Petition for Writ of Certiorari — Andrea Lamont Medlock, Petitioner v. United States

No. ______________

In the

Supreme Court of the United States

___________

Andrea Lamont Medlock,

Petitioner,

v.

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

___________

Kevin Joel Page

Assistant Federal Public Defender

Federal Public Defender’s Office

Northern District of Texas

525 S. Griffin Street, Suite 629

Dallas, TX 75202

(214) 767-2746

Joel_Page@fd.org

QUESTION PRESENTED

Whether sentences of imprisonment following the revocation of

supervised release should be reviewed for reasonableness or plain

unreasonableness?

i

PARTIES TO THE PROCEEDING

Petitioner is Andrea Lamont Medlock, who was the Defendant-Appellant in

the court below. Respondent, the United States of America, was the Plaintiff-Appellee

in the court below.

ii

TABLE OF CONTENTS

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

PARTIES TO THE PROCEEDING .............................................................................. ii

INDEX TO APPENDICES ........................................................................................... iv

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

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

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

STATUTORY AND RULES PROVISIONS .................................................................. 1

STATEMENT OF THE CASE ....................................................................................... 5

REASONS FOR GRANTING THIS PETITION ........................................................... 9

There is a long-standing division of federal authority regarding the

proper standard of review for terms of imprisonment following the

revocation of supervised release......................................................................... 9

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

iii

INDEX TO APPENDICES

Appendix A

Opinion of Fifth Circuit

Appendix B

Judgment and Sentence of the United States District Court for

the Northern District of Texas

iv

Table of Authorities

Page(s)

Federal Cases

Holguin-Hernandez v. United States,

__U.S. __, 140 S.Ct. 762 (2020) .............................................................................. 11

United States v. Booker,

543 U.S. 220 (2005) ........................................................................................ 7, 9, 10

United States v. Cotton,

399 F.3d 913 (8th Cir.2005) ................................................................................... 10

United States v. Crudup,

461 F.3d 433 (4th Cir. 2006) .................................................................................. 10

United States v. Cuddington,

812 F. App'x 241 (5th Cir. 2020)(unpublished) ..................................................... 11

United States v. Gonzalez-Cortez,

801 F. App'x 311 (5th Cir. 2020) ............................................................................ 11

United States v. Kizeart,

505 F.3d 672 (7th Cir.2007) ................................................................................... 10

United States v. Lewis,

424 F.3d 239 (2d Cir. 2005) .................................................................................... 10

United States v. Merritt,

809 F. App'x 243 (5th Cir. 2020)(unpublished) ..................................................... 11

United States v. Miller,

634 F.3d 841 (5th Cir. 2011) .................................................................................. 10

United States v. Miqbel,

444 F.3d 1173 (9th Cir. 2006) ................................................................................ 10

United States v. Sanchez,

900 F.3d 678 (5th 2018).................................................................................... 10, 11

United States v. Stiefel,

207 F.3d 256 (5th Cir.2000) ..................................................................................... 9

United States v. Sweeting,

437 F.3d 1105 (11th Cir.2006) ............................................................................... 10

v

United States v. Warren,

720 F.3d 321 (5th Cir. 2013) ................................................................................ 7, 8

Federal Statutes

18 U.S.C. 3553(a) ........................................................................................................... 6

18 U.S.C. 3583(e) ........................................................................................................... 6

18 U.S.C. § 922(g) .......................................................................................................... 6

18 U.S.C. § 3559 ............................................................................................................. 6

18 U.S.C. § 3583(e)......................................................................................................... 6

18 U.S.C. § 3583(h) ........................................................................................................ 6

18 U.S.C. § 3742 ............................................................................................................. 1

18 U.S.C. § 3742(e)............................................................................................... 7, 9, 10

18 U.S.C. § 3742(e)(2) .................................................................................................... 9

18 U.S.C. § 3742(e)(4) .......................................................................................... 7, 9, 10

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

vi

PETITION FOR A WRIT OF CERTIORARI

Petitioner Andrea Lamont Medlock seeks a writ of certiorari to review the

judgment of the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The district court’s judgement and sentence is attached as Appendix B. The

opinion of the Court of Appeals is electronically reported at United States v. Medlock,

2023 WL 4421385 (5th Cir. July 10, 2023) (unpublished). It is reprinted in Appendix

A to this Petition.

