Opposition Brief — Victor Alfredo Bermudez, Petitioner v. United States
Supreme Court briefJul 31, 2023
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No. 22-7580
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
VICTOR ALFREDO BERMUDEZ, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
NICOLE M. ARGENTIERI
Acting Assistant Attorney General
MAHOGANE D. REED
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTION PRESENTED
Whether plain-error review applies to petitioner’s claim that
the district court inadequately explained the sentence it imposed,
where petitioner failed to object in the district court to the
adequacy of that explanation.
(I)
ADDITIONAL RELATED PROCEEDINGS
United States District Court (N.D. Tex.):
United States v. Bermudez, No. 20-cr-440 (Apr. 29, 2022)
United States Court of Appeals (5th Cir.):
United States v. Bermudez, No. 22-10464 (Feb. 15, 2023)
(II)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 22-7580
VICTOR ALFREDO BERMUDEZ, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINION BELOW
The opinion of the court of appeals (Pet. App. 17a-20a) is
not published in the Federal Reporter but is available at 2023 WL
2015625.
JURISDICTION
The judgment of the court of appeals was entered on February
15, 2023.
The petition for a writ of certiorari was filed on May
12, 2023.
The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
2
STATEMENT
Following a guilty plea in the United States District Court
for the Northern District of Texas, petitioner was convicted on
one count of conspiring to possess unregistered firearms, in
violation of 18 U.S.C. 371, and two counts of possessing an
unregistered firearm, in violation of 26 U.S.C. 5841, 5845, and
5861(d).
Pet. App. 21a.
He was sentenced to 30 months of
imprisonment, to be followed by three years of supervised release.
Id. at 22a-23a.
1.
The court of appeals affirmed.
Id. at 17a-20a.
In July 2020, a task force officer with the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF) learned that
petitioner’s
brother,
José,
was
advertising
Glock
conversion
switches -- devices used to convert semiautomatic Glock pistols
into
automatic
Snapchat.
machine
guns
--
on
the
social-media
service
Presentence Investigation Report (PSR) ¶ 11.
Due to
their capabilities, Glock conversion switches qualify as “machine
guns” under federal law.
Ibid.; 26 U.S.C. 5845(b).
An ATF agent created an undercover Snapchat account and
contacted José about purchasing conversion switches.
PSR ¶ 13.
After negotiating, José agreed to sell the agent five switches for
$4000. Id. ¶¶ 15-16. On the date of the sale, petitioner delivered
the switches on José’s behalf and explained the characteristics
and functionality of the switches to the agent.
Id. ¶ 17.
Petitioner told the agent that the switches were disabled to avoid
detection by law enforcement and advised the agent to research how
3
to assemble the switches.
Ibid.
Petitioner also showed the agent
a video depicting petitioner firing a Glock pistol in semiautomatic
mode, then changing the switch and firing the weapon in fully
automatic machine gun mode.
Ibid.
Petitioner sold two more switches to the same undercover agent
in August 2020.
2.
PSR ¶ 26.
A grand jury returned an indictment charging petitioner
with one count of conspiring to possess unregistered firearms, in
violation
of
18
U.S.C.
371,
and
two
counts
of
possessing
unregistered firearms, in violation of 26 U.S.C. 5841, 5845, and
5861(d).
C.A. ROA 50-58.
plea agreement.
Petitioner pleaded guilty without a
Id. at 96-105.
The Probation Office’s presentence report recommended a total
offense
level
of
15
and
a
criminal
history
category
of
II,
resulting in an advisory Guidelines range of 21 to 27 months of
imprisonment.
PSR ¶ 91.
The presentence report noted that the
district court could consider an upward departure or variance due
to the number of Glock conversion switches involved in petitioner’s
offense.
PSR ¶ 104.
And the government argued that an upward
departure or variance was warranted for that reason.
C.A. ROA
423-424.
