Opposition Brief — Monterial Wesley, Petitioner v. United States
Supreme Court briefMay 6, 2024
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No. 23-6384
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
MONTERIAL WESLEY, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
NICOLE M. ARGENTIERI
Principal Deputy Assistant Attorney
General
TYLER ANNE LEE
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTION PRESENTED
Whether the district court abused its discretion in finding
that
“extraordinary
reducing
and
petitioner’s
compelling
preexisting
reasons”
did
sentence
under
not
support
18
U.S.C.
3582(c)(1)(A), where his motion relied on alleged errors at his
trial and sentencing.
(I)
ADDITIONAL RELATED PROCEEDINGS
United States District Court (D. Kan.):
United States v. Wesley, No. 07-cr-20168 (Mar. 10, 2022)
Wesley v. United States, No. 12-cv-2704 (May 22, 2013)
United States Court of Appeals (10th Cir.):
United States v. Wesley, No. 22-3066 (Feb. 28, 2023)
United States v. Wesley, No. 13-3149 (Sept. 23, 2013)
United States v. Wesley, No. 09-3307 (May 23, 2011)
(II)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 23-6384
MONTERIAL WESLEY, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-22a) is
reported at 60 F.4th 1277.
The order of the district court (Pet.
App. 50a-66a) is not published in the Federal Supplement but is
available at 2022 WL 715094.
JURISDICTION
The judgment of the court of appeals was entered on February
28, 2023.
A petition for rehearing was denied on August 28, 2023
(Pet. App. 23a-24a). On November 9, 2023, Justice Gorsuch extended
the time within which to file a petition for a writ of certiorari
to and including December 27, 2023.
The petition for a writ of
2
certiorari was filed on December 26, 2023.
The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a guilty plea and jury trial in the United States
District Court for the District of Kansas, petitioner was convicted
on one count of conspiring to manufacture, possess with the intent
to distribute, and distribute 50 grams or more of cocaine base,
and to possess with intent to distribute and distribute five
kilograms or more of cocaine, in violation of 18 U.S.C. 2,
21
U.S.C. 841(a)(1), (b)(1)(A)(ii), (b)(1)(A)(iii), and 846; three
counts
of
using
a
communication
device
to
facilitate
a
drug
trafficking crime, in violation of 21 U.S.C. 843(b); and two counts
of attempting to possess cocaine with the intent to distribute, in
violation of 18 U.S.C. 2, 21 U.S.C. 841(a)(1), (b)(1)(A)(ii), and
846.
Judgment 1-2.
The district court sentenced petitioner to
360 months of imprisonment.
Judgment 3.
The court of appeals
affirmed, 423 Fed. Appx. 838, and this Court denied a petition for
a writ of certiorari, 565 U.S. 993.
The
under
28
district
court
U.S.C.
2255
denied
to
petitioner’s
vacate
his
subsequent
sentence,
and
motion
denied
a
certificate of appealability, 2013 WL 2285102; the court of appeals
likewise denied a certificate of appealability, 532 Fed. Appx.
822.
Petitioner filed a motion for a sentence reduction under 18
U.S.C. 3582(c)(1)(A).
D. Ct. Doc. 1993 (Feb. 10, 2021).
The
district court dismissed in part and denied in part the motion,
3
Pet. App. 50a-66a, and the court of appeals affirmed, Pet. App.
1a-22a.
1.
a.
The
Sentencing
Reform
Act
of
1984
(Sentencing
Reform Act), Pub. L. No. 98-473, Tit. II, Ch. II, 98 Stat. 1987
(18
U.S.C.
practices.”
3551
et
seq.),
“overhaul[ed]
federal
sentencing
Tapia v. United States, 564 U.S. 319, 325 (2011).
To
make prison terms more determinate, Congress “established the
Sentencing Commission and authorized it to promulgate Sentencing
Guidelines and to issue policy statements.”
Dillon v. United
States, 560 U.S. 817, 820 (2010); see 28 U.S.C. 991, 994(a).
