Petition for Writ of Certiorari — Jose Alfredo Solis, Petitioner v. United States

No. _____

In The

Supreme Court of the United States

_______________

JOSE ALFREDO SOLIS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_______________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

_______________

PETITION FOR A WRIT OF CERTIORARI

_______________

Daniel J. Yadron, Jr.

Counsel of Record

Federal Defenders of San Diego, Inc.

225 Broadway, Suite 900

San Diego, California 92101

Telephone: (619) 234-8467

QUESTION PRESENTED

The U.S. Sentencing Guidelines “are not only the starting point for most

federal sentencing proceedings but also the lodestar.” Molina-Martinez v. United

States, 578 U.S. 189, 200 (2016). Thus, even when a defendant fails to object to an

erroneous Guidelines range at sentencing—and regardless of whether the “ultimate

sentence falls within the correct range—the error itself can, and most often will, be

sufficient to show a reasonable probability of a different outcome absent the error.”

Id. at 198 (emphasis added).

The question presented here has divided the courts of appeals for decades: By

what standard of proof must the government prove that a Guidelines error is

harmless when, unlike in Molina-Martinez, the defendant objected to the erroneous

Guidelines range before the district court?

i

RELATED PROCEEDINGS

United States v. Solis, Nos. 21-50140, 21-50142 (9th Cir. Aug. 22, 2022).

United States v. Jose Solis, Nos. 3:20-cr-02510-LAB-1, 3:17-cr-03121-LAB-1

(S.D. Cal. June 7, 2021).

ii

TABLE OF CONTENTS

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

RELATED PROCEEDINGS.......................................................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES .......................................................................................... v

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

INTRODUCTION .......................................................................................................... 1

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

JURISDICTION............................................................................................................. 3

RELEVANT STATUTORY PROVISIONS AND RULES ............................................ 3

STATEMENT OF THE CASE ....................................................................................... 3

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

I.

The courts of appeals are divided on when a preserved

Guidelines error may be proven harmless. ............................................. 7

A.

The Second, Third, Fifth, and Sixth Circuits require the

government to meet heightened standards of proof to

show that a preserved Guidelines error was harmless. ............... 7

1.

The Sixth Circuit requires certainty that the error

was harmless. ...................................................................... 7

2.

The Third Circuit requires a “sure conviction” based

on an unambiguous record that the error was

harmless. ............................................................................. 8

3.

The Second Circuit requires an unambiguous

indication that the error was harmless. ............................. 8

4.

The Fifth Circuit requires that the government

“convincingly demonstrate” that it met its “heavy

burden” to show that the error was harmless..................... 9

B.

The Ninth, Tenth, and Eleventh Circuits merely require

that the government show that it is more probable than

not that a Guidelines error was harmless. ................................. 10

C.

The conflicting standards influence how the circuits

resolve Guidelines appeals with similar fact patterns............... 12

II.

The division among the circuits demands the Court’s attention

because the Guidelines cannot promote uniformity without a

uniform harmless-error standard. ......................................................... 14

III.

Mr. Solis presents the right vehicle to resolve the circuit split. ........... 17

iii

IV.

The Ninth Circuit’s expansive use of harmless error in

Guidelines cases is wrong. ..................................................................... 20

A.

The Ninth Circuit’s standard conflicts with the plain

commands of the Court and Congress. ....................................... 20

B.

The Ninth Circuit’s standard for preserved errors is

logically incompatible with the plain-error test from

Molina-Martinez and Rosales-Mireles. ....................................... 22

CONCLUSION............................................................................................................. 24

APPENDIX

CERTIFICATE OF SERVICE

iv

TABLE OF AUTHORITIES

Cases

Bolton v. Harris,

395 F.2d 642 (D.C. Cir. 1968) .................................................................................. 18

Freeman v. United States,

564 U.S. 522 (2011) .................................................................................................. 15

Gall v. United States,

552 U.S. 38 (2007) .......................................................................................... 9, 14, 17

Lopez v. Davis,

531 U.S. 230 (2001) .................................................................................................. 21

Molina-Martinez v. United States,

578 U.S. 189 (2016) .......................................................................................... passim

Nat’l Ass’n of Home Builders v. Defs. of Wildlife,

551 U.S. 644 (2007) .................................................................................................. 21

Peugh v. United States,

569 U.S. 530 (2013) ............................................................................................ 14, 19

Puckett v. United States,

556 U.S. 129 (2009) .................................................................................................. 24

Ragsdale v. Overholser,

281 F.2d 943 (D.C. Cir. 1960) .................................................................................. 17

Rosales-Mireles v. United States,

138 S. Ct. 1897 (2018) .............................................................................. 2, 14, 15, 17

Strickland v. Washington,

466 U.S. 668 (1984) .................................................................................................. 23

United States v. Blas,

360 F.3d 1268 (11th Cir. 2004) (per curiam)........................................................... 12

United States v. Dace,

842 F.3d 1067 (8th Cir. 2016) .................................................................................. 11

United States v. Dominguez Benitez,

542 U.S. 74 (2004) .................................................................................................... 22