In
his
objections
to
the
presentence
report,
petitioner
argued that he was entitled to a minor-role reduction because he
did not orchestrate the conspiracy and was simply “a mule in the
delivery of the switches.”
C.A. ROA 404.
Petitioner, a lawful
4
permanent resident, also argued that he should receive a downward
variance
based
on
time
following his arrest.
he
had
Id. at 406.
spent
in
immigration
custody
The Probation Office issued an
addendum to the presentence report, in which it applied a twolevel minor-role reduction, resulting in an advisory Guidelines
range of 15 to 21 months of imprisonment.
Id. at 414-417.
At petitioner’s sentencing hearing, the district court began
by advising petitioner that it was considering an above-Guidelines
sentence “for the reasons stated both in the [presentence report]
and
the
Government’s
motion.”
C.A.
ROA.326.
After
hearing
argument from the parties -- including argument from petitioner
that the court should vary downward or impose a sentence at the
lower end of the Guidelines range, id. at 339 -- the court adopted
the factual findings in the presentence report and its two addenda
and calculated an advisory Guidelines range of 15 to 21 months of
imprisonment, id. at 344.
The district court stated, however,
that petitioner’s Guidelines range did not “adequately reflect the
statutory sentencing factors of Section 3553(a),” and the court
would therefore “vary from the guidelines in imposing sentence
here.”
Ibid.
The court explained that the “primary reason” for its decision
to vary upward was “the seriousness of the offense conduct,” which
the court characterized as “just incredibly, incredibly dangerous
to the whole community.”
C.A. ROA 344-345.
The district court
acknowledged, however, that petitioner was less culpable than one
5
of his co-conspirators, José’s brother-in-law, who had received a
sentence of 48 months of imprisonment.
Id. at 345.
The court
ultimately selected a sentence of 30 months of imprisonment, which
was “a year less than” the co-conspirator’s sentence, reduced
another six months to account for the time petitioner had spent in
immigration custody “that he otherwise would not get credit for”
under the Guidelines.
Id. at 345.
After imposing petitioner’s
sentence, the district court asked whether there was “anything
else” defense counsel wanted “to take up.”
Id. at 347.
for petitioner responded that she had “[n]othing else.”
3.
Counsel
Ibid.
The court of appeals affirmed petitioner’s sentence in
an unpublished per curiam opinion.
Pet. App. 17a-20a.
On appeal, petitioner argued for the first time that his
sentence
was
procedurally
unreasonable,
asserting
that
the
district court failed to sufficiently explain its upward variance.
See Pet. C.A. Br. 7.
The court of appeals observed that “[b]ecause
he did not preserve the procedural-unreasonableness issue in the
district court, review is only for plain error,” under which he
was required to show “clear-or-obvious error
* * *
that affected
his substantial rights” in order for the court of appeals to have
discretion to grant relief, which it would then generally exercise
only if the error “‘seriously affects the fairness, integrity or
public
reputation
of
judicial
proceedings.’”
Pet.
App.
18a
(quoting Puckett v. United States, 556 U.S. 129, 135 (2009))
(brackets omitted).
6
The court of appeals then observed that the district court
had “thoroughly considered [petitioner’s] mitigating arguments, as
referenced both in its Statement of Reasons and its granting the
six-month sentencing credit he requested.”
Pet. App. 18a.
further noted that the district court had “explained
* * *
It
that
a variance was necessary to address[] the seriousness of [the]
offense conduct; the Sentencing Guidelines’ failure to account for
the true nature of the offense; the need to provide adequate
deterrence
* * *
; and the need to provide just punishment and
protect the public.”
Ibid.
The court of appeals added that
“[i]nasmuch as [petitioner] maintains the [district] court should
have separately or specifically addressed his mitigating arguments
when imposing the upward variance, he fails to demonstrate the
requisite clear-or-obvious procedural error.”
Id. at 18a-19a.