Congress
also
abolished
the
practice
of
federal
parole,
specifying that a “court may not modify a term of imprisonment
once
it
has
circumstances.
been
imposed”
except
in
certain
enumerated
18 U.S.C. 3582(c); see Tapia, 564 U.S. at 325.
One of those circumstances is set forth in 18 U.S.C. 3582(c)(1)(A).
As
originally
enacted
in
the
Sentencing
Reform
Act,
Section
3582(c)(1)(A) stated:
the court, upon motion of the Director of the Bureau of
Prisons, may reduce the term of imprisonment, after
considering the factors set forth in [18 U.S.C.] 3553(a)
to the extent that they are applicable, if it finds that
extraordinary and compelling reasons warrant such a
reduction and that such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission.
Sentencing Reform Act § 212(a)(2), 98 Stat. 1998-1999.
Congress
made clear that “[r]ehabilitation of the defendant alone shall not
4
be considered an extraordinary and compelling reason.”
28 U.S.C.
994(t); see Sentencing Reform Act § 217(a), 98 Stat. 2023.
Congress
promulgate
also
directed
“general
appropriate use of
the
Sentencing
Commission
to
* * *
the
policy
statements
* * *
the sentence modification provisions
set forth in [Section] 3582(c).”
regarding
28 U.S.C. 994(a)(2)(C); see
Sentencing Reform Act § 217(a), 98 Stat. 2019. Congress instructed
“[t]he
Commission,
regarding
the
in
promulgating
sentencing
general
modification
policy
provisions
statements
in
section
3582(c)(1)(A) of title 18, [to] describe what should be considered
extraordinary
and
compelling
reasons
for
sentence
reduction,
including the criteria to be applied and a list of specific
examples.”
28 U.S.C. 994(t); see Sentencing Reform Act § 217(a),
98 Stat. 2023.
The
Commission
did
when
promulgate
an
it
Sentencing
issued
applicable
policy
statement
until
§ 1B1.13.
See Sentencing Guidelines App. C, Amend. 683 (Nov. 1,
2006).
2006,
not
Guidelines
As amended in 2016, the commentary to Section 1B1.13
described four categories of reasons that should be considered
extraordinary
and
compelling:
“Medical
Condition
of
the
Defendant,” “Age of the Defendant,” “Family Circumstances,” and
“Other
Reasons.”
(n.1(A)-(D))
(2016);
Sentencing
see
Guidelines
Sentencing
§
1B1.13,
Guidelines
Amend. 799 (Nov. 1, 2016) (emphasis omitted).
App.
comment.
C
Supp.,
The fourth category
-- “Other Reasons” -- encompassed any reason determined by the
5
Bureau
of
Prisons
(BOP)
director
to
be
“extraordinary
and
compelling” “other than, or in combination with,” the reasons
described in the other three categories.
Sentencing Guidelines §
1B1.13, comment. (n.1(D)) (2016).
b.
In the First Step Act of 2018 (First Step Act), Pub. L.
No. 115-391, Tit. VI, § 603(b), 132 Stat. 5239, Congress amended
Section 3582(c)(1)(A) to allow defendants, as well as the BOP
itself, to file motions for a reduced sentence.
As amended,
Section 3582(c)(1)(A) now states:
the court, upon motion of the Director of the Bureau of
Prisons, or upon motion of the defendant after the
defendant has fully exhausted all administrative rights
to appeal a failure of the Bureau of Prisons to bring a
motion on the defendant’s behalf or the lapse of 30 days
from the receipt of such a request by the warden of the
defendant’s facility, whichever is earlier, may reduce
the term of imprisonment * * * , after considering the
factors set forth in section 3553(a) to the extent that
they are applicable, if it finds that
* * *
extraordinary and compelling reasons warrant such a
reduction * * * and that such a reduction is consistent
with applicable policy statements issued by the
Sentencing Commission.
18 U.S.C. 3582(c)(1)(A) (emphasis added).
After the First Step Act’s enactment, the Sixth Circuit
determined that the 2016 version of Sentencing Guideline § 1B1.13,
including
its
description
of
what
should
be
considered
“extraordinary and compelling” reasons, was not applicable to
Section 3582(c)(1)(A) motions filed by defendants.