United States v. Dominguez-Caicedo,

40 F.4th 938 (9th Cir. 2022) ................................................................................ 6, 11

v

United States v. Duckro,

466 F.3d 438 (6th Cir. 2006) ...................................................................................... 7

United States v. Espinoza,

637 F. App’x 410 (9th Cir. 2016) .............................................................................. 13

United States v. Feldman,

647 F.3d 450 (2d Cir. 2011)........................................................................................ 8

United States v. Guzman-Rendon,

864 F.3d 409 (5th Cir. 2017) ...................................................................................... 9

United States v. Hazelwood,

398 F.3d 792 (6th Cir. 2005) ................................................................................ 7, 21

United States v. Ibarra-Luna,

628 F.3d 712 (5th Cir. 2010) ................................................................................ 9, 18

United States v. Kieffer,

681 F.3d 1143 (10th Cir. 2012) (per curiam)........................................................... 11

United States v. Knight,

266 F.3d 203 (3d Cir. 2001)...................................................................................... 21

United States v. Kpodi,

824 F.3d 122 (D.C. Cir. 2016) .................................................................................. 11

United States v. Langford,

516 F.3d 205 (3d Cir. 2008)...................................................................... 8, 13, 18, 22

United States v. Lente,

647 F.3d 1021 (10th Cir. 2011) ................................................................................ 12

United States v. McDonald,

850 F.3d 640 (4th Cir. 2017) .................................................................................... 11

United States v. Morales,

108 F.3d 1031 (9th Cir. 1997) (en banc) .................................................................. 12

United States v. Munoz-Camarena,

631 F.3d 1028 (9th Cir. 2011) (per curiam)............................................................. 13

United States v. Nagle,

803 F.3d 167 (3d Cir. 2015)........................................................................................ 8

United States v. Ouellette,

985 F.3d 107 (1st Cir. 2021)..................................................................................... 11

vi

United States v. Roberty,

689 F. App’x 492 (9th Cir. 2017) .............................................................................. 13

United States v.

Sabillon-Umana, 772 F.3d 1328 (10th Cir. 2014)............................................. 16, 18

United States v. Scott,

441 F.3d 1322 (11th Cir. 2006) .......................................................................... 11, 12

United States v. Shelton,

905 F.3d 1026 (7th Cir. 2018) .................................................................................. 11

United States v. Williams,

399 F.3d 450 (2d Cir. 2005)...................................................................................... 16

United States v. Williams,

431 F.3d 767 (11th Cir. 2005) (per curiam)............................................................. 12

Williams v. United States,

503 U.S. 193 (1992) ........................................................................................ 2, 12, 20

Statutes

18 U.S.C. § 3553 ..................................................................................................... 13, 21

18 U.S.C. § 3742 ................................................................................................. 3, 20, 21

Other Authorities

Josh Bowers & Paul H. Robinson, Perceptions of Fairness and Justice: The Shared

Aims and Occasional Conflicts of Legitimacy and Moral Credibility, 47 WAKE

FOREST L. REV. 211 (2012) ....................................................................................... 16

U.S. SENT’G COMM’N, FISCAL YEAR 2022 ANNUAL REPORT (2022) ............................... 15

U.S. SENT’G COMM’N, SOURCEBOOK OF FEDERAL SENTENCING STATISTICS (2022) ...... 14

U.S. SENT’G GUIDELINES MANUAL § 3B1.2(b) (U.S. SENT’G COMM’N 2021) .............. 4, 5

Rules

FED. R. CRIM. P. 52 ..................................................................................................... 2, 3

vii

No. _____

In The

Supreme Court of the United States

_______________

JOSE ALFREDO SOLIS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_______________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

_______________

PETITION FOR A WRIT OF CERTIORARI

_______________

Petitioner Jose Alfredo Solis respectfully prays that the Court issue a writ of

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

Ninth Circuit.

INTRODUCTION

It has been more than thirty years since the Court addressed what standard

applies to a preserved claim of error that a district court miscalculated the U.S.

Sentencing Guidelines. In Williams v. United States, the Court held that “once the

court of appeals has decided that the district court misapplied the Guidelines, a

remand is appropriate unless the reviewing court concludes, on the record as a

whole, that the error was harmless, i.e., that the error did not affect the district

1

court’s selection of the sentence imposed.” 503 U.S. 193, 203 (1992) (emphasis

added) (citing FED. R. CRIM. P. 52(a)).

In the decades since, the courts of appeals have split over how the

government can meet that burden. The Second, Third, Fifth, and Sixth Circuits

require heightened standards of proof—certainty, a lack of ambiguity, or a

convincing showing—to conclude that the error did not affect the sentence. By

contrast, the Ninth, Tenth, and Eleventh Circuits merely require the government to

show harmlessness by a preponderance of the evidence. Those distinctions have

significant consequences: The approach taken can be the difference between a

remand and an affirmance for cases with similar fact patterns.

The split undermines the Guidelines’ basic function: to make federal

sentences more uniform. See Molina-Martinez, 578 U.S. at 192–93. That is because

uniformity requires that the standard for correcting errors is uniform, too. The

Court has not hesitated to intervene when division among the courts of appeals

have undermined the Guidelines’ function. E.g., Rosales-Mireles v. United States,

138 S. Ct. 1897, 1908 (2018); Molina-Martinez, 578 U.S. at 193. It must do so again.

OPINION BELOW

The Ninth Circuit held that the district court committed preserved errors in

interpreting and applying the U.S. Sentencing Guidelines but nevertheless affirmed

Mr. Solis’s sentence in a memorandum disposition. See Appendix to the Petition

(“Pet. App.”) at 1a–12a.

2

JURISDICTION

The Court of Appeals entered judgment on August 22, 2022. It then denied

Mr. Solis’s joint petition for rehearing and rehearing en banc on November 17, 2022.

On February 2, 2023, Justice Kagan extended the time to file a petition for a writ of

certiorari until April 16, 2023. See 22-A-697. The Court has jurisdiction under

28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS AND RULES

Section 3742 of Title 18 of the U.S. Code provides that “[i]f the court of

appeals determines that . . . 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.” 18 U.S.C. § 3742(f)(1).

Federal Rule of Criminal Procedure 52 provides:

(a) HARMLESS ERROR. Any error, defect, irregularity, or variance

that does not affect substantial rights must be disregarded.