And the court determined that “[e]ven assuming the [district]
court’s explanation was clear-or-obvious procedural error,” any
such error did not affect petitioner’s substantial rights because
petitioner did “not contend, much less demonstrate a reasonable
probability, that a more detailed explanation would have resulted
in a lesser sentence.”
Id. at 19a.
ARGUMENT
Petitioner contends (Pet. 7-13) that the court of appeals
improperly applied plain-error review to his procedural objection,
raised for the first time on appeal, to the district court’s
explanation for varying upward from the advisory guideline range.
7
As a threshold matter, petitioner’s challenge to his term of
imprisonment does not warrant this Court’s review because he is
scheduled for release in January 2024, which will moot his claim.
In any event, the court of appeals’ decision is correct, and this
Court has repeatedly declined to address the minimal circuit
disagreement on the question presented.
In addition, petitioner’s
case would be a poor vehicle for considering the question presented
because the district court did not commit any error, plain or
otherwise, when sentencing petitioner.
The petition for a writ of
certiorari should be denied. 1
1.
This case will likely become moot before the Court would
issue a decision.
According to the Federal Bureau of Prisons,
petitioner is scheduled to be released on December 18, 2023.
Fed.
Bureau
of
Prisons,
Find
See
an
Inmate,
(last
visited
July 31, 2023) (search for register number 07452-509).
Because
https://www.bop.gov/mobile/find_inmate/index.jsp
petitioner’s claim is directed only to the length of his sentence,
rather than his underlying conviction, the case will become moot
on that date.
See Lane v. Williams, 455 U.S. 624, 631 (1982)
(“Since respondents elected only to attack their sentences, and
since
those
sentences
expired
during
the
course
of
these
proceedings, this case is moot.”).
The question presented here is also presented by the
petition in Bernard v. United States, No. 22-7717 (filed May 31,
2023).
1
8
The completion of a criminal defendant’s sentence will not
normally
moot
an
appeal
criminal
convictions
challenging
generally
have
the
conviction
“continuing
because
collateral
consequences” beyond just the sentences imposed. Spencer v. Kemna,
523
U.S.
1,
8
(1998).
But
a
“presumption
of
collateral
consequences” does not extend beyond criminal convictions.
12.
Id. at
Therefore, when a defendant challenges only the length of his
term of imprisonment, his completion of that prison term moots an
appeal, unless the defendant can show that the challenged action
continues
to
cause
“collateral
consequences
adequate
to
meet
Article III’s injury-in-fact requirement,” id. at 14, and that
those consequences are “‘likely to be redressed by a favorable
judicial decision,’” id. at 7 (citation omitted).
Petitioner cannot make that showing here.
By the time that
the Court would issue a decision in this case, the only portion of
petitioner's sentence to which he would still subject would be his
three-year
term
of
supervised
release.
In United
States v. Johnson, 529 U.S. 53 (2000), this Court held that a
prisoner who serves too long a term of incarceration is not
entitled to receive credit against his term of supervised release.
Id. at 54.
The Court in Johnson recognized that a prisoner who
has been incarcerated beyond his proper term of imprisonment might
be able to persuade the sentencing court to exercise its discretion
to shorten the duration of the prisoner's term of supervised
release under 18 U.S.C. 3583(e)(1), which permits a court to do so
9
“if it is satisfied that such action is warranted by the conduct
of the defendant released and the interest of justice.”
at 60 (quoting 18 U.S.C. 3583(e)(1)).
529 U.S.
But as the Third Circuit
has explained, “[t]he possibility that the sentencing court will
use its discretion to modify the length of [a defendant's] term of
supervised release
* * *
is so speculative” that it does not
suffice to present a live case or controversy. Burkey v. Marberry,
556 F.3d 142, 149, cert. denied, 558 U.S. 969 (2009); see also
Rhodes v. Judiscak, 676 F.3d 931, 934-935 (10th Cir.) (adopting
Burkey’s reasoning), cert. denied, 567 U.S. 935 (2012). 2
2.
Review would be unwarranted in any event.
a.