States v. Jones, 980 F.3d 1098, 1109-1110 (2020).
See United
6
2.
In
July
2006,
law
enforcement
began
investigating
petitioner’s
drug
trafficking
activities
in
Leavenworth,
Kansas
area.
Petitioner
Presentence
and
Investigation
co-defendant
Shevel
Foy
the
Report
(PSR)
purchased
¶
34.
over
100
kilograms of cocaine from co-defendant Thomas Humphrey in five to
ten kilogram increments.
PSR ¶ 35.
Petitioner and Foy then
distributed the cocaine through a network of distributors in
Leavenworth and two cities in Missouri.
PSR ¶ 34.
A confidential
source identified petitioner as “one of the main cocaine suppliers”
in Leavenworth.
PSR ¶ 79.
Intercepted
calls
from
petitioner’s
cell
phone
revealed
numerous drug-related conversations with co-defendants and other
individuals, including approximately 172 calls between petitioner
and Foy between August and November 2007.
PSR ¶ 48.
Petitioner
stored money at another co-defendant’s residence and on multiple
occasions directed her to bring him large sums of cash coinciding
with drug transactions he had arranged over the phone.
PSR ¶ 49.
In November 2007, agents arrested petitioner and recovered a loaded
pistol from his vehicle.
PSR ¶ 60.
A federal grand jury in the District of Kansas returned a 12count
indictment
charging
petitioner
with
various
relating to his trafficking of cocaine and cocaine base.
Doc. 50 (Feb. 1, 2008).
offenses
D. Ct.
After the jury was empaneled, but before
any evidence was presented, petitioner pleaded guilty to four
counts of the indictment: one count of conspiring to manufacture,
7
possess with intent to distribute, and distribute 50 grams or more
of cocaine base, and to possess with the intent to distribute and
distribute five kilograms or more of cocaine, in violation of 18
U.S.C. 2, 21 U.S.C. 841(a)(1), (b)(1)(A)(ii), (b)(1)(A)(iii), and
846; and three counts of using a communication device to facilitate
a drug trafficking crime, in violation of 21 U.S.C. 843(b).
423
Fed. Appx. at 839; Judgment 1-2.
Petitioner proceeded to trial on
the
found
remaining
counts
and
was
guilty
on
one
count
of
attempting to possess five or more kilograms of cocaine with the
intent to distribute, in violation of 18 U.S.C. 2, 21 U.S.C.
841(a)(1), (b)(1)(A)(ii), and 846; and one count of attempting to
possess 500 or more grams of cocaine with the intent to distribute,
in violation of 18 U.S.C. 2, 21 U.S.C. 841(a)(1), (b)(1)(B)(ii),
and 846.
Judgment 1-2.
The district court sentenced petitioner to 360 months of
imprisonment.
Judgment 3.
The court of appeals affirmed, 423
Fed. Appx. 838, and this Court denied a petition for a writ of
certiorari, 565 U.S. 993.
3.
his
In 2012, petitioner moved under 28 U.S.C. 2255 to vacate
sentence,
alleging
appellate counsel.
ineffective
assistance
of
D. Ct. Doc. 1500 (Oct. 31, 2012).
trial
and
The district
court denied the motion and denied petitioner a certificate of
appealability.
D. Ct. Doc. 1575 (May 22, 2013).
The court of
appeals likewise denied petitioner’s application for a certificate
of appealability.
532 Fed. Appx. at 822-823.
8
4.
Nearly ten years later, in December 2021, petitioner
moved for a sentence reduction under Section 3582(c)(1)(A).
Ct. Doc. 1993.
D.
Petitioner claimed that the prosecutor in his case
had solicited false testimony about drug quantities at his trial
and that her misconduct was an “extraordinary and compelling”
reason
warranting
a
sentence
modification.
Id.
at
9-33.
Petitioner also asserted that his sentence was excessively long
and disproportionate compared to his co-defendants who pleaded
guilty or cooperated with the government.
Id. at 33-38.
The district court dismissed petitioner’s motion in part and
denied it in part.