JURISDICTION

The panel opinion and judgment of the Fifth Circuit were entered on July 10,

2023. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTORY AND RULES PROVISIONS

This Petition involves 18 U.S.C. §3742, which states:

(a) Appeal by a Defendant.—A defendant may file a notice of

appeal in the district court for review of an otherwise final sentence if

the sentence—

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the

sentencing guidelines; or

(3) is greater than the sentence specified in the applicable

guideline range to the extent that the sentence includes a greater fine

or term of imprisonment, probation, or supervised release than the

maximum established in the guideline range, or includes a more limiting

condition of probation or supervised release under section 3563(b)(6) or

(b)(11) [1] than the maximum established in the guideline range; or

(4) was imposed for an offense for which there is no sentencing

guideline and is plainly unreasonable.

(b) Appeal by the Government.—The Government may file a

notice of appeal in the district court for review of an otherwise final

sentence if the sentence—

1

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the

sentencing guidelines;

(3) is less than the sentence specified in the applicable guideline

range to the extent that the sentence includes a lesser fine or term of

imprisonment, probation, or supervised release than the minimum

established in the guideline range, or includes a less limiting condition

of probation or supervised release under section 3563(b)(6) or (b)(11) 1

than the minimum established in the guideline range; or

(4) was imposed for an offense for which there is no sentencing

guideline and is plainly unreasonable.

The Government may not further prosecute such appeal without

the personal approval of the Attorney General, the Solicitor General, or

a deputy solicitor general designated by the Solicitor General.

(c) Plea Agreements.—In the case of a plea agreement that

includes a specific sentence under rule 11(e)(1)(C) of the Federal Rules

of Criminal Procedure—

(1) a defendant may not file a notice of appeal under paragraph

(3) or (4) of subsection (a) unless the sentence imposed is greater than

the sentence set forth in such agreement; and

(2) the Government may not file a notice of appeal under

paragraph (3) or (4) of subsection (b) unless the sentence imposed is less

than the sentence set forth in such agreement.

(d) Record on Review.—If a notice of appeal is filed in the district

court pursuant to subsection (a) or (b), the clerk shall certify to the court

of appeals—

(1) that portion of the record in the case that is designated as

pertinent by either of the parties;

(2) the presentence report; and

(3) the information submitted during the sentencing proceeding.

(e) Consideration.—Upon review of the record, the court of

appeals shall determine whether the sentence—

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the

sentencing guidelines;

(3) is outside the applicable guideline range, and

(A) the district court failed to provide the written statement of

reasons required by section 3553(c);

(B) the sentence departs from the applicable guideline range

based on a factor that—

(i) does not advance the objectives set forth in section 3553(a)(2);

or

(ii) is not authorized under section 3553(b); or

(iii) is not justified by the facts of the case; or

2

(C) the sentence departs to an unreasonable degree from the

applicable guidelines range, having regard for the factors to be

considered in imposing a sentence, as set forth in section 3553(a) of this

title and the reasons for the imposition of the particular sentence, as

stated by the district court pursuant to the provisions of section 3553(c);

or

(4) was imposed for an offense for which there is no applicable

sentencing guideline and is plainly unreasonable.

The court of appeals shall give due regard to the opportunity of

the district court to judge the credibility of the witnesses, and shall

accept the findings of fact of the district court unless they are clearly

erroneous and, except with respect to determinations under subsection

(3)(A) or (3)(B), shall give due deference to the district court’s application

of the guidelines to the facts. With respect to determinations under

subsection (3)(A) or (3)(B), the court of appeals shall review de novo the

district court’s application of the guidelines to the facts.

(f) Decision and Disposition.—If the court of appeals determines

that—

(1) 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;

(2) the sentence is outside the applicable guideline range and the

district court failed to provide the required statement of reasons in the

order of judgment and commitment, or the departure is based on an

impermissible factor, or is to an unreasonable degree, or the sentence

was imposed for an offense for which there is no applicable sentencing

guideline and is plainly unreasonable, it shall state specific reasons for

its conclusions and—

(A) if it determines that the sentence is too high and the appeal

has been filed under subsection (a), it shall set aside the sentence and

remand the case for further sentencing proceedings with such

instructions as the court considers appropriate, subject to subsection (g);

(B) if it determines that the sentence is too low and the appeal

has been filed under subsection (b), it shall set aside the sentence and

remand the case for further sentencing proceedings with such

instructions as the court considers appropriate, subject to subsection (g);

(3) the sentence is not described in paragraph (1) or (2), it shall

affirm the sentence.