(b) PLAIN ERROR. A plain error that affects substantial rights

may be considered even though it was not brought to the court’s

attention.

FED. R. CRIM. P. 52.

STATEMENT OF THE CASE

Jose Solis was fifty-six years old when he was caught trying to import—in the

district court’s words—a “benign” amount of methamphetamine through the United

States-Mexico border’s pedestrian lane. Pet. App. 49a, 61a, 81a. It was a doomed

3

plan; Mr. Solis was blind, barely mobile, and likely to be searched because he was

on supervised release from another case.

Yet, as the district court did not dispute, Mr. Solis felt that he had little

choice. His girlfriend owed drug traffickers debts that no honest person could pay.

They had put her in the hospital with a beating. They said that only Mr. Solis, a

United States citizen, could prevent that from happening again.

Mr. Solis pleaded guilty. At sentencing, he sought a reduction of his offense

level under the U.S. Sentencing Guidelines as a “minor participant” in the offense.

See U.S. SENT’G GUIDELINES MANUAL § 3B1.2(b) (U.S. SENT’G COMM’N 2021). When

considered with other intertwined provisions of the Guidelines, § 3B1.2(b)’s

reduction would have lowered Mr. Solis’s suggested sentence by nearly five years.1

The district court spent more than twenty pages of transcript debating the

merits of Mr. Solis’s Guidelines request. See Pet. App. 16a–36a, 70a–73a. There was

discussion not just of the case’s facts, but of the correct interpretation of the “minor

participant” Guideline. The district court ultimately denied the reduction and

sentenced Mr. Solis to eighty-four months in prison.

Following the imposition of sentence, Mr. Solis’s lawyer ensured that his

objections were preserved for appeal. Then, for the first time, the court said that it

would have imposed the same sentence with or without the “minor participant”

1 Without the “minor participant” reduction—and as the district court calculated—Mr. Solis’s

effective adjusted offense level was 29 and his Guidelines range was 151 to 188 months’

imprisonment. Pet. App. 61a. But with the reduction, his adjusted level would have been 23, and his

suggested term of imprisonment was 92–115 months’ imprisonment. Id. at 6a; Appellant’s Excerpts

of Record at 87, United States v. Solis, No. 21-50140 (9th Cir. Jan. 7, 2022), ECF No. 14.

4

reduction: “One more thing. Even if I granted minor role, the variance here was

enormous. And I would not have imposed any different sentence, even if I granted

minor role.”2 Id. at 73a.

Seeking to justify that belated assertion, the court tried to calculate what

Mr. Solis’s offense level would have been with the disputed reduction. But in doing

so, the court missed a Guidelines provision and concluded that the disputed

reduction would have had a lesser effect on Mr. Solis’s recommended sentencing

range than it, in fact, did. See id. at 6a (assuming arguendo that the district court’s

alternative calculation was wrong, too).

Thus, the sentencing judge ruled that Mr. Solis’s eighty-four-month sentence

was “significantly lower” than either of the (erroneous) Guidelines ranges that he

had calculated. The judge reasoned that he

wouldn’t have gone any lower, even if I had granted minor role. So I

have to tell you that looking at it both ways, that’s the sentence that I

think is fair and reasonable, in light of the factors that I mentioned

were the most important to me, which was just punishment, and

deterrence, specific deterrence in his case.

Id. at 73a.

Mr. Solis appealed. He argued that the district court erroneously interpreted

§ 3B1.2, contravening the Ninth Circuit’s precedent. The panel unanimously agreed.

Id. at 3a–4a. Nevertheless, the panel’s majority concluded that those errors were

harmless. Id. at 8a. That was so, the majority reasoned, because the government

merely had to “show that it is more probable than not that the error did not affect

2 In the Southern District of California, practitioners refer to § 3B1.2(b)’s reduction as “minor role.”

5

the sentence.” Id. at 5a. (quoting United States v. Dominguez-Caicedo, 40 F.4th 938,

963 (9th Cir. 2022), petition for writ of certiorari on other grounds docketed, No. 226461 (Dec. 27, 2022)).

Judge Holly A. Thomas dissented as to harmlessness. “In light of the multiple

mistakes of law committed during the sentencing proceedings, [she] d[id] not believe

it is more likely than not that the errors did not affect Solis’[s] sentence.” Id. at 11a.

Mr. Solis petitions the Court for review.

REASONS FOR GRANTING THE WRIT

After thirty years of percolation, the courts of appeals remain hopelessly

divided on an elemental question of federal criminal law: What is the correct

harmless-error standard for disputed calculations of the U.S. Sentencing

Guidelines? By its mere existence, a circuit split undermines the Guidelines’

systemic function—encouraging uniformity among the thousands of federal

sentences imposed each year.

The Court should use this case to resolve that split. Mr. Solis squarely

presents the issue, and the standard of review is outcome determinative. The panel

used the least-remand-friendly standard and still divided over whether the

undisputed error was harmless. It follows that a different standard would mean a

different result. Finally, the Ninth Circuit is wrong. Its harmless-error standard for

preserved Guidelines disputes is incompatible with this Court’s clear precedents.

For the reasons that follow, the Court should grant the petition.

6

I.

The courts of appeals are divided on when a preserved

Guidelines error may be proven harmless.

The courts of appeals have long been divided about when the government

meets its burden to show that a preserved Guidelines error was harmless. That

conflict came into stark relief following the Court’s clarification of when a defendant

can show prejudice from an unpreserved Guidelines error in Molina-Martinez and

Rosales-Mireles. Yet lower courts remain divided. If thirty years of percolation

among the circuits failed to brew a uniform standard, only the Court can bring

uniformity.

A.

The Second, Third, Fifth, and Sixth Circuits require the

government to meet heightened standards of proof to show

that a preserved Guidelines error was harmless.