Pet. App. 50a-66a.
The court first observed
that petitioner’s prosecutorial-misconduct claim, “which
* * *
allege[d] that he is entitled to release because his sentence was
based on the unconstitutional acts of the prosecutor in this case”
and “unquestionably attack[ed] the validity of his conviction,”
was
one
that
“must
§ 2255 petition.”
be
asserted
Id. at 55a.
in
the
context
of
a
The court rejected petitioner’s
contention that he could raise such a claim under 18 U.S.C.
3582(c), explaining that “the more specific federal habeas corpus
statute is the ‘exclusive’ remedy in situations where it ‘so
clearly applies.’”
Id. at 60a (quoting Preiser v. Rodriguez, 411
U.S. 475, 489 (1973)). The court accordingly dismissed that aspect
of petitioner’s motion for lack of jurisdiction, id. at 55a, and
declined to issue a certificate of appealability, id. at 62a-63a.
9
The district court also rejected petitioner’s claim that his
sentence was excessively long and disproportionate compared to
others,
observing
sentence
and
cooperated
that
other
with
“the
disparity
individuals
the
who
government
between
entered
does
[petitioner’s]
guilty
not
pleas
or
constitute
an
extraordinary and compelling reason for a sentence reduction.”
Pet. App. 63a.
The court explained that such a challenge was “one
to the sentencing guidelines themselves and the prosecutor’s broad
discretion in the plea negotiation context” and that petitioner
had failed to identify any circumstances “unique to him” warranting
relief.
Id. at 65a.
5.
The
court
of
appeals
appealability and affirmed.
district
court
that
granted
a
Pet. App. 1a-22a.
petitioner’s
certificate
of
It agreed with the
assertion
of
prosecutorial
misconduct in a Section 3582 motion was an improper effort to
“circumvent
2255.”
the
procedural
Id. at 7a.
assertion
that
and
substantive
requirements
of
§
The court of appeals rejected petitioner’s
“‘extraordinary
reasons’
is
limitless, subject only to the district court’s discretion.”
Id.
at 9a (citation omitted).
and
compelling
It instead identified several reasons
why Section 2255 “is presumptively the vehicle by which federal
prisoners
sentences.”
must
raise
challenges
to
their
convictions
or
Id. at 12a.
First, the court of appeals observed that Section 3582 directs
courts to ensure that any sentence modification is consistent with
10
“policy statements issued by the Sentencing Commission,” 18 U.S.C.
3582(c), and the court doubted that Congress would have granted
the Sentencing Commission “the authority to decide whether federal
postconviction challenges must proceed through § 2255 or not.”
Pet. App. 13a.
Second, the court observed that Section 3582(c)
requires a prisoner to ask BOP to seek Section 3582 relief on his
behalf before making the request himself, a screening mechanism
that makes sense if the requests must be based on behavioral or
medical issues on which BOP has “special expertise,” but not if
the requests may be based on trial errors.
Id. at 13a-14a
(citation omitted). Third, the court reasoned that that a district
court’s discretion to deny relief under Section 3582(c) would have
“incongruous” results as applied to claims like petitioner’s,
because a court could discretionarily deny relief even where a
prisoner “proves an error or defect of constitutional magnitude.”
Id. at 14a.
Fourth, the court noted that Section 3582(c) requires
the consideration of the applicable sentencing factors in 18 U.S.C.
3553(a), which have no obvious application where the defendant
claims he was wrongfully convicted and sentenced.
Id. at 14a-15a.
And fifth, the court observed that Section 3582(c) permits early
release but preserves the criminal judgment against the prisoner,
and
that
a
more
explicit
instruction
from
Congress
would
be
necessary to justify the assumption that discretionary sentence
modification
was
the
intended
conviction and sentencing.
remedy
Id. at 16a.
for
claims
of
wrongful
11
In recognizing that a Section 2255 postconviction motion,
rather than a discretionary sentence-modification motion, would
have
been
the
appropriate
avenue
for
petitioner’s
claim
of
prosecutorial misconduct, the court of appeals noted that its
decision was consistent with “the majority of circuits to have
issued a published decision on this issue.”
