Petition for Writ of Certiorari — Andre Zeno, Petitioner v. United States

No. ________________

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IN THE

SUPREME COURT OF THE UNITED STATES

______________________________________

ANDRE ZENO,

Petitioner,

versus

UNITED STATES OF AMERICA,

Respondent.

__________________________________________________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the Fifth Circuit

__________________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

__________________________________________________________________

REBECCA L. HUDSMITH,

Federal Public Defender

DUSTIN C. TALBOT

Assistant Federal Public Defender

Middle and Western Districts of Louisiana

102 Versailles Boulevard, Suite 816

Lafayette, Louisiana 70501

Telephone: (337) 262-6336

E-mail: dustin_talbot@fd.org

Attorney for the Petitioner

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QUESTION PRESENTED

The Fifth Circuit Court of Appeals affirmed Petitioner’s 60 month sentence

imposed upon the denial of application of the safety-valve provision of 18 U.S.C. §

3553(f), despite the fact that Petitioner’s criminal history score included only a single

prior 3-point offense. It affirmed Petitioner’s sentence on the grounds that § 3553(f)(1)

should be interpreted using a “distributive approach” to concluded that criminal

defendants are “ineligible for safety valve relief under § 3553(f)(1) if they run afoul of

any one of its requirements.”

The question presented in this case is already before Court in Pulsifer v. United

States, No. 22-340, 143 S. Ct. 978 (2023) (cert granted). The question presented here

is:

Whether the “and” in § 3553(f)(1) means “and,” so that a defendant

satisfies the provision so long as he does not have (A) more than 4

criminal history points, excluding any points resulting from a 1-point

offense, (B) a 3-point offense, and (C) a 2-point violent offense (as the

Fourth, Ninth, and Eleventh Circuits hold ), or whether the “and” means

“or,” so that a defendant satisfies the provision only if he does not have

(A) more than 4 criminal history points, excluding any points resulting

from a 1-point offense, (B) a 3-point offense, or ( a 2-point violent offense

(as the Fifth, Sixth, Seventh and Eighth Circuits hold)?

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TABLE OF CONTENTS

QUESTION PRESENTED ........................................................................................... 2

TABLE OF CONTENTS ............................................................................................... 3

APPENDIX INDEX ...................................................................................................... 3

TABLE OF AUTHORITIES ......................................................................................... 4

OPINIONS BELOW ..................................................................................................... 5

JURISDICTION............................................................................................................. 5

STATUTORY PROVISIONS INVOLVED .................................................................... 5

STATEMENT OF THE CASE....................................................................................... 6

I.

Andre Zeno’s arrest and plea ...................................................................................7

II.

The district court declined to impose the safety valve ............................................7

III.

Andre Zeno’s arguments for a sentence below the statutory minimum ............... 10

IV.

The Fifth Circuit decision ......................................................................................12

REASONS FOR GRANTING THE WRIT ................................................................. 13

CONCLUSION ............................................................................................................ 13

APPENDIX INDEX

Fifth Circuit opinion, March 9, 2023 ....................................................................App. 1

District court judgment, March 4, 2022................................................................App. 3

District court sentencing transcript, February 24, 2022 ...................................App. 10

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TABLE OF AUTHORITIES

Pulsifer v. United States, No. 22-340, 143 S. Ct. 978 (2023) (cert granted) ...... 2, 7, 13

United States v. Zeno, No. 22-30112, 2023 WL 2423158 (5th Cir. Mar. 9, 2023)

(unpublished) ................................................................................................ 5, 12

United States v. Palomares, 52 F.4th 640, 647 (5th Cir. 2022).................................. 12

STATUTES

18 U.S.C. § 3553(f) ................................................................................................passim

21 U.S.C. § 841(a)(1) and (b)(1)(B) ................................................................................ 7

28 U.S.C. 1254(1). .......................................................................................................... 5

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OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fifth Circuit

affirming Petitioner’s sentence can be found at United States v. Zeno, No. 22-30112,

2023 WL 2423158 (5th Cir. Mar. 9, 2023) (unpublished), and is set forth at App. 1.

JURISDICTION

The judgment of the court of appeals was entered on March 9, 2023. The

jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 3553(f) provides:

(f) Limitation on applicability of statutory minimums in certain

cases.--Notwithstanding any other provision of law, in the case of an

offense under section 401, 404, or 406 of the Controlled Substances Act

(21 U.S.C. 841, 844, 846), section 1010 or 1013 of the Controlled

Substances Import and Export Act (21 U.S.C. 960, 963), or section 70503

or 70506 of title 46, the court shall impose a sentence pursuant to

guidelines promulgated by the United States Sentencing Commission

under section 994 of title 28 without regard to any statutory minimum

sentence, if the court finds at sentencing, after the Government has been

afforded the opportunity to make a recommendation, that—

(1) the defendant does not have-(A) more than 4 criminal history points, excluding any

criminal history points resulting from a 1-point offense, as

determined under the sentencing guidelines;

(B) a prior 3-point offense, as determined under the

sentencing guidelines; and

(C) a prior 2-point violent offense, as determined under the

sentencing guidelines;

(2) the defendant did not use violence or credible threats of

violence or possess a firearm or other dangerous weapon (or

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induce another participant to do so) in connection with the

offense;

(3) the offense did not result in death or serious bodily injury to

any person;

(4) the defendant was not an organizer, leader, manager, or

supervisor of others in the offense, as determined under the

sentencing guidelines and was not engaged in a continuing

criminal enterprise, as defined in section 408 of the Controlled

Substances Act; and

(5) not later than the time of the sentencing hearing, the

defendant has truthfully provided to the Government all

information and evidence the defendant has concerning the

offense or offenses that were part of the same course of conduct or

of a common scheme or plan, but the fact that the defendant has

no relevant or useful other information to provide or that the

Government is already aware of the information shall not

preclude a determination by the court that the defendant has

complied with this requirement.

Information disclosed by a defendant under this subsection may not be

used to enhance the sentence of the defendant unless the information

relates to a violent offense.

STATEMENT OF THE CASE

At Andre Zeno’s sentencing in this case, he had only a single prior conviction

that received criminal history points under the United States Sentencing Guidelines:

a nearly twenty-year-old conviction for possession of marijuana that resulted in three

criminal history points. At the sentencing hearing below, Zeno sought a sentence

below the statutory minimum by seeking relief found in the newly amended safety

valve statute, 18 U.S.C. § 3553(f)(1). Zeno argued that the new safety valve statute

should be read in its natural, conjunctive meaning to include relief for defendants

with a single prior three-point offense. The district court instead read the new safety

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valve statute in a way that excluded Zeno from relief. The Fifth Circuit Court of

Appeals followed suit following an intervening Circuit decision on the issue. This

Court recently granted certiorari in Pulsifer v. United States, No. 22-340 (Feb. 27,

2023), to consider whether that interpretation of Section 3553(f)(1) is correct. The

Court should accordingly hold this petition for a writ of certiorari pending its decision

in Pulsifer and then dispose of the petition as appropriate in light of that decision.

I.

Andre Zeno’s arrest and plea

Andre Zeno was a 51-year-old cocaine addict who would act as a drug courier

in exchange for cocaine. On May 6, 2018, Zeno was pulled over by Louisiana State

Police on Interstate 10 near Baton Rouge, Louisiana. Concealed underneath the rear

seat of his rental vehicle was one kilogram of cocaine. ROA.527-28. Zeno was arrested

and ultimately charged in the Middle District of Louisiana with possession with

intent to distribute 500 grams or more of cocaine in violation if 21 U.S.C. § 841(a)(1)

and (b)(1)(B). ROA.11. A violation of § 841(b)(1)(B) carries a term of imprisonment of

not less than 5 years nor more than 40 years. Id.

Zeno pled guilty without a plea agreement to the sole count in the indictment.

ROA.161 (minutes for plea hearing). The court accepted the guilty plea and ordered

a presentence investigation. ROA.379.

II.