The Second, Third, Fifth, and Sixth Circuits hold the government to very

high burdens in showing the harmlessness of a preserved Guidelines error. To the

extent that those standards differ on the margins, the thrust is the same: Because

of correct Guidelines calculations’ importance, the government can rarely show that

a sentencing judge’s Guidelines error—objected to at sentencing—was harmless.

1. The Sixth Circuit requires certainty that the error was harmless.

In the Sixth Circuit, if a sentencing judge “makes a mistake in calculating a

guidelines range . . . , [the appellate court is] required to remand for resentencing

‘unless [it is] certain that any such error was harmless.’” United States v. Duckro,

466 F.3d 438, 446 (6th Cir. 2006) (emphasis added) (quoting United States v.

Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005)).

7

2. The Third Circuit requires a “sure conviction” based on an

unambiguous record that the error was harmless.

In the Third Circuit, the government must generally show a “high

probability” that the Guidelines error was harmless. United States v. Langford, 516

F.3d 205, 215 (3d Cir. 2008). That court’s precedents show that the bar is even

higher than it sounds. To affirm a sentence, a court must “possess a ‘sure conviction

that the error did not prejudice’ the defendant.” Id. (emphasis added) (citation

omitted). And even when, as here, “the sentence is below the Guidelines range, the

record must be unambiguous that the miscalculation of the range had no effect.” Id.

at 217 (emphasis added); see also United States v. Nagle, 803 F.3d 167, 183 (3d Cir.

2015) (reiterating that “the record must be unambiguous”).

3. The Second Circuit requires an unambiguous indication that the

error was harmless.

The Second Circuit also requires a lack of ambiguity. “[I]f a district court errs

in calculating a defendant’s Guidelines sentencing range, [the Second Circuit]

cannot assume, without unambiguous indication to the contrary, that the sentence

would be the same absent the error.” United States v. Feldman, 647 F.3d 450, 459

(2d Cir. 2011) (emphasis added). That court is “especially wary of” assuming that a

defendant would receive the same sentence on remand when the “alleged erroneous

enhancement” had a dramatic effect on the recommended range of sentences. Id. at

460. In Feldman, for example, the defendant’s Guidelines range would have been

cut from 151 to 188 months in prison—the same as Mr. Solis’s erroneously

calculated range—to 63 to 78 months—just less than Mr. Solis’s correct range. Id.

8

It is no answer if the sentencing judge utters the “simple incantation: ‘I would

impose the same sentence regardless of any errors calculating the applicable

Guidelines range.’” Id. First, such predictions are “rarely appropriate.” Id. at 452.

And second, “because the correct Guidelines range is ‘the starting point and the

initial benchmark’ for federal sentences, [a court] cannot lightly assume that

eliminating enhancements from the Guidelines calculation would not affect the

sentence.” Id. at 459–60 (quoting Gall v. United States, 552 U.S. 38, 49 (2007)).

4. The Fifth Circuit requires that the government “convincingly

demonstrate” that it met its “heavy burden” to show that the error

was harmless.

Finally, as relevant here, the Fifth Circuit holds that “the harmless error

doctrine applies only if the proponent of the sentence convincingly demonstrates

both (1) that the district court would have imposed the same sentence had it not

made the error, and (2) that it would have done so for the same reasons it gave at

the prior sentencing.”3 United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir.

2010) (emphasis added). That “is a heavy burden.” Id. at 717. It is insufficient to

show “that the same explanation the court gave for imposing a sentence outside the

miscalculated range could also support a sentence outside the correctly calculated

range.” Id. Thus, “an incorrect Guidelines calculation will usually invalidate the

sentence, even when the district court chose to impose a sentence outside the

Guidelines range.” Id. (emphasis added).

3 In the Fifth Circuit, a preserved Guidelines error also is deemed harmless if “the district court

considered both ranges (the one now found incorrect and the one now deemed correct) and explained

that it would give the same sentence either way.” United States v. Guzman-Rendon, 864 F.3d 409,

411 (5th Cir. 2017).

9

The burden particularly is “difficult . . . if the district court fails to indicate

why it selected a sentence of a particular length.” Id. at 718. For example, in IbarraLuna, the district court erroneously calculated the Guidelines range as twelve to

eighteen months’ imprisonment Id. at 719. The correct Guidelines range was six to

twelve months. Id. Although the district court varied upward because even its

inflated range “was not sufficiently long to protect the public from further crimes by

[the defendant] or, given his status as a repeat offender, to promote respect for the

law,” the Fifth Circuit still vacated and remanded. Id.

That result is notable because the Fifth Circuit was “convinced that the

explanation the district court gave for imposing an above-Guidelines sentence

would have led it to do so even if it had considered the correct Guidelines range.” Id.

Regardless, the panel could not “state with the requisite certainty, however, that the

district court would have imposed precisely the same sentence.” Id. (emphasis

added). The problem, in part, was that the sentencing judge made a point of saying,

“‘I need to understand where he comes out on the Guidelines, and then make my

variance,’ which suggest[ed] that, quite properly, the Guidelines recommendation

affected the sentence [the judge] selected.” Id.

B.

The Ninth, Tenth, and Eleventh Circuits merely require that

the government show that it is more probable than not that a

Guidelines error was harmless.

In this case, the panel applied a rule adopted by the Ninth, Tenth, and

Eleventh Circuits: “To establish harmlessness, the Government must show that ‘it

is more probable than not’ that the [Guidelines] error did not affect the sentence.”