6.
banc.
Pet. App. 16a-17a.
The court of appeals denied a petition for rehearing en
Pet. App. 23a-24a.
Judge Tymkovich, the author of the panel opinion, concurred
in the denial of rehearing en banc.
Pet. App. 25a-26a.
He
emphasized that the panel opinion “explains in detail why [Section
3582(c)(1)(A)(i)]
does
not
apply
to
[petitioner’s]
claims
of
prosecutorial misconduct,” and creates “no conflict” with circuit
precedent or the views of the Sentencing Commission.
Id. at 25a.
Judge Rossman dissented from the denial of rehearing en banc.
Pet. App. 27a-49a.
In her view, the panel’s reasoning was at odds
with the statute, circuit precedent, and the recently stated view
of the Sentencing Commission.
Id. at 29a.
ARGUMENT
Petitioner contends (Pet. 11-12, 14) that errors in his trial
and sentencing can serve as an “extraordinary and compelling”
reason for a sentence reduction under Section 3582(c)(1)(A).
contention lacks merit.
That
And although courts of appeals have
reached different conclusions on the issue, petitioner overstates
the extent of the disagreement, and the Sentencing Commission
12
recently issued an amended policy statement that undermines the
practical significance of prior circuit disagreement.
This Court
has
writs
repeatedly
and
recently
denied
petitions
certiorari that presented similar issues. 1
for
of
It should follow the
same course here.
1.
The court of appeals correctly rejected petitioner’s
contention that errors in his trial or sentencing can constitute
an “extraordinary and compelling” reason for a sentence reduction
under Section 3582(c)(1)(A).
Pet. App. 10a-22a.
a.
The overarching principle of federal sentencing law is
a
“federal
that
court
generally
‘may
imprisonment once it has been imposed.’ ”
not
modify
a
term
Dillon v. United States,
560 U.S. 817, 819 (2010) (quoting 18 U.S.C. 3582(c)).
Section
3582(c)(1)(A) provides a limited “except[ion]” to that rule.
U.S.C. 3582(c).
of
18
To disturb the finality of a federal sentence
under that provision, the district court typically must identify
“extraordinary and compelling reasons” for doing so.
18 U.S.C.
3582(c)(1)(A)(i);
(providing
see
18
U.S.C.
3582(c)(1)(A)(ii)
specific statutory criteria for reducing the sentence of certain
elderly prisoners who have already served lengthy terms).
See, e.g., Ferguson v. United States, No. 22-1216 (Feb.
26, 2024); West v. United States, No. 23-5698 (Feb. 26, 2024);
McCall v. United States, 143 S. Ct. 2506 (2023) (No. 22-7210);
Gibbs v. United States, 143 S. Ct. 1796 (2023) (No. 22-5894); King
v. United States, 143 S. Ct. 1784 (2023) (No. 22-5878); Fraction
v. United States, 143 S. Ct. 1784 (2023) (No. 22-5859).
1
13
The
extraordinary
and
compelling
reason
that
petitioner
asserts here is an allegation of “prosecutorial misconduct.”
12.
Pet.
Petitioner alleges that the prosecutor encouraged witnesses
to lie about drug quantities at his trial, thereby “undermin[ing]
the constitutional integrity” of the proceedings.
D. Ct. Doc.
1993, at 20.
The assertion of such an error is neither an “extraordinary”
nor a “compelling” reason for a sentence reduction under Section
3582(c)(1)(A).
statutory
construction’
‘interpreted
meaning
Consistent
as
. . .
taking
with
that
their
the
“ ‘fundamental
words
generally
ordinary,
canon
of
should
be
contemporary,
common
at the time Congress enacted the statute,’ ”
Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018)
(citation omitted), the word “extraordinary” should be understood
“to mean ‘most unusual,’ ‘far from common,’ and ‘having little or
no precedent,’ ” United States v. McCall, 56 F.4th 1048, 1055 (6th
Cir. 2022) (en banc) (quoting Webster’s Third New International
Dictionary of the English Language 807 (1971) (Webster’s)), cert.
denied, 143 S. Ct. 2506 (2023). There is “nothing ‘extraordinary’ ”
about a challenge to the trial or sentencing proceedings, because
such challenges “are the ordinary business of the legal system,
and their consequences should be addressed by direct appeal or
collateral review under 28 U.S.C. § 2255.”
