CONTENTS

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

ARGUMENT.............................................................................................................1

CONCLUSION.........................................................................................................5

ii

TABLE OF AUTHORITIES

Cases

Page

Altman v. United States,

cert. denied, No. 22-5877 (May 1, 2023)....................................................................1

Altman v. United States, No. 22-5877,

Govt.’s Resp. Opp’n., at 26-27 (filed Mar. 24, 2023).................................................3

Braxton v. United States,

500 U.S. 344 (1991)................................................................................................1-3

Brown v. United States,

cert. granted, No. 22-6389 (May 15, 2023)................................................................3

Jackson v. United States,

cert. granted, No. 22-6640 (May 15, 2023).................................................................3

Longoria v. United States,

141 S. Ct. 978 (2021)..............................................................................................2-3

Maryland v. Baltimore Radio Show,

338 U.S. 912 (1950)...................................................................................................4

Singleton v. Commissioner,

439 U.S. 940 (1978)................................................................................................3-4

United States v. Carver,

260 U.S. 482 (1923)...................................................................................................3

Statutory Authority

USSG § 3E1.1(b).......................................................................................................2

Other Authority

U.S. Sent’g Comm’n, Amendments to the

Sentencing Guidelines (Reader Friendly Version)

(Apr. 27, 2023)...........................................................................................................2

v

ARGUMENT

The government’s response in opposition to Mr. Clark’s petition for certiorari

hangs its hat heavily upon this Court’s reticence to review Sentencing Guidelines

questions and its preference that the Sentencing Commission address jurisdictional

conflicts through Guidelines amendments. The government also points to this

Court’s denial of certiorari in Altman v. United States, cert. denied, No. 22-5877

(May 1, 2023), which raised the same timing question presented by Mr. Clark’s

petition in the context of Iowa’s marijuana and cocaine laws. The government

provided counsel with a copy of its response in opposition in the Altman case,

wherein it made the same argument that the Sentencing Commission should address

the timing question, now that it has a quorum, through amendment to the Guidelines.

The problem is that when Altman was decided, the Commission was in the

process of adopting amendments to the Guidelines. As noted by the government

here in response, however, the Commission has since adopted amendments without

addressing this issue. The timing question presented here was well in play during

the amendment process and the Commission had to have been aware of it due to the

jurisdictional conflicts in both the Guidelines arena and under the Armed Career

Criminal Act (“ACCA”). Thus, though “Congress necessarily contemplated that the

Commission would periodically review the work of the courts, and would make

whatever clarifying revisions to the Guidelines conflicting judicial decisions might

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suggest,” Braxton v. United States, 500 U.S. 344, 348 (1991), the Commission chose

to forego doing so here. Since the Commission chose not to address this question,

this Court would not be “using [its] certiorari power as the primary means of

resolving [this] conflict[].” Id. (emphasis added).

The Commission did take up the conflict as to whether a suppression hearing

is a valid basis for denying a reduction under USSG § 3E1.1(b). This was based

upon the call to do so from two of this Court’s esteemed Justices who noted the

conflict was both longstanding and had a potentially significant impact on

defendants. See U.S. Sent’g Comm’n, Amendments to the Sentencing Guidelines

(Reader Friendly Version), 72 (Apr. 27, 2023) (citing Longoria v. United States, 141

S. Ct. 978, 979 (2021) (statement of Sotomayor, J., with whom Gorsuch, J. joined,

respecting the denial of certiorari, “emphasiz[ing] the need for clarification from the

Commission” on this “important and longstanding split among the Courts of Appeals

over the proper interpretation of § 3E1.1(b)”). The Justices’ concern in Longoria

was that “[t]he present disagreement among the Courts of Appeals means that

similarly situated defendants may receive substantially different sentences

depending on the jurisdiction in which they are sentenced.” Longoria, 148 S. Ct. at

979. The same is true here. Defendants in the First, Second, and Ninth Circuit

Courts of Appeal are receiving substantially lower sentences than those in the Third,

Sixth and Eighth Circuit Courts of Appeal based on the timing question presented in

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this petition. Surely this Court can now step in because the Sentencing Commission

did “have the opportunity to address this issue in the first instance.” Id. (citing

Braxton, 500 U.S. at 348).

This is particularly true since the Court has agreed to accept certiorari review

of this timing question in the context of the ACCA. See Jackson v. United States,

No. 22-6640 (May 15, 2023); Brown v. United States, No. 22-6389 (May 15, 2023).

Indeed, in its response in opposition in Altman, the government suggested that to the

extent that the Cout might perceive the Guidelines issue to be properly influenced

by the ACCA issue, it could elect to hold petitions raising the Guidelines issue

pending any resolution to the ACCA issue. (See Altman v. United States, No. 225877, Govt.’s Resp. Opp’n., at 26-27 (filed Mar. 24, 2023)). At the very least, Mr.

Clark respectfully requests that the Court do so here.

Finally, the fact that this Court denied certiorari in Altman is of no moment

here. It is a well-settled proposition that this Court’s denial of certiorari does not

constitute a ruling on the merits. United States v. Carver, 260 U.S. 482, 490 (1923);

see also Singleton v. Commissioner, 439 U.S. 940, 942-946 (1978) (opinion of

Stevens, J., respecting denial of petition for writ of certiorari).

As explained by

Justice Stevens in Singleton, “A variety of considerations underlie denials of the

writ.” 439 U.S. at 942. “Narrowly technical reasons may lead to denials.” Id. at

943. “A decision may satisfy all . . . technical requirements and yet may commend

3

itself for review to fewer than four members of the Court.”

Id.

“Pertinent

considerations of judicial policy here come into play. A case may raise an important

question but the record may be cloudy.” Id. “It may be desirable to have different

aspects of an issue further illumined by the lower courts.” Id. Thus, “this Court has

rigorously insisted that such a denial carries with it no implication whatever

regarding the Court’s views on the merits of a case which it has declined to review.”

Id. at 944 (quoting Maryland v. Baltimore Radio Show, 338 U.S. 912, 917-19 (1950)

(opinion of Frankfurter, J., respecting denial of petition for writ of certiorari)).

4

CONCLUSION

For all of the foregoing reasons, Petitioner respectfully continues his prayer

that this Court grant certiorari to review the judgment of the Sixth Circuit in his case.

DATED: 26th day of May 2023.

Respectfully submitted,

DORIS RANDLE HOLT

FEDERAL DEFENDER

/s Doris A. Randle-Holt

Doris A. Randle-Holt

Federal Defender for the Western District of

Tennessee

Attorney for Petitioner

200 Jefferson, Suite 200

Memphis, Tennessee 38103

(901) 544-3895

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