(g) Sentencing Upon Remand.—A district court to which a case is

remanded pursuant to subsection (f)(1) or (f)(2) shall resentence a

defendant in accordance with section 3553 and with such instructions

as may have been given by the court of appeals, except that—

3

(1) In determining the range referred to in subsection 3553(a)(4),

the court shall apply the guidelines issued by the Sentencing

Commission pursuant to section 994(a)(1) of title 28, United States

Code, and that were in effect on the date of the previous sentencing of

the defendant prior to the appeal, together with any amendments

thereto by any act of Congress that was in effect on such date; and

(2) The court shall not impose a sentence outside the applicable

guidelines range except upon a ground that—

(A) was specifically and affirmatively included in the written

statement of reasons required by section 3553(c) in connection with the

previous sentencing of the defendant prior to the appeal; and

(B) was held by the court of appeals, in remanding the case, to be

a permissible ground of departure.

(h) Application to a Sentence by a Magistrate Judge.—

An appeal of an otherwise final sentence imposed by a United

States magistrate judge may be taken to a judge of the district court,

and this section shall apply (except for the requirement of approval by

the Attorney General or the Solicitor General in the case of a

Government appeal) as though the appeal were to a court of appeals

from a sentence imposed by a district court.

(i) Guideline Not Expressed as a Range.—

For the purpose of this section, the term “guideline range”

includes a guideline range having the same upper and lower limits.

(j) Definitions.—For purposes of this section—

(1) a factor is a “permissible” ground of departure if it—

(A) advances the objectives set forth in section 3553(a)(2); and

(B) is authorized under section 3553(b); and

(C) is justified by the facts of the case; and

(2) a factor is an “impermissible” ground of departure if it is not a

permissible factor within the meaning of subsection (j)(1).

4

STATEMENT OF THE CASE

I.

Facts and District Court Proceedings

Petitioner Andrea Lamont Medlock received a 48-month term of imprisonment

for possessing a firearm after a felony conviction, to be followed by three years of

supervised release. See (ROA.23-24). On May 6, 2022, Probation petitioned the court

for a violator’s warrant, alleging several violations of the conditions of release. See

(ROA.28-33).

Specifically, the Petition alleged that Petitioner assaulted his girlfriend, failed

to tell Probation about the resulting arrest, lived outside the district without

permission, tested positive for methamphetamine, missed his drug tests, and paid

only $864.74 of his $1,000 fine. See (ROA.31). The defense filed a notice reflecting an

intent to admit all allegations save the assault and methamphetamine use. See

(ROA.48-51). As respects the assault, however, the notice said that Petitioner would

waive all objections to the government’s manner of proof, acquiescing in its proof by

hearsay documents and exhibits, and foregoing any right of cross-examination. See

(ROA.48-51). Petitioner personally confirmed the representations in this notice at

the revocation hearing. See (ROA.71-73).

To show the assault, the government introduced a police report and a brief

doorbell video. See (ROA.84-85). The report said that Petitioner and his girlfriend had

argued in bed the night of the incident, during which time he threw a pillow at her

she shoved his head away from hers. See (ROA.128). At that point, according to the

5

report, Petitioner rose from the bed; his girlfriend ran outside in front of the doorbell

camera to capture any assault that might follow. See (ROA.128).

The video shows the victim running onto the porch, exhorting Petitioner to

“come outside and do it.” (Government’s Exhibit 2). He follows and can be seen hitting

her four times in as many seconds. See (Government’s Exhibit 2, at 0:06-0:10). She

then kicks him away, receives one more punch, and tells him six or seven times that

he is going to jail. See (Government’s Exhibit 2, at 0:10-0:30).

The district court found all of the violations to be true and revoked supervised

re-lease. See (ROA.105-106). Because Petitioner had been convicted of a Class C

felony, he faced two years imprisonment upon revocation, plus a new term of

supervision equal to three years minus the term of imprisonment imposed upon

revocation. See 18 U.S.C. §§922(g), 3559, 3583(e),(h). The non-binding policy

statements found at USSG §7B1.4 recommended a sentence of 21-24 months. See

(ROA.153). The district court imposed 24 months imprisonment, the maximum prison

sentence permitted by law, and no further supervision. See (ROA.109).