United States v. King,
40 F.4th 594, 595 (7th Cir. 2022), cert. denied, 143 S. Ct. 1784
(2023); see Gonzalez v. Crosby, 545 U.S. 524, 536 (2005) (observing
14
that
“[i]t
is
hardly
extraordinary
that
subsequently,
after
petitioner’s case was no longer pending, this Court arrived at a
different interpretation” of a federal statute).
Such an assertion of error likewise cannot constitute a
“compelling”
reduction.
reason
for
a
Section
3582(c)(1)(A)
sentence
When Congress enacted the Sentencing Reform Act of
1984, “[c]ompelling” meant “forcing, impelling, driving.”
56 F.4th at 1055 (quoting Webster’s 463).
McCall,
Thus, for a reason to
be “compelling” under Section 3582(c)(1)(A), it must provide a
“powerful and convincing” reason to disturb the finality of a
federal sentence.
United States v. Jenkins, 50 F.4th 1185, 1197
(D.C. Cir. 2022) (citation omitted).
“But given the availability
of direct appeal and collateral review under section 2255 of title
28,” there is no powerful and convincing reason to allow prisoners
to challenge the legal validity of a conviction or sentence under
Section 3582(c)(1)(A).
Section
2255
Id. at 1200.
is
the
“remedial
vehicle”
that
Congress
“specifically designed for federal prisoners’ collateral attacks
on their sentences.”
Jones v. Hendrix, 599 U.S. 465, 473 (2023).
Treating an asserted legal error in the original proceedings as an
“extraordinary and compelling” reason for a sentence reduction
would permit defendants to “avoid the restrictions of the postconviction
relief
statute
by
compassionate release instead.”
resorting
to
a
request
for
United States v. Crandall, 25
F.4th 582, 586 (8th Cir.), cert. denied, 142 S. Ct. 2781 (2022).
15
And it “would wholly frustrate explicit congressional intent to
hold that [defendants] could evade” those restrictions “by the
simple expedient of putting a different label on their pleadings.”
Preiser v. Rodriguez, 411 U.S. 475, 489-490 (1973).
Accordingly, an asserted legal error in the original trial or
sentencing
cannot
serve
as
an
“extraordinary
and
compelling
reason[]” for a sentence reduction either in isolation or as an
addition
to
a
3582(c)(1)(A)(i).
package
of
such
“reasons.”
18
U.S.C.
Whether considered alone or in combination with
other asserted factors, such an asserted error is a “legally
impermissible” consideration for purposes of determining whether
an extraordinary and compelling reason exists.
Jenkins, 50 F.4th
at 1202 (citation omitted).
b.
Petitioner’s contrary arguments lack merit.
Petitioner
contends (Pet. 23) that the court of appeals improperly narrowed
Section 3582(c)(1)(A)’s reach beyond the “express limitations”
that Congress included: the requirements that any reduction be
consistent
with
statements,
that
applicable
the
district
Sentencing
court
Commission
consider
any
policy
applicable
Section 3553(a) factors, and that rehabilitation alone shall not
be
considered
an
extraordinary
and
compelling
reason.
That
contention disregards the express textual requirement that the
reason for a reduction be both “extraordinary and compelling.”
U.S.C. 3582(c)(1)(A)(i).
18
And as explained above, the asserted
16
legal
invalidity
of
a
conviction
extraordinary nor compelling.”
Petitioner
argues
(Pet.
or
sentence
is
“neither
Jenkins, 50 F.4th at 1200.
27-28)
that
granting
a
Section
3582(c)(1)(A) sentence reduction based on a trial or sentencing
error would not in fact intrude on the domain of Section 2255, on
the theory that he “did not present a standalone claim alleging
that his sentence was imposed in violation of the Constitution or
federal law” and “[g]ranting [him] a sentence reduction would not
require any finding that his sentence is invalid.”