10

Pet. App. 5a (quoting Dominguez-Caicedo, 40 F.4th at 963). The Ninth Circuit’s

more-probable-than-not standard is mathematically identical to the Tenth Circuit’s

rule that “[t]he Government has the burden of establishing by a preponderance of

the evidence that the district court’s procedural miscues were harmless.” United

States v. Kieffer, 681 F.3d 1143, 1169 (10th Cir. 2012). That includes any erroneous

calculation of the Guidelines. Id.

Meanwhile, the Eleventh Circuit has held that a reviewing court is “not

required to vacate the sentence and remand the case if the court would have likely

sentenced [the defendant] in the same way without the error.” United States v.

Scott, 441 F.3d 1322, 1329 (11th Cir. 2006) (per curiam) (emphasis added).

Thus, although the phrasing differs slightly, the result is the same for all

three standards: If the party defending a sentence shows a 50.01% probability that

a preserved Guidelines error did not affect the sentence, no remand is required. A

reviewing court can have substantial concerns that the person would have received

a different sentence under the correct Guidelines range and still affirm.

Why those circuits adopted more lenient tests is unclear.4 They appear to

have copied and pasted those courts’ harmlessness standards for other trial or

sentencing errors. For example, the Ninth Circuit’s Dominguez-Caicedo opinion

attributed “more probable than not,” 40 F.4th at 963, to United States v. Morales,

4 Similarly, the courts of appeals for the First, Fourth, Seventh, Eighth, and District of Columbia

Circuits have not expressed what quantum of proof one must meet to show that a preserved

Guidelines error is harmless and have given no explanation for their silence. See, e.g., United States

v. Ouellette, 985 F.3d 107, 110 (1st Cir. 2021); United States v. McDonald, 850 F.3d 640, 643 (4th Cir.

2017); United States v. Shelton, 905 F.3d 1026, 1031 (7th Cir. 2018); United States v. Dace, 842 F.3d

1067, 1069 (8th Cir. 2016); United States v. Kpodi, 824 F.3d 122, 129 (D.C. Cir. 2016).

11

108 F.3d 1031 (9th Cir. 1997) (en banc). That case addressed whether “expert

testimony ha[d] been erroneously excluded.” Morales, 108 F.3d at 1040. Similarly,

the Tenth Circuit’s Kieffer case attributed the “preponderance of the evidence”

standard to United States v. Lente, 647 F.3d 1021 (10th Cir. 2011), which involved a

failure to address a defendant’s arguments at sentencing. Kieffer, 681 F.3d at 1169;

Lente, 647 F.3d at 1037–38. The Eleventh Circuit’s “likely” standard is particularly

unexplained. Scott’s per curiam decision attributes it—without quoting—to three

sources: the Court’s opinion in Williams, a concurrence from another Eleventh

Circuit case, and another per curiam decision from another panel of that court. 441

F.3d at 1329. None of those opinions describe a “likely” standard. See Williams, 503

U.S. at 203; United States v. Williams, 431 F.3d 767, 775 (11th Cir. 2005) (Carnes,

J., concurring); United States v. Blas, 360 F.3d 1268 (11th Cir. 2004) (per curiam).

C.

The conflicting standards influence how the circuits resolve

Guidelines appeals with similar fact patterns.

Different standards in different circuits can lead to differing outcomes in

similar cases. Take the facts at issue here: After imposing a sentence under an

incorrect Guidelines range, the sentencing judge mentioned an alternative (albeit

also incorrect) Guidelines range and said that he would impose the same sentence

under either range. The Ninth Circuit nevertheless affirmed because, under its

more-probable-than-not standard, a Guidelines error is harmless if the court

imposes a “within-Guidelines sentence that falls within both the incorrect and the

12

correct Guidelines range and explains the chosen sentence adequately.”5 Pet. App.

7a (quoting United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n.5 (9th Cir.

2011) (per curiam)). The panel extended that logic to Mr. Solis’s case because his

sentence fell below both the correct and incorrect Guidelines ranges. Id.

Such reasoning likely would not suffice in the Third Circuit. That court

recognized that “some courts have adopted an ‘overlapping range’ rationale.”

Langford, 516 F.3d at 216. Nevertheless, it held “that such an ‘overlap’ does not

necessarily render an error in the Guidelines calculation harmless.” Id. Nor would it

suffice that the sentencing judge here calculated two Guidelines ranges because

both ranges were incorrect. Because in the Third Circuit, “[a] ‘blanket statement’

that the sentence imposed is fair is not sufficient; a district court must determine a

Guidelines range without the miscalculation error and explain any variance from it

based on § 3553(a) factors.” Id. at 218 (emphasis added)).

In sum, since the Court held in Williams that harmless error applies to

preserved Guidelines errors, the courts of appeals have crafted incompatible

standards by which to show that an error was harmless. Those differences are not

just semantics—they call for opposite outcomes on identical fact patterns. The Court

5 That reasoning also is in tension with the Court’s precedent. In Molina-Martinez, the Court

addressed whether a defendant could show prejudice—on plain-error review—from a Guidelines

error even if his sentence fell within both the correct Guidelines range he sought and the incorrect

range used by the sentencing judge. See 578 U.S. at 197, 204 (holding that he could). Yet numerous

jurists on the Ninth Circuit still believe that, even after Molina-Martinez, so long as the incorrect

Guidelines range cited by the district judge “overlaps substantially” with the correct Guidelines

range, any error is harmless. See, e.g., United States v. Roberty, 689 F. App’x 492, 493 (9th Cir.

2017); United States v. Espinoza, 637 F. App’x 410, 413 (9th Cir. 2016) (Callahan, J., dissenting).

13

needs to create a uniform standard for all circuits to ensure that the Guidelines

maintain their place as the lodestar of federal sentencing.

II.

The division among the circuits demands the Court’s attention

because the Guidelines cannot promote uniformity without a

uniform harmless-error standard.