To preserve a claim for appellate review, a defendant
must object to an allegedly erroneous district court ruling at the
time the ruling “is made or sought,” and must inform the district
court “of the action the [defendant] wishes the court to take, or
the [defendant’s] objection to the court’s action and the grounds
for that objection.”
Fed. R. Crim. P. 51(b).
A claim that is not
Other courts of appeals have concluded that the possibility
that the sentencing court would exercise its discretion to reduce
a defendant's supervised-release term is sufficient to prevent his
sentencing challenge from becoming moot upon completion of his
prison term. See, e.g., United States v. Ketter, 908 F.3d 61, 66
(4th Cir. 2018); Pope v. Perdue, 889 F.3d 410, 414 (7th Cir. 2018);
Levine v. Apker, 455 F.3d 71, 77 (2d Cir. 2006); Mujahid v.
Daniels, 413 F.3d 991 (9th Cir. 2005), cert. denied, 547 U.S. 1149
(2006); Johnson v. Pettiford, 442 F.3d 917, 917-918 (5th Cir. 2006)
(per curiam). Regardless, the need for this Court to resolve the
mootness question at a minimum makes this case a poor vehicle for
considering the question presented.
2
10
preserved in that manner is subject to review only for plain error.
Fed. R. Crim. P. 52(b).
In United States v. Booker, 543 U.S. 220 (2005), this Court
confirmed that, in the context of imposing a sentence, the courts
of appeals would continue to apply “ordinary prudential doctrines
* * *
[such as] whether the issue was raised below and whether it
fails
the
‘plain-error’
test,”
when
Guidelines sentence for reasonableness.
reviewing
an
advisory
Id. at 268.
And in this
case, because petitioner did not inform the district court that he
believed the court’s explanation was inadequate, the court of
appeals
correctly
applied
plain-error
review
to
petitioner’s
belated claim that the district court failed to adequately explain
its sentence.
In United States v. Vonn, 535 U.S. 55 (2002), this Court
applied plain-error review to a claim that a trial court had failed
to conduct an adequate guilty-plea colloquy.
The Court explained
that “the point of the plain-error rule” is “always” that “the
defendant who just sits there when a mistake can be fixed” cannot
“wait to see” whether he is satisfied with the judgment and then
identify the mistake in the first instance in the court of appeals
if he is not.
specific,
Id. at 73.
contemporaneous
Instead, a defendant must raise a
objection,
which
ensures
that
district court can often correct or avoid the mistake.”
“the
Puckett
v. United States, 556 U.S. 129, 134 (2009); see Vonn, 535 U.S. at
11
72 (noting the benefits of “concentrat[ing]
* * *
litigation in
the trial courts, where genuine mistakes can be corrected easily”).
The reasons for requiring a contemporaneous objection under
Federal Rule of Criminal Procedure 51(b) apply with full force to
claims like petitioner’s.
A district court that is alerted to the
possibility that a defendant views its explanation as insufficient
may well supplement that explanation.
Even a court that believes
that its existing explanation suffices may choose to add more
detail to satisfy an inquiring defendant or to obviate the need
for an appeal and potential remand.
A deficient explanation is
thus precisely the sort of error that can be, and should be,
corrected by the district court in the first instance.
b.
Petitioner contends (Pet. 9) that the court of appeals’
application
of
plain-error
review
to
his
procedural
unreasonableness claim is at odds with this Court’s recent decision
in Holguin-Hernandez v. United States, 140 S. Ct. 762 (2020). That
contention is mistaken.
In Holguin-Hernandez, this Court found that a “defendant’s
district-court argument for a specific sentence (namely, nothing
or less than 12 months) preserved his claim on appeal that [his]
12-month sentence was unreasonably long.”
140 S. Ct. at 764.
The
Court held that a defendant who has advocated for a shorter term
of imprisonment at sentencing on a particular ground has timely
“inform[ed] the court
* * *
of the action the party wishes the
court to take,” Fed. R. Crim. P. 51(b), with respect to the court’s
12
obligation to select a “sufficient, but not greater than necessary”
punishment
for
the
offense,
18
U.S.C.