But petitioner
asserts that the prosecutor committed misconduct that resulted in
“an unconstitutional proceeding.”
court
could
not
accept
that
D. Ct. Doc. 1993, at 20.
assertion
without
A
“necessarily”
concluding that his conviction and sentence were infected by
precisely the sort of legal invalidity that would provide the basis
for collateral relief under Section 2255.
Jenkins, 50 F.4th at
1204. As the court of appeals observed, “[w]hen a federal prisoner
asserts a claim that, if true, would mean ‘that the sentence was
imposed in violation of the Constitution or laws of the United
States,’”
he
“is
bringing
a
claim
governed
by
§
2255,”
and
petitioner “cannot avoid this rule by insisting [that] he requests
relief
purely
entitlement.”
as
an
exercise
of
discretion
rather
than
Pet. App. 20a (citation omitted).
Petitioner also suggests that the decision below creates an
“unworkable standard” for district courts because it is unclear
what types of claims are prohibited in a motion for a sentence
17
reduction under Section 3582(c).
Pet. 30 (emphasis omitted).
But
as the court of appeals explained, “[w]hen a federal prisoner
asserts a claim that, if true, would mean” that his conviction or
sentence was invalid, “the prisoner is bringing a claim governed
by § 2255,” and such a motion, “however captioned or argued, must
be treated as a § 2255 motion.”
Pet. App. 20a-21a.
And because
district courts “have for decades been screening postconviction
motions for claims that are, in substance, § 2255 claims, even
though ostensibly brought under some other authority,” there is
“no reason to believe district courts will have more difficulty
isolating § 2255 claims brought in the guise of compassionate
release compared to § 2255 claims brought in some other guise.”
Id. at 26a (Tymkovich, J., concurring in the denial of rehearing
en banc).
Petitioner contends (Pet. 14-21) that the courts of
2.
appeals are divided on whether a claim like his can constitute an
extraordinary and compelling reason for a sentence reduction under
Section 3582(c)(1)(A).
But petitioner overstates the level of
disagreement in the courts of appeals, and the recent amendment to
Sentencing
Guidelines
§
1B1.13
undercuts
the
prospective
significance of any such disagreement.
a.
Petitioner acknowledges (Pet. 17-21) that most of the
courts of appeals that have considered the question have determined
that a claim like his cannot constitute an extraordinary and
compelling
reason
for
a
sentence
reduction
under
Section
18
3582(c)(1)(A).
See Pet. App. 16a-17a; United States v. Ferguson,
55 F.4th 262, 269-272 (4th Cir. 2022), cert. denied, No. 22-1216
(Feb. 26, 2024); United States v. Escajeda, 58 F.4th 184, 188 (5th
Cir. 2023); United States v. West, 70 F.4th 341, 346-347 (6th Cir.
2023), cert. denied, No. 23-5698 (Feb. 26, 2024); Crandall, 25
F.4th at 586 (8th Cir.); Jenkins, 50 F.4th at 1200-1204 (D.C.
Cir.).
Petitioner errs in asserting (Pet. 15-16), however, that two
other circuits have taken a different approach. Although the First
Circuit has taken the view that an asserted legal error can form
part of an individualized assessment of whether extraordinary and
compelling reasons exist in a particular defendant’s case, see
United States v. Trenkler, 47 F.4th 42, 48-49 (2022), petitioner
incorrectly categorizes (Pet. 15-16) the Ninth Circuit as having
adopted that view.
In the decision that petitioner cites (Pet.
15-16),
Circuit
the
Ninth
stated
that
prospective
statutory
amendments enacted by Congress can form part of an individualized
determination
of
whether
extraordinary
exist for reducing a preexisting sentence.
48 F.4th 1092, 1093 (2022).
and
compelling
reasons
United States v. Chen,
But the court did not address whether
the type of reason asserted here -- a trial or sentencing error
that causes the legal invalidity of the conviction or sentence -can constitute an extraordinary and compelling reason.