The U.S. Sentencing Guidelines are the cornerstone of federal sentencing. See

Molina-Martinez, 578 U.S. at 198–200 (collecting cases). They “serve as ‘a

meaningful benchmark’ in the initial determination of a sentence and ‘through the

process of appellate review.’” Rosales-Mireles, 138 S. Ct. at 1904 (citation omitted).

Suffice to say, it is an “important role.” Id.

Federal courts sentence more than 60,000 people each year. See, e.g., U.S.

SENT’G COMM’N, SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 84 (2022). A

sentencing proceeding “must begin” with the judge calculating the Guidelines,

correctly. Gall, 552 U.S. at 50 n.6. And even if the judge decides to vary above or

below the Guidelines range, such as here, the judge “must consider the extent of the

deviation and ensure that the justification is sufficiently compelling to support the

degree of the variance.” Id. at 50 (emphasis added).

That is why “the Guidelines are not only the starting point for most federal

sentencing proceedings but also the lodestar.” Molina-Martinez, 578 U.S. at 200.

Put another way, “[e]ven if the sentencing judge sees a reason to 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.’” Peugh v. United States, 569 U.S. 530, 542 (2013) (quoting Freeman v.

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United States, 564 U.S. 522, 529 (2011) (plurality opinion)). Consequently, “[a]s the

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

sentences [tend to] move with it.’” Molina-Martinez, 578 U.S. at 199 (second

alteration in original) (quoting Peugh, 569 U.S. at 544).

The problem—as judges, lawyers, and defendants can attest—is that “[t]he

Guidelines are complex.” Id. at 193. And “given th[at] complexity . . . district courts

sometimes make mistakes.” Rosales-Mireles, 138 S. Ct. at 1904. Those mistakes, if

not uniformly corrected, weaken the Guidelines’ role as a national anchor for

criminal sentences. For example, the U.S. Sentencing Commission uses statistics

from Guidelines computations and imposed sentences to determine if amendments

are needed. Id. at 1908; U.S. SENT’G COMM’N, FISCAL YEAR 2022 ANNUAL REPORT 7–8

(2022). But “[w]hen sentences based on incorrect Guidelines ranges go uncorrected,

the Commission’s ability to make appropriate amendments is undermined.”

Rosales-Mireles, 138 S. Ct. at 1908. It thus makes sense that the Court has

encouraged remands of Guidelines errors even under the stringent plain-error

standard. See Molina-Martinez, 578 U.S. at 198; Rosales-Mireles, 138 S. Ct. at

1907–08.

A uniform and equitable harmless-error standard for Guidelines errors serves

another key function: maintaining “the public legitimacy of our justice system.”

Rosales-Mireles, 138 S. Ct. at 1908. Such legitimacy “relies on procedures that are

‘neutral, accurate, consistent, trustworthy, and fair,’ and that ‘provide opportunities

for error correction.’” Id. (emphasis added) (quoting Josh Bowers & Paul H.

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Robinson, Perceptions of Fairness and Justice: The Shared Aims and Occasional

Conflicts of Legitimacy and Moral Credibility, 47 WAKE FOREST L. REV. 211, 215–

216 (2012)).

That is because “what reasonable citizen wouldn’t bear a rightly diminished

view of the judicial process and its integrity if courts refused to correct obvious

errors of their own devise that threaten to require individuals to linger longer in

federal prison than the law demands?” Id. (quoting United States v. SabillonUmana, 772 F.3d 1328, 1333 (10th Cir. 2014) (Gorsuch, J.)). If that is true for cases

subject to plain error, it must be more so in cases where the lawyer objects and the

court of appeals tells the defendant: “Your lawyer was right, the judge was wrong,

but the courts cannot bother with a resentencing.”

A court’s unwillingness to correct a preserved error might strike a person as

particularly odd given that the Court and others are on record stating that

“a remand for resentencing, while not costless,” is “relatively inexpensive” in the

currency of judicial resources. Id. at 1908–09 (citation omitted). The proceeding “is a

brief event, normally taking less than a day and requiring the attendance of only

the defendant, counsel, and court personnel.” Id. at 1908 (quoting United States v.

Williams, 399 F.3d 450, 456 (2d Cir. 2005)); Sabillon-Umana, 772 F.3d at 1334

(same).

In sum, bringing clarity to when a preserved Guidelines error is prejudicial

would boost uniformity in thousands of sentencing appeals, protect the Guidelines

role as the lodestar of federal sentencing, and boost public faith that federal

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sentencing is fair. As the Court has acknowledged repeatedly, that—by its nature—

is an issue of exceptional importance. E.g., Rosales-Mireles, 138 S. Ct. at 1903

(holding that the Guidelines are “important”); Molina-Martinez, 578 U.S. at 200

(holding that they are the “lodestar”); Gall, 552 U.S. at 49 (holding that they are the

“benchmark”).

III.

Mr. Solis presents the right vehicle to resolve the circuit split.

Mr. Solis’s case presents the right vehicle to resolve this circuit split for at

least three reasons. First, the issue is squarely presented. Mr. Solis objected to the

district court’s Guidelines calculation. The appellate panel unanimously agreed that

the district court committed Guidelines errors. Pet. App. 3a. And despite those

errors, the sentence was affirmed using a harmless-error standard upon which

circuit courts disagree.

Second, the question presented will determine the outcome of Mr. Solis’s

appeal. That can be seen in the Ninth Circuit’s reasoning below: The panel

unanimously held that the district court legally erred four times in interpreting the

Guidelines. Id. at 3a–4a. Yet even under the most remand-averse standard, the

panel split as to whether those errors were harmless. That means, at the very least,

this case was close.