II.

Proceedings in the Court of Appeals

Petitioner appealed contending that a sentence at the statutory maximum

represented a plainly unreasonable application of the factors enumerated at 18

U.S.C. 3583(e) and 3553(a). Specifically, he noted that he had held stable employment

during his term of release and accepted responsibility for his misconduct, something

to which a maximum sentence definitionally gave no mitigating weight.

6

Although the court below has held that revocation sentences can be reviewed

only to determine whether they are “plainly unreasonable,” to preserve review,

Petitioner argued that courts of appeal should offer relief upon a finding that the

sentence is “unreasonable” even if it is not plainly so. He noted that the “plainly

unreasonable” standard of review comes from 18 U.S.C. §3742(e)(4), which directs the

court of appeals to reverse a sentence that “was imposed for an offense for which there

is no applicable sentencing guideline and is plainly unreasonable.” However, he

noted, United States v. Booker, 543 U.S. 220 (2005), “severed and excised” all of 18

U.S.C. §3742(e), replacing it with review for “reasonableness.” Booker, 543 U.S. at

245 (“We conclude that this provision must be severed and excised, as must one other

statutory section, § 3742(e), which depends upon the Guidelines' mandatory

nature.”).

The court of appeals affirmed. It expressly applied the “plainly unreasonable”

notwithstanding the preservation of error. [Appx. A, at 1-2]; United States v. Medlock,

No. 22-11217, 2023 WL 4421385, at *1 (July 10, 2023)(unpublished)(“When a

defendant properly preserves an objection for appeal, revocation sentences are

reviewed under a “plainly unreasonable” standard.”)(citing United States v. Warren,

720 F.3d 321, 326 (5th Cir. 2013)). And it affirmed under that standard:

The record indicates the district court employed an individualized,

reasoned, and fact-specific analysis consistent with the permissible §

3553 (a) factors. Specifically, the district court addressed Medlock's

history and characteristics and found that deterring criminal conduct

while protecting the public from Medlock was the dominant, overriding

factor, considering the evidence that Medlock committed an assault.

Medlock fails to show the court's weighing of these factors was plainly

unreasonable.

7

Medlock, 2023 WL 4421385, at *1 (emphasis added)(internal citations omitted)(citing

Warren, 720 F.3d at 332-33).

8

REASONS FOR GRANTING THIS PETITION

There is a long-standing division of federal authority regarding the

proper standard of review for terms of imprisonment following the

revocation of supervised release.

Section 3742(e) of Title 18 provides a standard of review for the appeal of

federal criminal sentences. Specifically, it provides that sentences should be reviewed

to determine whether they were “imposed as a result of an incorrect application of

the sentencing guidelines.” 18 U.S.C. §3742(e)(2). But under the statute a sentence

“for which there is no applicable sentencing guideline” is reviewed to determine

whether it is “plainly unreasonable.” 18 U.S.C. §3742(e)(4). Because the revocation of

supervised release is governed by policy statements rather than sentencing

guidelines, revocation sentences were long thought to be reviewed only for “plain

unreasonableness.” See e.g. United States v. Stiefel, 207 F.3d 256, 259 (5th Cir.2000).

United States v. Booker, 543 U.S. 220 (2005), however, severed and excised this

portion of the criminal code. Booker held that the facts determining the maximum of

a defendant’s mandatory guideline sentence must be determined by a jury and proven

beyond a reasonable doubt. See Booker, 543 U.S. at 226-227. But it further concluded

that Congress would have preferred advisory guidelines to mandatory guidelines

whose factual components were decided by a jury beyond a reasonable doubt. See id.

at 245. In order to effectuate what it perceived as Congress’s second choice, it “severed

and excised” those portions of the Code that enforced or contemplated mandatory

Guidelines. See id. at 245. Section 3742(e) was among those provisions, and was

replaced by a single standard of review for “reasonableness.” See id. at 259, 261. The

9

Court did not distinguish between different portions of 18 U.S.C. §3742(e). See id. at

259, 261.