3553(a),
and
does
not
therefore have to “refer to the ‘reasonableness’ of a sentence to
preserve such claims for appeal.”
Holguin-Hernandez, 140 S. Ct.
at 766; see id. at 765-766.
Holguin-Hernandez
did
not,
however,
address
whether
defendants need to lodge contemporaneous objections to preserve
other types of challenges to a sentence.
And
Holguin-Hernandez’s
holding
and
See 140 S. Ct. at 767.
rationale
are
inapposite
where, as here, a defendant fails to make any objection to the
district
court’s
allegedly
inadequate
explanation
during
sentencing and instead raises a new claim relating to the district
court’s explanation for the first time on appeal.
See id. at 767
(Alito, J., concurring) (emphasizing that failing to object to a
procedural error “will subject a procedural challenge to plainerror review” (citing Molina-Martinez v. United States, 578 U.S.
189 (2016)).
Unlike in Holguin-Hernandez, a request for a lesser
sentence does not itself provide the district court with “the
opportunity
to
consider
and
resolve”
the
propriety
of
the
procedures it employed, including the adequacy of its explanation
for the sentence it ultimately imposed.
Puckett, 556 U.S. at 134;
see also Gall v. United States, 552 U.S. 38, 51, 56 (2007)
(explaining difference between substantive and procedural errors).
c.
Petitioner
contends
(Pet.
10-13)
that
the
court
of
appeals’ application of plain-error review to an unpreserved claim
13
of procedural sentencing error conflicts with decisions of other
courts of appeals. Although some disagreement exists in the courts
of appeals about whether and when an unpreserved challenge to the
adequacy of a district court’s sentencing explanation is reviewed
for plain error, that disagreement is narrower than petitioner
suggests and does not warrant this Court’s review.
A clear majority of the courts of appeals have agreed -- both
before and after Holguin-Hernandez -- that plain-error review
applies when a defendant does not specifically object to the
district court’s failure to explain a sentence.
See United States
v. Rivera-Berríos, 968 F.3d 130, 134 (1st Cir. 2020); United States
v. Flores-Mejia, 759 F.3d 253, 256-257 (3d Cir. 2014) (en banc);
United States v. Rangel, 697 F.3d 795, 805 (9th Cir. 2012), cert.
denied, 568 U.S. 1182 (2013); United States v. Akhigbe, 642 F.3d
1078,
1085-1086
(D.C.
Cir.
2011);
United
States
v.
Corona-
Gonzalez, 628 F.3d 336, 340 (7th Cir. 2010); United States v.
Statman, 604 F.3d 529, 534 (8th Cir. 2010); United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.), cert. denied,
558 U.S. 871 (2009); United States v. Robertson, 568 F.3d 1203,
1210, 1214 (10th Cir.), cert. denied, 558 U.S. 1083 (2009); United
States v. Vonner, 516 F.3d 382, 385-386 (6th Cir.) (en banc), cert.
denied, 555 U.S. 816 (2008); United States v. Villafuerte, 502
F.3d 204, 211 (2d Cir. 2007).
Petitioner suggests (Pet. 13) that the Seventh Circuit held
that a contemporaneous objection is not required to preserve a
14
claim that the district court provided an inadequate explanation
of its sentence in United States v. Cunningham, 429 F.3d 673
(2005). But in a decision post-dating both Cunningham and HolguinHernandez, the Seventh Circuit has expressly stated that, where a
defendant “did not object to [an] alleged procedural deficiency at
the time of sentencing, [it] review[s] for plain error.”
Gonzalez, 628 F.3d at 340.
Corona-
Petitioner’s reliance on United States
v. Joiner, 988 F.3d 993 (7th Cir. 2021) is similarly misplaced.