Cf. United
States v. Roper, 72 F.4th 1097, 1102 (9th Cir. 2023) (noting the
issue, but deciding the case without resolving it because the
19
defendant “does not claim that his original sentence violated the
Constitution or federal law”).
b.
In
any
event,
the
Sentencing
Commission’s
recent
amendment to Sentencing Guidelines § 1B1.13, which took effect
November 1, 2023, supersedes any disagreement in the circuits.
That
amendment
revised
Section
1B1.13
to
“extend[]
the
applicability of the policy statement to defendant-filed motions.”
88 Fed. Reg. 28,256 (May 3, 2023).
The amendment also revised
Section 1B1.13 to “expand[] the list of specified extraordinary
and compelling reasons that can warrant sentence reductions.”
Ibid.
Even as expanded, however, that list does not include the
type of reason asserted here.
See id. at 22,254-22,255.
Under Section 3582(c)(1)(A), any sentence reduction must be
“consistent
with
applicable
Sentencing Commission.”
policy
statements
issued
18 U.S.C. 3582(c)(1)(A).
by
the
Because the
Commission has now issued an amended policy statement applicable
to
defendant-filed
motions,
and
because
that
amended
policy
statement does not permit reliance on the asserted legal invalidity
of
a
conviction
or
sentence
in
the
determination
of
whether
extraordinary and compelling reasons for a sentence reduction
exist,
any
disagreement
among
the
circuits
on
the
question
presented lacks prospective significance.
Even in those circuits
that
his
petitioner
views
as
having
adopted
position
on
the
question presented under then-current law, district courts will
now be limited by the amended policy statement’s description of
20
what may be considered extraordinary and compelling reasons and
therefore may not rely on the type of reason petitioner asserts
here.
See United States v. Ruvalcaba, 26 F.4th 14, 23-24 (1st
Cir. 2022) (acknowledging that “[i]f and when the Sentencing
Commission
issues
updated
guidance
applicable
to
prisoner-
initiated motions,” district courts “will be required to ensure
that their determinations of extraordinary and compelling reasons
are
consistent
with
that
guidance”);
Chen,
48
F.4th
at
1098
(acknowledging that district courts “are bound by” applicable
policy statements).
The amended policy statement specifies that “a change in the
law
* * *
may be considered in determining whether the defendant
presents an extraordinary and compelling reason” under certain
circumstances.
purports
to
88 Fed. Reg. at 28,255.
allow
a
district
court
But while that provision
to
consider
a
statutory
amendment enacted by Congress, a legal error of the sort asserted
here would not qualify as “a change in the law” within its scope.
See Pet. App. 25a (Tymkovich, J., concurring in the denial of
rehearing en banc) (explaining that the “amended policy statement
* * *
contains not a word about errors in a conviction or sentence
as a basis for compassionate release”).
Petitioner’s assertion of
prosecutorial misconduct does not rely on any alteration of the
governing legal approach.
And because petitioner’s claim of an
error in his original proceedings, proffered as a potential ground
for reducing his sentence, is not “similar in gravity,” Sentencing
21
Guidelines
§
1B1.13(b)(5),
to
the
preceding
sentence-focused
reduction grounds to which it must be compared -- namely, medical
concerns, age, family circumstances, and abuse while imprisoned
-- see Sentencing Guidelines § 1B1.13(b)(1)-(4), it likewise does
not supply a basis for such a reduction.
In any event, the court of appeals decided this case in
February 2023, nine months before the Commission’s amendments to
§ 1B1.13 went into effect in November 2023.
Although the opinions
concerning the denial of rehearing en banc briefly discuss the
pending amendment, Pet. App. 25a (Tymkovich, J., concurring in the
denial); id. at 43a, 47a-48a (Rossman, J., dissenting from the
denial), there is no sound reason for the Court to consider the
question presented in a case that predates the amended policy
statement and any relevant consideration of the implications of
that policy statement by the circuit courts.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
NICOLE M. ARGENTIERI
Principal Deputy Assistant
General
TYLER ANNE LEE
Attorney
MAY 2024
Attorney
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