And in “close” cases, the standard of proof makes the difference. See, e.g.,

Ragsdale v. Overholser, 281 F.2d 943, 947 (D.C. Cir. 1960) (holding, in a “close”

case, that a committed person may establish by a “preponderance of the evidence”

that release is appropriate but affirming detention because “reasonable medical

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doubts or reasonable judicial doubts” remained), overruled on other grounds in

Bolton v. Harris, 395 F.2d 642 (D.C. Cir. 1968). If the Ninth Circuit barely affirmed

Mr. Solis’s sentence when using even the more-probable-than-not standard, it

follows that even a slightly less remand-averse standard could change the outcome.6

Finally, if the Ninth Circuit remands Mr. Solis’s case, he very likely will get a

lower sentence at resentencing. As discussed above, “when a Guidelines range

moves up or down, offenders’ sentences [tend to] move with it.” Molina-Martinez,

578 U.S. at 199 (alteration in original) (citation omitted); see also Sabillon-Umana,

772 F.3d at 1333; Langford, 516 F.3d at 217. It matters not that the sentencing

judge ultimately varied downward. “[W]hether or not the defendant’s ultimate

sentence falls within the correct range—the [Guidelines] error itself can, and most

often will, be sufficient to show a reasonable probability of a different outcome

absent the error.” Molina-Martinez, 578 U.S. at 198.

That makes sense. As then-Judge Gorsuch recognized, “[w]hen the court’s

starting point is skewed[,] a ‘reasonable probability’ exists that its final sentence is

skewed too.” Sabillon-Umana, 772 F.3d at 1333. That especially is the case when a

sentencing judge is “careful to insist that ‘[he] need[s] to understand where [the

defendant] comes out on the Guidelines, and then make [his] variance.’” IbarraLuna, 628 F.3d at 719. Such a comment “suggests that, quite properly, the

Guidelines recommendation affected the sentence [the court] selected.” Id.

6 Even if the Court ultimately concludes that the Ninth Circuit’s more-probable-than-not standard is

correct, Mr. Solis’s case remains a strong vehicle to resolve the question presented. That is because

the Court could still clarify how that standard should be applied in close cases like this one where

the district court never correctly calculated the Guidelines.

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In Mr. Solis’s case, the sentencing judge made similar comments before

varying downward. For example, after Mr. Solis’s trial lawyer raised another

Guidelines issue, the sentencing judge said that the matter would be better handled

as a variance, “just to be in line with what I understand the sentencing obligation to

be, which is to correctly calculate the [G]uidelines first, applying the [G]uidelines

that are in effect at the time of the sentencing.” Pet. App. 41a.

Indeed, most of the lengthy sentencing transcript for this case addresses

some aspect of calculating Mr. Solis’s Guidelines range. See id. at 16a–36a; 70a–73a

(discussing the “minor participant” reduction); id. at 36a–38a (discussing Mr. Solis’s

criminal history category); id. at 38a–41a (discussing a variance to reflect the First

Step Act and the Guidelines’ “safety valve” provision); id. at 41a–43a (discussing

other potential variances); id. at 60a–61a; 63a–65a (calculating the Guidelines and

applying variances). The Southern District of California is a busy border district,

not a moot court competition. If a sentencing judge is willing to spend that much

time discussing the proper calculation of the Guidelines, “then the Guidelines are in

a real sense the basis for the sentence.” Peugh, 569 U.S. at 542 (citation omitted). It

necessarily follows that if the basis for the sentence is lower, the sentence would—

and should—be lower.

That all makes this case an excellent vehicle for the Court to resolve the

question presented. The issue is preserved, outcome-determinative on appeal, and

very likely to ensure that Mr. Solis receives a different sentence.

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IV.

The Ninth Circuit’s expansive use of harmless error in

Guidelines cases is wrong.

The divergent approaches of the courts of appeals warrant review no matter

which standard prevails. But granting the petition is particularly vital here because

the Ninth Circuit’s more-probable-than-not standard is incompatible with this

Court’s precedents and Congress’s directive. That can be verified not just by the

Court’s holdings and the statutory text, but by formal logic.

A.

The Ninth Circuit’s standard conflicts with the plain

commands of the Court and Congress.

First, in Williams, the Court did not mince words: A remand is the remedy

unless a court of appeals concludes “that the error did not affect the district court’s

selection of the sentence imposed.” Williams, 503 U.S. at 203 (emphasis added). The

Court did not say “likely did not affect” the sentence, or “probably did not affect” the

sentence. It said “did not affect” the sentence—full stop. Thus, the Second, Third,

Fifth, and Sixth Circuits’ heightened standards best comport with the Court’s

holding the last time it addressed the harmlessness of a preserved Guidelines error.

Those courts’ holdings also better reflect the statutory command that “[i]f the

court of appeals determines that . . . 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.” 18 U.S.C. § 3742(f)(1). As the Court

notes often, Congress’s use of the “mandatory ‘shall’ . . . normally creates an

obligation impervious to judicial discretion.” Nat’l Ass’n of Home Builders v. Defs. of

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Wildlife, 551 U.S. 644, 661 (2007) (omission in original) (quoting Lopez v. Davis, 531

U.S. 230, 241 (2001)). To be sure, Williams held that § 3742(f)(1) contains an

implicit harmless-error exception. 503 U.S. at 202–03. But a high bar for deeming

an error harmless honors the statute’s plain command that a remand is required

whenever it can be said that a sentence was “imposed as a result of an incorrect

application of the sentencing guidelines.” § 3742(f)(1).

Because, as the Court’s and others’ post-Williams holdings recognized, the

Guidelines almost always are “the basis for the sentence.” Molina-Martinez, 578

U.S. at 199 (emphasis removed) (quoting Peugh, 569 U.S. at 542). That necessarily

is so if the judge sentences a person within the Guidelines, and it is just as so if “the

judge uses the sentencing range as the beginning point to explain the decision to

deviate from it.” Id.