The district court declined to impose the safety valve

A Presentence Investigation Report (“PSR”) was issued by the probation officer

on November 17, 2021. ROA.413-25. The report determined that Zeno’s offense level

was 24 and his criminal history category II. ROA.530, ROA.536. In providing for a

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criminal history category of II, the PSR determined that Zeno had a single prior

conviction resulting in criminal history points:

ROA.533. This offense was committed nearly twenty years prior to the instant

offense. Compare ROA.533 (prior offense committed on October 22, 1998), with

ROA.527 (instant offense committed May 6, 2018).

With an offense level of 20 and a criminal history category of II, the PSR

provided a sentencing guideline range of 57 to 71 months. ROA.545. The PSR

adjusted the guideline range to 60 to 71 months because “the statutorily authorized

minimum sentence of five years is greater than the minimum of the guideline range.”

ROA.545.

Zeno filed a written objection to the PSR. ROA.549. Zeno objected to the PSR’s

failure to apply the safety valve provision in 18 U.S.C. § 3553(f) to remove the

mandatory minimum sentence of 60 months. PSR.552. Zeno set forth that he had met

all five requirements of the safety valve:

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1.

He did not have more than 4 criminal history points. He also did

not have a prior 2-point violent offense. § 3553(f)(1).

2.

He did not use violence or credible threats of violence or possess

a firearm or other dangerous weapon. § 3553(f)(2)

3.

His offense did not result in death or serious bodily injury to any

person. § 3553(f)(3)

4.

He was not an organizer, leader, manager, or supervisor of others

in the offense, nor was he engaged in a continuing criminal

enterprise. § 3553(f)(4).

5.

He truthfully provided information to the government concerning

his own offense. § 3553(f)(5).

ROA.553-54. In Zeno’s written objection, he acknowledged a circuit split (at that time)

on the issue of whether § 3553(f)(1) should be read as a conjunctive or disjunctive list

and argued that the district court should read the list in its natural, conjunctive

meaning. ROA.554. The probation officer responded in writing to Zeno’s objection.

ROA.555. The probation officer disagreed with Zeno and made a legal argument that

§ 3553(f)(1) should not be read in its natural, conjunctive meaning and instead should

be read in a way to exclude Zeno from relief. ROA.555-57.

Prior to the sentencing hearing, Zeno also filed a sentencing memorandum

where he also argued to the district court that the safety valve applied to his case,

and he should not be subject to the 60 months mandatory minimum. ROA.582-85.

The government also filed a sentencing memorandum where it agreed with the

probation officer’s position that the safety valve should not apply to Zeno. ROA.59598. The government acknowledged that Zeno qualified for each other provision of the

safety valve. ROA.595.

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Zeno was sentenced on February 24, 2022. ROA.169. At the hearing, the court

heard argument from counsel regarding the safety valve application. ROA.390-94;

App. 19-23. The district court overruled the objection. ROA.394; App. 23. The court

stated that:

The defendant has a prior three-point offense as determined under the

Sentencing Guidelines as reflected in paragraph 42 of the PSR. Because

of this, the defendant does not meet the criteria for the new safety valve

provision pursuant to 18 U.S.C. § 3553(f) and the court disagrees with

the defendant’s objection that one of subsection A, B, or C is not enough

for the defendant to be barred from the safety valve provisions for the

reasons given in the original opinion in the U.S. v. Garcon case and as

expressed by the government in argument today.

ROA.397; App. 26.

III.

Andre Zeno’s arguments for a sentence below the statutory minimum

In connection with his argument in favor of the safety valve, Zeno presented

several arguments supporting a sentence significantly below the 60 months

mandatory minimum. In his sentencing memorandum, Zeno requested a variant

sentence of 33 months imprisonment for the following mitigating reasons:

• Zeno was merely a drug courier, not a high-level trafficker, nor was

he involved in selling cocaine.

• Zeno was addicted to cocaine and his addiction led to this crime as

he would often receive some cocaine as payment for being a courier.

• Zeno cooperated with law enforcement and provided information on

the individuals for whom he was a courier and their methods of

transporting cocaine from Houston, Texas to Baton Rouge,

Louisiana.

• Zeno had taken advantage of drug abuse programs while

incarcerated pretrial and was maintaining his sobriety.

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• Zeno had been steadily employed for the past 15 years as both a

janitor and a crewman at a plant.