That case did not concern a procedural challenge to a defendant’s
sentence at all; instead, the court of appeals found that the
district court did not err in declining to address an unsupported
argument made by a defendant in a motion for compassionate release.
See id. at 995.
Petitioner notes (Pet. 10-11) that the Fourth Circuit has not
required a contemporaneous objection to preserve a claim that the
district court provided an inadequate explanation of its sentence.
In United States v. Lynn, 592 F.3d 572 (2010), the Fourth Circuit
treated a claim of procedural error as preserved without a separate
objection.
See id. at 578 (“By drawing arguments from [Section]
3553 for a sentence different than the one ultimately imposed, an
aggrieved party sufficiently alerts the district court of its
responsibility to render an individualized explanation addressing
those arguments, and thus preserves its claim.”).
But this Court
has repeatedly declined to review the question presented following
the decision in Lynn.
See, e.g., Hull v. United States, 139 S.
15
Ct. 1376 (2019) (No. 18-7140); Smith v. United States, 139 S. Ct.
1319 (2019) (No. 18-6237); Rangel v. United States, 568 U.S. 1182
(2013) (No. 12-8088); Reyes v. United States, 568 U.S. 1030 (2012)
(No. 12-5032); Villarreal-Pena v. United States, 565 U.S. 1236
(2012) (No. 11-7084); Satchell v. United States, 565 U.S. 1204
(2012) (No. 11-6811); McClain v. United States, 565 U.S. 1159
(2012) (No. 11-5738); Alcorn v. United States, 565 U.S. 1159 (2012)
(No. 11-5024); Mora-Tarula v. United States, 565 U.S. 1156 (2012)
(No. 10-11209); Williams v. United States, 565 U.S. 931 (2011)
(No. 10-9941); Hoffman-Portillo v. United States, 565 U.S. 918
(2011) (No. 11-5656); Wilson v. United States, 562 U.S. 1116 (2010)
(No. 10-7456). Petitioner identifies no reason for a different
result here.
The Eleventh Circuit has also stated that challenges to a
district
court’s
compliance
with
the
sentence-explanation
requirements of 18 U.S.C. 3553(c) are reviewed de novo. See United
States v. Bonilla, 463 F.3d 1176, 1181 (11th Cir. 2006) (citing
United States v. Williams, 438 F.3d 1272, 1274 (11th Cir.) (per
curiam), cert. denied, 549 U.S. 891 (2006)).
But it has done so
in decisions that predate Gall v. United States and Rita v. United
States, 551 U.S. 338 (2007), see Bonilla, 463 F.3d at 1181, and in
cases that cite those pre-Gall and pre-Rita decisions, see United
States v. Hamilton, 66 F.4th 1267 (11th Cir. 2023); United States
v. Woodson, 30 F.4th 1295 (11th Cir. 2022).
In light of this
Court’s elaboration of reasonableness review, the Eleventh Circuit
16
could still revisit its decisions and bring its practice in line
with the majority of the circuits.
3.
In any event, this case would be a poor vehicle to
address the question presented, for two reasons.
First, the district court’s explanation was adequate, and
thus would not provide a basis for relief even if plain-error
review did not apply.
As the court of appeals observed, the
district court “thoroughly considered” petitioner’s arguments and
explained that a variance was necessary to address “the seriousness
of his offense conduct; the Sentencing Guidelines’ failure to
account for the true nature of the offense; the need to provide
adequate deterrence
* * *
; and the need to provide just
punishment and protect the public.”
Second,
even
assuming
the
Pet. App. 18a.
district
court’s
sentencing
justification was inadequate (and even setting aside mootness
concerns, see pp. 7-9, supra), that inadequacy had no apparent
practical effect.
As in the court of appeals, see Pet. App. 19a,
petitioner does not now contend that a more detailed explanation
would have resulted in a lower sentence.
17
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
NICOLE M. ARGENTIERI
Acting Assistant Attorney General
MAHOGANE D. REED
Attorney
JULY 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.