The result of the Booker opinion on this point has been a deep and persistent

circuit split on the current standard of review for sentences of imprisonment following

the revocation of supervised release. Some circuits understand the Booker opinion to

mean what it says – that none of 18 U.S.C. §3742(e) is enforceable, including

§3742(e)(4), and that all of it has been supplanted by review for reasonableness. See

United States v. Lewis, 424 F.3d 239, 243 (2d Cir. 2005); United States v. Cotton, 399

F.3d 913, 916 (8th Cir.2005); United States v. Miqbel, 444 F.3d 1173, 1176, n.5 (9th

Cir. 2006); United States v. Sweeting, 437 F.3d 1105, 1106-1107 (11th Cir.2006). But

other courts, like the one below, have concluded that the standard for revocation

sentences remains “plain unreasonableness.” See United States v. Crudup, 461 F.3d

433, 437 (4th Cir. 2006); United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011);

United States v. Sanchez, 900 F.3d 678, 682 (5th 2018); United States v. Kizeart, 505

F.3d 672, 674–75 (7th Cir.2007).

In the court below, this means that some acknowledged errors in revocation

cases will be affirmed because they are not clearly established under existing law,

even if error has been impeccably preserved. See Miller, 634 F.3d at 844 (“…the court

clearly considered § 3553(a)(2)(A) and in doing so, that court erred. Despite this

mistake, the district court's error was not plainly unreasonable. When the district

court sentenced Miller, our circuit's law on this question was unclear and therefore,

that court's consideration of § 3553(a)(2)(A) was not an obvious error.”)(footnote

10

omitted); Sanchez, 900 F.3d at 682 (“…the ‘plainly unreasonable’ standard, … has

two steps… At the second step, however, we vacate the sentence only if the identified

error is ‘obvious under existing law,’ such that the sentence is not just unreasonable

but plainly unreasonable….Law from the ‘obviousness’ prong of Rule 52(b)’s plain

error test informs this latter inquiry, …. notwithstanding that the error was in fact

preserved.”)(internal citations omitted).

And as this case shows, that view has persisted in the court below even after

Holguin-Hernandez v. United States, __U.S. __, 140 S.Ct. 762 (2020), which mandated

substantive reasonableness review for a sentence imposed following revocation.

Indeed, the court below has repeatedly held that Holguin-Hernandez is limited to the

narrow question presented -- whether substantive reasonableness review must be

preserved by an objections – and declared it irrelevant to closely related issues. See

United States v. Merritt, 809 F. App'x 243, 244 (5th Cir. 2020)(unpublished)(“The

Supreme Court’s decision in United States v. Holguin-Hernandez is inapplicable to

this case of alleged procedural error…”); United States v. Cuddington, 812 F. App'x

241, 242 (5th Cir. 2020)(unpublished)(“Our case law requiring a specific objection to

preserve procedural error remains undisturbed, as we have previously held in at least

one unpublished decision.”)(citing United States v. Gonzalez-Cortez, 801 F. App'x 311,

312 n.1 (5th Cir. 2020)).

Petitioner’s case provides an appropriate vehicle to address this conflict. The

court below expressly applied the “plainly unreasonable” standard of review. See

[Appx. A, at 1-2]; United States v. Medlock, No. 22-11217, 2023 WL 4421385, at *1

11

(July 10, 2023)(unpublished). Indeed, its analysis concluded with the statement that

“Medlock fails to show the court's weighing of these factors was plainly

unreasonable.” [Appx. A, at 2]; United States v. Medlock, No. 22-11217, 2023 WL

4421385, at *1. It thus did not pass on the reasonableness of the sentence, but only

on its ability to survive its relaxed standard of review for revocations.

The standard of review thus may well have decided the outcome of the case.

This Court should grant certiorari to resolve the issue that has divided the courts of

appeals and then either decide the merits of the case or remand to the Fifth Circuit.

12

CONCLUSION

Petitioner respectfully submits that this Court should grant certiorari to

review the judgment of the United States Court of Appeals for the Fifth Circuit.

Respectfully submitted this 6th day of October, 2023.

JASON D. HAWKINS

Federal Public Defender

Northern District of Texas

/s/ Kevin Joel Page

Kevin Joel Page

Assistant Federal Public Defender

Federal Public Defender's Office

525 S. Griffin Street, Suite 629

Dallas, Texas 75202

Telephone: (214) 767-2746

E-mail: joel_page@fd.org

Attorney for Petitioner

13