• Zeno had not been in trouble in over 20 years.

• The court should use a variance to provide Zeno the benefit of the

two-level reduction in the defunct safety valve guideline provision

U.S.S.G. § 5C1.2.

ROA.585-88. At the sentencing hearing, Zeno personally addressed the Court

explaining that his present incarceration was needed to give him a wake-up call

regarding his drug addiction and his actions in support of his addiction. ROA.399;

App. 28. Counsel then argued to the Court that Zeno’s status as a courier was

mitigating and supported a lenient sentence because his guidelines and mandatory

minimum were based upon the quantity of drugs found in his rental vehicle, even

though those drugs did not belong to him and all he hoped was for a little bit of cocaine

in exchange for driving the vehicle. ROA. 400-02; App. 29-31.

Given that the district court ruled that Zeno was not eligible under the safety

valve, counsel for Zeno made the following statement to the district court:

So I just want to make the record that in my sentencing memo I did

make variance arguments and I certainly don’t want to forfeit those

arguments. I don’t want to say I’m not raising them anymore. I just want

to make a record that those are additional things I would be addressing

with the court if the court had discretion to go below 60 months in case

that becomes an issue at some later date if there’s a different ruling on

the safety valve.

ROA.403; App. 32. The government argued that a guideline sentence would be

appropriate in the case. ROA. 403-04; App. 32-33. The district court imposed a

sentence of 60 months, the lowest sentence possible without the safety valve.

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ROA.404; App. 33. The court commented on the letters of support submitted on behalf

of Zeno and the fact that Zeno’s employer was present in court during the sentencing

hearing. ROA.404; App. 33. The court also commented that it felt Zeno was sincere

in his statements to the court. ROA.404; App. 33.

The judgment was entered on March 4, 2022. ROA.170; App. 3. Zeno timely

filed a notice of appeal on that same date. ROA.179.

IV.

The Fifth Circuit decision

Zeno appealed to the United States Court of Appeals for the Fifth Circuit and

filed his opening brief on June 27, 2022. The sole issue raised in his brief was whether

the safety valve should apply to a defendant, like himself, who has only has a single

prior 3-point offense. The government moved to suspend briefing in the case pending

the ruling in another case at the Circuit, United States v. Palomares, No. 21-40247,

which had already raised the same issue. Palomares was decided on November 2,

2022, and used a “distributive approach” to interpret § 3553(f)(1) and concluded that

criminal defendants are “ineligible for safety valve relief under § 3553(f)(1) if they

run afoul of any one of its requirements.” See United States v. Palomares, 52 F.4th

640, 647 (5th Cir. 2022). After the Palomares decision, Zeno’s pending case at the

Fifth Circuit was summarily affirmed as foreclosed by Palomares. United States v.

Zeno, No. 22-30112, 2023 WL 2423158, at *1 (5th Cir. Mar. 9, 2023) (unpublished);

App. 1.

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REASONS FOR GRANTING THE WRIT

The Fifth Circuit Court of Appeals held that a defendant is not eligible for

safety-valve relief under 18 U.S.C. 3553(f)(1) if he has any single one of the criminalhistory factors specified in the subparagraphs of that provision. App. 1. This Court

recently granted certiorari in Pulsifer v. United States, No. 22-340 (Feb. 27, 2023), to

consider whether that interpretation of Section 3553(f)(1) is correct. The Court should

accordingly hold this petition for a writ of certiorari pending its decision in Pulsifer

and then dispose of the petition as appropriate in light of that decision.

CONCLUSION

The petition for a writ of certiorari should be held pending this Court's decision

in Pulsifer v. United States, cert. granted, No. 22-340, and then disposed of as

appropriate in light of that decision.

Respectfully submitted,

REBECCA L. HUDSMITH,

Federal Public Defender

BY:

s/ Dustin C. Talbot

DUSTIN C. TALBOT

Assistant Federal Public Defender

Middle and Western Districts of

Louisiana

102 Versailles Boulevard, Suite 816

Lafayette, Louisiana 70501

Telephone: (337) 262-6336

E-mail: dustin_talbot@fd.org

Attorney for the Petitioner

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