Thus, a high bar “better protects the defendant’s right to a sentence ‘imposed

pursuant to correctly applied law’ and ‘better effectuates the Guidelines’ purpose to

institute fair and uniform sentencing.’” Langford, 516 F.3d at 217 (quoting United

States v. Knight, 266 F.3d 203, 210 (3d Cir. 2001)). Because “whether the Guidelines

are mandatory or merely advisory, district courts are required by statute to consult

them, and . . . a district court’s misinterpretation of the Guidelines effectively

means that it has not properly consulted the Guidelines.” Hazelwood, 398 F.3d at

801 (citing 18 U.S.C. § 3553(a)(4)). So long as “it is at least possible, even under a

non-mandatory guidelines system, that the judge, considering the proper Guideline

range, would have” imposed a different sentence, there must be a remand. Id.

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(emphasis added). Because “when the starting point for the § 3553(a) analysis is

incorrect, the end point, i.e., the resulting sentence, can rarely be shown to be

unaffected.”7 Langford, 516 F.3d at 217 (emphasis added).

B.

The Ninth Circuit’s standard for preserved errors is logically

incompatible with the plain-error test from Molina-Martinez

and Rosales-Mireles.

The Ninth Circuit’s standard also is logically incompatible with the Court’s

holding that, on plain-error review, a defendant need only “‘show a reasonable

probability that, but for the error,’ the outcome of the proceeding would have been

different.” Molina-Martinez, 578 U.S. at 194 (emphasis added) (quoting United

States v. Dominguez Benitez, 542 U.S. 74, 76, 82 (2004)). And that is so because, in

this context, a “reasonable probability” is a settled term of art.

Molina-Martinez’s articulation of the plain-error standard for Guidelines

cases expressly lifted from the “reasonable probability” standard articulated in

Dominguez Benitez. Id.; see also Dominguez Benitez, 542 U.S. at 82–83. And that

standard is clear: “The reasonable-probability standard is not the same as, and

should not be confused with, a requirement that a defendant prove by a

preponderance of the evidence that but for error things would have been different.”

Dominguez Benitez, 542 U.S. at 83 n.9 (emphases added). Thus, “[t]he question is

not whether the defendant would more likely than not have received a different”

outcome. Kyles v. Whitley, 514 U.S. 419, 434 (1995). Rather, the question is whether

7 Such rare examples could include when “the sentence was dictated not by the erroneously

calculated Guideline, but by a statutory minimum or maximum or another properly calculated

Guideline.” Langford, 516 F.3d at 215.

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“the probability of a different result is ‘sufficient to undermine confidence in the

outcome’ of the proceeding.” Dominguez Benitez, 542 U.S. at 83 (emphasis added)

(quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). That is a “relatively

low burden.” See Chinn v. Shoop, 143 S. Ct. 28 (2022) (Jackson, J., dissenting from

denial of certiorari).

True, the Court never precisely quantified what constitutes a “reasonable

probability.” But to see why the Ninth Circuit’s harmless-error standard is wrong,

all that matters is that a reasonable probability is less than a preponderance.

Because that means, on plain-error review, if a defendant shows a 49.99% chance of

prejudice, and the government shows a 50.01% chance of no prejudice, the

defendant should prevail.8

But in the Ninth, Tenth, and Eleventh Circuits, an identical showing by each

side would result in a finding of no prejudice in spite of—actually, because of—the

defendant’s diligent objection. And that is so because those circuits merely require

the government to prove that it is more likely than not (say, a 50.01% chance) that a

preserved Guidelines error is harmless. Even if the defendant responds by showing

a 49.99% chance of prejudice, i.e., the same “reasonable probability” that sufficed on

plain-error review, the defendant still loses.

The incongruence is untenable. If an erroneous Guidelines calculation

establishes prejudice on plain-error review, there is no coherent reason why it does

8 Because a prejudicial Guidelines error “ordinarily” will affect the “fairness, integrity, and public

reputation of the proceedings,” Rosales-Mireles, 138 S. Ct. at 1909, it follows that—on plain-error

review—a clear Guidelines error, like this one, ordinarily warrants a remand, see id. at 1911.

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not when the error is preserved. The very point of the stringent plain-error

standard is to "induce the timely raising of claims and objections." Puckett v. United

States, 556 U.S. 129, 134 (2009). That is so problems can be solved efficiently in

lower courts-not lengthy appeals of simple cases like this one. Id. But in the Ninth,

Tenth, and Eleventh Circuits, there is little incentive to object to a Guidelines error.

Rather, it just triggers a tougher standard of review. That simply cannot be so. It

also confirms that the Ninth Circuit's rule must be wrong.

CONCLUSION

Mr. Solis's case deserves the Court's review. The courts of appeals are

hopelessly divided about when a preserved Guidelines error is harmless. That is an

issue of exceptional importance because the Guidelines cannot encourage uniform

sentences without a uniform standard of review. And Mr. Solis's case presents a

strong vehicle to resolve that division-the issue is preserved, dispositive, and

places the Ninth Circuit on the wrong side of a circuit split. If the Guidelines

remain the "lodestar" of federal prison terms, Molina-Martinez, 578 U.S. at 200,

fairness and precedent dictate that it cannot be so easy to declare the erroneous

placement of that lodestar harmless. For the foregoing reasons, the Court should

grant the petition for a writ of certiorari.

Respectfully submitted,

Date: April 14, 2023

/4n~~

Counsel of Record

Federal Defenders of San Diego, Inc.

225 Broadway, Suite 900

San Diego, California 92101

Telephone: (619) 234-8467

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